Employers, Watch Your Mouth and Remember, ‘Loose Lips Sink Ships’

Ever hear the expression “loose lips sink ships”? It comes from WWII and was plastered on posters in port cities, warning that gabbing about the sailing times of vessels carrying materials and soldiers would endanger their safe sailing. I thought it fit a very recent case from the U.S. 5th Circuit Court of Appeals, the federal appeals court covering Texas. Forewarned is forearmed.

‘Use Words Like Doctors Use Scalpels’

That’s what I tell my students again and again. Motiva Enterprises is, I imagine, now a convert after getting slapped down by the 5th Circuit.

Dean Dabbasi started work at Motiva in June 2014, when he was 48 years old. It was a rocky relationship—the quality of his performance was sometimes good, sometimes bad. His employment ended on August 15, 2019.

On June 18, 2019, Dabbasi met with his boss and HR because they wanted to place him on a performance improvement plan (PIP). He resisted, arguing that his supervisor had told him his performance was “hunky-dory.” Tempers flared, Dabbasi’s blood pressure rose, and he left the meeting to go to his doctor. Motiva put him on Family and Medical Leave Act (FMLA) leave until August 14.

When Dabbasi returned to work, things resumed where they left off—with a contentious meeting. Allegedly, Dabbasi raised his voice, spoke in a demeaning tone, and used very animated facial expressions and hand movements, but in the end, he signed the PIP. Afterward, the company decided enough was enough, and it fired him the next day for poor performance and refusal to commit to improving his performance. He then filed an age discrimination lawsuit.

‘But That’s Not What We Meant!!!’

Dabbasi’s evidence? Here it goes:

• His manager spoke of “rotating younger people” into a critical job area.
• The company decided to fill certain jobs with “early-career, high-potential employees.”

The company argued these phrases didn’t involve chronological age but rather seniority on the job. It even offered examples of workers over 40 who fit the bill. Yes, agreed the appeals court. It could mean that, or it could also mean older versus younger—as in over 40 versus under 40. It’s up to the jury to decide which version to believe.

Gift That Keeps on Giving

The case didn’t stop there with the good news for employees. Dabbasi alleged he suffered four specific incidents of age discrimination, including his discharge and the PIP. The trial court analyzed each of these allegations separately and found no age discrimination in any of them. The 5th Circuit said, Hold on. Not so fast:

We agree with Dabbasi that the district court should not evaluate whether each individual event in isolation demonstrated age discrimination when the argument is that the events collectively prove discrimination affected his employment.

Talk about a one-two punch for employees landing squarely on Texas employers. Dabbasi v. Motiva Enterprises, LLC (5th Cir., July 16, 2024).

Bottom Line

The difference between the right word and the almost right word is the difference between a lightning bolt and a lightning bug. Remember that. If a word or phrase can reasonably be taken one of two ways, the jury—not the litigants—gets to decide which the speaker meant. And this case will now be a tool for employees to argue that, when a trial court decides whether to dismiss the case without a trial or send the case to the jury, all of the allegations of unlawful discrimination must be considered together. No more divide and conquer.

Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@unt-dallas.edu.

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