Older Maryland Recruit Loses Age Discrimination Suit

A lawsuit filed in 2021 by a 46-year-old recruit who was terminated from the Howard County Fire Department’s fire academy in 2018, has been dismissed following a grant of summary judgment in favor of the county. Robert D. Whittaker, III, claimed he was the victim of age discrimination.

According to Whittaker, he was able to do the job and passed all the requirements for appointment to the department. However, he alleged his instructors believed he was too old to do the job and succeeded in washing him out of the academy. The suit was filed under the Age Discrimination in Employment Act (ADEA). Quoting from the US District Court for the District of Maryland ruling:

  • The ADEA, which protects individuals who are 40 years of age or older, prohibits employers from “fail[ing] or refus[ing] to hire. . . any individual or otherwise discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”
  • To succeed on an ADEA claim, plaintiffs “must prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the ‘but-for’ cause of the challenged employer decision.”
  • To prove age discrimination by direct evidence, such as derogatory statements about age, the plaintiff must offer “evidence of conduct or statements that both reflect directly on the alleged discriminatory attitude and that bear directly on the contested employment decision.”
  • In the absence of direct evidence of discrimination, a plaintiff’s claim is evaluated under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
  • Pursuant to the McDonnell Douglas framework, plaintiff establishes a prima facie case of discriminatory termination by demonstrating that: “(1) he is a member of a protected group; (2) he suffered an adverse employment action; (3) he was meeting the employer’s legitimate expectations at the time of the adverse employment action; and (4) the employer treated younger employees more favorably.”
  • After the plaintiff establishes a prima facie case, the burden shifts “to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”
  • If the defendant offers a non-discriminatory reason for its actions, the burden returns to the plaintiff “to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.”
  • Plaintiff contends that he can establish the elements of an age discrimination claim through both direct evidence and the McDonnell Douglas burden-shifting framework.
  • Plaintiff offers two statements as direct evidence of age discrimination: (1) Captain Welsh’s reference to Mr. Whittaker as “an old guy”; and (2) a November 15, 2019 Facebook post by Captain Merson in which Captain Merson criticized the hiring of a 51-year-old “rookie” firefighter in Milwaukee.
  • Even when viewed in the light most favorable to plaintiff, Captain Welsh’s comment is not direct evidence of age discrimination as there is no evidence that his comment was related to plaintiff’s termination. Accordingly, plaintiff has failed to generate a factual dispute that Captain Welsh’s remark is direct evidence of age discrimination.
  • Captain Merson’s Facebook post does not refer to plaintiff or plaintiff’s termination, but rather concerns an article wholly unrelated to plaintiff. As noted above, Captain Merson’s post was made long after the decision to terminate plaintiff. Further, the fact that a comment refers to age is insufficient to establish direct evidence of discrimination.
  • The McDonnell Douglas test requires plaintiff to demonstrate that: (1) plaintiff is over 40 years of age; (2) plaintiff was subjected to an adverse employment action; (3) plaintiff had satisfactory job performance at the time of the adverse action; and (4) that similarly situated employees outside the protected class received more favorable treatment.
  • The parties do not dispute that plaintiff satisfies the first two elements of a prima facie case.
  • As to the third element of a prima facie case, defendant contends that plaintiff cannot establish that he was meeting the Department’s legitimate expectations at the time of his termination because he lacked the skills necessary to become a firefighter, behaved in an insubordinate manner, quit tasks, and presented a risk to himself and other members of the Academy.
  • The ADEA does not “require an employer to adopt a life of economic altruism and thereby immunize protected class members from discharge or demotion despite their poor performance.”
  • Indeed, the role of the court is not to determine whether the employer’s decision to terminate plaintiff was sound, but rather the court’s “sole concern is whether the reason for which the defendant discharged the plaintiff was discriminatory.
  • The court “does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination.”
  • Plaintiff has failed to introduce sufficient evidence to generate a factual dispute that he was meeting defendant’s legitimate performance expectations at the time of his termination.
  • As to the fourth element of the McDonnell Douglas test, plaintiff argues that he was treated less favorably than similarly situated younger trainees.
  • Plaintiff identifies eight potential comparators.
  • While plaintiff asserts that he was treated differently than others who struggled with ladder tasks, plaintiff has not offered any evidence that these comparators had issues in the other areas, as did plaintiff, such as insubordinate behavior or maze issues.
  • Accordingly, plaintiff has failed to establish the existence of similarly situated non-members who were treated more favorably than plaintiff, the fourth element of the McDonnell Douglas test.
  • Thus, plaintiff has failed to offer evidence to create a genuine factual dispute as to whether his employer discriminated against him on the basis of age. Accordingly, defendant’s Motion for Summary Judgment is granted.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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