Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—D. Kan.: Manager terminated for failing to follow anti-harassment reporting procedure gets ADEA claim tossed, (Apr 14, 2025)

By Marjorie Johnson, J.D.

Due to his failure to properly report his knowledge of a female employee's sexual harassment allegations against his subordinate, HR did not learn about the harassment until she reported it months later.

A manager who was allowed to retire in lieu of termination ostensibly because he failed to follow the employer's anti-harassment reporting procedure after he learned about sexual harassment allegations against one of his direct reports, and instead privately told the subordinate to "stay away from the girls" and "leave the women alone," won't get a trial on his ADEA claim of age discrimination. Granting the employer's motion for summary judgment, a federal district court in Kansas concluded that no triable issue existed as to pretext since a younger manager who referred the complaint to the plaintiff instead of following the reporting procedure was not similarly situated since his conduct was materially distinguishable, and the record did not suggest that any decisionmaker harbored any discriminatory animus (Holman v. Textron Aviation, Inc., No. 23-cv-01267-TC (D. Kan. Apr. 10, 2025)).

Harassment reporting policy. The manager worked for the employer in the position of value stream leader (VSL), and in this role he was a mandatory reporter under the company's anti-harassment policy. In relevant part, the policy stated that, "[i]t is the responsibility of persons in supervisory or management positions to maintain a workplace free from any form of harassment ... and to bring to the attention of their supervisor or manager, their Human Resources representative, an Ethics and Compliance representative, or a Legal representative any violation of this policy of which they become aware."

Sexual harassment complaint. In August 2021, a female employee complained to HR that one of the manager's subordinates had sexually harassed her earlier that year. As part of its investigation into her complaint, the employer interviewed several witnesses, including the manager. Ultimately, the investigation led to the conclusion that the accused employee violated the company's anti-harassment policy by sexually harassing the female complainant. As a result, the employer terminated him.

Failure to report. The investigation also revealed that the female employee initially reported the harassment to her coworker, who in turn told his boss—a younger VSL. The VSL referred the coworker to the manager since the alleged harasser reported to him. After the manager became aware of the harassment complaint, he failed to follow the anti-harassment policy by bringing the report to his supervisor, HR or a legal or ethics representative. Instead, he went directly to the subordinate and told him that he needed to "stay away from the girls" and "leave the women alone." As a result of his failure to properly report the harassment, the employer never learned about the harassment until the female employee reported it months later to HR.

Offered retirement in lieu of termination. The manager's supervisors initially did not believe that he should be terminated. However, after additional conversations with the HR rep and the investigator who conducted most of the interviews, they determined that termination was appropriate. In September 2021, they advised the employee that he was being terminated but the company would allow him to retire for dignity purposes. He chose retirement, and the employer replaced him with two younger employees.

Fails at pretext stage. The employer did not dispute that the manager could establish his prima facie case of discrimination. Instead, it argued that he failed to refute as pretextual it's legitimate, non-discriminatory reason for terminating him—namely, his failure to follow company policy for reporting workplace harassment. The court agreed.

Younger manager not proper comparator. The court rejected the manager's contention that pretext could be inferred from the more favorable treatment given to the younger VSL who also did not follow the reporting procedures after he learned about the female employee's harassment complaint. The younger VSL was not a proper comparator since even if the manager could show they shared the same supervisor, their conduct was materially distinguishable.

Importantly, the manager was more closely connected to the situation because the accused harasser reported directly to him and not to the younger VSL. Moreover, the other VSL responded in a materially different way by telling the employee who reported the female employee's allegations to him to go report it to the manager since he was the accused employee's supervisor. In contrast, the manager did not tell anyone in the supervisory chain of command and instead privately told the accused to "stay away from the girls" and to "leave the women alone."

Accordingly, even if the younger VSL violated the anti-harassment reporting policy, the differential treatment of him as compared to the manager was permissible since he made sure the issue would be addressed by a supervisor. On the other hand, the manager made certain management would not timely learn of the complaint. "That is a difference [the employer] could reasonably punish differently and fails to suggest pretext," concluded the court.

Didn't act contrary to written policy. The manager also failed to convince the court that pretext could be inferred from the employer's alleged failure to follow its own written policies or alleged procedural irregularities during the investigation that led to his termination. Indeed, he did not point to any particular policy provisions the investigation allegedly violated, nor did he show what circumstances suggested age-related animus. Though he argued that the labor relations manager involved in the investigation was predisposed against him, interviewed too many people, and failed to properly weigh witnesses' prior inconsistent statements, there was no evidence suggesting that any alleged animus against him was based on his age.

The case is No. 6:23-cv-01267-TC.

Judge: Crouse, T.

Attorneys: Sean M. McGivern (Graybill & Hazlewood LLC) for Larry Holman. Luke VanFleteren (Stinson, LLP) for Textron Aviation, Inc.

Companies: Textron Aviation, Inc.

Cases: AgeDiscrimination Discrimination SexualHarassment Discharge KansasNews