He was hired at 63 and fired at 64. Yep, that could still be age discrimination.

A lesson on why it’s so important to tell it like it is when firing someone.

“It’s not working out.”

The plaintiff in McMullin v. Evangelical Services for the Aging (opinion here) began his job as CFO in March 2014. He was 63.

Hired by the employer’s CEO, the plaintiff was fired about a year later by the same CEO.  The parties agreed that the CEO told the plaintiff that he was being terminated as CFO because it was “not working out.” The same day, the CEO emailed company employees informing them that the plaintiff “has decided to leave” the company.

Except, here’s the thing. The company told the court that it fired the plaintiff because “he continually made errors in financial reports, financial models, and cash sheets.”

Among other things, the plaintiff subsequently sued for age discrimination.

It’s not going to work out for the company (for now).

The company trumpeted several arguments as to why age could not have motivated its decision to end the plaintiff’s employment.

  1. He was hired at 63.
  2. The same person, the CEO, did the hiring and firing. The CEO is 57 and a member of the Age Discrimination and Employment Act protected class (40+)
  3. The replacement CFO was 52, and also in the same protected class.

Generally, those are good arguments. However, any circumstances surrounding a termination from which one could infer discrimination, mean that a jury will get to decide whether age motivated the termination. At summary judgment, contradictions and inconsistencies are an employer’s kryptonite.

[Cue music]


First, the CEO testified that two company employees expressed frustration about the plaintiff’s performance to him. However, deposition testimony from these two employees contradicted the CEO. Second, the Court recognized that the CEO’s “public explanation at the time of [the plaintiff’s] departure did not square with the reason he gave in this litigation for [the plaintiff] leaving.” That is, the email made it seem like the plaintiff was resigning when, indeed, he had been fired.

And although the replacement CFO was 52 years old, and also protected under the ADEA, the judge noted that “one could infer that [the employer] had tried working with an older man, but later decided to go with a younger one because it was ‘not working out.'”

Ultimately, because a jury could conclude that the employer’s rationale for the termination was “incredible,” the court denied summary judgment for the employer.


Firing an employee isn’t easy. I know that it’s tough to look someone in the eye and tell that person exactly why the company no longer wants to employ him or her. So, to ease the burden, we say things like, “It’s not working out,” “The fit isn’t right,” or some other waffly-malarkey.

When you’re firing someone, put on your big-boy/big-girl pants, and tell it like it is. That doesn’t mean crushing your soon-to-be former employee’s spirit with every single reason why the employment relationship is ending. But, it does mean getting right to the point and transparently telling an employee the main reason for the termination.

And, don’t wait.  In the case I blogged about today, the court noted that three months had passed between the last email noting performance issues and the termination. That three-month delay could evince pretext. So, hire slow and fire fast.

“Doing What’s Right – Not Just What’s Legal”
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