Age Discrimination Action Fails Because Employee Violated Store’s Alcohol Policies

Takeaway: The employer’s offer for the plaintiff to leave without any negative impact on her record did not indicate age-based pressure to resign.

The 1st U.S. Circuit Court of Appeals affirmed summary judgment in favor of Trader Joe’s in an age discrimination action brought by a 77-year-old former employee who was terminated after purchasing alcohol for her 19-year-old grandson, who also worked in the store. 

In 2003, the plaintiff began working as a crew member at a Trader Joe’s store in Brookline, Mass. By all accounts, she was an exemplary employee and consistently received stellar reviews throughout her 17 years of employment. 

Because the store sells alcohol, all crew members, including the plaintiff, underwent training about the store’s alcohol policies, which prohibited the sale of alcohol to any person under the age of 21. The policy further provided that employees had a “responsibility to comply with all federal, state, and the Town of Brookline’s Laws.” The policy also outlined disciplinary measures for violations of the policy, which included potential termination. 

In February 2021, while the plaintiff and her 19-year-old grandson were both working in the store, they went to the alcohol section together; her grandson selected a beer from the shelf and handed it to the plaintiff, who then purchased the beer. Another employee witnessed the transaction and reported it to the store manager. When asked about the beer, the plaintiff confirmed that she had purchased it for her grandson. After consulting with the regional vice president, the store manager gave the plaintiff the option to retire or be terminated. Later that day, the plaintiff emailed the store manager, expressing her sadness about losing her job and stating in part, “[t]his termination was prompted by purchasing beer for my grandson.” 

The plaintiff sued Trader Joe’s and the store manager, alleging age discrimination under the Age Discrimination in Employment Act and the Massachusetts Fair Employment Practices Act. Trader Joe’s and the store manager moved for summary judgment, and the district court granted the motion. 

On appeal, the plaintiff argued that she had not actually violated the store policy or Massachusetts law because the policy prohibited only “the sale or service of alcohol” to an underage person, but it did not prohibit purchasing alcohol for an underage person. She also cited an exception under Massachusetts law that allows grandparents to serve alcohol to their underage grandchild on their property. Given there was no technical violation of the policy or law, the plaintiff argued that the stated basis for her termination was pretextual. 

However, the court explained that, under the McDonnell Douglas burden-shifting analysis, when determining whether a termination decision was pretextual, “our task is limited to determining whether the employer believed in the accuracy of the reason given,” not whether the employer was right. 

The plaintiff also argued that she was punished more severely than six other employees under the age of 40 who received written warnings for violating the company’s alcohol policy. The court explained that to support a claim of discrimination based on disparate treatment, the identified comparators must closely resemble the relevant facts and circumstances. The plaintiff identified five violators who neglected to check the identification of underage customers attempting to buy alcohol, while the plaintiff knew that her grandson was only 19.

The sixth comparator sold alcohol to an underage team member without checking their ID, but it was unclear in the record whether the employee knew their team member was underage; the employee who made the illegal sale immediately brought it to the attention of their supervisor, which Trader Joe’s determined was commendable. 

The court held that these comparators were not truly apples-to-apples comparators and could not support a disparate treatment argument. 

In addition, the plaintiff said that Trader Joe’s shifting explanations for the underlying basis for the termination decision—which changed from violation of the core value of integrity to violation of the alcohol policy, and then back and forth between the violation of only the alcohol policy versus the violation of the alcohol policy and Massachusetts law—indicated potential age discrimination. The court similarly rejected this argument, noting that Trader Joe’s never wavered from the core explanation for its action: the plaintiff’s knowing purchase of alcohol for an underage person. 

The plaintiff also argued that the store manager’s offer to allow her to retire constituted evidence of discrimination. The court disagreed and explained that the employer’s single use of the word “retire,” without more, could not support a finding of pretext or discriminatory animus. In this context, the plaintiff was not being pressured to resign based on her age. Rather, she was offered an opportunity to leave without any blemish on her record. 

Cocuzzo v. Trader Joe’s East Inc., 1st Cir., No. 23-1695 (Nov. 15, 2024).

Hassan Aburish is an attorney with Duane Morris in Palo Alto, Calif.