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Friday, August 14, 2015

The Old Short Blond Girl Wins

By: Thomas Eden

Heartland Employment Services, LLC in Missouri employed Cynthia Thomas as an account liaison from May 2010 until she was terminated on June 24, 2011, at age fifty-three. Thomas challenged the decision alleging an age-based animus (state of mind), against a hospice administrator for Heartland.

According to testimony of a Heartland employee, the supervisor stated in June or July 2011 "that older people didn't work as fast or were as productive as younger people," and made "comments about having fresh blood, younger employees." The supervisor referred to Thomas as "the old short blond girl," and soon after her discharge, he told a Heartland client who expressed concern about Thomas's departure that "he likes to keep himself surrounded with young people." Although he denied that he supervised Thomas or had authority to discharge her, the regional human resources manager for Heartland testified that this supervisor was "an indirect supervisor" of the account liaison personnel, and would have been "perfectly within his rights to have input on whether or not Cynthia Thomas was terminated."

Thomas's position as an account liaison included traveling to establish and maintain relationships with Heartland clients. Heartland permitted Thomas to claim reimbursement for the resulting mileage. Later her mileage claims were evaluated and compared to weekly call plans that Thomas prepared to describe her projected travel for an upcoming week. The reviewers determined that Thomas had claimed reimbursement for more miles than the distance between the calls listed on the call plans for each of the three weeks. The group of three, including her supervisor, concluded that Thomas had falsified her reimbursement claims, and collectively believed that Thomas's termination was required.

They then all met with Thomas to discharge her. When confronted, Thomas responded that she kept records that would explain discrepancies between the claimed mileage and the weekly call plans. According to Thomas, she took additional trips that were not included as projected travel in the call plans, and her mileage claims were truthful and accurate.

The U.S. District Court Judge concluded that Thomas’s supervisor was not a decision-maker or closely involved in the termination decision, and that his age-related comments were thus considered "stray remarks, " and granted summary judgment to Heartland dismissing the age discrimination case. However, this week the U.S. 8th Circuit Court of Appeal viewed the "old short blond girl" in the light most favorable to Thomas, and concluded that they were sufficiently related to Thomas and to the decisional process to constitute direct evidence of age discrimination to get her case before a jury.

Common Sense Counsel: Direct evidence of age discrimination constitutes an expression typically made by the decision maker such as “this old dog just won’t hunt anymore,” or this employee “has been around since Christ was a baby,” or “Old Farts,” or “The Old Short Blond Girl.” Accordingly, it is critical to train your employees and managers never to use age related expressions or stereotyping of employees and your company should not be an ADEA casualty.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at