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Employer’s Misrepresentations Send Case to Trial

DeWayne McMullin was 63 years old when he was hired by the CEO of Evangelical Services for the Aging. He was 64 years old when he was fired. At the time of his termination, Mr. McMullin was told that he had made errors in financial accounting and that it was not working out. To the rest of the employees, Mr. Petty sent out an email stating that Mr. McMullin had “decided to leave [the company] effective immediately.” Mr. McMullin was replaced by a 52 year old.

The fact that Mr. McMullin was hired and fired by the same individual merely a year and a half apart would suggest that age discrimination was not likely. However, the federal district court found three facts that gave rise to sufficient evidence that a jury might find the stated reasons for termination not believable.

First, Mr. Petty’s misrepresentation that Mr. McMullin had left voluntarily, rather than saying that he had been let go created questions. Second, Mr. Petty had testified that two employees complained to him about Mr. McMullin’s poor performance. These two employees testified that they had not discussed their concerns with Mr. Petty. Lastly, the fact that Mr. McMullin’s replacement was 12 years younger than Mr. McMullin. The two misrepresentations made by Mr. Petty were essential elements in the court allowing the case to proceed.