A federal appeals court upheld a ruling in favor of FM Global on Tuesday in a lawsuit filed by a fired longtime employee who had alleged age discrimination and retaliation.
The 1st US Court of Appeals in Boston said in its ruling in Thomas Dusel v. Factory Mutual Insurance Co., d/b/a/FM Global that the insurer had presented legitimate, non-discriminatory reasons to Mr. Dusel’s firing, which was improper cell phone use and theft of food from a company facility.
Mr. Dusel was a 35-year employee of Factory Mutual and at the time of his termination was president and CEO of Hobbs Brook Management, a Waltham, Mass.-based subsidiary that provides property management and services for FM Global̵7;s properties.
In 2015, an HBM employee filed a complaint with FM Global’s human resources department alleging harassment and other inappropriate behavior by her then manager.
After two investigations, human resources concluded that they did not have sufficient evidence to determine that the supervisor had violated FM Global’s policies.
Mr Dusel said he had observed the supervisor acting inappropriately and had encouraged the employee to contact staff.
After the second investigation, FM Global moved HBM’s management to the company’s headquarters in Johnston, Rhode Island, and had the employee and supervisor report directly to Dusel’s manager.
Mr. Dusel complained that this significantly increased his commute and reduced his work responsibilities.
In July 2018, FM Global began an audit of HBM’s mobile phone account after a deceased employee tried to keep his mobile phone and learned that Mr. Dusel had three cell phone lines, two of which belonged to his wife and daughter, which had been charged to the company’s account for several years, and the company had never been reimbursed for these expenses.
Concurrent with the cell phone investigations, surveillance footage of an HBM-owned building showed that Mr. Dusel had probably been stealing food from the facility during afterwork or on weekends for several years.
Mr. Dusel was terminated in September 2018 for violating the company’s code of conduct and for misappropriating company services and property.
Mr Dusel sued the company alleging age discrimination and retaliation. The US District Court in Boston granted summary judgment to FM Global and was affirmed by a three-judge appeals court.
FM Global “has presented legitimate, non-discriminatory reasons for Dusel’s termination, namely, Dusel’s violation of company policy regarding his use of company cell phone lines, his apparent attempt to conceal this conduct from FM Global investigators, and his after-hours visits to company facilities, which led FM Global to conclude that he had engaged in food theft,” said the ruling, which affirmed the lower court.
Attorneys in the case did not respond to requests for comment.