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Age Discrimination Supports Hostile Work Environment Claim

By Robyn Hagan Cain on October 06, 2011 | Last updated on March 21, 2019

Despite a district court’s holding to the contrary, the Fifth Circuit Court of Appeals thinks that there are genuine issues of material fact in a hostile work environment lawsuit when a manager allegedly called his 65-year-old employee “old man,” “pops,” and “old mother******” for two months.

Milan Dediol, the aforementioned 65-year-old, was a born-again Christian working for Best Chevrolet in Kenner, La., when he requested a day off from work to volunteer at his church.

After Best Assistant Manager Tommy Melady granted the request, Manager Donald Clay vetoed Dediol's leave, allegedly threatening, "You old mother******, you are not going over there tomorrow" and "if you go over there, [I'll] fire your f*****g ass."

Dediol claims Clay never again referred to him by his given name.

The Fifth Circuit noted that over the next two months, Clay disparaged Dediol's religion approximately 12 times and threatened to beat Dediol. He allegedly backed up the physical threats by removing his shirt and stating, "You don't know who you are talking to. See these scars. I was shot and was in jail." (Point taken.)

Dediol requested a move to a different department, which Clay blocked, so Dediol stopped going to work. He claimed that he could not work under the hostile conditions.

Dediol was terminated for abandoning his job, so he sued Best in an equal employment opportunity claim for hostile work environment based on age, religion harassment, and constructive discharge. Dediol also raised state law claims of assault. (Did we mention that Clay allegedly charged Dediol in front of 9 to 10 people? Because that may have happened.)

The district court granted Best's motion for summary judgment.

The Fifth Circuit Court of Appeals reversed, finding for the first time that a plaintiff's hostile work environment claim based on age discrimination under the Age Discrimination in Employment Act (ADEA) may be advanced in the Fifth Circuit.

The court adopted the Sixth Circuit's four-prong test from Crawford v. Medina General Hospital in extending the circuit's consideration of hostile work environment claims to age discrimination.

Under the test, a plaintiff advances a hostile work environment claim by establishing that:

  1. He was over the age of 40.
  2. The employee was subjected to harassment, either through words or actions, based on age.
  3. The nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment.
  4. There exists some basis for liability on the part of the employer.

Because Dediol satisfied all four parts of the test, the Fifth Circuit Court of Appeals reversed the district court's summary judgment on Dediol's age discrimination claims.

While common courtesy suggests that it's inappropriate to refer to a senior employee as "pops," and downright rude to call him "old mother******," the Fifth Circuit Court of Appeals now recognizes age discrimination to support a hostile work environment claim.

It may be time to contact your corporate clients for an update on sensitivity training and harassment regarding older employees in the workplace.

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