"More Energetic Person" Comment May Prove Costly

Court Reinstates Age Discrimination Suit Brought By Fired Executive

A federal appellate court recently held that a 58-year-old executive who was fired for allegedly failing to meet company expectations may sue his former employer for age discrimination. According to the Fourth Circuit Court of Appeals, a reasonable jury could find that the company discriminated against him in violation of the Age Discrimination in Employment Act (ADEA). Inman v. Klockner Pentaplast of America, Inc., No. 08-1882, Fourth Circuit Court of Appeals (October 22, 2009).

Factual Background

Dean Inman was employed by Klockner Pentaplast of America (KPA). In addition to serving as vice president of technology, Inman was a member of KPA’s “steering team” (which was an executive committee comprised of the senior leadership that managed the company).

In 2001, Cinven Company and J.P. Morgan purchased KPA for more than $800 million. Their plan was to cut costs, increase profits, and resell the company in four to five years. In 2007, they sold KPA to a private equity firm for approximately $1.8 billion.

Prior to the sale, in December 2005, Inman was terminated after working for KPA for 17 years. He was replaced by David Veasey, who was 45 years old and KPA’s vice president of operations. KPA claimed that it terminated Inman for failing to meet company expectations. Specifically, KPA maintained that Inman had refused to develop a plan to set measurable goals for his department, refused to support a salary freeze endorsed by the steering committee, and harassed the human resources staff regarding a change to the company’s health plan.

Inman, on the other hand, claimed that during his termination meeting with Michael Tubridy, president of KPA’s North and South American Operations, he was told that he “did not fit the `profile’ or `model’ of what is needed in a technical leader in terms of KPA’s presentation to potential buyers of the company.” Tubridy also allegedly stated that KPA needed a “more energetic person” as leader of the technical department.

The trial judge rejected Inman’s age discrimination claim and he appealed.

Legal Analysis

The Fourth Circuit Court of Appeals found that Inman offered credible evidence to dispute KPA’s stated reason for his discharge. According to the court, Inman had received bonuses every year and Tubridy even singled him out for praise at a company meeting just a few weeks before firing him. “[I]f Inman has evidence from which a jury could conclude that the real reason he was fired was his age,” the court wrote, “the jury could also conclude that the deficiencies that KPA claimed existed in Inman’s work were exaggerated to cover up the age-based motivation for the termination.”

The court also pointed out that during an October 2005 meeting attended by Tubridy a management consultant suggested that KPA enlist young, energetic “future people.” Tubridy noted the phrase “young, energ[etic]” on a paper napkin. This evidence, the court found, would allow a jury to conclude that the real reason for firing Inman was his age. As a result, the court reinstated his age bias claim.

Practical Impact

According to Matt Keen, a shareholder in Ogletree Deakins’ Raleigh office: “This case reminds employers to caution managerial employees about making or even repeating comments that could be considered euphemisms for age. In this case, the court went so far as to consider the notes concerning a consultant’s suggestion to enlist young and energetic people. Even though the consultant was not an employee, the court found it relevant that the president of the company found the reference to youth significant enough to write down.”

Note: This article was published in the November/December 2009 issue of The Employment Law Authority.