Calling an Employee “Slow” Can Be Age Discrimination

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A FedEx manager who called an employee “slow” could have committed age discrimination according to a new ruling by a California Court of Appeal. The case, Michael Freem v. Superior Court of Orange County, partially reversed Orange County Superior Court Judge Richard Y. Lee’s grant of summary judgment in favor of FedEx by ruling that Lee erred because Freem had “established triable issues of material fact.

Petitioner Mitchell Freem was employed by the Federal Express Corporation (FedEx) as a senior vehicle technician. He reported to fleet manager Andrew Sweet, who is the real party in interest in Freem’s petition. Freem sued Sweet and FedEx for age discrimination, harassment, retaliation, and failure to prevent these offenses. After Judge Lee granted Fed Ex’s request for summary judgment, Freem filed a petition for a writ of mandate to set aside the court’s order.

The case was heard by Division Three of California’s Fourth District Court of Appeal, where a 2-1 decision in Freem’s favor found that Lee had erred when he granted summary judgment to FedEx on Freem’s complaints of age discrimination, age harassment, and failure to prevent these actions. The unpublished decision was authored by Justice Maurice Sanchez, with a concurrence by Presiding Justice Eileen C. Moore on June 7. Justice Joanne Motoike agreed with the majority regarding retaliation and punitive damages but dissented on Freem’s age discrimination claim.

Sanchez began the appellate opinion with a recap of Freem’s employment history at FedEx, which began in 2000 when he was hired as a “material handler” to load packages. After a series of promotions, Freem, then 51, became a senior vehicle technician doing preventive maintenance (PM). PM activities are monitored and tracked by computers, and failure to perform them could subject FedEx to penalties from the U.S. Department of Transportation, the California Highway Patrol, and the State.

In April 2018, Sweet suspended Freem without pay pending an investigation into the work he performed. Shortly thereafter, Freem filed an internal equal employment opportunity complaint that alleged age discrimination and harassment. His complaint contained reports of conversations during which Sweet said things like, “Freem will never become a manager.” Freem also said Sweet denied his requests for overtime that were subsequently given to others who were younger. Sweet also told Freem not to call him and not to give him a reason for firing him. Sweet reported that Freem had done fewer PMs than he had actually completed. These and other incidents led Freem to deny ever falsifying anything and to allege, “I am treated like I am old and slow.”

Freem was fired in 2018 when he was 53. He appealed to FedEx, which internally investigated and concluded that Freem’s timecards and PM forms were inaccurate and claimed work that was not performed. Additionally, the company found no evidence of age discrimination. Freem appealed, saying, “FedEx’s stated reasons for terminating Freem’s employment were pretext for discrimination based on Freem’s age and in retaliation for his reporting of unlawful conduct in the workplace.” Freem denied ever falsifying any reports and filed his suit.

The Fourth District issued a temporary stay inviting responses from both parties and sent the case back to the trial court that ordered Lee to vacate his ruling granting summary judgment in favor of FedEx. In the alternative, Lee could show cause why a peremptory writ of mandate should not be issued.

In response, the trial court found that FedEx had “established a legitimate, nondiscriminatory reason” for firing Freem due to falsification of PM forms and time cards. The burden then shifted to Freem who did not “offer substantial evidence that FedEx’s reasons were untrue or pretextual.” The case then returned to the Court of Appeal where Sanchez explained that California uses a “three-stage burden-shifting test” established by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 742 (1973).

This case held that since “direct evidence of intentional discrimination is rare…such claims must usually be proved circumstantially.” Freem thus had to provide evidence that he was a member of a protected class, he was qualified for the position he held, and he suffered an adverse employment action or other circumstance “suggested a “discriminatory motive.” Using this test, Sanchez wrote that although FedEx did provide evidence of its nondiscriminatory reasons for firing Freem, Freem did present evidence that raised a triable issue of fact. This was primarily based on Sweet’s calling him “slow” and on Freem’s showing that he filled out his timesheets according to management’s directions.

Sanchez summarized that the appellate court disagreed that Freem could not establish a claim for harassment because Sweet’s comments and actions were not based on Freem’s age and were neither severe nor pervasive. A factfinder, he said, “could reasonably find” that calling someone “slow was an age-related comment.” Similar remarks about other comments by Sweet were provided as well. The opinion gave similar reasons to support Freem’s harassment claims.

In addition, the opinion cited cases that established “an employer must take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Summary judgment on these grounds was also found to be in error along with the trial court’s grants of summary judgment for age discrimination, age-related harassment and failure to prevent these behaviors. The remainder of Freem’s allegations were denied.

Justice Motoike’s dissent found no evidence of age discrimination and said that “denominating an employee as slow is not actionable as harassment. She said Sweet’s actions were “in line with his role as a supervisor.”

Maureen Rubin
Maureen Rubin
Maureen is a graduate of Catholic University Law School and holds a Master's degree from USC. She is a licensed attorney in California and was an Emeritus Professor of Journalism at California State University, Northridge specializing in media law and writing. With a background in both the Carter White House and the U.S. Congress, Maureen enriches her scholarly work with an extensive foundation of real-world knowledge.
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