El Paso Court of Appeals Affirms Age Discrimination Verdict

The El Paso Court of Appeals considered an age discrimination claim in Williams-Pyro, Inc. v. Barbour (March 20, 2013).  A jury had found that the employer terminated the plaintiff because of her age, and the court affirmed.

The plaintiff (Rhonda Barbour) worked for the company for 18 years.  In 2005, a new supervisor (Montalvo) began making age-related comments to her:

According to Barbour, in 2005 Montalvo began making age-related comments to her. He made comments about her gray hair and told her that she was getting old and looking old. He also suggested that she color her hair, stating that if she were his wife, she would not look like she did. On occasions when she was in the inventory room and would have to bend over, Montalvo would tell her that her butt was getting big and that she was looking old. Montalvo eventually mentioned replacing Barbour with "young Mexican girls." Barbour said these comments were made three or four times a week. She also testified that Montalvo’s tone was serious and that his comments made her scared and sick.

In mid-2006, the plaintiff reported these comments to a higher-level supervisor, who talked to Montalvo but did not report the comments to HR.  Several months later, the plaintiff was terminated without warning or explanation:

On November 15, 2006, WPI terminated Barbour’s employment. The only people in the room were Montalvo, Shiller, and Candace Woodard from Human Resources. Montalvo did all the talking. Barbour was not given a reason for her termination. Barbour asked to speak to Mrs. Williams or her son, Brent Williams, but was told by Montalvo that they "had already been informed." Montalvo admitted that he never gave Barbour a written reprimand prior to terminating her. He also admitted that he generally gives an employee an oral warning and a written reprimand before terminating that employee, and that he had given other employees written warnings if they had done something "really wrong." According to Montalvo, he had orally reprimanded Barbour at some point, but Barbour testified that she never received a verbal warning while for WPI. No written reprimands appear in Barbour’s file.

The plaintiff filed a charge of discrimination and later a lawsuit.  The jury found in favor of the plaintiff and awarded substantial damages.

The employer appealed, claiming that the finding of age discrimination was unsupported by the evidence.  The employer sought to dismiss Montalvo's comments about the plaintiff's age as "stray remarks" made by someone other than the actual decisionmaker who fired the plaintiff.  The court rejected that argument:

There was testimony that Montalvo made comments to Barbour that she was getting "old," about her having "gray hair," and about her "sagging breasts," and such comments were clearly related to Barbour’s age, and because Barbour was over forty, they were related to her "protected class." Barbour also testified that Montalvo made these comments "nonstop," "three or four times a week" and "all the time," up until her termination. Since Barbour’s alleged adverse employment action was her termination, these comments were certainly made in "proximate time to the adverse employment decision." In addition, Barbour testified that Montalvo made comments that the company "need[ed] to hire young Mexican girls." Montalvo’s comments regarding Barbour’s age and the need for "young Mexican girls" is "related to the employment decision at issue." Therefore, the only remaining question is whether Montalvo was an individual with authority over the employment decision at issue - i.e. Barbour’s termination. . . .

It is undisputed that Montalvo was WPI’s production manager and that as such, he was responsible for personnel issues. Montalvo, Paul Shiller, and Candace Woodard were the only people present when Barbour was terminated. Montalvo was the only one who spoke and the one who actually informed Barbour she was fired.

There is also sufficient evidence showing that even if Montalvo was not directly responsible for the decision to terminate Barbour, he influenced the decision. WPI points to testimony that Della Williams was the one who made the decision to terminate Barbour, and that since Mrs. Williams was unaware of any comments made by Montalvo, there is no evidence of discriminatory intent. But Montalvo himself testified that Mrs. Williams was not involved in the decision to terminate Barbour. The jury was free to disbelieve the testimony that Mrs. Williams alone made the termination decision.

 The court therefore concluded that "Barbour presented sufficient direct evidence to show that age was a motivating factor in WPI’s decision to terminate her."

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes

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