Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—W.D. Ark.: 3M sales director fired for expensing non-business-related golf, alcohol, not because of age, (Jan 24, 2025)

By Marjorie Johnson, J.D.

The sales leader submitted 36 expense reports for “internal business meetings” that took place on the golf course, included alcohol purchases, and involved only himself and one or two officemates.

A former 3M sales director won’t get a trial on his ADEA claim alleging the company discriminated against him based on his age when it terminated him after an ethics investigation revealed he violated company policy by charging non-business expenses to the company. Finding no evidence of pretext, a federal court in Arkansas noted that he did not dispute that he engaged in the conduct and that three other members of his team were also fired. Moreover, a VP’s one-time remark questioning whether the director was a “blocker” did not suggest discriminatory animus since, even though the label was used to refer to long-term employees reluctant to change jobs or locations, years of service and age are “analytically distinct” (Bowman v. 3M Company, No. 5:23-CV-5121 (W.D. Ark. Jan. 22, 2025)).

Sales leader for major account. The plaintiff had worked for 3M since 2000, and during his long tenure steadily advanced in title, salary, benefits, and prestige. In 2016, he assumed the role of director of sales for 3M’s largest client. He moved to the office in Rogers, Arkansas, where about 20 other staff members worked, a few of whom reported to him.

Ethics investigation. In January 2022, he learned that 3M had opened an ethics investigation targeting him, his supervisor, and other members of his team based on suspicions that they were violating the company’s code of ethics by playing golf during the workday and charging non-business expenses to the company, including alcohol, even though no customers attended the outings and no meeting agendas were prepared in advance.

Sales group fired. In March, a group president made the decision to fire the sales director (age 49), his supervisor (age 58), and two other officemates (ages 48 and 39). A VP delivered the news to the sales director, explaining that he was being terminated because: (1) he charged non-business expenses, including the cost of alcohol on the golf course, to the company in violation of company policy, and (2) he failed to disclose that he accepted a $35,000 personal loan from a Walmart executive in connection with the purchase of her home. The company eventually replaced him with a 38-year-old applicant.

Admitted engaging in behavior. The sales director admitted that he submitted 36 expense reports in 2020 and 2021 for “internal business meetings” that took place on the golf course and involved only himself and one or two of his officemates. He also did not dispute that he sought reimbursement for alcohol he or others purchased and consumed at these “internal meetings” and that there may not have been written agendas for the meetings. He also did not dispute that the major client’s executive sold her home to him and agreed to permit him to pay the balance of the home loan purchase price within a brief period of time, but disputed 3M's characterization of the transaction as a “personal loan.”

Honest belief. The court rejected the sales director’s contention that pretext could be inferred since his actions did not warrant termination. He pointed out that he had never been disciplined or reprimanded and claimed it “was commonplace at 3M” to bill the company for food and alcohol consumed at the golf course.

However, the issue was not whether 3M “made a good decision, or even a fair one” but whether he was terminated “based on a discriminatory animus.” Here, the decisionmakers testified that he was terminated based on their good-faith belief that he violated company policy, and he failed to point to any evidence suggesting otherwise. Without any evidence suggesting discriminatory animus, “the court cannot second-guess whether the firing decision was right, just, or fair.”

No comparator evidence. His other attempts to show pretext also failed. The mere fact that his replacement was younger did not by itself to create a triable issue, and he failed to present any evidence that a valid comparator was treated more favorably. His “vague allegation” that other high-level executives engaged in the same or similar conduct but were not fired did not suffice.

“Blocker” label not ageist. Pretext also could not be inferred from the fact that on one occasion, the VP referred to him as a “blocker.” In 3M jargon, the label refers to an employee who has remained in their current position for a length of time and has significant experience in that position but is reluctant to move to another position and/or another office location.

The sales director’s supervisor testified that he overheard the VP ask whether the director was a “blocker” during a leadership meeting on January 16, 2022. But “context is important,” noted the court, and the supervisor also testified that immediately before the VP made the remark, several executives had been praising the director and discussing whether he might be a good fit for one of several jobs outside of the area.

Stray remark. Moreover, while the term “blocker” could correlate with being older, age and years of services are “analytically distinct,” and a decision that is based on years of service is not necessarily age-based. Under the circumstances here, the VP's use of the word “blocker” to refer to the sales director did not suggest that age was the but-for reason for his termination. It also appeared to have been a stray remark made outside of the context of the termination decision.

The case is No. 5:23-CV-5121.

Judge: Brooks, T.

Attorneys: George M. Rozzell, IV (Miller, Butler, Schneider, Pawlik, Rozzell) for Wade Bowman. Eva C. Madison (Littler Mendelson) for 3M Co.

Companies: 3M Co.

Cases: AgeDiscrimination Discrimination Discharge ArkansasNews