The Court of Appeals for the Fifth Circuit has upheld a lower court’s summary judgment ruling in favor of a defendant that was sued for violating the Age Discrimination in Employment Act and state law in Texas after the plaintiff accused the call center he worked for of passing him over for promotion based on his age.
A copy of the ruling in the case of Smith v. AT&T Mobility Services can be accessed by clicking here.
The plaintiff spent nearly two decades working as a customer service representative for the defendant. In 2018, his position was transferred to another city and the plaintiff was given a choice — relocate to the new city or take a local CSR job with a significant pay reduction. He chose the latter, hoping to eventually be promoted to a customer service manager position.
The plaintiff applied for three manager positions, for which 33 individuals were selected, and did not receive a promotion for any of the positions. When inquiring about one of the openings, the plaintiff was told that the defendant was “not going to hire any tenured employees” because the new facility where they would be working was “state of the art” and the company needed individuals who were “innovative.” The plaintiff, who was 60 years old, filed a complaint with the Equal Employment Opportunity Commission, which issued a right to sue letter. The plaintiff filed suit, but a District Court judge granted the defendant’s motion for summary judgment, ruling the plaintiff had failed to exhaust his administrative remedies for one of the positions, while failing to state a case for the other two.
The Appeals Court spent most of its discussion on the comment about not hiring “tenured employees” because it “expressly identified a class of employees” that the defendant would not consider. But while “tenured” can be considered a euphemism for age, and mentioning the excluding tenured employees because they would not be as innovative has “everything to do with stereotypes about age,” the Appeals Court ultimately decided that the plaintiff did not present enough evidence to connect “tenure” to mean age.
“Smith would need to present evidence establishing that O’Neal intended ‘tenure’ to mean age — for example, by presenting testimony from other AT&T employees demonstrating that the term ‘tenured’ is commonly understood to be code for ‘age’ within the company,” the Appeals Court wrote. “Absent such evidence, we must presume that O’Neal believes that tenured CSR employees simply possess the wrong kind of experience, regardless of their age.”
