Man Fired for Swearing|Can Sue for Age Bias

(CN) - A truck driver who was fired for using foul language may have been a victim of age discrimination, a Texas appeals court ruled.

Ivory Clemons claimed that his former employer, Texas Concrete Materials, fired him under false pretenses at the age of 65, claiming that he used profanity on the two-way truck radio.

Clemons said, "Oh, shit" in frustration when the dispatcher gave him the wrong directions, followed by "Man, they need to get this shit straight."

His supervisor, Daniel Villareal, said that he then got on the radio and told Clemons to stop cursing.

"You don't know shit about nothing anyway," Clemons replied, according to Villareal.

Two other employees testified that they heard this exchange over the radio.

Clemons sued for age discrimination, claiming he was replaced by a younger worker. He said company Vice President Mike Barras suggested it was time for Clemons to "move on."

The trial court granted summary judgment to Texas Concrete.

But the Seventh District Court of Appeals in Amarillo reversed, finding that Clemons had produced enough evidence to support his claim.

"Clemons testified that Barras took the opportunity during conversations to encourage retirement, asked if he was collecting Social Security, and suggested it was time to 'move on,'" Justice Patrick Pirtle wrote.

Also, the company's human resource records show that Texas Concrete reduced its percentage of workers over the age of 40 from 79 percent in the fall to 2007 to 38 percent less than a year later, according to the ruling.

The appeals court reinstated Clemons' age-discrimination claim and remanded.

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