The Employer's Legal Resource: Employee's Use of Secret Recordings in ADEA Discrimination Case Backfires

11.01.2015

Olivia Housley was 56 years old and had worked at a Boeing manufacturing facility in Wichita, Kansas, for 26 years when the facility was sold to Spirit AeroSystems in 2005. Boeing employees at the facility lost their jobs as a result of the sale, but 85 percent of the 10,000 employees were immediately rehired by Spirit. Housley was not one of them. She sued Spirit under the Age Discrimination in Employment Act (ADEA) alleging that she was not hired because of her age.

In making decisions about whom it was going to rehire after the sale, Spirit relied on Boeing management for recommendations about which employees were most deserving. Boeing's human resources department developed criteria for management to use to evaluate each employee, including skills, productivity, and teamwork/attitude. Managers were specifically told not to consider retirement eligibility or age in making their recommendations about which employees Spirit should hire. Despite having previously received positive performance reviews, Housley was not recommended for employment with Spirit because she had a lower skill level and "problems teaming" according to her manager (and other managers agreed).

In the meantime, while Housley was still employed by Boeing, she secretly recorded several conversations she had with her managers, co-workers, and human resources personnel. During one such recorded conversation, which occurred one week before Boeing recommended Housley not be hired by Spirit, Housley's manager (acting as an agent of Spirit at the time) asked her in a private meeting whether she was "old enough" and if she was thinking about retirement.

Housley planned to use this recording at trial to support her ADEA claim and show the company's age-related bias in not hiring her. But, in what the Tenth Circuit called "an interesting turn of events," Spirit also wanted to use the audio recordings for its own case, as after-acquired evidence of Housley's wrongdoing to preclude her from recovering damages. The company argued that even if Housley were able to prove Spirit did not hire her because of her age, she suffered no harm because Spirit would not have hired her regardless if it had known about the secretly-recorded conversations at the time. According to Spirit, the recordings showed that Housley was not a team player and did not have the positive attitude Spirit was looking for in its workforce. Housley disagreed. According to Housley, the recordings were not illegal and did not violate any of the company's rules so there was no wrongdoing on her part.

Without a specific ruling on whether Housley's secret taping of conversations constituted wrongdoing, the recording was used as evidence and played at trial and the jury ultimately found in favor of Spirit. The Tenth Circuit explained that the recordings "turned out to be a double-edged sword" for Housley. She wanted the jury to know about the recordings to support her claim of age discrimination, but "Spirit turned the tables on her" by using them for the company's own unique purpose to dispute damages. "In the end," the Tenth Circuit stated, "Housley was obliged to take the bitter with the sweet." Spirit did not suggest that Housley was not hired because she secretly recorded conversations in the workplace, but merely argued that her doing so was evidence of her lack of teamwork and poor attitude -- objective and legitimate criteria for employment with Spirit -- which were among the reasons for passing her over in the hir ing process. Housley was likewise allowed to explain to the jury her reasons for the recordings, testify that nothing in the law or the company's policies prohibited her conduct, and otherwise use the recording for her benefit in supporting her claim. The jury verdict was upheld.

By Rebecca D. Stanglein, rstanglein@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
litigation and counsels clients regarding everyday employment matters. 

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