Fired for hitting, Mr. Hitt got fired up about age discrimination, filed a charge and sued, but was KO’d after 3 rounds
The oh-so-aptly named William Hitt, in Hitt v. Harsco Corp., No. 03-2332 (8th Cir. , 1/30/04), got in an altercation at work with his son-in-law, who had been refusing to allow him any contact with his grandson. He was fired, as was the son-in-law, pursuant to a rule against “aggressing or becoming involved in fighting” (emphasis mine).
I like this rule, and the fact they both were fired. Absent exceptional circumstances meeting a strict legal definition of self-defense, IMHO the best policy on fighting (whether dealing with one’s children, students, or employees) is to avoid getting sucked into the question of “who started it.”
This rule clearly expresses that “starting it” (“aggressing”) is not essential to a violation; it is sufficient to become “involved in fighting” (including by fighting back, other than truly in self-defense). It takes two to tangle, and the best policy, as Kenny Rogers said, is to “walk away from trouble if you can.”
Anyway, after hitting his son-in law (who kicked him in return) and being fired, the 65-year-old Mr. Hitt got fired up about the fact that his foreman had said: “Old man, you are too old to be fighting” and that he had on other occasions been referred to as “old man” by the foreman and supervisor. He filed an age discrimination charge with the EEOC, which found he was terminated because of the fight, not because of his age (Round One).
Undaunted, he filed a lawsuit in district court, only to be dismissed on summary judgment (Round Two).
Stubbornly, he appealed to the Eighth Circuit, where he again lost (Round Three).
The Eighth Circuit addressed three arguments worth discussing here: 1) there was a genuine issue of fact as to whether he was actually fighting (he claimed he was simply kicked by the son-in-law and did nothing himself that could be characterized as fighting); 2) he was disciplined more harshly than younger employees who engaged in similar conduct; and 3) the “old man” remarks supported an inference of age discrimination.
The court rejected the first argument because “[t]he key question in a discrimination case like this one is not whether Hitt was truly fighting, but whether the employer really believed that he was fighting, such that the termination was based on a non-discriminatory reason” (i.e., that belief, even if it was mistaken)(emphasis in original). It was undisputed that eyewitnesses reported that Mr. Hitt threatened force against the son-in-law and then threw a punch at him; even if they were wrong, the employer reasonably relied on them.
Of course it is desirable to be able to prove a legitimate nondiscriminatory reason was based on an accurate assessment of the facts, especially at trial where this is likely to be expected by the jury. But for summary judgment purposes, this type of “reasonable belief” argument can really save the day (provided the belief was truly reasonable), by sidestepping a potential issue of fact requiring trial.
The court quickly disposed of the second argument because the evidence did not support it — while perhaps the employer’s treatment of fighting situations was not entirely consistent, the variations did not correlate with age. The son-in-law, who was only 34, had also been terminated for fighting; one of the employees who allegedly was treated more favorably under similar circumstances was age 51; and a 35-year-old employee had also been terminated for fighting.
Finally, the court was unimpressed by the alleged discriminatory remarks because they were made by persons other than the decision maker. The incident had been independently investigated by the regional business director, who interviewed the eyewitnesses, not by the allegedly biased foreman or supervisor who made the remarks. The decision was then made based on the results of this investigation by the Director of Industrial Relations, who had no knowledge of the identities of the employees or their ages when he made the decision.
On this last point, this employer, like Lockheed, followed an excellent practice for decisionmaking that allows disavowal of stupid biased remarks that low-level supervision may let slip (or that may be plausibly fabricated). (It’s not just disavowal, such a procedure prevents actual bias from contaminating decisionmaking.)
