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Fifth Circuit Affirms Dismissal of Age Claim Lacking Age-Specific Comments

The City of Schertz, Texas employed Michael Harris for 28 years. At the end of his employment, Harris served as the City Marshall, which included oversight of the Animal Services department. Several employees made complaints about the “highly inappropriate comments” made in the Animal Services department. Some of these employees said Harris was present and, to some extent, participated when employees used sexually and racially inappropriate language in the workplace. One employee informally complained about Harris. The city attorney and city manager decided to demote Harris based on the inappropriate work environment that he helped foster. The city issued a second “notice of complaint” to Harris after he purportedly placed a concealed camera in the Animal Control Department. The City then fired him. Harris sued for discrimination on the basis of sex and age under Title VII and the Age Discrimination in Employment Act (ADEA).

A district court granted summary judgment on both claims. Harris appealed his ADEA claim. To prevail on this claim, Harris had to demonstrate that “but, for” his age, the City would not have fired him. Harris pointed to comments made by a high-ranking city employee in deposition testimony. This individual said Harris “had not been adequately prepared or mentored”; “taught to be a leader” or learned “to dive into difficult problems.” This employee also commented Harris was promoted because he was in “the right place at the right time.” He said Harris would need “a higher level of sophistication and a higher level of leadership” to run the department that was beyond Harris’s scope.

The Fifth Circuit Court of Appeals found no genuine dispute of material fact existed. The city viewed Harris as largely unqualified for the increasing responsibilities of his position. Harris argued a fact finder could infer from the deposition testimony that the city referred to him as old and slow. The court said, “When comments by a decision-maker have been found sufficiently suggestive of age bias, they have been much more age-specific” than a reference to “responsibilities being too great.”