Talking to an employee about her retirement plans when considering the termination of her employment as discipline for a policy violation is not per se age discrimination, according to the U.S. Court of Appeals for the Sixth Circuit. On March 28, 2022, the Sixth Circuit ruled in Sims-Madison v. Dana Commercial Manufacturing, LLC, a single-plaintiff case with allegations of age and race discrimination in violation of the Kentucky Civil Rights Act, that considering an employee’s statement that she intended to retire in several months when making disciplinary decisions did not demonstrate pretext of age discrimination.

Background

The company had received multiple complaints over a period of more than a year that Johnnie Sims-Madison, a material handler, had treated coworkers disrespectfully and used inappropriate language in the workplace. During the company’s investigation of the complaint, the employee said she was going to retire in five months. The company reduced the severity of discipline based on, among other factors, her tenure and the fact that she said she was going to retire in a few months. When the company received more complaints about Sims-Madison and investigated the claims against her, she said she would “consider retirement immediately in lieu of disciplinary action, if the [c]ompany would be willing to pay out all remaining vacation and the [u]nion contractual lump sum increase.” The company made her a written offer to “resolve all claims and accommodate [her] request to retire.” Sims-Madison never responded, so the company terminated her employment. Sims-Madison then filed a lawsuit and alleged race and age discrimination.

The Court’s Analysis

The Sixth Circuit found that Sims-Madison had not offered any evidence that the employer had terminated her employment or ever wanted to terminate her employment because of her age or race. Instead, it was Sims-Madison herself who first introduced the idea of possible retirement to the company. The opinion noted that “mere inquiries or comments about a potential retirement” generally are not enough to prove pretext, but statements about retirement can become actionable if they involve pressure on an employee to retire or a bias against older workers.

Key Takeaways

Employers may want to tread lightly when asking employees about their plans to retire because such inquiries, along with other potential evidence of age bias, could lead to a finding of pretext. If, on the other hand, an employee brings up the topic of retirement and there is no other evidence of age bias, a court may find any consideration of retirement innocuous.