We had a blizzard last Friday (in North Carolina, 2 inches is a blizzard), and we still have ice and snow on the ground a week later.

Anyway, I've had enough of winter now and am ready for 2025 spring training to start (less than a month away for my Detroit Tigers!).

I got way off track. I'm sorry. Here is our real topic for the day. An employer got sued for age discrimination after it fired its DEI Director.

Never a good idea to discriminate against your DEI Director, of all people. (Allegedly.)

The employer tried to get the case dismissed on summary judgment, but a federal judge in Tennessee (Trump appointee) denied the motion, meaning that the case will go to a jury.

According to the court, the employer had not three, but seven, strikes against it. That means the employer struck out 2 and 1/3 times (I guess there were a couple of foul balls). 

Play-by-Play

The Plaintiff was hired at age 52 to be the DEI Director for a university in Tennessee (not that big orange one in Knoxville – a different one). According to her supervisors, for the first five years of her employment, she did a good job.

Then she got some new supervisors . . . when she was about 58. The new bosses said that the Plaintiff’s diversity programming was ho-hum, that she didn’t spend enough time interacting with students, that she complained a lot, and that she kept her camera turned off during Zoom conferences.

(I did not realize that last was ground for termination. Uh-oh.)

Anyway, the Plaintiff was terminated in 2021 for poor performance and poor attitude. She wasn’t replaced for about nine months, but when they did hire a replacement, the replacement was a 24-year-old with (arguably) no relevant experience.

Seven strikes, and yer out!

So, what were the seven employer strikes that got this case to a jury? If you’re in Human Resources or an employment lawyer, the answers will not surprise you!, but they might be good to share with your supervisors and managers and clients:

STRIKE ONE: No documentation. Even though the Plaintiff was supposedly a lousy employee, there was no documented discipline or counseling about any of her alleged problems. The only exception was a writeup that the supervisors slapped together the day before the termination at the request of HR.

STRIKE TWO: Good performance evaluations. All of the Plaintiff’s performance evaluations for the whole six years of her employment were positive or neutral . . . with the exception of that document that the new supervisors slapped together at the request of HR the day before they terminated the Plaintiff.

STRIKE THREE: Nobody cared about the Zoom camera. Although the Plaintiff allegedly wasn’t doing well with Zoom conferences, one of her prior supervisors noted in her performance evaluation that she had “made a seamless transition to working from home.” (This was in 2020, during the pandemic.) Another employee testified that she’d never heard of anyone getting in trouble for having their camera turned off during a Zoom conference. (I am relieved!)

STRIKE FOUR: Relying on feedback from past bosses . . . who thought she did a good job. Even though new bosses generally have the right to impose more demanding – or different – standards on employees than the predecessor bosses did, in this case the new bosses didn’t do that. Instead, they claimed without evidence that they were relying on assessments from the old bosses . . . who had given the Plaintiff good performance reviews and had never disciplined her.

I’m still trying to wrap my head around that one.

STRIKE FIVE: No prior counseling, training, or discipline. Once the new bosses took over, even though they were unhappy with the Plaintiff’s performance, they never counselled her, provided training on the latest in DEI, or disciplined her. According to the court, the university admitted that no serious complaints about the Plaintiff were raised until after she was fired.

STRIKE SIX: Code words? One of the bosses responsible for the termination said that he wanted a DEI Director who was “more relatable to students” and who better “resonated with students.” The Plaintiff argued that these were code words for age discrimination. The court said the comments weren't the same as calling the Plaintiff a “dinosaur” or “over the hill,” so not necessarily, but coupled with all of the other suspicious circumstances of the case, maybe so.

STRIKE SEVEN: Younger, less qualified replacement. The university hired a replacement who was significantly younger and who was arguably less qualified for the position than the Plaintiff.

The court did make one finding in favor of the university. The Plaintiff showed that her department hired 19 employees after she was terminated. Of those new hires, 14 were under the age of 32. Sounds terrible, right? The Plaintiff claimed that this was Strike Eight. But, according to the court, she didn’t back up her claim with any evidence about the applicant pools, including their ages and relative qualifications. The court said that in one case where an older employee was replaced by a youngster, the older employee was no longer in the position because she had been promoted. In another case, a 24-year-old employee was replaced by a 22-year-old. Big deal.

Of course, the court was only denying a motion for summary judgment, which means that the employer will not necessarily lose the case. After hearing all of the evidence, a jury might decide that the Plaintiff deserved to be terminated. Or, at least, that her age had nothing to do with it.

I had written this baseball-themed post before learning that Bob Uecker died yesterday at the age of 90. May you rest in peace, Mr. Uecker, and thank you for the laughs.