3d Cir.: Employees Fired for Pornographic Emails Lose Age-Discrimination Case

Posted by Molly DiBiancaOn November 28, 2011In: Age (ADEA)

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Employee_Email.jpgEmployers can find comfort in a recent decision from the Third Circuit, which serves to remind us that we can (and should) discipline employees for policy violations--regardless of whether the employee is in a protected class.

In 2007, while investigating a complaint of sexual harassment, the employer discovered that six employees had regularly exchanged sexually explicit pictures via their company-provided email accounts. All six employees were immediately suspending pending further inquiry. Four of the six employees were subsequently terminated. Each of the terminated employees was in their late 50s or early 60s at the time they were fired.

The four employees then filed suit in federal court in the Western District of Pennsylvania, alleging that they were terminated because of their age in violation of the Age Discrimination in Employment Act ("ADEA"). The District Court granted summary judgment to the employer finding that the employees had failed to demonstrate that "but for" their ages, they would not have been fired. The employees appealed the decision to the U.S. Court of Appeals for the Third Circuit.

To carry their burden on appeal, the employees needed to offer evidence of age bias in order to show that the reason offered for their termination (i.e., the misuse of the company's email), was merely a pretext for unlawful discrimination. The employees contended that they could demonstrate pretext because they'd been subject to discrimination in the past. They alleged that the following incidents were representation of a culture of age bias:


  1. after asking one of the four employees, Magdic, if he was ready to retire, the company's CEO said, "it looks like you are ready to retire. You have gray hair and are fat;"

  2. one of the employees, Crossan, was transferred to a different position because the employer wanted "new blood" in the department;

  3. the CEO mentioned the need to recruit a "younger workforce;" and

  4. during meetings, older supervisors sat at one end of the table and were routinely interrupted when they tried to speak, whereas younger employees were encouraged to speak.


The Third Circuit rejected the various evidence proffered by the employees, finding each to be either a stray remarks that were "completely unrelated" to the investigation of the employees' violation of the company's email policy.

Hodczak v. Latrobe Specialty Steel Co., No. 11-1085 (3d Cir. Nov. 18, 2011).

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