Court Rejects Age Discrimination Claim

A federal appellate court recently rejected a lawsuit brought by a worker who was fired after his employer discovered that his password was used to access pornographic websites from a shared workplace computer. Finding that the trial judge correctly determined that the worker had failed to establish a genuine issue of material fact that would call into question his employer’s legitimate, nondiscriminatory reason for the discharge, the Fifth Circuit Court of Appeals rejected the worker’s age discrimination claim. Cervantez v. KMGP Services Company Inc., No. 08-11196, Fifth Circuit Court of Appeals (September 16, 2009).

Factual Background

Efrain Cervantez worked as a field operator on an oil field at KMGP Services Company’s Scurry Area Canyon Reef Oil Companies Unit (SACROC). KMGP’s policy manual specified that “indecent, profane, obscene, intimidating, or unlawful material may not be sent or downloaded by any form of electronic means or displayed on or stored in the Company’s computers or printed.” The policy also stated that “System Users are responsible for all transactions made using their passwords,” and that violations of the policy may result in disciplinary action up to and including termination. KMGP also had a policy that the Internet was to be used for business purposes only.

Brian Spence, an employee in charge of the SACROC computers, uncovered “cookies” indicating that Cervantez’s user ID and password had been used to access pornographic websites. After confirming that Cervantez had been at work on the dates that his user ID was used to access the prohibited websites, HR representative Bradley Lewis advised Cervantez that his employment was terminated. Cervantez denied visiting the prohibited websites and demanded to see the log detailing the websites in question. Lewis refused.

KMGP replaced Cervantez, who was 57 years old, with Paul Navarete, who was 43 years old. During the Texas Workforce Commission’s (TWC) proceedings to determine whether Cer-vantez was entitled to unemployment benefits, Cervantez received access to the log of websites allegedly visited with his user ID. The logs produced by KMGP for these proceedings showed attempts to access the prohibited websites on many other dates (including dates when Cervantez did not work).

Cervantez then sued KMGP alleging that his termination violated the Age Discrimination in Employment Act. The trial judge ruled in KMGP’s favor and Cervantez appealed.

Legal Analysis

Cervantez argued that the trial judge failed to apply the correct burden of proof, failed to properly weigh the apparent inconsistencies as to the dates the improper behavior occurred, and improperly discounted the significance of a manager’s discriminatory comment.

Finding that the trial judge correctly applied the law, the Fifth Circuit Court of Appeals rejected Cervantez’s arguments. The court first emphasized that “a fired employee’s actual innocence of his employer’s proffered accusation is irrelevant as long as the employer reasonably believed it and acted on it in good faith.” The court next ruled that the existence of a second, more comprehensive log that KMGP produced for the TWC proceedings did not establish a material fact on the issue of whether its stated reason for firing Cervantez was true.

Finally, the court found that the trial judge did not err in disregarding a comment made by a member of KMGP’s “top management” that the company was going to start hiring young people. In arriving at this conclusion, the court noted that the comment was made several years before Cervantez’s discharge. Moreover, the court found that a reasonable factfinder would not have thought that the management member, who had left KMGP 18 months before Cervantez’s discharge, could have influenced the decision to fire Cervantez.

Thus, the Fifth Circuit affirmed the trial judge’s decision to dismiss the case.

Practical Impact

According to Alf Southerland, a shareholder in Ogletree Deakins’ Houston office who represented KMGP in this matter: “This case reaffirms that courts will not generally second-guess an employer’s decision for disciplining an employee. So long as the rea-son for the adverse action was nondiscriminatory (such as violating the company’s electronic communications policy), employers should feel safe that the wisdom of their decision will withstand any scrutiny.”

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

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