In Dediol v. Best Chevrolet Inc., the Fifth Circuit holds for the first time that it will recognize ADEA harassment claims, and concludes that the facts were bad enough to support not only a claim for age-based harassment, but constructive discharge as well.
"A plaintiff advances such a claim by establishing that (1) he was over the age of 40; (2) the employee was subjected to harassment, either through words or actions, based on age; (3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability on the part of the employer."
The fact pattern is far beyond what most of us would consider to be harassing. Just as a small taste, the conduct of Plaintiff's supervisor included:
- Never referring to Plaintiff by his name, but instead called him names like "old mother******," "old man," and "pops," up to a half-dozen times a day until the end of Plaintiff's employment.
- On many occasions, there were incidents of physical intimidation and/or violence between supervisor and the Plaintiff. According to the Plaintiff, his supervisor would threaten him in a variety of ways, including threats that he was going to 'kick [Plaintiff's] ass.' On one occasion, he took off his shirt, and stated to Plaintiff, 'You don't know who you are talking to. See these scars. I was shot and was in jail.
- Plaintiff was denied a requested transfer to sell new cars at the same dealership: "when [the supervisor] learned of Plaintiff's request, [supervisor] denied [Plaintiff]'s transfer and stated, 'Get your old f*****g ass over here. You are not going to work with new cars.
The list in the opinion goes on and on but you get the idea.
Importantly, the Court recognized that Plaintiff could make out a claim for constructive discharge under the facts. This is important in an ADEA case because the ADEA does not provide for mental anguish damages. So a claim for hostile work environment without a constructive discharge would be essentially useless.