Calling Your Lawyer is Not Evidence of Retaliation

The Sixth Circuit issued a very interesting decision (Sander v. Gray Television Group, Inc. today involving a television news reporter who got mad and stormed off the job, saying "I'm qoing to quit" or words to that effect.  The decision is interesting for the holding that the employee did in fact quit and therefore could not establish a prima facie case (because quitting, short of a constructive discharge, is not an adverse action).

But what interested me was that the court, in discussing whether the employer, assuming it had fired the reporter, considered whether one manager telling another manager to contact the station's lawyers because knowing the employee, the station "would end up at this point sitting at this [litigation] table.”  In arguing that his "termiantion" was retaliatory (the court assumed the reporter engaged in protected activity) the reporter cited to this comment as evidence of retaliation.  The Sixth Circuit didn't buy it:

Companies that terminate employment relationships for legitimate reasons often choose to speak with counsel; therefore, Gray Television’s choice to do so here does not necessarily support a conclusion that Sander was fired in retaliation for complaints about age discrimination.

As of late, I've revived my interest in "age conscious statements" and this decision addressed an argument that is currently being made by older employees.  In his ADEA claim, the reporter (Sander) cited to allegedly age biased statements made by his new supervisor (Thomas) (who made some significant changes to the station).  The court, however, rejected the argument:

Sander claims that Thomas “admitted that he harbored an age-related bias against Sander.” However, to support this claim Sander can only point to Thomas’s comments regarding Sander’s “weak” energy levels and his perceived reluctance to change. The “perceived reluctance to change” was in relation to Sander’s disgruntled attitude toward learning to post stories on the web, which is not necessarily age-related. As for the “weak” comment, as the district court explained, one’s energy level is not only not necessarily related to age, but also is essential to the success of a television station.

I typically suggest, perhaps a bit unrealistically, that employers avoid making any statements that might be taken to reflect an age animus.  (My point is it is better to be explicit, not conclusory, in  describing an employee's performance issues and anything that avoids the cost of litigation is a good thing for an employer.  But truth be told, this decision shows that many innocent comments can be twisted and used against an employer.