The Employer's Legal Resource: Sticks and Stones May Break Your Bones, but Words Will Send Your Case to a Jury


James Lupton worked for American Fidelity for twenty years before he was discharged in 2013. He sued claiming various theories, one of which was age discrimination. American Fidelity filed a motion with the Court asking that it be granted summary judgment in its favor on that claim. The Court reviewed the case to see if there was a sufficient factual dispute to send the case for a jury trial.

In 2011, Lupton was found to have plugged an external drive into his company laptop with inappropriate content. He was given a written warning which advised that any additional violations of that nature could result in further discipline up to and including discipline. Then, as part of an investigation in late 2012 and early 2013, his laptop was again analyzed. It was discovered he had violated certain IT policies including finding it had pornographic material, it had a game on the laptop, he had transferred certain document to an off-site storage website (the parties dispute whether these documents were company or personal documents), and had allowed his daughter to use his company laptop. The company also disputed the claim of age discrimination by pointing to the fact that Lupton was replaced by a person just one year his junior.

However, there are always two sides to every story.

Lupton then presented his evidence to the Court. Lupton questioned why his computer was even analyzed. The 2012 event was based upon a complaint of a sexually-hostile environment which was, admittedly, unrelated to him. While the complaint of a sexually-hostile environment originated in the department in which he worked, the complaining party never mentioned him. Management simply included him because of his 2011 infraction. He argued the policy violations were not the real reason for his discharge at all. Instead, he pointed to the comments and actions of management as supporting their true intent -- to get rid of him because of his age.

The Court agreed with Lupton, finding there was

evidence of the age related remarks made by Fisher directed at plaintiff -- telling plaintiff he was a "dinosaur" and to "upgrade [his] skills", - as well as plaintiff being told by Fisher that he was not selected to serve on the succession planning team because "she wanted the younger people who were going to move forward and take the company into the future to be a part of the decision-making that were going to reorganize the organization" and remarks made by Wood in an information systems managers meeting, of which plaintiff was a part, stating -- "you people who are up there in years and have been here a long time, put your tape recorder, put your cassette player or eight track player down and I'll hand you a smartphone" ...


With that, the Court denied American Fidelity's request and is sending this case to a jury to decide whether Lupton's discharge was due to his IT policy violations or due to his age.

There are a couple of points to glean from this case.

  • Obviously, don't use terms like "dinosaur" when referring to your employees or otherwise denigrate any employee due to his or her age
  • Employers MUST educate their managers and supervisors about the importance of the way they interact with the members of their teams
  • Carefully consider why you make the decisions you do. Of course, we do not know why Lupton was included in the sweep of persons whose computers were analyzed in connection with the investigation. However, each decision made as a result of the other investigation needed to have been carefully considered. As it turns out, it had ramifications wholly unrelated to the sexually-hostile working environment claim.

By Kristen L. Brightmire,

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Justin B. Munn

Justin B. Munn

Justin represents clients throughout Oklahoma in family law, civil litigation, guardianships, adoptions, estate planning, trust and probate matters. 

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