6th Circuit: 'Up there in years, you're at retirement age' is likely direct evidence of bias

A Michigan employer may have demonstrated age bias against a 60-year-old employee when it fired him after he had worked for the company for 40-plus years, the 6th Circuit recently ruled. The appeals court reversed the summary judgment (dismissal without a trial) that the lower court had granted to the employer on the former employee's age discrimination claim.

Facts

Kenneth Lowe worked as area manager for Walbro, LLC. In June 2016, Tom Davidson, a 35-year-old general manager, became Lowe's supervisor and determined (1) his understanding of robotics and blow molding was limited and (2) he relied heavily on two subordinates for equipment maintenance. When Davidson removed the subordinates from reporting to Lowe, he was left managing only one portion of the building and conducting general facility maintenance.

Over a two-year period, Davidson allegedly made disparaging remarks about Lowe's age "at least a dozen times," according to the employee. The supervisor reportedly stated, "Old man, you have been here longer than I am old. Aren't you ready to retire?" He also allegedly said Lowe was an "old man" and "losing a step."

In 2018, Walbro hired Debby Rard as senior HR manager. She recommended eliminating Lowe's position because only a couple janitors were reporting to him. She also testified she had received complaints about him engaging in bullying, vulgarity, and sexual innuendoes.