Nothing To Croak About: Westmoreland v. TWC

By Sean F. Herrmann

Judge Niemeyer’s fiery dissent in Westmoreland v. TWC Admin. LLC, No. 18-1600 (4th Cir. May 22, 2019) has people talking more than the typical employment discrimination case. In it, Judge Niemeyer proclaims:

Congress would croak to learn that the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., would entitle an employee to recover in the circumstances of this case. I too croak, in harmony.

So what’s all the fuss about? When boiled down, this decision isn’t groundbreaking. It doesn’t create any new law and should be relatively uncontroversial.

The Circuit upheld a jury verdict for Glenda Westmoreland in her ADEA lawsuit against Time Warner Cable. Westmoreland easily established her prima facie case. First, at the time of Westmoreland’s termination, she was 61-years-old and in a protected class under the ADEA. Second, she was qualified for her job and meeting her employer’s legitimate expectations. During her three decades with the company, she had only two infractions before the event that allegedly led to her termination. Third, TWC fired her and, thus, there was an adverse employment action. Finally, TWC replaced her with a 37-year-old employee.

Let’s pause here for a moment. Take a deep breath. Westmoreland established her prima facie case. She didn’t simply meet the four prima facie elements—she knocked them out of the park. This is what the prima facie case is all about. If it heard nothing more, the jury certainly could infer age discrimination from this evidence.

Now, it’s TWC’s turn to give the jury the real story. And that story was simple. TWC said that the sole justification for firing Westmoreland was her instruction to another TWC employee to change the date on a form. This raised “a lot of trust and integrity issues.”

Here’s some background. On July 21, 2015, Westmoreland held a one-on-one meeting with a substantially younger TWC subordinate. On July 27, 2015, Westmoreland again met with this subordinate and asked her to complete a form memorializing the July 21 meeting. The subordinate signed and dated the form July 27, 2015, and Westmoreland whited out this date and had the subordinate write July 21 instead. Westmoreland emailed the completed, and altered, form to management. This eventually led to a human resources review, and Westmoreland told the Company that she changed the date on the form to reflect the date of the meeting. Management told Westmoreland not to worry about it, and she didn’t until she received a call on August 14, 2015, letting her know that TWC was terminating her employment.

At this point, no one should be croaking. In this McDonnell Douglas tennis match, Westmoreland smashed a vicious prima facie serve at TWC, TWC has returned her serve, and the ball is back in Westmoreland’s court. What did she do with it? According to the jury, she crushed a forehand winner down the line. Game. Set. Match. Since the first two McDonnell Douglas phases were uneventful, the pretext analysis must contain the croak-inducing material.

But if you are looking for drama, you won’t find it here. Westmoreland had 30 years of satisfactory performance with TWC. Four TWC officials were involved in Westmoreland’s termination, and all four testified that that they had no other prior issues with Westmoreland’s “integrity.” TWC acknowledged that it could have taken disciplinary measures short of termination, but chose not to in this case. TWC did not discipline the substantially younger subordinate also involved in the white-out incident. Furthermore, the Company initially told Westmoreland that the infraction was not a big deal and then completely reversed course and fired her for that very conduct. If the only evidence required here really is that which would allow a reasonable juror to disbelieve the employer’s explanation, then this gets there.

And this wasn’t all. Westmoreland offered an age-biased comment into evidence. She testified that, immediately after learning that she had been fired, one of the four officials told her: “Oh, girl, you don’t have nothing to worry about. You’ll get another job. Just go home and take care of those grandbabies.” The official did not deny making this comment—she said that she couldn’t recall.

In summary, Westmoreland established her prima facie case and then cast doubt on TWC’s proffered explanation sufficient for the jury to find that, by a preponderance of the evidence, TWC’s explanation was not worthy of belief. McDonnell Douglas then allowed the jury to find that age bias played an illicit role in Westmoreland’s termination. Taken together, this shouldn’t be revolutionary by any means.

Nevertheless, Westmoreland tackles legal issues worth diving into. The Court takes on “pretext-plus,” which, despite being bad law, just won’t go away. By way of background, the U.S. Supreme Court decided Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) nearly 20 years ago. In that decision, the Court resolved a circuit split that had some courts, including those in the Fourth Circuit, applying a “pretext-plus” standard in burden-shifting employment discrimination cases. That is, they required employees to show additional evidence of actual discrimination at the final, “pretext” stage of the McDonnell Douglas analysis in addition to evidence that the employer’s stated reason for termination was not its real reason for adverse action. The Reeves decision rejected this heightened standard. Since then, the law is that employees need only present evidence that would allow a reasonable jury to disbelieve the employer’s explanation—no additional evidence of discrimination is required. If an employee establishes a prima facie case, he or she creates a presumption that the employer has unlawfully discriminated. If an employer’s explanation for its decision is not worthy of belief, then a jury is allowed to conclude that the employer lied to cover up a discriminatory motive.

This analysis hits nearly every employment discrimination case at the summary judgment phase. Although the pretext-plus chapter of employment discrimination history has been closed for almost 20 years, most management lawyers’ summary judgment briefs continue to act as if Reeves never happened. Frequently, this results in summary judgment rulings that apply a de facto pretext-plus standard. In Westmoreland, like in Wilson v. Phoenix Speciality Mfg. Co., 513 F.3d 378, 387 (4th Cir. 2008), the Court got the pretext-plus discussion right. It is a thing of the past and should stay there.

The Court also touches upon “stray remarks”—the “grandbabies” comment—and, relatedly, whether the remark’s utterer should qualify as a decisionmaker. The analysis was mostly taken up in a footnote, and it appears that the jury found that the official was sufficiently involved in the termination decision for the comment to carry weight. The decision’s discussion on these issues isn’t terribly substantive, but could plant the seeds for future arguments.

In the end, Westmoreland’s asserted croak-factor rings hollow. Reasonable minds can differ about whether the jury got it right. That isn’t the question. The only thing unusual about Westmoreland is that it was decided by a jury—which heard live testimony and made credibility determinations—and not a judge at summary judgment. In a country that holds the right to a jury trial in such high regard, this decision should be encouraging. It certainly isn’t something to croak about.