Comments About Employee’s Retirement Did Not Establish Any Claims

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Jan 25, 2022

ProTec is a San-Diego based company that provides services to homeowners’ associations.  In 2014, ProTec hired Laura Swirski as its Human Resources Manager.  Swirski was 53 years old.

In August 2016, Swirski sent an email to ProTec managers stating that “leaders who don’t listen will eventually be surrounded by people who have nothing to say.”  A manager forwarded the email to another manager noting that “coworkers who don’t listen to (and do) what their boss asks them to do will be looking for another job.”  The manager inadvertently copied Swirski on the correspondence.  Swirski subsequently met with the manager privately and informed him that she was uncomfortable with his comments and felt threatened.  The manager apologized for his “transgression” and later sent the other ProTec managers two articles from Swirski explaining the importance of listening and building personal connections with employees.

In January 2018, ProTec engaged a consultant to train certain employees to use an employee assessment tool.  Swirski volunteered to train in the tool.  In response, ProTec’s Chief Financial Officer (CFO) asked Swirski how long she expected to remain working at ProTec.  Following the CFO’s inquiry, Swirski emailed the executive team noting that she had no plans to retire and wanted to work at ProtTec for a long time.   The CFO later told Swirski that she did not mean to offend her or imply that the question was at all age-related.  Swirski ultimately received the training.

Following this incident, ProTec employees made other comments about Swirski that she believed were age-related.  For example, the consultant noted that it was “unknown” how long Swirski would remain working at ProtTec at a company retreat.  In addition, other managers made a joke about Swirski’s lack of technological proficiency. One manager transferred the responsibility of maintaining an Excel spreadsheet with a company staffing plan to his executive assistant because she was “younger and better at technology.”  Swirski also heard some managers make comments that certain potential employees were “too old” or “fat” to climb ladders or do other physical work required of a technician.  Afterward, Swirski believed that managers began discussing human resources issues with employees other than Swirski.

In August 2019, a former employee made claims of sexual harassment and fraud against ProTec.  Swirski was the main point of contact between ProTec and its employment attorney, but she felt that managers were undermining her by interfering in the lawsuit.  Also during this time, a manager informed Swirski that employees were complaining that she was receiving special treatment for being allowed to bring her dog to the office.  On three occasions, the manager told Swirski that she could have a good retirement by taking her dog to hospitals and retirement homes as a therapy dog.  On October 28, 2019, Swirski gave ProTec her letter of resignation. She was 59 years old.  ProTec hired Barbara Jimenez, age 52, to replace Swirski.

After her resignation. Swirski initiated a lawsuit against ProTec alleging, among other claims, age discrimination, hostile work environment, retaliation, and failure to prevent retaliation and harassment. ProTec moved for judgment in its favor.

First, the court found that there was no evidence of any age discrimination.  The comments about Swirski’s retirement did not reference her age and appeared to be discrete, isolated remarks.  Further, the comments about her technological proficiency were not clearly motivated by age-related animus, but rather were made in relation to her Excel spreadsheet skills or lack thereof.  The court also found that there was insufficient evidence that the comments about hiring “old” people for the technician position were motivated by discriminatory intent instead of safety concerns related to performing manual labor. Finally, the court reasoned that Swirski could not show that a substantially younger employee replaced her.  Jimenez was 52 years old; a protected age and only seven years younger than Swirski.  Thus, the court concluded that, at most, Swirski’s evidence showed the frustrating and uncomfortable interactions with coworkers that permeate any workplace.

Second, Swirski cited four incidents that she argued created hostile work conditions: 1) the August 2016 email in which the manager wrote that “coworkers who don’t listen to (and do) what their boss asks them to do will soon be looking for another job; 2) the January 2018 comment about how long Swirski expected to remain working at ProTec; 3) the comment at the company retreat about how much longer Swirski intended to work at ProTec, and 4) the comments that potential employees were “too old” or “too fat” for certain positions.  She also suggested that the comments made to her about her technology proficiency and her dog lent to this hostile work environment (HWE). The court noted that only one of these comments actually referenced Swirski’s age, and they were not sufficient to support an inference of harassment since they were not severe or pervasive.  Instead, these were sporadic and isolated comments that could not rise to the level of an HWE.

Third, the court concluded that Swirski also could not establish her retaliation claims. Swirski could not demonstrate that she participated in protected activity, a necessary element of a retaliation claim.  Swirski never complained about age discrimination to an outside agency during her employment, nor did she inform anyone in ProTec’s management.   The court noted that complaints about personal grievances, or vague or conclusory remarks, do not put an employer on notice as to what conduct it should investigate, and are not sufficient to be protected activity.  In addition, even if Swirski could establish any protected activity, she still did not present any evidence of a causal connection between her complaints and her alleged constructive discharge.

Finally, because Swirski could not establish her harassment or retaliation claims, the court determined that her failure to prevent retaliation and harassment claim also failed.

For these reasons, the court entered judgment in ProTec’s favor on Swirski’s claims.

Swirski v. ProTec Building Services, Inc. (S.D. Cal. Dec. 6, 2021) 2021 WL 5771222 (slip opinion).


This is a district court case that has not been appealed to date.   Case law is clear that an employee cannot maintain a failure to prevent a claim if he or she has not been discriminated against or harassed.

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