In Pelcha v. MW Bancorp and Watch Hill Bank, (6th Cir., No. 20-3511, 01/12/2021), employee Melanie Pelcha, age 47, was terminated from her employment on the recommendation of a new supervisor who had implemented a rule requiring employees to submit advance written requests for time off. Pelcha had initially refused to submit a request, but ultimately complied before she took the time off. She was nevertheless terminated by the Bank’s Vice President upon the supervisor’s recommendation. She filed suit under the ADEA and the district court granted summary judgment to the employer.

In affirming, the Sixth Circuit Court of Appeals first held that the vice president’s alleged comments did not constitute direct evidence of age discrimination. Those comments were that another employee in her eighties had a “limited shelf life”, had reached her “expiration date” and that he intended to reduce her hours until she quit. The vice president further allegedly commented that he would like to “hire younger tellers”. The court held these comments, although made by a decision-maker, did not reference the plaintiff, were not made in reference to any termination, and were made more than six months prior to Pelcha’s termination. Further, the comment about hiring younger employees “says noting about terminating older employees.”

The court held that although the plaintiff satisfied a prima facie case under an indirect theory, she failed to establish pretext. The court held the insubordination clearly had a basis in fact, and as stated above, the comments were not sufficient to establish pretext. The court also held that although the supervisor’s memo recommending termination contained other issues beyond insubordination, such did not constitute shifting rationales. With reference to a younger employee who was not terminated for “neglecting” to fill out the required form, the court held that was distinguishable from the plaintiff’s initial “refusal” to complete the form. Finally, the court held the bank’s failure to follow the progressive discipline policy in its employee manual did not support a claim of pretext.