Fired for safety violation, or was it age discrimination?
April 30, 2012 by Fred HosierPosted in: In this week's e-newsletter, Injuries, Latest News & Views, new court decision, Safety training
PDF Could an employee show that the reason he was fired was age discrimination and not for a safety violation?
Johnnie Brooks Jr. worked as a foreman for Davey Tree Expert Co. in Clarksville, TN.
The company required its foremen to conduct a safety briefing each work day before the crew started work.
One day, Brooks was a foreman for one crew sent to cut down trees. A second crew with a separate foreman was also sent to the location. While Brooks was in his truck, he got a call on his cell phone, telling him the foreman of the other crew had been hit by a tree.
Brooks says on that day, he held a safety briefing with his crew.
However, his supervisor, James Barker, issued a safety violation notice to Brooks that said “no job briefing conducted.”
Days later, Davey Tree fired Brooks, telling him that if he had been in the vicinity of where the other foreman was working, the injury might not have taken place.
Brooks filed a lawsuit, alleging he was wrongfully terminated based on his age.
He cited several instances in which Barker had made age-related derogatory comments to him. On one occasion, Barker allegedly said to Brooks, “You’re too old to be doing that kind of stuff anymore.” Another time, Brooks says Barker called him “an old fart.”
Another employee said Barker bragged about the termination, saying he was getting rid of the “old crew,” and remarking repeatedly that it was good to get rid of “the old guys” because they had “old habits” and that “new guys were more teachable.”
Davey Tree sought to have Brooks’ lawsuit thrown out on the grounds that it fired him for a safety violation.
However, a federal court has ruled that Brooks presented enough evidence of potential age discrimination to have the case go to trial. Now Davey Tree will either face a trial or may try to reach a settlement with Brooks.
(Brooks v. Davey Tree Expert Co., U.S. Court of Appeals, 6th Circuit, No. 11-5102, 4/17/12)
The Safety Insights You Need
Get the latest safety news, trends, and insights - delivered weekly.
Join over 334,000 safety pros:
Privacy policy
Loading ...
April 30th, 2012 at 11:37 am
Sounds like he has a case against the company. However, there should be some witnesses to testify whether he actually conducted a safety briefing or not; that would make the case.
April 30th, 2012 at 11:45 am
The facts related in the case points to age discrimination. I could not point to any actions on the employee’s part that merit termination. On the other hand, the supervisor’s remarks and record keeping were inappropriate and now his company will have to face trail or settlement. The supervisor is more likely younger but apparently not wiser.
May 3rd, 2012 at 1:22 pm
Based on the limited information above, there is NOT evidence of age discrimination. The word “old” used in the discussion is a homonym. Same spelling and pronuciation; different meanings. In all examples above with exception to “Old Fart” the CONTEXT is not referring to age at all.
As an example: “…good to get rid of “the old guys” because they had “old habits” and that “new guys were more teachable.” By the use of “new” guys, it is evident this is not referring to age. If it was, it would read, “good to get rid of “the old guys” because they had “old habits” and that “YOUNG guys were more teachable”. A young person can have “old habits”. The old guys may simply be referring to the previous crew, not people that are up in years.
I am not saying age discrimination didn’t happen. What I suggest is the information provided above is not evidence of it. Previous posts were quick to determin guilt. We do not know all the facts. If the employer is guilty, I hope they are held accountable. I did not see reason for the man to be fired, but again, we have no other facts; such as previous disiplainary actions. Or perhaps, he HAD been instructed to perform the breifing with BOTH crews. Then in fact, he did not complete the briefing.
In addition, I would like to point out to the author, that releasing information in detail such as names and companies is, in fact, a violation of the same Civil Rights Act they are reporting on. Until guilt is determined, it is punishable in itself. See below.
Title VII of the Civil Rights Act of 1964
ENFORCEMENT PROVISIONS
SEC. 2000e-5. [Section 706]
Whenever a charge is filed by or on behalf of a person claiming to be aggrieved… Charges shall not be made public by the Commission… Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both.
May 6th, 2012 at 9:18 am
I was fired (permanently layed off) from Davey for no real reason other than my age (49). I never missed any time, I worked hard and tried to be a good employee. Davey expects its employees to be sheep. If you agree to everything you are told you are good employee. If you disagree you are removed at the first opportunity. Davey requires safey meetings before each job, but no time is alocated for this. no time is alocated for job preparation in the morning, truck inspections, boom inspections, fueling, chainsaw maintenance, etc. all this is booked into the first job. Rarely is there enough time to do the job safely without all this included. Davey also has a policy of putting the blame on employees one way or another no matter what the circumstances. In our Ontario shop we were told that if there was an accident we would be considered guilty until we proved our innocence. Basically ‘ we must of have been doing something wrong for the mishap to happen’.
May 9th, 2012 at 3:55 pm
To me, the possibility seems that the decision WAS safety based. I say this because I have dealt with co-workers at my work that had old, dangerous habits. Anytime I tried to correct them on the proper way, or a safer way, on how to do things, I was talked down to and ignored because they “have been doing this since you were in diapers” or “have done this a thousand times” or some other statement that is no excuse for continuing to do things in a unsafe or less safe manner. “Old habits die hard” and “you can’t teach an old dog new tricks” aren’t just random combinations of words, they are often the way it is. And if you can’t teach someone safety, you record it as you try and if they don’t learn, you have to let them go for their safety and the safety of those around them. I do not know the details to this case, but I do know that just saying someone has “old habits” doesn’t guarantee age discrimination.