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Court sees credibility issues in alleged business judgment

Upholding a jury verdict for the plaintiff in an age discrimination case, the Court in Westmoreland v. TWC Admin. LLC, No. 18-1600 (4th Cir. May 22, 2019) said “Westmoreland[] … was nearly 61 years of age when fired, TWC terminated her after 30 years of consistently satisfactory work, it replaced her with a 37-year-old, the supervisory TWC official who delivered the news and signed the termination paperwork made a condescending and age-related remark immediately after the firing, and all TWC decisionmakers were aware of Westmoreland’s advanced age. Moreover, although TWC’s sole justification for its action was Westmoreland’s backdating of a form in violation of company policy, the offense was isolated, lesser sanctions were available, and company officials had advised her that the offense was not serious and she had nothing to worry about.”  The Court also emphasized that juries can always assess the credibility of an employer’s reasons for terminating the plaintiff, even if couched as an exercise of business judgment. “Of course, it would be improper for a jury to rule for an employee because it believed her firing was not a ‘wise’ or ‘prudent’ employment decision. But nothing bars a jury from considering an employee’s tenure and performance in evaluating whether her employer’s justification for her termination is so flimsy as to be untrue or implausible, and thus asserted in an attempt to mask a discriminatory motive.”

IBM collective action waivers and private arbitration

homer-simpson-doh (1)Is IBM ingenious or has it shot itself in the head? Time and the Supreme Court will soon tell. As those following IBM’s force reductions over the last few years already know, IBM stopped asking its terminated older workers for releases of their federal age discrimination claims in 2014. By not asking for federal age waivers, IBM placed itself outside a law that would ordinarily require it to disclose the job titles and ages of people selected for termination and people not selected for termination. So what is the catch? Although it does not request waivers of federal age claims, IBM does require anyone who accepts severance pay to privately arbitrate their federal age claims and to waive their right to proceed in arbitration on a class or collective action basis. This move could be a stroke of genius or it could be one of the costliest legal mistakes IBM has made in a long time.

Later this year the Supreme Court will decide whether “an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable under the Federal Arbitration Act, notwithstanding the provisions of the NLRA.” If the Supreme Court says no, IBM will have a lot to worry about. Stay tuned.

Pittsburgh employment lawyer Charles A. Lamberton. Representing executives, managers and professional employees in discrimination, retaliation, sexual harassment and wrongful termination cases for 20 years. High end representation for high end cases and clients. Contact us today.

Ageism is all around us

We cannot forget that ageism is the most socially condoned form of discrimination in the United States. This clip from SNL reminds us of some common ageist stereotypes. Carvey’s character is called “Grumpy Old Man.” Grumpiness would be the first ageist stereotype. The “resistant to change” stereotype is also prominent. What other age-based stereotypes do you perceive?

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

Crediting non-discriminatory reasons

older workers are at risk for workplace discrimination.The judicial function at the summary judgment stage is to decide whether a jury could reasonably find in the employee’s favor on the claim at issue. In making its decision, a court follows certain rules. One such rule is that the record must be examined as a whole. Another is that inferences must be drawn in the employee’s favor. And another is that the court may not make credibility determinations. Too often, however, courts focus on select pieces of the record to the exclusion of others, draw inferences in the employer’s favor, and make credibility determinations that favor the employer. The result can be dismissal even where the employee has produced powerful evidence of discrimination. These dismissals frequently occur under the cover of “but-for” causation, the causation standard applicable in federal age cases and non-age cases involving retaliation (other than SOX cases).

Consider an example involving a 62 year-old employee who was terminated without warning after 30 years of good performance. The employee testifies that his relatively new 44 year-old supervisor, the decisionmaker, consistently called him an “old fart” and said he should “retire because he is old” and because he needed to “make room for new, young talent.” The employee further testifies that the decisionmaker made frequent comments such as “old people are low energy, tired and forgetful.” The decisionmaker even sent an email telling the employee to “dress younger” at work. The employer denies that these comments were made and says that it fired the employee because of insubordination, citing an incident where the employee refused to follow one of his supervisor’s instructions. The employee admits he did not follow the instruction in question, but contends that the real reason he was fired was his age.

The employer moves for summary judgment. Pointing to the undisputed evidence of “insubordination,” the employer argues that the employee cannot prove that but-for his age, he would still be employed. The court agrees and dismisses the case.

In dismissing the case, the court has violated all three rules governing summary judgment. First, it has not considered the record as a whole, but only a portion of the record favoring the employer. Second, the court has failed to draw reasonable inferences in the employee’s favor, one certainly being that age discrimination tainted the termination decision. Third, the court has made a credibility determination. It has credited the employer’s stated reason for terminating the employee – insubordination. A jury, however, would not be required to credit that reason. A jury could find it unworthy of credence for any number of reasons, including intangible ones like witness demeanor at trial. A jury could also simultaneously believe that the employee was insubordinate, but that age discrimination was the but-for cause of the termination.

When courts stray from the three rules governing summary judgment, cases that should proceed to trial instead get dismissed. Employee rights lawyers must be vigilant in protecting their clients against unjust dismissals at the summary judgment stage.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

Age stereotype precludes summary judgment

stereotypes-150x150The Eighth Circuit reversed the grant of summary judgment in Hilde v. City of Eveleth, February 5, 2105, finding that the employer’s assumption that a retirement-eligible applicant would retire if hired for a job was age discrimination on its face.

To assume that Hilde was uncommited to a position because his age made him retirement-eligible is age-stereotyping that the ADEA prohibits. It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. he prohibited stereotype—older employees are likely to be less committed to a job because they can retire at any time—figured in the City’s decision. Using retirement eligibility to presuppose lowered productivity or dedication would not represent an accurate judgment about the employee unless evidence other than age indicates that the employee would, in fact, retire.

The City provides no evidence that the commissioners doubted Hilde’s commitment to the job for any reason but for his age-based retirement eligiblity. They admit he had a great reputation in the force and they held his continued service in the highest regard. The City argues that Hilde should have convinced them that though retirement eligible, he would not retire. According to Commissioner England:

I would have appreciated something out of [Hilde], some indication that he wanted this job and was willing to commit for at least some period of time. By not telling us anything, now you’re thinking in your mind, what’s this guy thinking, what’s he doing. If he gets the Chief’s job, he’s just going to take it and that’s going to be a feather in his hat and he’s going to pull the trigger and retire? I would have liked some commitment out of the guy.

The commissioners apparently never asked about his commitment to the job or whether he was considering retirement.

Lesson for employers: Use employee-specific facts, not unfounded, category-based assumptions, in making employment decisions.

Eighth Circuit blows summary judgment appeal

b770847555_seriouslySometimes a court makes a decision so off-the-charts wrong, so at odds with the facts, and so heedless of the governing legal standard, one can only wonder what prejudice or stereotype motivated the court’s thinking.  The dismissal of Caryln Johnson’s age discrimination case by a majority of the Eighth Circuit Court of Appeals is one of those decisions.

Caryln Johnson, born in 1932, joined Securitas Security Services USA as a security officer in 2003. Throughout his seventies Johnson earned a reputation as a dependable employee who never refused a shift. Johnson did not have a regular schedule or post, but was instead offered shifts by field service managers Robert Hesse and Charlie Bunch when they needed someone to fill in for security guards at the sites for which they were responsible. Hesse was impressed by Johnson’s dependability and called him Superman.

Hesse, however, had concerns about Johnson’s advancing age. On several occasions over a three year period Hesse told Johnson he “needed to hang up his Superman cape.” Hesse “also said [that Johnson] was too old to be working.” On one occasion, when Johnson’s wife called Hesse to advise him that her husband was in the hospital, Hesse commented that Johnson “should retire,” “was ‘too old’ to continue working,” and “‘needed to hang up his Superman cape and retire.'” Hesse also compared Johnson to Hesse’s retired father, who was in his 80’s at the time of Johnson’s termination. Hesse told Johnson that Hesse’s father “tried to work, do more than [he] could do.” Hesse testified that he made the comparison to his father in response to Johnson’s acceptance of more work as a utility officer with Securitas. Johnson testified that Hesse “always referenced to his own father who was 86 [and] had to quit [work], and now Bob [Hesse] had to take care of him. He said, ‘You ought to do the same thing. Just drop everything.'” Hesse admitted to telling field service managers, including Bunch, that Johnson “needed to hang up his cape” and that Johnson was “working past his limitations.” Hesse also suggested to other managers that they “prevent [Johnson] from working 50, 60 hours a week.”

So it was until January 25, 2009, when Johnson worked the 4 PM to 8 AM shift at the site of Rail Logistics, one of Securitas’s clients. At about 5:30 AM, Johnson accidentally damaged his patrol vehicle when it came into contact with a stationary semi-trailer. The semi-trailer was not damaged. Johnson’s vehicle was still driveable and Johnson was not hurt. Securitas policy required that accidents be reported as quickly as possible. However, Securitas did not provide cell phones or radios to its security officers, and Johnson did not have access to a telephone at the Rail Logistics site. Johnson tried unsuccessfully to call the office using his own cell phone, but there was no signal.

At about 7 AM, Johnson departed and began driving his vehicle back to the office. He reached Bunch by phone at 7:02 AM and reported the accident. Bunch went to the Rail Logistics site and began preparing an accident report. Bunch spoke with Hesse at this time, and Hesse said that Johnson’s shift went to 8 AM, not 7AM. Hesse told Bunch to contact Sherri Parker in human resources about Johnson’s unauthorized departure from the Rail Logistics site, which was listed in Johnson’s employee handbook as a potentially terminable offense. Hesse called Johnson and told him to expect a call from Parker. Once again, Hesse told Johnson that it was time to hang up his Superman cape and retire. Parker called a short time later, asked Johnson if he was born in 1932, and then fired him for two stated reasons, leaving his shift early and not immediately reporting the accident. Securitas had never before fired another employee for either reason.

The court faced only one question: could a reasonable group of people look at the facts and decide that it was more likely than not that Johnson’s age was a determinative factor in Securitas’s decision to terminate his employment? A nine judge majority comprised of George W. Bush appointees held that the answer was no. Three dissenting judges correctly held otherwise.

It’s difficult to overstate the audacity of the majority’s ruling. The majority literally decided that if a group of eight ordinary people sitting in a jury box took in all the evidence and felt that the scales tipped even slightly in Johnson’s favor, they would be acting outside the bounds of reason. The majority was wrong. A reasonable jury could have ruled in Johnson’s favor based solely on Hesse’s remark that Johnson was too old to be working. It could have decided that Hesse was itching to terminate Johnson because of his age and used the car accident at Rail Logistics as a pretext to do so. To be certain, a jury might also have found in favor of Securitas. But for the majority to hold that to be the only reasonable decision was a gross and impermissible substitution of its own judgment for that of the factfinder.

In addition to the majority’s abjectly incorrect holding, its repeated reference to “the but-for cause” as the standard of causation betrays its political motivation. Every court to consider the issue has held that but-for causation does not mean sole cause. There can be ten but-for causes of a termination and if one of them is age, the employer broke the law. One must also remark on the majority’s use of the phrase “with regards to” and encourage the author of the opinion and those who failed to correct this embarrassing error to revisit their high-school grammar books.

Another release bites the dust

HomerThis is the image I have in mind every time an H.R. person, corporate counsel or defense lawyer learns that a Release they drafted fails to comply with the requirements of the Older Workers Benefits Protection Act (“OWBPA”).

OWBPA is an amendment to the Age Discrimination in Employment Act. It mandates that employers provide important information to older workers when they are terminated from employment and asked to release their legal claims. This information helps a terminated older worker do a sniff test for age discrimination. Failure to comply with OWBPA’s standards means that any release of age discrimination claims given by the older worker is invalid and the older worker can sue for age discrimination in court.

A recent case provides a good example of OWBPA at work. One of OWBPA’s requirements is that the employer tell the older worker in writing to consult with a lawyer before signing the employer’s release. In Foster v Mountain Coal Co, LLC, the employer advised that the “[e]mployee may discuss this Agreement with his/her attorney . . . on a confidential basis to the extent necessary to interpret the Agreement.” The Court found this language deficient. While the employer’s language might substantially comply with the statute, substantial compliance is inadequate. The language failed to advise the plaintiff to consult with an attorney prior to signing the agreement; it did not even tell the plaintiff that he “should” or “ought to” consult with an attorney before signing the Agreement. Instead, it provided in passive language and in past tense that the plaintiff  had the “opportunity for consideration and consultation with attorney,” and that the plaintiff may “may discuss the Agreement with his[] attorney.”

The Court held that OWBPA required the employer to affirmatively advise the employee to consult with an attorney, or to affirmatively advise the employee that he “should” or “ought” to consult with an attorney.  The word “advise” means “to give advice to,” “caution,” “warn,” “recommend,” or “inform.” The employer’s language was passive and did not “advise” the plaintiff to do anything. The employer’s language only made the plaintiff aware of a right that he has, but it did not “advise,” him to take advantage of, act on, or take any action regarding that right. The Court ruled that an employee  is not required to infer the right to consult an attorney from language such as “may” or “has had.”

The Foster case is another good lesson for employers; when it comes to OWBPA, don’t screw around with clever language that you hope will trick or lull an older worker into not consulting legal counsel. Just do what the statute tells you to do or your clever use of words might come back to haunt you.

Whence came this enlightened law?

Though employment discrimination is most commonly understood as a field defined entirely by federal law, in fact it is not. States and localities play a pivotal role in the fight against workplace discrimination. Their laws often afford stronger protections and more substantial remedies than federal law. Therefore, when we represent clients or sue employers outside of Pittsburgh, one of the first things do is check local law. Our work recently brought us back to one of our all-time favorite local law – the Philadelphia Fair Practices Ordinance. It is a truly remarkable piece of legislation.

The Philadelphia Fair Practices Ordinance, as amended (the Ordinance), applies to employers, defined broadly to mean “any person who does business in the City of Philadelphia who employs one or more employees exclusive of parents, spouse, or children.” Amendments enacted in 2011 expand the anti-discrimination provisions of the existing ordinance by, among other things, (1) adding three new protected classes—genetic information, domestic or sexual violence victim status, and familial status; (2) strengthening the provisions concerning prohibited practices and adding to the types of employment practices considered unlawful.

As amended, the Ordinance prohibits employment discrimination for both actual and perceived membership in a protected class, including the expanded classes above and those classes already protected, which include race, ethnicity, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability, and marital status.  The Ordinance provides broad definitions of the newly protected classes. “Familial status” includes individuals who either are now or are becoming a provider of care or support to a family member, defined broadly to include the individual’s spouse, life partner, parents, grandparents, siblings, or in-laws and children, grandchildren, nieces or nephews, including through adoption or other dependent or custodial relationships. The familial status protection also applies to any person who is pregnant.

Discrimination on the basis of genetic information is now defined to include discrimination on the basis of information about an individual’s genetic tests, the genetic tests of the individual’s family members, and the manifestation of a disease or disorder in the individual’s family members. A genetic test is defined as an analysis of DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes.  The Ordinance expands the protection of domestic or sexual violence victim status to the discrimination context. Individuals subjected to acts of domestic violence, sexual assault, or stalking now have protection beyond the requirement that employers provide them with the leave rights to which they are already entitled under the Entitlement to Leave Due to Domestic Violence, Sexual Assault, or Stalking, Phila. Code § 9-3200 et seq.

As amended, the Ordinance prohibits an employer from engaging in the unlawful employment practices such as denying or interfering with the employment opportunities of an individual based on their protected status. and incorporates any other acts or practices made unlawful under federal or Pennsylvania anti-discrimination laws. However, the amended Ordinance includes stronger anti-discrimination provisions prohibiting any person from harassing, threatening, harming, damaging, or otherwise penalizing, retaliating, or discriminating against any other person because that person complied with the Ordinance; exercised rights under the Ordinance; enjoyed the benefits of the Ordinance; or made a charge, testified, or assisted with any investigation, proceeding, or hearing concerning a violation of the Ordinance. It also adds the requirement to post and exhibit in any place of business where employment is carried on any fair practices notice prepared for posting and made available by the PCHR. A failure to comply with this requirement is also considered an unlawful employment practice under the amended Ordinance.

The PCHR and complainants have greater enforcement rights based on the amended Ordinance. The PCHR may issue an order directing a respondent found to have engaged in an unlawful employment practice to take affirmative action to redress the harms suffered by the complainant, and may take any or all of the following actions: (1) issuing a cease-and-desist order; (2) ordering injunctive relief or equitable relief such as hiring or reinstating the complainant or upgrading the complainant’s employment, with or without back pay; (3) ordering payment of compensatory damages; (4) ordering payment of punitive damages, which are now increased from the maximum allowance of $300 to $2,000 per violation; (5) and ordering payment of reasonable attorneys fees and hearing costs. Respondents may seek judicial review of such orders by appealing to any court with competent jurisdiction within 30 days.

The Ordinance as amended streamlines the procedures for the filing and investigation of complaints before the PCHR, and includes a new provision requiring respondents to file answers to complaints brought against them. Complaints must still be filed within 300 days after the occurrence of the alleged unlawful practice. However, filing such a complaint does not foreclose that person’s right of action in state court. Instead, if within one year after the filing of a complaint with the PCHR, the agency either dismisses the complaint or has not entered into an agreement to which the complainant is a party, the PCHR must notify the complainant. The complainant may then file an action in the Court of Common Pleas of Philadelphia County and may seek relief in the form of compensatory damages, punitive damages, reasonable attorneys’ fees, and costs or other equitable relief. There is no cap designated for the amount of damages that may be awarded to a complainant in a civil action.  Recoverable damages include compensatory damages, punitive damages, attorney fees, court costs, and “such other relief, including injunctive relief, as the court may deem appropriate.”  This language marks a substantial expansion of the private remedies available prior to the 2011 amendments, which were then limited to back pay and other actual damages, punitive damages of $300 per violation, attorney fees and other relief, including the injunction.


Older worker stereotypes deeply entrenched

Common stereotypes about older workers include unwarranted assumptions that older workers are tired, grumpy, more costly, harder to train, less adaptable, less motivated, less flexible, more resistant to change, and less energetic than younger employees. These stereotypes stem from depictions of older persons in society generally. Employers also may be reluctant to invest in training and other developmental opportunities for older workers based on the perception that they have less time remaining in their careers. While extensive research has shown that these negative age-based stereotypes have little basis in fact, they influence many employment decisions. For instance, as a result of these stereotypes, older persons with the same or similar qualifications typically receive lower ratings in interviews and performance appraisals than younger counterparts (and thus are apt to have more trouble finding or keeping a job or securing a promotion). Older workers also typically are rated as having less potential for development than younger workers, and thus are given fewer training and development opportunities. Age-based stereotypes disadvantage older workers in corporate downsizing situations in particular. Because the main goal of such downsizing is usually to cut costs, age-based stereotypes that older workers are more costly, harder to train, less flexible, or less competent may become much more prominent in the minds of the decision-makers. To make matters worse, once older workers are laid off, they often are again vulnerable to age-based stereotyping as they attempt to find new jobs. As we have previously written, older workers who have been laid off are less likely to obtain reemployment than younger workers, take longer to find new jobs than younger workers, and generally fail to obtain jobs paying the same wages as their previous positions.


When times are hard, older workers get hit the hardest

A recent report from the Government Accountability Office has found that once unemployed, it takes older job seekers significantly longer to find new work. Since the recession started, the median length of unemployment has more than tripled for older workers, increasing at a greater rate than that of younger workers. Prior to the recession, the median duration of unemployment for job seekers age 55 and over was 10 weeks compared with 9 weeks for job seekers aged 25-54. By 2011, the median duration of unemployment for older job seekers had increased to 35 weeks compared with 26 weeks for younger job seekers. In 2007, less than a quarter of unemployed older workers were unemployed for longer than 27 weeks. By 2011, this number had increased to 55 percent. Moreover, by 2011 over one-third of all unemployed older workers had been unemployed for over a year.

The GAO report cites several studies that explain why companies favor younger workers:  Younger workers typically earn less; employers expect younger workers will be healthier and have less of an impact on health care costs; employers expect older workers to “have an issue” working for a younger boss; employers believe older workers’ technical skills are out of date, and that they are likely to retire in the near term.

As they struggle with long-term unemployment, older Americans are doing what they can to get by. An AARP Public Policy Institute report released last month 69 percent of older Americans had slashed expenses; 57 percent of workers had tapped savings; 52 percent delayed medical or dental treatment; 37 percent stopped saving for retirement; 35 percent used credit cards to pay for daily living expenses; and 18 percent took distributions from their retirement accounts.



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