5th Cir. Rules No Pain & Suffering, Punitive Damages For ADEA Retaliation Claims

The Fifth Circuit has previously ruled that employees suing for age discrimination under the Age Discrimination in Employment Act (ADEA) may not recover damages for “pain and suffering” or punitive damages.  

Last week, the Fifth Circuit ruled in Vaughan v. Anderson Regional Medical Center that ADEA retaliation claims also do not allow for recovery of pain and suffering damages or punitive damages. 

The Fifth Circuit specifically pointed out that it is aware that the Equal Employment Opportunity Commission (EEOC) believes that the ADEA permits pain and suffering and punitive damages recoveries, but stated that it found such position unpersuasive.  

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Leiza is a business and employment litigation attorney in Dallas, Texas. If you need assistance with a business or employment dispute contact Leiza for a confidential consultation at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.

Staffing Agency Could be on the Hook for Termination of an 83-Year Old Receptionist at Client’s Request

staffing-agencyThe Fifth Circuit recently addressed an interesting issue – when a staffing agency’s client asks to replace an employee, does the staffing agency have a duty to investigate the reasons for the request?  For example, if a staffing agency’s client calls and says we want you to replace Bob, who is African-American, does the agency have a duty to ask why the client wants to terminate Bob and make sure it is not because of his race? The Fifth Circuit ruled that a staffing agency must follow its usual practices in responding to a client’s desire to have an employee removed, and a deviation from such practices may serve as evidence that the staffing agency knew or should have known of the client’s discrimination. So, in the example above, if the staffing agency typically investigates a client’s complaint about an employee, but in Bob’s case it removes him without confirming that he was unable to do his job, such action may create an issue of fact (and prevent summary judgment in favor of the employer) as to whether the staffing agency knew or should have known that the client’s request to remove the employee was discriminatory.

In Nicholson v. Securitas Services USA, Securitas was asked by a client to replace an 83-year old receptionist due to her not being able to perform new technology-related tasks. Securitas removed Nicholson, without asking her for an explanation and without any investigation, and replaced her with a 29-year old employee. According to at least one of its employees, this failure to “check out” the complaint or investigate the reason for the client’s request, was not a normal procedure at Securitas. The Fifth Circuit, therefore, found that the trial court improperly granted Securitas’ summary judgment because there was a fact issue regarding whether the staffing agency knew or should have known that its client’s request to replace Nicholson was motivated by her age.

Takeway:  A staffing agency is liable for discriminatory conduct of its joint-employer client if it (1) participates in the discrimination or (2) knows or should have known of client’s discrimination but fails to take corrective measures within its control. Moreover, a staffing agency’s deviation from standard evaluation or investigation practices is evidence of discriminatory intent.

Thus, staffing agencies should follow their policies and procedures in a consistent manner when faced with a client’s request to remove or replace an employee. If such request is later found to have been based on a prohibited discriminatory factor, a staffing agency who replaces an employee without investigating the client’s complaint may be liable for discrimination along with its client, if its failure to investigate constitutes deviation from its standard procedures.

Leiza is a business and employment litigation attorney in Dallas, Texas. If you need assistance with a business or employment dispute contact Leiza for a confidential consultation at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.


It’s All Fun And Games Until An “Old Fart” Files An Age Discrimination Lawsuit: A Lesson for Employers from the Fifth Circuit

oejidOkay, so George Clooney was not involved in this case, but he has one thing in common with the employee who filed the age discrimination claim in Goudeau v. National Oilwell Varco, L.P. – they are almost the same age.

When Maurice Goudeau was terminated by National Oilwell Varco (NOV) in 2011, he was 57 years old and had been working for the company and its predecessors for 18 years. Approximately 12 months before his termination, he began working with a new supervisor, who told him that “there sure [were] a lot of old farts around here,” asked Goudeau about the age of two older employees also assigned to this supervisor, and told Goudeau that he planned to fire both of them. Later, he also told Goudeau that he wore “old man clothes,” called him an “old fart,” and said that a smoking area was “where the old people met.”

Over the course of the next twelve months, Goudeau – who in the prior 17 years had an exemplary work record – received four write-ups and a poor annual performance review, and was terminated for insubordination and poor job performance.  The evidence showed that although he had complained about his supervisor’s “old fart” comment to the human resources department, they did nothing to investigate his complaint. Two months after his termination, the two older employees previously mentioned by his supervisor were also terminated for various reasons.

Goudeau brought an age discrimination lawsuit against NOV, arguing that he was written up for not doing tasks that were not in his job description, that he never saw the write ups prior to his termination or given an opportunity to take any corrective steps (as required per NOV’s own policy), and that NOV used the write-ups as a pretext for firing him, but that he was really fired because of his age.

The trial court dismissed his age discrimination and retaliation claims, but the Fifth Circuit reversed, holding that the “old fart” comments, combined with NOV’s failure to follow its own write-up and discipline procedures with respect to Goudeau, and the termination of two older employees, presented enough evidence to allow the case to go in front of the jury (as opposed to dismissing it outright like NOV argued). The Fifth Circuit, therefore, send the case back to the trial court so that the jury could decide whether NOV fired Goudeau based on his age, and whether the write-ups and a poor performance review were just a pretext for his termination.

TAKEAWAY: Normally, “stray comments” about age, race/color, sex, religion, national origin, physical disability or age, are not sufficient to give rise to an employment discrimination claim.  However, where such comments are later followed by an adverse employment action, such as termination or demotion, a risk of a discrimination lawsuit is very high.

Of course, while an employer can provide employment discrimination training to its employees, it cannot guarantee that all employees will follow it.  However, employers can do two things, which NOV did not do, to minimize litigation.  First, employers should never ignore discrimination complaints, however, small or petty they might seem at the time they are made.  Had the HR conducted the investigation and reprimanded or warned the supervisor about the inappropriate age comments, NOV might have avoided going to court. Second, if a company has a progressive discipline policy (by the way, not required under Texas law), it should apply such policy in a consistent and uniform manner.  When it comes to discrimination claims, not having a progressive discipline policy is almost better than having one that is applied arbitrarily.

You can read the entire court opinion in Goudeau v. National Oilwell Varco, L.P. here.

Leiza Dolghih represents both employers and employees in litigation and arbitration proceedings in state and federal courts.  If you are facing an actual or a potential employment dispute, contact Ms. Dolghih for a confidential consultation at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.