Litigation Lens: Insights From Recent Age Discrimination Litigation

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Michael Nail: Ogletree Podcast listeners, Michael Nail here. I’m a litigator in Ogletree’s Greenville, South Carolina office, and I’m coming at you today with a very first episode of Litigation Lens, where our Ogletree attorneys will bring the law to life with recent noteworthy employment law cases, of course, coupled with practical takeaways. And during this series, you’ll hear about real cases with real outcomes analyzed by Ogletree lawyers across the country in numerous practice areas.
Today, you’ll have the privilege of listening to the inaugural episode, which is focused on a recent case from the United States District Court for the District of Kansas. And with me for this very first episode of Litigation Lens is Sarah Zucco from Ogletree’s New York City office.
Sarah, how are you today?

Sarah Zucco: I’m good. How are you, Michael?

Michael Nail: Great. Could you please tell the listeners a little bit about yourself?

Sarah Zucco: Sure. I am an attorney in Ogletree’s New York City office, and I practice a mix of employment litigation and employment counseling.

Michael Nail: Awesome. I’m so glad that you’re here today to join me for this, again, very first episode of this series.
Now, in typical lawyerly fashion, I’ve got to give the listeners a couple of caveats before we get started. Number one, we’re going to talk about this very recent case, a summary judgment decision that was decided on April 10th of this year, 2025. And we’re going to touch on some of the key facts, but we’re not going to have time to go into every single fact, but we are going to give you, the listeners, enough information to understand the basis of the ruling, the basis of the court’s decision.
Also, one thing to keep in mind is that the law considered by the court and rendering its decision in this case was 10th Circuit case law. And while Title VII legal framework, on a general basis, might be similar in other district courts and in other federal circuit courts, facts and circumstances of other matters should, of course, be analyzed pursuant to that applicable federal law and in some cases applicable state or local law.
And one more thing before we dive in. This might be somewhat of an elephant in the room, so to speak, but neither of us practice in Kansas, Sarah. So, why this case? Well, listeners, we want to give you a real case example. It’d be easy for me and Sarah to come up with a hypothetical, but this is a recent case, a real case, and one that, hey, you might be faced with or might be a similar situation that you would need to analyze down the road.
So, let’s dive right in. As an overview, again, this was an April 10th, 2025, opinion in the District Court of Kansas, United States District Court for the District of Kansas. This court found in favor of an employer who terminated a supervisor, who I’m going to name Larry, for not reporting an instance of harassment. Now, in this case, Larry, the plaintiff, received a complaint of sexual harassment from an employee that he supervised. And rather than reporting the incident, as required by company policy, Larry addressed the accused directly, telling the accused to simply stop the harassment.
Now, when the company learned of this failure to report, it terminated Larry. And Larry claimed that he was actually terminated because of his age. The court disagreed, ultimately finding that the employer’s stated reason for the termination was legitimate, and Larry failed to present evidence that the employer’s reason for the termination was pretextual.
So, looking at these facts on a more granular level, Larry began working for this company’s predecessor in January of 2008. He was hired by this company when he was 48 years old. The company later promoted Larry to a management role as a value stream leader, or what the company referred to as a VSL. Now, VSLs are mandatory reporters under the company’s anti-harassment policy that requires employees to bring complaints to their supervisor, manager, or HR.
Now, Larry’s subordinate, the complainant, complained to HR regarding sexual harassment. The harasser was another subordinate of Larry. During HR’s investigation, the employer determined that Larry became aware of the harassment from another employee, who the complainant told. Now, at first, this other employee told another VSL, who’s important here, Luke, who then referred the employee to Larry. So, again, Luke finds out about this complaint, and he tells the individual to go to Larry.
Now, the investigation resulted in the harasser being terminated, but the investigation also revealed that Larry did not report it to anyone, not to his supervisor or to HR, pursuant to company policy. Instead, he told the harasser that he needed to, “Stay away from the girls,” and, “Leave the woman alone.” And HR never learned of the conduct until the complainant complained to HR months later.
Now, at first, Larry’s supervisors initially did not want to terminate him for failure to report, but one of the supervisors changed his mind after talking to the investigator. And ultimately, the company allowed Larry to retire instead of being terminated for dignity purposes. Larry was 61 years old when his employment ended, and importantly, the employer replaced Larry with two younger employees. Now, I told you Luke was important, that other VSL who learned about the allegations. Now, this other VSL, Luke, was only counseled on how to handle complaints, such as actively listening and asking questions. Luke was not terminated, so he did not receive the same level of discipline as Larry did.
Now, before I pass it off to Sarah, I want to give the listeners more of a legal framework, now. We’ve gone through the basic facts. Let’s talk about the legal framework. This age-based discrimination case was analyzed under a standard that many of the listeners might be familiar with, and that’s the McDonnell Douglas framework. Under this framework, the plaintiff here, Larry, bears the initial burden of establishing a prima facie case of unlawful discrimination. Now, if Larry does, the burden shifts back to the employer, defendant, to articulate a legitimate non-discriminatory reason for taking the adverse action, which was here termination.
Now, if the employer satisfies its burden, the burden then shifts back to Larry to prove that the defendant’s proffered reasons were pretextual, or in other words, not the true reason for the employment decision. Here, the employer moved for summary judgment, so it asked the court to dismiss the case before it ever goes to trial, before it ever goes in front of a jury, on the basis that Larry could not establish the legitimate, non-discriminatory reason was pretextual.
So, with that framework, I’m going to pass it off to Sarah now, who I’m sure you’d much rather hear from than me, to explain a little bit about how the court analyzed the different arguments and why the court ultimately granted summary judgment on behalf of the employer. So, Sarah, why don’t you jump in, and let us know what the court did?

Sarah Zucco: Thanks, Michael.
So, interestingly here, the company did not dispute that Larry could establish a prima facie case of age discrimination. They conceded that he was over 40, that he was terminated from his employment, and that he was replaced by a younger person. Therefore, the court did not address whether he could establish a prima facie case, and they conceded that he could. And they moved on to whether the company established a legitimate, nondiscriminatory reason for terminating Larry and whether Larry can show that the reason was pretextual.
With respect to the legitimate, nondiscriminatory reason, the company argued that it terminated Larry for failing to follow its sexual harassment policy, specifically the mandatory reporting requirement for supervisors. And Larry was a supervisor. And Larry does not dispute this was the reason given. The court found that the company met the light burden in establishing a legitimate nondiscriminatory reason, since the reason is not discriminatory on its face and reasonably specific and clear.
The court then spent most of the decision focusing on whether the reason for terminating Larry was pretextual, since this is what the parties dispute. Essentially, the court is looking to determine whether the reason provided by the company that Larry didn’t follow the reporting requirements in the sexual harassment policy were either factually false, or discrimination was a primary factor in the company’s decision to terminate Larry. So, we’re looking to determine the true intentions of the company here, or that’s what the court’s looking to do.
The court then addressed the three reasons that Larry provides for why the company’s reason for his termination, not following the company’s policy, were pretextual. So, the first reason that Larry gives that the court looks at is Larry says that there was differential treatment between him and his younger colleague, Luke. He claims that Luke was only counseled on the company’s policy and how to follow it, rather than terminated for not following the policy.
So, the court said in order for Larry to prevail on this reason, he must show that he’s similarly situated with Luke, and they have engaged in misconduct of comparable seriousness. The court says that here, Larry doesn’t show that Larry and Luke had the same supervisor, which is an important factor of this. And even if Larry could show this, the alleged harasser reported to Larry, not Luke, so therefore Larry was the supervisor of the alleged harasser here.
The court also noted that Luke told the coworker that reported this alleged harassment to go speak to the alleged harasser supervisor, which was Larry. Larry, in contrast, didn’t tell anyone in the supervisory chain of command, not even HR, and HR found out months later, whereas Luke had the individual speak to Larry. So, that’s where the court said that these are factually different and it’s not a proper comparator, and therefore the difference in treatment is okay and it’s not pretextual.

Michael Nail: Yeah, let me stop you right there. Just an observation. So, I told the listeners earlier that Luke was important, and I think that is a key distinction that you just pointed out that Luke did find out from a coworker that this happened, or this was at least alleged to have happened, but Luke might’ve not done the right thing. He might not have completely complied with the policy, so to speak. He said, “Just go tell Larry.” But at least he did something, and I think that’s what the court was swayed by. At least he did something. It might not have been perfect, but Larry didn’t do anything. He didn’t tell anyone in the supervisory chain of command. Do you-

Sarah Zucco: Correct.

Michael Nail: … think that’s right?

Sarah Zucco: Correct. And that’s very important because the company’s policy here requires you to report it to another supervisor, HR, legal. It gives a list of people that you should escalate the complaint to. So, the court focused on, well, Luke escalated the complaint. He had the complaint go to another supervisor, Larry. Whereas Larry, it just stopped. Larry instead went to the alleged harasser and spoke to the alleged harasser directly instead of escalating the complaint. So, that was where the court focused on this is a different situation, so they’re not true comparators because of that reason.

Michael Nail: Absolutely. And I think there were two other things that the court looked at in the pretext context. Is that right?

Sarah Zucco: Correct. They then moved on to Larry’s second argument for why there was pretext with respect to the decision to terminate him. Larry’s second argument is that the company failed to follow its own policies and essentially acted contrary to them by issuing the termination. So, the court found that Larry provides no evidence supporting that the company acted contrary to its written company policy. Particularly, the court found that Larry’s argument that one of the human resource investigators in the harassment complaint had a personal vendetta against Larry, and as a result interviewed too many people and failed to properly weigh the statements made.
If this was true, and they’re not saying that it was, it doesn’t establish that the company was not objective or failed to follow its policy. They say that’s immaterial. Having a personal vendetta, even if it’s true or not, doesn’t affect whether the company here followed its written policies. And then the court goes on to say that a personal vendetta is immaterial if there’s no evidence of any discriminatory animus based on age, and they didn’t see anything. Larry didn’t provide anything suggesting there was.
The court also found that Larry’s claim that there were investigative irregularities, even if that was true, doesn’t directly or uniquely disadvantage him. And he doesn’t provide any evidence showing this. So, then the court goes on to Larry’s third argument for why the termination decision was pretextual, which is Larry alleges there was inconsistent rationales for the different treatment by the company of Larry and Luke, who we were talking about previously.
So, the court acknowledges that an employee can establish pretext if inconsistent reasons for the termination reason are provided, but the court acknowledges that there’s a difference from providing additional reasons without abandoning the original reason. That is not an inconsistency. If you provide additional reasons, then there is no inconsistency. So, the court found here the only reason for Larry’s termination was his failure to follow the policy. He never escalated the complaint up to another supervisor, human resources, legal. It stopped with him. And then the court went on to say that details about whether Luke knew about whether the complaint was regarding sexual harassment or harassment in general, which is what Larry is now alleging, are immaterial; it doesn’t take away from the fact that the only reason for Larry’s termination was that he didn’t follow the policy.
And then lastly, the court rejected several cases that Larry provides to try to analogize his situation with those in the cases that he cites that established pretext, and all those cases that he cites to are where the company didn’t follow the policy violations with respect to others. And the court says, “Here, that’s not the case. There’s no evidence that this company didn’t follow this written policy about having to escalate complaints of harassment to supervisors or to human resources with respect to other employees.” Larry doesn’t provide any evidence that this company disregarded this written policy. And then the court finds that there was no pretext and grants summary judgment accordingly.

Michael Nail: And just reading the opinion, and you can tell me if I’m wrong, Sarah, but I want to see if you agree with me, it seems to me like Larry and his counsel was throwing anything and everything they could out there to try to create an issue of fact to overcome summary judgment. But a lot of what they were saying, a lot of what they were alleging was conclusory, it was speculative, and ultimately self-serving, and it wasn’t really supported by any actual evidence. And I think ultimately the court said that at one point. But would you agree that he was basically throwing a lot on the wall to see if it stuck, but nothing stuck because it was never backed up by the evidence?

Sarah Zucco: Correct. And the court mentions throughout its opinion that these are immaterial, what he’s saying is immaterial, it doesn’t apply here, there’s no evidence. He was just trying to come up with reasons for why this decision was pretextual.

Michael Nail: Absolutely. So, let’s talk about the key takeaways before we wrap up.
Just from a basic standpoint, this case is a good recent reminder of how a court might analyze an age-related discrimination case. Again, that could be dictated by the different district court you’re in, even state court, circuit court, if it’s on appeal. But this is a real case, and a lot of cases will settle before they get to the summary judgment point. And we don’t see a lot of times how judges and how courts are analyzing these issues, so it’s a good reminder of the things to look for, having proper investigation protocols in place in certain circumstances, and again, how courts and judges might analyze these issues.
Also, it’s a good reminder of issues related to anti-harassment policies. The listeners might be familiar with the Faragher-Ellerth defense, which is a well-known affirmative defense to sexual harassment claims. This rule derived from two companion cases in the Supreme Court of the United States in 1998, and the Supreme Court held that employers may have an affirmative defense to sexual harassment claims where no adverse action is taken if it can prove that it took steps to prevent or correct harassment, which may include having policies, like the one here perhaps, and practices in place to prevent and correct the harassment. And the employee unreasonably failed to use those provided complaint mechanisms or preventive or corrective options against that.
That’s called the Faragher-Ellerth defense to sexual harassment claims. So, it’s a good reminder of the potential impact of having these policies and practices in place. And of course, if companies, if employers do have these policies, they’ll need to ensure that they comply with applicable state and even local law in certain circumstances. And same thing with training or mandatory reporting obligations. All of that could be dictated by state and local law as well. But as a baseline, this case could be a reminder to perhaps review those policies, review those practices, and put those practices into place appropriately.
But any other key takeaways that you had, Sarah?

Sarah Zucco: Thanks, Michael. All good takeaways. I would say another one, and the circumstances may vary case to case, but if an employer is going to terminate or discipline an employee for a violation of a company policy, which was done here in this case, especially if that person belongs to a protected class like Larry did, he was over 40, the employer may want to review whether they are enforcing policies consistently to minimize potential liability.
For example, here, the court found that there was no evidence that the enforcement of the sexual harassment reporting policy was not uniformly enforced, and it wasn’t just enforced against Larry. So, there may be different results if the employer didn’t terminate others for failing to comply with the policy, and then they decided to terminate Larry. So, that’s one thing to keep in mind, is that you want to be consistent in forcing your policies if you’re then going to terminate or discipline someone for a violation of that policy.

Michael Nail: Absolutely. Well, Sarah, I wanted to thank you for joining me for the very first episode. And I wanted to give the listeners a plug to stay tuned for more. As I said at the beginning, the purpose of this series is to provide you with real case examples. These cases might not always be summary judgment decisions. It could be cases that have been on appeal, or we could be talking about a jury verdict that was entered. And again, these cases are going to come from all around the country. You’re going to hear from Ogletree Deakins attorneys in different practice areas and in different offices across the country as well.
So, with that, we really appreciate your time today. And again, stay tuned for more as it relates to the Litigation Lens series of the Ogletree Deakins Podcast.

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