Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—W.D. Ky.: Shifting rationales and VP’s threats support demoted district manager’s age bias claim, (May 21, 2025)

By Marjorie Johnson, J.D.

Several inconsistencies in the employer’s actions as well as evidence of his superiors’ potential age animus could a allow a reasonable juror to find pretext for age discrimination.

A 64-year-old former AutoZone district manager, ostensibly demoted because he made a homophobic remark to a subordinate and fired a store manager without authorization, survived summary judgment on his claim of age discrimination in violation of the Kentucky Civil Rights Act (KCRA). Though a federal district court concluded that a VP’s remarks that “I’m the guy that can end your 17-year career” and “the pandemic was resulting in a lot of people’s early retirement” did not provide direct evidence of bias, they could suggest pretext, particularly alongside evidence of shifting rationales and the subordinate’s affidavit stating he was coerced into signing a complaint against the plaintiff (Powers v. AutoZoners, LLC, No. 3:23-cv-00609-RGJ-CHL (W.D. Ky. May 19, 2025)).

VP’s remarks. AutoZone hired the employee as a district manager in 2005, and he reported to the same regional manager for most of his tenure. In November 2022, a new regional manager took over his region and became his direct supervisor. In April 2023, he met with the division’s VP and made comments that upset the superior, who then remarked “you don’t understand, I’m the guy that can end your 17-year career” and “the pandemic was resulting in a lot of people’s early retirement.”

Investigation. Shortly thereafter, an investigation allegedly revealed the employee terminated a store manager without authority to do so and made an inappropriate and homophobic comment to one of his subordinates by asking him, “What are you like that gay American Idol singer, Adam Lambert?” His supervisor then advised him that he was being demoted to store manager with a $36,000 decrease in pay.

Refuses demotion. He refused the demotion and requested severance if the company tried to fire him. The employer informed him that he was not being fired, and that if he did not accept his new position, he would be considered to have resigned and abandoned his position. He did not show up and his position was terminated. At the time he was 64 years old with a 38-year tenure. His 51-year boss temporarily managed the stores in his district before a replacement was found.

Direct evidence. The court rejected his contention that the VP’s remark that he could “end your 17-eyear career” and vague reference to “early retirement” and the “pandemic” provided direct evidence of age bias. The first statement was an explicit reference to his tenure and not his age. Moreover, “a mere reference to retirement, even when more direct than what the record indicates in this case, fails to provide direct evidence of discrimination.”

Qualified. The employer argued that the employee failed to make out his prima facie case under the McDonnell Douglas framework since he was not qualified to be district manager at the time he was demoted. However, this was the same argument the company made to prove he was demoted for a legitimate nondiscriminatory reason, and thus could not be used to combat his prima facie case. Moreover, his employment records, favorable performance reviews, and testimony from his former supervisor provided ample evidence that he had been meeting the legitimate expectations of the job.

Younger replacement. The employer also argued that although the employee was eventually replaced by a substantially younger employee, his 51-year-old supervisor initially took over the position for him and was not substantially younger. The court disagreed, finding that the 13-year age difference was considered significant within the Sixth Circuit.

Zero tolerance policy doesn’t show pretext. Though the employee presented sufficient evidence of pretext to survive summary judgment, the court rejected his contention that pretext could be inferred because if he had made homophobic remarks his punishment should have been more severe under the employer’s zero tolerance policy. Significantly, the policy only listed potential punishments as “up to and including” termination, which did not suggest that the employee was treated more leniently than what the handbook indicated.

VP’s remarks suggest pretext. However, the VP’s statements regarding retirement and the length of the employee’s career could be considered as evidence of pretext as he was “a person in a position to influence the alleged employment decision” and the remarks were not “so isolated or ambiguous as to be nonprobative.” In particular, the employee claimed that the regional manager told him he had “been instructed by the divisional office” to demote him, and since the VP was the head of that office, a reasonable juror could infer he influenced the demotion decision. And while each statement standing alone would be insufficient to infer pretext, “taken together in the context of [the employee’s] subsequent investigation and replacement with a significantly younger worker, these statements can serve as evidence calling into question AutoZone’s actual motivation in demoting [him].”

Subordinate’s retraction. In addition, the subordinate who reported the employee’s allegedly homophobic remark filed an affidavit averring that the district manager never mistreated him and that he liked him. The subordinate further stated that he informed HR that he had not been mistreated, and that it was the investigator who reached out to him initially and made him sign an untrue affidavit. A reasonable juror could find that this evidence suggested pretext, especially given the proximity in time between the VP’s comments and the investigation of the employee that uncovered his alleged misconduct.

Shifting rationales. Additionally, the employer did not dispute that the regional manager did not mention the incident involving the employee’s firing of the store manager as justification for his demotion when the two spoke, and instead only referenced it as a justification in his deposition. This shifting of rationales could suggest pretext. “AutoZone’s omission of what was supposedly a crucial overstep of [the employee’s] authority is notable, especially considering [his] testimony that this behavior was common and unpunished,” concluded the court.

The case is No. 3:23-cv-00609-RGJ-CHL.

Judge: Jennings, R.

Attorneys: David Borum (Law Offices of David Borum) for Michael Powers. Jennifer L. Bame (Frost Brown Todd) for AutoZoners, LLC.

Companies: AutoZoners, LLC

MainStory: TopStory AgeDiscrimination Discrimination Discharge StateLawClaims KentuckyNews GCNNews