?Takeaway: When discussing performance or misconduct issues with an employee, the employee may reference their protected status. Employers should not let the employee change the subject, but should remain focused on the facts of performance or conduct to avoid feeding into employee suspicions and claims of unlawful considerations.
?An employee who mentioned that she had post-traumatic stress disorder (PTSD) and who made statements that were interpreted to be threats did not have valid age and disability discrimination claims, the 7th U.S. Circuit Court of Appeals recently decided.
In June 2018, the plaintiff started as a temporary employee with Avancez, a car parts manufacturer. She was assigned to the third shift of the console line, which had eight different stations, and worked at the Continuity and Final Inspection Station. She performed testing on electronics and inspected each console before shipment to a car manufacturer.
The plaintiff was the oldest assembler on the shift. In September 2018, Avancez hired the plaintiff as a permanent employee. According to the plaintiff, shortly after being hired, she participated in a two-day orientation and training session for new employees. She claims that the trainer asked all the participants their names and ages, and she complied.
In October 2018, the plaintiff informed her team lead that she was supposed to be, but had not been, trained on other stations. According to the plaintiff, a third-shift plant manager asked the team lead why the plaintiff had not been trained, and the team lead responded that “they said she is too old” without explaining who “they” were. The third-shift plant manager immediately corrected the team lead and said the plaintiff should be trained on all other stations.
The next day, the plaintiff filed a complaint with HR, complaining of a hostile work environment. She also claimed that two other employees would regularly make statements about her being old and slow. She later explained that each co-worker made such comments more than twice and fewer than 10 times, but could not recall specific examples of their comments.
In February 2019, the plaintiff went to the HR manager’s office to learn what had become of her October complaint. The third-shift supervisor then entered the room to discuss a conflict that arose between the plaintiff and a co-worker the night before. During the meeting, the plaintiff stated that she was a service-disabled veteran and had PTSD.
The HR manager claimed that the plaintiff said she had PTSD and “anything can happen,” which he perceived as a threat. He prepared and issued an oral warning to the plaintiff and wrote a disciplinary statement that the plaintiff refused to sign. The plaintiff wrote a letter to the CEO, claiming age discrimination and that Avancez’ conduct was making her PTSD relapse.
In March 2019, Avancez claimed that the plaintiff bypassed a quality control system, based on surveillance video of her work station, and suspended her for three days as a result.
In May 2019, a dispute arose between the plaintiff and her team lead in which she allegedly asked the team lead to “take it outside,” which was taken as a threat. The shift supervisor ordered the plaintiff to attend a meeting the next day with an HR assistant, the team lead, a union chairperson and a union representative. At the meeting, the plaintiff allegedly asked her union representative if he would help, or if she would have to go to another organization for help. The union chairperson saw this as a threat. The HR assistant agreed and fired the plaintiff.
The plaintiff filed a lawsuit against Avancez, claiming discrimination based on age and disability. Avancez moved for summary judgment, the district court granted. The plaintiff appealed to the 7th Circuit.
The plaintiff denied that she had threatened others at work and claimed that Avancez fired her because of her age and PTSD. The 7th Circuit, however, noted that she was never disciplined for her PTSD, which only came up because she mentioned it. The only time a supervisor mentioned the plaintiff’s age was when her team lead refused to provide training in October 2018. In response, the third-shift plant manager corrected the team lead and insisted that the plaintiff be trained.
As a result, the 7th Circuit affirmed the district court’s dismissal of the claims.
Brooks v. Avancez, 7th Cir., No. 21-1933 (July 6, 2022).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
