An employee brought an action against his employer under the Age Discrimination in Employment Act (ADEA) after he was terminated for non-compliance with the employer’s written sexual harassment policy. A U.S. district court granted summary judgment in favor of the employer and thus the employee appealed. Wayne Jackson was employed by Cal-Western Packaging Corporation in various managerial positions for eight years, until June of 2007. In May of 2007, one of Jackson’s coworkers, emailed her supervisor, asserting that Jackson had engaged in behavior that made her “uncomfortable.” Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 376 (5th Cir. 2010). She recounted that Jackson had asked to see her “breasts” and had commented that her boyfriend must like “big boobs.” Id. She stated that Jackson had “on many occasions” made inappropriate statements or comments in front of her and her female coworkers.
In addition to this, she told her supervisor that every time she saw Jackson he tried to touch her and that he had once cornered her and asked her to raise her blouse. After the coworker made this allegation, the company started an internal investigation and thus interviewed several employees who corroborated the allegations. Thus, the company terminated Jackson (who was 69) for his non-compliance with the company’s written sexual harassment policy, a copy of which Jackson had signed when he was hired in 1999.
Subsequently, Jackson brought suit against Cal-Western for age discrimination. His claim primarily relied on a remark his boss allegedly made to another coworker in 2006 to the effect that Jackson was an “old, gray-haired fart” and that the coworker would be in charge when Jackson retired. Cal-Western moved for summary judgment and the district court ruled that Jackson had alleged a prima facie case of discrimination and that Cal-Western had offered a legitimate, non-discriminatory reason for firing him, but that Jackson had failed to show that there was a fact issue as to whether Cal-Western’s reason for firing him was pretextual.
On appeal, the Fifth Circuit explained that comments are evidence of discrimination only if they are “1) related to the protected class of persons of which the plaintiff is a member; 2) proximate in time to the complained-of adverse employment decision; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.” Id. at 378. While the boss’s alleged comment meets the first and third criteria, Jackson provided no evidence that the comment was proximate in time to his firing or related to the employment decision at issue. Consequently, this comment alone, or in combination with Jackson’s uncorroborated denial of any sexual harassment, was insufficient to establish a genuine issue of material fact as to pretext. The court found that there was substantial evidence that Jackson was fired for violation of Cal-Western’s sexual harassment policy, and thus affirmed the lower court’s decision.