Showing posts with label age discrimination. Show all posts
Showing posts with label age discrimination. Show all posts

Monday, October 3, 2022

Ohio Court Rejects Age Discrimination When Plaintiff Was Not Replaced, Could Not Identify Similarly-Situated Comparator and Employer Had Honest Belief.

Last month, the Lucas County Court of Appeals affirmed an employer’s summary judgment on an age discrimination claim because the plaintiff employee could not show that he had been replaced, was treated less favorably or that his termination was pretextual when the employer had an honest belief supporting the reason for his termination.  Hardy v. The Anderson's, Inc., 2022-Ohio-3357.   The Court agreed that the plaintiff could show that he was minimally qualified for his position based on his prior experience and promotion even though he had a recent negative evaluation.  However, the plaintiff could not show that he had been replaced when existing employees assumed his prior job duties in addition to their existing responsibilities.  He also could not show that he was treated less favorably than a substantially younger employee when that employee was not similarly situated because he only lived a few hours/miles outside his sale district and had fully informed the manager of his living arrangements and had not tried to hide them, unlike the plaintiff who moved thousands of miles from Michigan to the Caribbean to be with his second wife.   Finally, there was no dispute that the plaintiff had not been candid about his living arrangements with his manager and that the manager blamed his relocation for his poor job performance.  Whether he lied or was merely evasive, whether or not it was necessary to spend a certain amount of time in the sales district meeting with customers, and whether or not he was required to have reported this time as vacation instead of collecting his regular salary, the Court had no trouble finding that no one else had engaged in similar behavior and it justified his termination.  The  Court also rejected the argument that the manager’s prior comment referring to him as a dinosaur could constitute direct evidence of or pretext for discrimination.

According to the Court’s opinion, to save his second marriage, the plaintiff had relocated to his wife’s home country in the Caribbean for extended periods of time without telling his new manager. While the plaintiff’s initial performance evaluation in his new management position had been favorable (while he had been living full-time in his sales district), his second evaluation had been negative even before his new manager found out that he had been spending most weeks in the Caribbean.   The plaintiff admitted that he had not submitted certain weekly report or learned a new computer system.  The plaintiff alleged that his new manager once referred to him as a dinosaur.  When his job performance suffered, the manager found out about his relocation, confronted him and immediately terminated him.    Following the termination, the manager assumed his duties for a few months before restructuring the position and hiring a new employee to perform parts of the duties in one region.    

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Wednesday, January 26, 2022

Although Plaintiff Was Not Plainly Superior Candidate, He Could Still Prove Pretext With Disputed Comments

On Monday, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment in an age discrimination failure-to-hire case, but affirmed dismissal of the plaintiff’s retaliation claim.   Aday v. Westfield Ins. Co., No. 21-3115 (6th Cir. 1/24/22).   The Court discussed alternative ways for a plaintiff to prove that an employer’s explanation is pretextual in a failure to hire case and permitted the case the be resolved by a jury based on only two ageist comments from debatable decisionmakers.  The Court agreed that the plaintiff had not proven that he was the plainly superior candidate, in part because of the comparative leadership experience and because that he wanted to remotely manage his team from Seattle, far away from any company office.  However, when considering what would typically be “stray remarks” from arguably non-decisionmakers that may have indicated an age bias and a discriminatory atmosphere together with evidence that he had comparable qualifications to the successful candidates, the Court found sufficient evidence of pretext to let a jury decide the outcome.  The Court also rejected the argument that the employer's counterclaim was objectively baseless. 

Background

According to the Court’s decision, the 63-year old plaintiff has worked successfully for 40 years and received both promotions and transfers into leadership and other significant positions.  When his domestic partner accepted a job in Seattle, he sought authorization to work remotely from there or, in the alternative, to be transferred into a different management position for the Central U.S. which he would manage remotely from Seattle.  His own manager supported his efforts.  While he was denied authorization to work remotely, he was permitted to work from Ohio as long as he wished.   Although he interviewed well for the new management position, a 50-year old employee from Toledo with 22 years of comparable experience who had been a direct report of the hiring manager was chosen.   The employer later explained that there were questions about his passion for the position and his intent to manage his team from Seattle.

The plaintiff claimed that the hiring manager’s superior once joked to him over a lunch that he would be the next person to retire.  He also alleged that a co-worker claimed to have spoken with the interviewing/draft management team about the hiring decision and reported that they felt that it was time for the plaintiff to retire. He eventually retired, moved to Seattle and brought suit for age discrimination.  The employer filed a counterclaim for misappropriation of trade secrets and the plaintiff responded by amending his complaint to add a retaliation claim.  The trial court granted summary judgment dismissing the claims and the plaintiff appealed.

There was no dispute about whether the plaintiff had alleged a prima facie case of age discrimination and the focus of the Court’s opinion was on whether or not he had created a factual dispute (for a jury to resolve) about whether the employer’s explanation was pretextual.  The standard way to show pretext is “that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.”  However, in a failure-to-hire context, a plaintiff

may prove pretext through the relative-qualifications test. . . . that either (1) he was the “plainly superior candidate, such that no reasonable employer would have chosen the latter applicant over the former,” or (2) he “was as qualified as if not better qualified” than Somogyi and Zito and the record contains “other probative evidence of discrimination.”

Not a Plainly Superior Candidate

The Court found that the plaintiff failed to produce objective evidence that he was plainly superior candidate. Courts will not act as a super-personnel department to second guess business decisions.   “If two reasonable decisionmakers could consider the candidates’ qualifications and arrive at opposite conclusions as to who is more qualified, then clearly one candidate’s qualifications are not significantly better than the others.” In other words, “[s]imply being “more qualified” is not sufficient to prove Plaintiff is the plainly superior candidate.”  Similarly, giving a good job interview does not make one plainly superior.

While the plaintiff had more industry and technical expertise than the other candidates, simply being more qualified than them on one aspect of the job was insufficient by itself to satisfy his burden of proof.  “[E]ven if Plaintiff were considered the candidate with marginally better technical experience, no reasonable juror could conclude he was the plainly superior candidate under the Sixth Circuit’s exacting standard, especially considering technical experience is only one facet of the job.”

The Court was less impressed with his prior “leadership experience.”  The hiring manager recalled his six years leading a team and he had seemed stressed and overworked.  Indeed, he had left that position to become an individual contributor as an claims specialist and this contributed to the decision that he lacked sufficient desire for a leadership role.  One of the other candidates had 11 years of “incredible” leadership experience and the other had comparable leadership experience.  “In terms of leadership experience, no reasonable jury could find that Plaintiff was the plainly superior candidate.”

The Court also disagreed that plaintiff’s desired work location in Seatle made him more qualified to supervise a team in Arizona, Colorado, Minnesota and Illinois.  However, “anything requiring in-person attendance would incur a greater expense” because the other candidates were working more closely to the rest of the company.  This concern with his remote work location had been expressed to the plaintiff repeatedly throughout the process.

In his best-case scenario, a reasonable juror could conclude that Plaintiff had marginally better technical training, had better leadership experience than Zito , and was in a marginally better geographic location. This is not enough.

Plaintiff has not produced enough evidence from which any reasonable juror could conclude that he had better leadership experience than Somogyi.

Comparative Qualifications with Some Other Evidence

Plaintiff could not show that he was plainly superior because of his comparable leadership experience and questions about his ability to effectively manage remotely from Seattle.  To prevail on the alternative argument, the plaintiff need not show that he was the indisputably best candidate; he need only show that his qualifications made him arguably “as qualified.”  He satisfied this burden with the employer’s admission that he had been ranked as one of the top four candidates.  

The second prong requires other probative evidence of discrimination.  For this, the plaintiff proffered two statements made to him: a joke about him being the next to retire and a disputed allegation by a co-worker that the hiring managers had expressed their belief that he should retire.  The Court held this was sufficient evidence:

By themselves, neither  . . . .  comment would likely be sufficient to create a genuine dispute. However, considering the comments together, we believe Plaintiff has produced probative evidence of discrimination.

The parties disputed whether the joke was made by anyone involved in the decision to hire the plaintiff.  However, the jokester was the hiring manager’s manager and had the authority to override her decision (although he had rarely done so). “Nevertheless, we need not determine whether Bowers was a decisionmaker because this Court has ‘held that discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext.’” Further, it was irrelevant at this stage that everyone admitted the comment was a joke. “This Court has held, however, that statements may be probative evidence of discrimination even if they are made as a joke.”  This joke could contribute to a discriminatory atmosphere where discriminatory decisions are made.

We noted that evidence of a discriminatory atmosphere “may serve as circumstantial evidence of individualized discrimination directed at the plaintiff.” . . . And while a workplace atmosphere replete with discrimination is not conclusive proof that an individual plaintiff is the victim of age discrimination, a discriminatory atmosphere “‘tend[s] to add “color” to the employer’s decisionmaking processes and to the influences behind the actions taken with respect to the individual plaintiff.’” . . .  Here, Bowers was a very senior leader at Westfield and his willingness to comment on and “joke” about a junior employee’s retirement status in the midst of that employee’s search for a new position could reasonably be interpreted as contributing to a discriminatory atmosphere at Westfiel

While the co-worker admitted telling the plaintiff that he should retire, he denied ever speaking with any of the hiring managers about the decision.   Nonetheless, the Court found that a jury could decide to credit the plaintiff’s memory – that his co-worker had in fact claimed to have spoken with the hiring managers – over the co-worker’s denial that he had ever done so. 

General Pretext

The Court rejected the plaintiff’s other evidence of pretext.  Although he was able to cast sufficient doubt on one of the employer’s explanations, he did not have evidence showing that the other explanations lacked a basis in fact, etc.

With respect to plaintiff’s perceived lack of passion for the position, he pointed out that one of the successful candidates had applied for any and every position after her current position had been eliminated.    The other candidate had previously left the industry altogether at one point to pursue a different field.   The plaintiff had also scored highly on an assessment.  “Considering all this, a reasonable juror could conclude that Lilly’s explanation that Plaintiff lacked passion for the Unit Leader position had no basis in fact and was pretextual.”

Plaintiff has cast doubt on some—but not all—of the reasons Defendants articulated for not hiring him. While [the hiring manager’s] explanation that he lacked passion for the Unit Leader position arguably has no basis in fact, Plaintiff has failed to cast doubt on [her] subjective beliefs that one candidate had more relevant experience and the other candidate presented a more creative plan. Since these are both nondiscriminatory bases for choosing to hire [them] over Plaintiff, Plaintiff has not created a genuine dispute under the general pretext test.

No Retaliation for Counterclaim

The plaintiff’s retaliation claim was based on the employer’s filing of a counterclaim for misappropriation of trade secrets.  The Court rejected this argument as well. 

While ‘”an employer is not barred from filing a well-grounded, objectively based action against an employee who has engaged in a protected activity,”. in some situations, the filing of counterclaims may constitute adverse employment action.  . . . The central question is whether the counterclaims are filed “not in good faith and instead motivated by retaliation.” . . . Stated differently, the Court must find (1) “the employer acted with retaliatory motive” and (2) that the employer’s counterclaims “lack a reasonable basis in fact or law.”

The employer’s claim was based on the plaintiff emailing trade secrets to the personal email accounts of himself and his domestic partner.   The trial court concluded that the plaintiff had not used improper means to access the information in violation of any policy and there was no evidence that anyone other than the plaintiff had accessed any trade secrets.   The plaintiff argued that the claims were “objectively baseless” because of the lack of precedent condemning emailing confidential information to an employee’s personal email account. “A claim is not objectively baseless simply because it fails.”

Defendants’ argument is not nearly as outlandish as Plaintiff tries to make it seem. Courts around the country have considered whether emails sent to oneself can constitute misappropriation. For example, in Aon PLC v. Infinite Equity, Inc., No. 19 C 7504, 2021 WL 4192072, at *14 (N.D. Ill. Sept. 15, 2021), the court found there was a reasonable likelihood of success on a misappropriation claim when an employee “forwarded emails from his Aon email address to his personal email address.” See generally
Mintz v. Mark Bartelstein & Assocs. Inc., No. 2:12-CV-02554-SVW-SS, 2013 WL 12182602, at *4 (C.D. Cal. June 14, 2013); CPI Card Grp., Inc. v. Dwyer, 294 F. Supp. 3d 791, 809 (D. Minn. 2018). Having failed to prove Defendants’ counterclaims lack a reasonable basis in fact or law, for this reason alone, Plaintiff’s claim of retaliation must fail.

The Court also rejected the argument that the employer’s counterclaim was retaliatory because it knew that other employees emailed information to themselves but only sued him for it after he brought an age discrimination claim.

There are many reasons an employer would not litigate every infraction employees commit. However, after an employee has hauled an employer into court, it is entirely reasonable for the employer to file its claims for minor infractions. Additionally, Defendants only filed the counterclaims after Plaintiff brought the conduct to their attention. During the parties’ initial disclosures, Plaintiff mentioned he had emailed documents to his personal email account. Defendants sought leave to file the counterclaims after taking the time to audit Plaintiff’s email account. Finally, these were compulsory counterclaims that, if not filed in the present action, would be barred in future litigation.

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Monday, December 13, 2021

Belmont County Appellate Court Affirms Employer’s Summary Judgment on Age Discrimination Claim

Last month, the Belmont County Court of Appeals affirmed an employer’s summary judgment when a former employee challenged the elimination of her Marketing Director position on the basis of age discrimination.  Cunningham v. Perry & Assocs., 2021-Ohio-4295 The trial court determined that the plaintiff had not been replaced as required to carry her burden of proof because her duties were divided, some were outsourced and the rest spread among the remaining employees.  That the employer considered assigning some of her job duties to a younger male if he were ever rehired does not constitute replacement.  “An intent by an employer for another employee to assume only some duties does not constitute replacement.” Further, the plaintiff failed to produce evidence that the employer’s explanation was pretext for age discrimination.  It was undisputed that the employer had explained that the cost of the Marketing Director position outweighed the benefits, particularly when the Cambridge office was losing money.

According to the Court’s opinion, the plaintiff had initially been hired on a contract basis and then was hired as the company’s Marketing Director when she was 60 years old.   After challenging her initial 90-day performance evaluation, she alleged that she was given a $5k raise in lieu of a $5k bonus.  However, a few months after she brought up that the “raise” was not reflected on the following year’s pay stub, the employer decided to eliminate her “position because it determined that the cost of the Marketing Director’s salary and benefits outweighed the marketing results [it] realized during [her] employment. During this time-frame, [its] Cambridge, Ohio office was losing money. [It] ended up outsourcing its digital and social media marketing and redistributing the remainder of [her] job functions among its existing employees.”  Admittedly, no younger employees were hired to assume any of her duties, although she alleged that the employer considered re-hiring a younger male employee to assume some of her duties.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Tuesday, November 30, 2021

Sixth Circuit Reverses Employer’s Summary Judgment in Age Discrimination and Retaliation Case

 Earlier this month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment  on an age discrimination and retaliation case where the employee had been terminated in a reduction in force. Sloat v. Hewlett-Packard Enterprise Co., No. 20-6169 (6th Cir. 2021).  After five years of excellent performance evaluations, the plaintiff’s new manager had asked him at least 10 times when he planned to retire and encouraged staff to refer to him as “Uncle.”  When confronted with whether he had a problem with the plaintiff’s age, he screamed, spoke to the plaintiff very little over the next four months, gave him the second worse possible mid-term evaluation and recommended him for termination.    In short, the court concluded that the plaintiff had produced enough evidence that the jury—and not the trial judge --  should be able to decide what the employer’s true motivation was in terminating his employment.

According to the Court, the plaintiff trainer had worked with stellar performance evaluations, incentive compensation and promotions until he was transferred in November 2016 after 6 years to a new division, which he had been told wanted him to roll out the training program that he developed.  However, it was apparent that this was not the true reason for his transfer because his new manager had no knowledge of or interest in his training program and found his position to be redundant and without any assigned responsibilities or recognition of achievements. The plaintiff was the manager’s oldest direct report.   The manager’s chief of staff called him by the wrong name and then referred to him as “Uncle” thereafter, with support from the manager.  The manager asked him at least ten times when he planned to retire and why he was still there and interacted him on an extremely limited basis.  After the plaintiff complained about age discrimination, the manager then began advocating for him to be terminated. In this mid-year performance evaluation, the manager gave him the second lowest score.  The manager also became very angry when the plaintiff raised his concerns with HR and with the manager directly.  HR refused to conduct any investigation of the plaintiff’s concerns.  The plaintiff was informed of his termination by a different executive, who freely admitted that he was merely the messenger and not the decisionmaker.

While the Court agreed that a few inquiries about retirement plans could be necessary or prudent, badgering an employee – especially considering their limited interaction – was evidence of age discrimination.  That the employer attempted to explain the inquiries was merely an attempt to shift the summary judgment burden and did not give favorable inferences to the non-moving party:

That response is inexplicable: one or two inquiries along these lines from one’s boss might be dismissed as isolated; even more inquiries could form a pattern; but ten inquiries, a jury could easily find, is a campaign. [The employer] also responds that [the manager] asked about [the plaintiff’s] retirement plans “in the context of [the manager] telling [the plaintiff] that he did not appreciate his constant emails.” Br. at 33. But that point merely views the evidence in a light favorable to [the employer]; that [the manager] complained about [the plaintiff’s] emails in these conversations does nothing to preclude the straightforward inference that [the manager] thought [the plaintiff] should retire because [the manager] thought he was too old for the job. In sum, [the plaintiff] has sufficient evidence that [the manager] was biased against him because of his age.

[The manager’s] inquiries about retirement also support an inference that [he] engaged in a series of actions, driven by bias, whose intended effect was to drive [the plaintiff] out of the company. At first (one could reasonably infer) [the manager] pushed to have [the plaintiff] leave voluntarily; to retire from a position is to leave it. That [the manager] gave [the plaintiff] “the lowest bonus of all his direct reports”—and told [him] as much directly—supports this view. So does the fact that, in March 2017, [the manager] asked [the plaintiff], “Why are you still here?” ([The manager] did not dispute that point either in his deposition.) But [the plaintiff] did not leave voluntarily, so (one could reasonably infer) [the manager] sought to terminate him. [His] first attempt took the form of a proposed one-person workforce reduction. . . —in which [the plaintiff’s] position alone would be eliminated.  [The manager] abandoned that plan only after [HR] flagged it for “legal attention” and  . . .  advised him to wait for a company-wide workforce reduction that was then pending . ..

The Court also found sufficient evidence that the manager, and not the executive, had been the decisionmaker or the executive had relied on the manager’s recommendation and explanation for why the plaintiff should be fired.   The executive had limited and only favorable impressions of the plaintiff’s work and had been unaware of how he had been treated by the manager.   There was no independent investigation and no break in the chain of causation showing that the plaintiff had been terminated for reasons unrelated to his manager’s alleged discriminatory animus.   The Court concluded that a reasonable jury could find that the manager’s discriminatory animus based on the plaintiff’s age was the but-for causation, or had a determinative influence on the outcome of the decisionmaking process.

The Court similarly found that the plaintiff could satisfy his burden of proving that retaliation was a but-for cause for his termination:

As to that question, Sloat emphasizes that Hagler “scream[ed]” at him and was “furious” when (per Iyer’s advice) he told Hagler directly that he thought Hagler was discriminating against him because of his age. Sloat also has evidence that, after that conversation, Hagler avoided speaking with him (by Hagler’s count, they spoke seven times in the next four months), stripped him of all his remaining responsibilities as to Ropes, and gave him his worst performance review ever. Hagler also tried to get Sloat transferred off his team and—when that failed—sought to terminate him in a one-person “WFR.” Moreover, Iyer’s email flagging that “situation” for “legal attention” and an examination of “the rationale and any risks associated with it” supports an inference that even she thought the one-person “WFR” was potentially retaliatory. Thus, much of the same evidence that supports Sloat’s claim of age discrimination likewise provides sufficient support for his prima facie case for the retaliation claim.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Wednesday, August 3, 2016

Sixth Circuit: Unfairness is No Substitute for Evidence of Discrimination


On Monday, the Sixth Circuit affirmed the dismissal of an age discrimination claim brought by a salesman who was terminated after he refused to resign following the hire of (younger and higher paid) salesmen as he had requested.  Treadway v. California Products Corp., No. 15-5718 (Aug. 1, 2016).   The Court rejected the plaintiff’s argument that he proved direct evidence of discrimination by repeated references to his retirement or semi-retirement because those comments were not connected to his age but were related to his request to “slow down” and reassign most of his territory.  “The terms “retire” and “retirement” alone, without any evidence that they are being used as a proxy for age to express discriminatory bias, are not direct evidence of age discrimination.“ Further, the Court rejected the plaintiff’s argument that the employer’s explanation for terminating his employment – to save money by allocating his minor remaining responsibilities – was pretextual.  While the employer’s decision might have been unfair and/or unwise, it was honestly held and not completely unworthy of belief.  Indeed, the Court concluded that the plaintiff himself was responsible for initiating the chain of events by asking to slow down, by seeking reassignment of most of his territory, and frequently inquiring when his replacement would be hired and that he only changed his mind when his new employer ultimately decided not to retain him as an independent contractor for his local and Bahamas territories.
According to the Court’s opinion, when the plaintiff was 66 years old, he requested to slow down and reduce his multi-state sales territory to eliminate most travel.  After discussions with his supervisor, it was decided to hire new salesmen to assume most of his duties and he would be limited to the area within 40 miles of his home and the Bahamas.   His supervisor assumed that he would retire by the end of 2009 based on their discussion, but the plaintiff denied ever expressing an interest in retirement.  While he was the oldest salesman in the company, all of the other salesmen were over 49 and most of them were over 60.  Initially, two other salesmen would lose their territories, which the plaintiff and another salesman would assume (as extra work), then new salesmen would be hired to take these territories and most of the plaintiff’s former territories.  At that point, the plaintiff would become an independent sales agent, lose his $48k/year salary and be paid strictly on commission, to be re-evaluated annually. 

Some months later, the employer was acquired by the defendant company.  Plaintiff was told to be patient while the new company evaluated its needs and options, so no one was hired to assume his newly expanded territory as had been contemplated a few months earlier.  His supervisor requested that the new company make plans to replace the plaintiff based on his impending retirement.  The plaintiff saw and never objected to the plan which mentioned his impending retirement, but no replacements were hired for more than two years and his salary remained unchanged.  The plaintiff continued to call his supervisor inquiring about the hiring of a replacement because he was stretched thin over four states. 

Finally, near the end of 2011, the defendant hired a new salesman to assume most of his territory.  He was 57, had prior industry and marketing experience and was paid $70K/year ($22k/year more than the plaintiff).  The rest of the plaintiff’s duties were assigned to existing and younger salesmen.  (Another younger and better paid salesman was hired the following year and was given some of the plaintiff’s former accounts).  The defendant refused to retain the plaintiff as an independent sales agent paid only through commission because it did not want to pay his travel expenses to the Bahamas when it could have a full-time employee assigned to that territory.  His supervisor tried again to convince the defendant to retain the plaintiff in some capacity, but was unsuccessful.  When the plaintiff learned that his services were no longer desired in any capacity, he refused to resign or retire as they had originally discussed.  The defendant then sent him a notice notifying him of his retirement and, when he objected, eliminated his position.

The Court rejected the argument that the plaintiff had produced direct evidence of age discrimination by the frequent references to his impending and constantly delayed retirement because there was no connection between the discussion of his retirement and his age.  In fact, he admitted that no one ever referenced his age at any time.  Simply being the oldest salesman and his speculation could not constitute evidence of age discrimination.

Direct evidence requires no inference to prove the existence of a fact while circumstantial evidence “is proof that does not on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.”  . . .In the context of age discrimination, “‘[o]nly the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age,’ satisfy this criter[ion].”
                . . .
The terms “retire” and “retirement” alone, without any evidence that they are being used as a proxy for age to express discriminatory bias, are not direct evidence of age discrimination.

The Court also rejected the plaintiff’s argument that the defendant’s explanation for terminating him and not retaining him as an independent sales agent was pretextual.  It was plausible for the defendant to believe that assigning the Bahamas territory to the employee already handling Bermuda made more financial sense. The plaintiff could not show that the defendant did not honestly believe its explanation:
We apply a modified version of the “honest belief” rule with regard to pretext.  . . . Under this rule, [the plaintiff] “must put forth evidence which demonstrates that the employer did not ‘honestly believe’ in the proffered nondiscriminatory reason for its adverse employment action.”  . . . To show that the proffered reason for its action is “honestly held,” [the defendant employer] “must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.”   . . .. [The plaintiff], in turn, “must be afforded the opportunity to produce evidence to the contrary, such as an error on the part of the employer that is ‘too obvious to be unintentional.’”   . . . Ultimately, however, pretext “is a commonsense inquiry: did the employer fire the employee for the stated reason or not?”

The plaintiff’s evidence, at best, consisted of references to his impending retirement “in internal e-mails and documents, [the defendant’s] replacement of [him] with younger salesmen at higher salaries, [its] lack of transparency and candor about its plan to retire [him], and the allegedly fraudulent alteration of the March 9, 2009 agreement (evidenced by the two existing versions).”  It was the plaintiff “who wanted to reduce his sales territory and eventually go from being a[n] employee to an independent sales agent responsible for a small number of accounts – [his supervisor] and others at [defendant] used the terms “retire,” “semi-retire,” and “retirement” to refer to this plan."
The Court refused to find pretext by comparing the plaintiff’s $48k annual salary to the $70K and $65K annual salaries of the new salesmen because neither of them assumed all of the plaintiff's prior duties.   Further, the plaintiff overlooked the new employees' prior experience, skill and comparative workloads.
CPC maintains that terminating [plaintiff] and allowing existing employees to absorb his few remaining accounts at no cost was much more cost-effective than paying Treadway $48,000 a year to continue servicing them. These hiring and salary decisions may or may not make good business sense, but [plaintiff] cannot establish pretext simply by questioning CPC’s business judgment. This court is not a “super personnel department” tasked with “second guessing employers’ business decisions.” . . . The ADEA cannot protect older employees from erroneous or even arbitrary personnel decisions but only from decisions that are unlawfully motivated.

While the evidence may indicate that the plaintiff was treated unfairly, it does not establish that the employer’s explanation was a pretext (or a disguise) for unlawful discrimination.  Indeed, the plaintiff had seen the plan mentioning his contemplated retirement and never objected to it.
What is ultimately fatal to [the plaintiff's] claim, however, is that [he] himself initiated and impelled the chain of decisions he now claims was motivated by discriminatory animus on the part of CPC decisionmakers. [The plaintiff] proactively reached out to [his supervisor] in 2009 and asked to reduce his sales territory because he was getting older and needed to “slow down.” Together, [the supervisor] and [the plaintiff] negotiated the terms of the March 9, 2009 agreement which, under either version of the document, establish that [his] sales territory would temporarily increase until a new salesman could be hired to cover the Carolinas, and that [he] would then separate from CPC (“go from Company employee”) to become an independent sales agent handling only three accounts in the Bahamas and those existing accounts within a 40-mile radius of his home in Johnson City, Tennessee. CPC executives, including [his supervisor], used the terms “retire” and “retirement” to refer to this plan. 
 When the transition . . . slowed the process of hiring a new salesman, [the plaintiff] called [his supervisor] throughout 2010 and 2011 to ask when someone would be hired, and even referred two potential candidates  . . .in an effort to expedite the hiring process. After CPC hired Boepple and he assumed responsibility for the Carolinas, CPC decided not to retain [the plaintiff] as an independent agent or continue to pay him a full salary to service his few remaining accounts. [The plaintiff] now argues that these decisions were made because of his age, but no reasonable jury could infer such a discriminatory animus from CPC from decisions that were prompted by [the plaintiff] himself. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Tuesday, August 11, 2015

Franklin County Court of Appeals Reinstates Age Discrimination Claim and Rejects Honest Belief Rule When Plaintiff Was Arguably More Qualified Than Successful Candidate

In early June, a unanimous Franklin County Court of Appeals reversed a university’s summary judgment on an age discrimination claim, but affirmed dismissal of the disability discrimination claim. Ceglia v. Youngstown State Univ., 2015-Ohio-2125.   The plaintiff was a part-time social work instructor for many years with the university and applied for a full-time teaching position.  He was much older and had more work and teaching experience than the successful candidate (who had no teaching experience at the time she applied).  When asked if his age had been an issue, he was told by the selection committee chair that they had focused on “mid-level” candidates.   The plaintiff was also able to produce evidence that each of the reasons given by the members of the selection committee as to why he had been rejected had no basis in fact and that they had contradicted each other.  Finally, the Court rejected the trial court’s reliance on the “honest belief rule” based on the plaintiff’s ability to dispute the university’s pretexual explanations and the subjective nature of the committee’s decision.

The most interesting aspect of the decision is the Court’s rejection of the application of the honest belief rule, which is generally an insurmountable obstacle for plaintiffs asserting employment discrimination claims.  “Under the "honest belief" rule, if the employer honestly, but mistakenly, believes in the proffered reason given for the hiring decision at issue, then the employee cannot establish the requisite pretext.”   

As discussed above, appellant did more than simply disagree with the University's proffered reasons for denying him the position. Appellant supported his denials with corroborating evidence upon which it may be reasonably inferred that many of the proffered reasons for denying appellant the position either had no basis in fact or were insufficient to support the decision. Appellant also produced circumstantial evidence of a discriminatory animus based on age. Dr. Morawski's remarks to appellant and the inferences properly drawn therefrom create a genuine factual issue whether the members of the search committee honestly believed the proffered reasons for denying appellant the position and whether appellant's age was the true reason for its decision.
The Court discussed in great detail why the plaintiff was able to sufficiently demonstrate that the university’s explanation for not hiring him were pretextual.    The Court found that the plaintiff showed that the stated reasons had no basis in fact or were insufficient to justify the decision to not interview or hire him.  The university gave five reasons why he was not selected for an interview or hired instead of the young and inexperienced candidate:  

1.      The plaintiff allegedly “crossed boundaries with students by taking them out to a restaurant and socializing with them outside of the classroom setting.” However, the only such events were held after classes were over for the semester and were attended by other department faculty and held at a restaurant on campus.  No one had ever criticized these outings during his fourteen years with the university. Indeed, this issue had apparently not been discussed in the selection committee meetings.

2.      There had been “complaints from some of [his] former students that [he] had permitted students to forgo a mandatory research paper.”  He denied this allegation.  The only research paper he ever required was when he taught a class on behalf of the department chair which required a mandatory research paper and no one else was willing or qualified to teach.  He distributed an example of a research paper to the class and still had two copies of research papers he received from students of that class.  One of the selection committee had been critical that the students were not prepared to conduct research.

3.      Some students had complained that he had given "favorable grades" and “that he dismissed classes early.”   However, when he asked the department chair about whether his grades were too high, he was told his grading was not a problem.   He denied dismissing class early very often and contended that he had kept students over just as often.

4.       He had cancelled classes.  He denied that this happened regularly or often.  None of the selection committee members would admit that they had raised this as an issue, had personal knowledge of it or discussed it.

5.     He was “not the best at paperwork."  However, he had never been reprimanded, disciplined or counselled about paperwork during his fourteen year employment.  Moreover, while there was some dispute about this, there was evidence that administrative duties were less than 10% of the full-time teaching position.

In addition to casting doubt on the university’s explanation for his treatment, the plaintiff also produced evidence that age was the actual reason he was denied an interview and job.  In particular, when asked if age was the reason he was not selected, he was told by the selection committee chair that they were seeking “mid-level” candidates.     While such a comment does not compel a finding of age discrimination (and is, therefore, not direct evidence), it does constitute an inference of discrimination because the speaker inferred age as correlated with experience.

The plaintiff was also able to demonstrate pretext by comparing his relative qualifications to the successful candidate.   

"Relative qualifications establish triable issues of fact as to pretext where the evidence shows that either (1) the plaintiff was a plainly superior candidate, such that no reasonable employer would have chosen the latter applicant over the former, or (2) plaintiff was as qualified * * * if not better qualified than the successful applicant, and the record contains 'other probative evidence of discrimination.' "
The University gave several reasons why the successful candidate was more qualified than the plaintiff:

1.      She “had more experience with agency settings."  However, the plaintiff produced evidence that he had worked for multiple agencies and hospitals, supervised more than 50 student interns and 200 employees.  As an execute director with a county board, he "provided oversight for more than 30 agencies that provided social services.”

2.      She had a "more well-rounded resume."  However, she had no prior teaching experience at the time she applied for the position, in contrast to the plaintiff’s fourteen years of teaching experience.   Indeed, the plaintiff had more years of teaching at the BSW and MSW level than any of the candidates interviewed for the teaching position.  Moreover, the plaintiff’s LISW-S license meant that he could supervise students and able to perform clinical work without supervision.   One of the committee members admitted that this would contribute to the job, but that the successful candidate lacked this qualification.

3.      She had "more field education experience."

4.      She was "organized and had been a supervisor and had been effective."

5.      She was a "better fit" for the position.

 The Court ultimately concluded that there was sufficient evidence to show that the university’s decision had been based on subjective feelings instead of objective evidence about the relative qualifications of the candidates. “Construing the evidence in appellant's favor, the University's hiring decision appears to be based, in large part, on the individual committee member's subjective belief that Holcomb-Hathy was a superior candidate to appellant rather than on specific objective evidence.”   Again, when this evidence was paired with the ambiguous statements about age being the true reason for the decision, the plaintiff produced enough evidence at the summary judgment stage to avoid judgment and require a trial on the merits.

In contrast, the plaintiff was unable to produce evidence showing an inference of disability discrimination to survive summary judgment on that claim.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Wednesday, May 7, 2014

EEOC Settles ADEA and ADA Claims with Weirton Medical Center


Yesterday, the EEOC announced a modest settlement with the Weirton (West Virginia) Medical Center to resolve federal court litigation asserting claims under the ADA and ADEA.  In particular, the EEOC alleged that the Medical Center failed to promote a long-time employee on the basis of his age and perceived disability (back injury).  The EEOC alleged that the maintenance director/hiring manager admitted during the EEOC investigation that he had wanted someone “younger and more energetic.” 
The Medical Center voluntarily hired the Charging Party and paid him all back pay after the litigation commenced and then settled with the EEOC by agreeing to pay another $12,500.    The Medical Center is also subject to a three-year consent decree which, among other things, requires the Medical Center to train all hiring managers about their obligations under the ADA and ADEA and to conduct random audits of at least 25% of all hiring decisions to ensure compliance with federal laws.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Monday, January 13, 2014

Franklin County Court of Appeals Reverses Disparate Age Impact Verdict against ODNR Based on Informal Policy Against Double Dipping

Last week, a divided Franklin County Court of Appeals reversed a $507K verdict issued by the Court of Claims last year, finding that ODNR unlawfully discriminated on the basis of age when it refused to re-hire a retired employee and best qualified applicant based on an informal policy generally precluding the re-hire of retired employees because of the public’s skepticism with “double dipping.”  Warden v. Ohio Department of Natural Resources, No. 2014-Ohio-35.  The Court of Claims Judge had dismissed the disparate treatment claim, but determined that the policy had a disparate impact against individuals over the age of 40 because it only applied to retired employees, who necessarily would be in the protected age group.  The Court of Appeals disregarded similar cases decided on summary judgment because while those cases recognized the legal theory being advocated by the plaintiff, they did not mandate a verdict in the plaintiff’s favor on the disparate treatment claim when the trial court resolved the facts against the plaintiff.  The Court also noted that the plaintiff had failed to plead or prove a disparate impact theory in his complaint, during summary judgment pleadings or at trial.  “The fact that ODNR's policy theoretically could only impact members of a protected class is not sufficient to prove a disparate impact claim.”  In this case, the evidence showed only that the policy affected two previously-retired applicants and the employer hired one of them. “An adverse effect on a single employee, or even a few employees, is not sufficient to establish disparate impact."

The Court agreed that the anti-retiree policy was not motivated by unlawful discriminatory intent because it was, instead, “motivated by a desire to prevent double-dipping as opposed to inaccurate and stigmatizing stereotypes about older workers.”

"When the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears." (Emphasis sic.) Id. at 611. Therefore, there is no disparate treatment when the factor motivating the employer is some feature other than the employee's age.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Thursday, December 12, 2013

EEOC Announces $575K ADEA Class Action Settlement Against Restaurant Chain

On Monday, the EEOC announced that it had settled a class action age discrimination lawsuit it had brought against a chain of Ruby Tuesday restaurants involving six restaurants in Pennsylvania and Beachwood, Ohio.  In its lawsuit ((EEOC v. Ruby Tuesday, Inc., W.D. PA, C. A. No. 09-1330), the EEOC alleged that the restaurant chain “engaged in a pattern or practice of age discrimination against job applicants who were 40 years of age or older” and “failed to preserve employment records, including employment applications, as required by the ADEA and EEOC regulations.”  The settlement/consent decree involves the payment of $575K by the defendant employer (Ruby Tuesday, Inc.) and requires the employer over the next 40 months to engage in the following actions:
  • Implement numerical goals for hiring and recruitment of job applicants age 40 and older at the affected locations;
  •  Review its job advertisements to make certain they do not violate the ADEA's prohibitions against age discrimination;
  • Conduct audits, including random reviews of hiring decisions, to ensure non-discrimination and compliance with the terms of the consent decree;
  • Evaluate the job performance of people with hiring authority for the six stores named in the consent decree and set their compensation (including bonuses), in part, based on their degree of success in helping Ruby Tuesday achieve its goals of ensuring that its recruitment and hiring practices provide equal employment opportunities for people who are 40 or older;
  • Designate a decree compliance monitor for oversight of compliance with the requirements of the ADEA and the terms of the consent decree;
  • Provide extensive training on the requirements of the ADEA and the consent decree to the decree compliance monitor, human resources personnel and hiring authorities of the six stores named in the consent decree; and
  • Report to the EEOC and keep records about its hiring practices and compliance with the consent decree.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Monday, November 25, 2013

Franklin County Court of Appeals: Unfairness of Life Is No Substitute for Evidence of Age Discrimination

Earlier this month, a unanimous Franklin County Court of Appeals affirmed a municipal employer’s summary judgment decision in an age discrimination case. Tilly v. Dublin, 2013-Ohio-4930.   Like several other younger employees, the plaintiff had been terminated following extensive investigations into violations of the Defendant City’s employment policies through the use of racially offensive language.  None of the employees were replaced because of the economic downturn.  Unlike the other employees, the plaintiff’s union did not pursue arbitration on behalf of the plaintiff because he retired upon being terminated.   The City lost all but the last arbitration challenging the terminations and settled rather than lose the last arbitration as well.   Upon learning that his co-workers had been reinstated with back pay, the plaintiff requested to be reinstated as well.  He filed suit when the City refused to reinstate him.  The Court agreed that there no evidence of age discrimination because he was not replaced by a younger employee and was not similarly –situated to his younger, reinstated co-workers because the City was not at risk from adverse arbitration decisions.

The union's act of forwarding the other four men's grievances to arbitration, but refusing to forward plaintiff's grievance to arbitration, provides the differentiating  circumstances which distinguish the City's treatment of Moerch, McDade, Otis, and Ballinger from the City's treatment of Tilley. Accordingly, Tilley was not comparable to Otis, Ballinger, McDade, or Moerch.

The Court refused to entertain challenges to the investigation that resulted in his termination.  It was irrelevant to his age discrimination claim that most of the interviewed employees denied hearing him use racially offensive language because three employees – including a former employee – provided contrary evidence.  The City was entitled to reasonably rely on the evidence of those three employees in reaching its conclusion.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Tuesday, June 11, 2013

Sixth Circuit: City Can Force Mandatory Retirement at Age 65 Because of Budget Deficit

This morning, a unanimous Sixth Circuit Court of Appeals affirmed summary judgment in favor of a defendant city employer concerning claims under the Age Discrimination in Employment Act and the Ohio Civil Rights Act where the plaintiffs had been forced to retire upon reaching the age of 65.   Sadie v. City of Cleveland, No.12-3143 (6th Cir. 6-11-13). In that case, the City had adopted an ordinance requiring police officers and firefighters to retire at the age of 65 unless the Chief requested a year-to-year exemption which was supported by an independent medical examination.   After a budget cut in 2010 required the layoffs of 67, and demotions of 28, police officers, the Police Chief refused to request any more exemptions of the mandatory requirement ordinance.  This lawsuit followed alleging violation of the ADEA, the OCRA and the Equal Protection Clause of the 14th Amendment.  The Court found that § 623(j) of the ADEA authorized the mandatory retirement ordinance and the plaintiffs failed to show that the ordinance or denial of exemptions was merely subterfuge intended to avoid the purpose of the ADEA.    In addition, the city proved that it had a legitimate budget concern in denying exemptions (because of the layoffs and demotions) which, again, showed the lack of subterfuge and disproved any denial of equal protection of the law.

The defendant city first adopted a mandatory retirement ordinance in 1960, but the version at issue in the lawsuit was adopted in 2009.  Section 623(j) of the ADEA provides as follows in relevant part:

(j) Employment as firefighter or law enforcement officer

It shall not be unlawful for an employer which is a State, a political subdivision of a State, an agency or instrumentality of a State or a political subdivision of a State, or an interstate agency to fail or refuse to hire or to discharge any individual because of such individual’s age if such action is taken—

(1) with respect to the employment of an individual as a firefighter or as a law enforcement officer, the employer has complied with section 3(d)(2) of the Age Discrimination in Employment Amendments of 1996 if the individual was discharged after the date described in such section, and the individual has attained—

(A) the age of hiring or retirement, respectively, in effect under applicable State or local law on March 3, 1983; or

(B)

(i) if the individual was not hired, the age of hiring in effect on the date of such failure or refusal to hire under applicable State or local law enacted after September 30, 1996; or

(ii) if applicable State or local law was enacted after September 30, 1996, and the individual was discharged, the higher of—

(I)               the age of retirement in effect on the date of such discharge under such law; and

(II)         age 55; and

(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.

The Court described this provision as follows: “Section 623(j) applies if the firefighter or law enforcement officer is over fifty-five years old and is discharged pursuant to a retirement plan “that is not a subterfuge to evade the purposes” of the Act.” The Court decided to construe Ohio and federal law as the same.

 The primary dispute concerned whether the “subterfuge” provision in the exemption was an affirmative defense (where the City bore the burden of proof) or part of the claim (where the plaintiffs bore the burden of proof).  The district court held that the plaintiffs failed to bear their burden of proving subterfuge.  The Sixth Circuit concluded that it did not matter who bore the burden of proof because not only did the plaintiffs fail to show subterfuge, but the City produced enough evidence of their financial justification to disprove any claim of subterfuge.  

The retirees argue that the City enforced its mandatory-retirement ordinance because certain City officials expressed a preference for younger officers. Essentially, the retirees argue that the City was not concerned with the efficiency of the Police Department, but that it forced the retirees into retirement due to discriminatory animus toward older police officers. The problem with the retirees’ argument is that it ignores the fact that the Act explicitly allows for the termination of police officers on the basis of age. The First, Second, and Seventh Circuits have all rejected an interpretation of “subterfuge” that would nullify the exemption for the mandatory retirement of police and fire officers.

As for the plaintiffs’ Equal Protection Clause argument,
In a case such as this, where no suspect class or fundamental right is implicated, we apply the rational-basis test and sustain the government action in question “unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [the court] can only conclude that the [government’s] actions were irrational.” . . .

The retirees argue that Chief McGrath’s decision to deny all requests for extension of service amounted to a violation of the Equal Protection Clause because the Fire Chief decided to grant requests for extensions to all firefighters that passed the independent medical exam. The district court held that the police department’s decision not to extend the service of its officers over sixty-five years old was rationally related to the legitimate purpose of addressing budget concerns. We agree with the district court’s determination. Faced with budget concerns, the Police Department laid off sixty seven patrol officers and demoted twenty-eight promoted police officers. As a result of that decision, Chief McGrath decided that, when faced with the choice of bringing back and re-promoting those officers or extending the service of its officers over sixty-five, he would bring back the most-needed officers in order to help maintain the vitality of the department. Chief McGrath’s decision was rationally related to the legitimate purpose of addressing the Department’s budget concerns.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.