Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘age discrimination’

Older Workers Have Highest Long-Term Jobless Rate

Tuesday, May 15th, 2012

Image: Mike Hall

Older workers who lose their jobs have the highest rate of long-term unemployment compared to any other age group. In 2011, more than half of jobless workers, ages 50 years and older, were out of work for more than six months. The trend continues this year.

Christine Owens, executive director of the National Employment Law Project (NELP), told the Senate Special Committee on Aging this afternoon:

“The prospects are dim for older workers who lose their jobs….They face pointed discrimination when they go looking for work, and they are especially vulnerable to financial instability. Congress needs to take extra steps to address the difficulties that some of the most seasoned members of the workforce are experiencing.”

report from the Government Accountability Office (GAO) also found that long-term unemployment of older workers means significantly reduced retirement income, especially for those defined-contribution retirement plans such as 401(k) rather than traditional guaranteed defined-benefit pensions. In addition, older jobless workers are often forced to tap into those retirement savings.

Sen. Herb Kohl (D-Wis.), chairman of the Special Committee on Aging, said:

“Left unchecked, long-term unemployment among older workers is a problem that will continue to grow as our workforce grays.”

Kohl has introduced the Older Worker Opportunity Act, which would provide tax credits for businesses employing older workers with flexible work programs.

Employers and job search agencies claim they do not discriminate against older workers. But Sheila White, unemployed since she lost her job as manager of a women’s clothing store in January 2010, sent out hundreds of résumés and had 15 interviews. She told the panel she rarely received a response after the interview.

“It then occurred to me that a potential employee could look me up on the Internet and lo and behold there was my age, clearly printed for all to see! I sensed my inability to find work had something to do with age, but I couldn’t prove it. Many jobs required me to enter my date of birth to even complete my online application.”

Owens said that one tool to combat age discrimination is the Protecting Older Workers Against Discrimination Act that would preserve the rights of older job applicants and employees who are turned down for jobs or treated differently at work in part due to their age.

She also called for the passage of the Fair Employment Opportunity Act that would prohibit employers and job recruiters from excluding the unemployed from job consideration simply because of their unemployment status. In the past few years, many firms’ ads and websites state that jobless workers will not be considered. As Owens said:

“Because long-term unemployed workers are disproportionately older, older workers are more likely to be affected by exclusionary hiring practices based on employment status.”

Click here for the full testimony from all the witnesses.

This blog originally appeared in AFL-CIO on May 15, 2012. Reprinted with permission.

About the author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL-CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

Newsflash: Youth and Good Looks Work Well on TV.

Tuesday, April 10th, 2012

In 2010, seasoned Southern California weatherman Kyle Hunter got wind of a weather anchor opening at KCBS, a Los Angeles-based television news station. Mr. Hunter, who at 42 had accumulated 22 years of broadcasting experience and has a degree in geosciences and broadcast meteorology, contacted the station’s management about the job immediately. He never heard back.

Instead, KCBS hired Jackie Johnson, a 32-year-old female weather forecaster from its sister station, KCAL. Eager to fill the new void at KCAL, Mr. Hunter then contacted that station, but was told in an e-mail that there was “not an opening for you here now.” He later learned that 25-year-old weather anchor Evelyn Taft snagged the spot.

Mr. Hunter, an award winning, certified meteorologist, claims the stations hired young, attractive females, instead of qualified males like himself, in an effort to hook more male viewers. He is suing CBS Broadcasting in California state court for gender and age discrimination in violation of California’s Fair Employment and Housing Act (FEHA), seeking money damages, punitive damages, and attorneys’ fees for the alleged discrimination and his “pain and suffering.”

Well-known discrimination attorney and active feminist Gloria Allred is representing Mr. Hunter in what she says is a “trail blazing lawsuit” because “most victims of gender discriminatioin are female.” According to the Huffington Post, CBS maintains that the accusations are “frivolous” and predicts “an early dismissal” of the lawsuit.

FEHA prohibits employers from either refusing to hire or firing someone based on gender, but let’s face it, Ms. Taft and Ms. Johnson weren’t hired just because they are female. They were hired because they are attractive, too.

This might not sound fair or just, but television is a visual medium – and television news is a business that relies on viewers and advertisers to make a profit. So, was Mr. Hunter not being hired an exercise of sound business judgment or age and gender discrimination?

The media accurately reported the facts, but it didn’t analyze the legal issues. LASIS will.

In a 2004 California Court of Appeals case, Holly Hallstrom, a model on the television game show “The Price Is Right,” sued Bob Barker, the host of the show, for gender discrimination claiming she was fired from her on-air job for gaining weight. The court found no gender discrimination because Ms. Hallstrom could not prove that a male “of comparable qualifications” replaced her or that she was let go when similarly situated male co-workers were not (there were no similarly situated male co-workers). And evidence that the show’s 300-pound male announcer wasn’t fired was “to put it politely, unpersuasive.” He’d been hired because of the unique sound of his voice. It was no secret why the women on the show had been hired. It was because they looked beautiful. People tuned into the show just for the ladies (who had fan clubs devoted to them).

The record shows that a KCAL manager told Mr. Hunter that he “wouldn’t be the type men would want to look at,” since the station was trying to “cater to its many male viewers.” Indicating that the station sought to hire females. And it would be hard for KCAL to argue that Ms. Taft was as qualified as Mr. Hunter for the gig. In fact, the record shows that the station dropped its preference for American Meteorological Society certified weather anchors in order to hire Ms. Taft, a 25-year-old blonde beauty with only a few years of experience in front of the green screen.

So it’s possible that Mr. Hunter might succeed on his gender discrimination claim, and get some money for his litigation efforts. But keep in mind: KCAL is a business; the station was seeking to increase its male viewership. In this sense, Ms. Taft’s qualifications for the job far surpassed Mr. Hunter’s.

Mr. Hunter is also suing for age discrimination.

Last year, LASIS wrote about a 60-year-old former New York City-based news reporter who sued for age discrimination when a younger, less experienced newscaster replaced him. Reporter Asher Hawkins predicted that an aging anchor would likely lose on an age discrimination claim because a station can argue that “it had other, nondiscriminatory reasons” for ousting on-air talent.

In a 2010 California Court of Appeals case, an assignment editor at a California newspaper sued her employer for age discrimination when younger employees were promoted over her. But while the editor believed she was qualified for the promotions, her employer disagreed, and the court found that the “actual motive” for promoting the junior employees was not necessarily the discriminatory one claimed by the plaintiff.

This seems to cloud the chances of Mr. Hunter’s age discrimination claim, as the stations could argue that although he has a flood of forecasting experience, the young and female weather anchors were hired to help the stations soar ahead of the local competition.

Note that we believe the outcome would be different if Mr. Hunter had a contract and was fired and replaced by a young, inexperienced woman.

And yes, the stations’ hiring practices seem to teeter on the edge of gender and age discrimination, when looking at the law out of context. But when looking practically at the matter, news outfits can’t be forced to hire on-air talent who would garner them lower ratings – and hurt their bottom line.

This blog originally appeared in Legal as She is Spoke, a project of the Law and Journalism track at New York Law School, on April 9, 2012. Reprinted with permission

Octogenarian Manager Strikes Blow Against Age Bias

Wednesday, June 29th, 2011

David WeisenfeldThe Florida Marlins hiring of 80-year-old Jack McKeon on June 20 to manage their team for the remainder of the baseball season was greeted with widespread ridicule.  Sports-talk radio hosts on WFAN 660 in New York mocked the Marlins, and others were quick to do so as well.  No one other than the legendary Connie Mack, who also owned his team, has ever been an older manager.

But turning the ill-informed criticism aside, McKeon’s qualifications were beyond reproach.  In 2003, at age 72, the Marlins hired McKeon in May while similarly mired in last place.  All he did that year was lead the young Marlins to a World Series Championship which included upset playoff victories over the heavily favored Chicago Cubs and New York Yankees.

In both series, the Marlins won the clinching games on the road at Wrigley Field and Yankee Stadium.  That made McKeon only the second manager in baseball history to take over a team at mid-season and lead it to a championship.

McKeon followed up that performance by leading the Marlins to winning seasons in both 2004 and 2005 despite the fact that the squad had one of the lowest payrolls in all of baseball.  He then retired as manager, but has remained active as a consultant to the team’s ownership.

Known as “Trader Jack” from his days as a baseball general manager, McKeon assembled the San Diego Padres team which won the 1984 National League pennant.  He also experienced success managing the Cincinnati Reds in leading the team to a one-game playoff, which it lost, in 1999.  Another winning year followed in 2000.  For his efforts, McKeon was fired.  After his exit, the Reds went a decade before finally having another season where they won more games than they lost.

Clearly, McKeon is a guy who knows what he is doing.  He also enjoys a well-earned reputation for getting players to earn his respect and play hard for him.  So the question really isn’t why the Marlins opted to hire McKeon, but why not?  After all, what other candidate would have had a more impressive background?

And yet, the ageism in so many of the comments about McKeon’s hiring was striking.  You may or may not want an octogenarian fighter pilot.  But managing a baseball team requires acumen, decisiveness and the ability to deal with people, all skills which the Marlins new manager possesses in great measure.

When the Boston Red Sox hired then 28-year-old Theo Epstein as the team’s general manager eight years ago, less was made of the inexperienced Epstein’s age than was the case with McKeon.  Epstein ultimately proved to be a great hire as well in one of the most difficult media markets in the country.  All he did was help end the infamous “Curse of the Bambino” as the Red Sox won two World Series titles in a four-year span.  The first of those titles ended an 86-year drought.

The take-away message is that young or old, it is the quality of the job candidate that matters most—not their age.  There are many other Jack McKeons out there who could still be making strong contributions in a wide variety of positions if given the chance.

At the Supreme Court, Justice John Paul Stevens retired last June at the age of 90.  Until the end, Stevens was an adept writer and questioner.  He also regularly was more engaged during oral arguments than some of his colleagues, including Justice Clarence Thomas who was 30 years his junior.

Age is just a number.  Every person is different, and must be judged on their individual merits rather than by arbitrary stereotypes.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011.  During that time, he covered every employment law case heard by the Court, and also wrote and co-anchored the company’s employment law newscasts.  In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.

Don’t Make Us Work ‘Till We Die!

Friday, April 22nd, 2011

Dave JohnsonThere was a time on this country when We, the People were in charge, and our government worked for us. Through our government we did things for each other and for our economy, and when we had economic success we paid back toward more such investment. Things are different today and We, the People are no longer in charge. In fact, We, the People are thought of now as “the help.” And lately the Powers That Be have been thinking they aren’t getting quite enough work out of us. So they want to make us Work ‘Till We Die.

The country has a budget deficit caused by tax cuts for the rich, huge increases in military spending, wars, covering problems caused by the Great Recession, and interest on the Reagan/Bush debt. To address these deficits the Powers That Be are coming up with plans to raise the retirement age, eliminate Medicare and cut the rest of the things We, the People do for each other — while, of course, dramatically cutting taxes on the rich.

In response the Strengthen Social Security campaign is launching Don’t Make Us Work ‘Til We Die — a website, actions, video and petition.

Check out the following Video:

Work \’Til We Die

Local Actions April 28!

Click here to find an event near you.

Virtual Rally!

If there is no event near you, you can participate in their Virtual Rally.

This is great. Print out a sign and take a picture of yourself holding the sign. Email it to: [email protected] with your City & State in the subject line, and be part of the Virtual Rally.

Sign ideas:
* Don’t Make Me Work ‘Til I Die
* Don’t Make My Kids to Work ‘Til They Die
* Make Your Own

What Others Are Saying

Left In Alabama: Don’t Make Us Work ‘Til We Die,

There will be rallies in 18 states — 52 of them at last count — on April 27 and 28 where current retirees will demonstrate how hard or even impossible it would be for them to continue working at the jobs they retired from.

Digby: Don’t Make Us Work Until We Die.

Evidently, this is the new fate for many more of the elderly. Between raising the retirement age, skimping on the benefits, wage stagnation and economic wipe-outs like the Great Recession, young and old alike will be competing for all those low paying jobs. But since three and four generations will all have to live under the same roof, perhaps they can come up with some sort of job share concept so that they can work in shifts and someone will be at home to take care of the children. As long as it doesn’t inconvenience the employer, of course.

Richard Eskow at Ourfuture.org: Work ‘Til You Die: The Alternate American Reality — And The Reality

The retirement age is already scheduled to increase, and raising it even more is nothing less than cruel. That idea’s part of the political trend toward “austerity economics,” a resurgent anti-government ideology that’sengendered a wave of enthusiastic — no, make that orgiastic prose — from well-fed pundits. Their display of almost snuff-movie-like excitement should have been predictable, but I found it shocking anyway.

AFL-CIO Now Blog: Tell Lawmakers, ‘Don’t Make Us Work ‘Til We Die’,

There is a scary scenario in store if the Republican budget, drafted by Rep. Paul Ryan, is ever implemented. Take a look at this new video from Strengthen Social Security, Don’t Cut It, that takes us to a new dimension where “politicians are cutting our Social Security and Medicare and forcing us work until we die.”

The Serlingesque video is part of a new campaign to fight back against the Republican budget and other proposals to raise the retirement age, turn Medicare over to Big Insurance and slash Medicaid for seniors, children and people with disabilities.

Next week on April 27 and 28 in more than 50 cities in 18 states, activists from the Strengthen Social Security, Don’t Cut It coalition—the AFL-CIO and the Alliance for Retired Americans are part of the coalition—will hold events at congressional district offices to tell their lawmakers hands off Social Security. Click here to find an event near you.

The Main Street blog

Everyone who has worked in a physically demanding job knows what increasing the retirement age will mean. It’s one thing to preach the necessity of this from behind a desk in a cushy office. It’s another thing to be a miner, nurse, truck driver, cook, carpenter, janitor, or a waiter at age 67 — if our bodies last that long. For those who are among the still unemployed/underemployed, and over the age of 55, the promise of Social Security in the future is what keeps us going. We can’t let them pull the rug out from under seniors who have worked long and hard, and paid in to the Social Security Trust Fund.

Dean Baker at CEPR: Why Do Real Men Want to Cut Social Security?

It really speaks volumes about the nature of politics in Washington that in order to be accepted as a serious participant in the budget debates, it is now necessary to affirm a willingness to cut Social Security. This is bizarre from many different angles.

RootsWire

BennyHollywood,

Blue Hampshire

Suburban Guerrilla

Ellen’s Illinois Tenth Congressional District Blog: Days of Action to Protect Social Security/Medicare,

April 27th and 28th will be days of action to protect Social Security and Medicare. The themes are “Don’t Make Me Work Until I Die” and “Don’t Make My Kids Work Until They Die.” Here’s the video:

… If you’re ok with foregoing retirement and health care when you need it most so some CEO of a multinational can walk away with billions (trillions) and take his jobs to India, China and Pakistan, then go ahead and vote for Republicans and do nothing on April 27th and 28th, but if you want US jobs and a US middle class that provides for a dignified retirement, then join Strengthen Social Security for its events, virtually if you cannot make a meeting.

About the Author: Dave Johnson is Dave Johnson (Redwood City, CA) is a Fellow at Campaign for America’s Future, writing about American manufacturing, trade and economic/industrial policy. He is also a Senior Fellow with Renew California. Dave has more than 20 years of technology industry experience including positions as CEO and VP of marketing. His earlier career included technical positions, including video game design at Atari and Imagic. And he was a pioneer in design and development of productivity and educational applications of personal computers.

This blog originally appeared in Dirty Hippies on April 21, 2011. Reprinted with Permission

It's A Long Road To Justice

Tuesday, December 7th, 2010

ellen simonFederal Employee Wins Appeal On Sex And Age Discrimination Claim

Lawyers representing employees in discrimination cases are forever frustrated by federal district court judges whom routinely grant summary judgment to employers instead of allowing cases to proceed to trial for a jury determination.

This recent case of Bartlett v.Gates, in which the Sixth Circuit Court of Appeals reversed the lower court’s summary judgment ruling, is a perfect example of what we potentially face on every case no matter what kind of evidence has been produced.

What Happened In The Case

Barry Bartlett worked for the United States Department of Defense at the Defense Contract Management Agency (DCMA). In September of 2005, he applied for a promotion to GS-12 contracting officer.   At the time of his application, Bartlett was 58 years old and had 34 years of experience as a GS-11 contract administrator. In addition, Bartlett’s resume showed:

  • a record of military service
  • a bachelor’s degree in history
  • completed graduate course work in business administration, accounting and law

Bartlett was deemed qualified at the initial screening stage and his name was forwarded to Kathleen Lehman, the selecting official for the promotion.

Another long term employee, Marvin Greenberg, also applied for the position. Greenberg was 63 years old at the time of his application. His resume showed:

  • a bachelor’s and doctoral degrees
  • authorship of a length book and numerous scholarly publications
  • a 27 year tenure at DCMA

In October of 2005, without conducting any interviews, Lehman chose Angela Lucas for the promotion. Lucas, another internal candidate, was 39 years old at the time and did not have a college degree.

Bartlett claimed that between 2003 and 2005, employees who were 55 years or older received only one DCMA promotion, despite making up 36% of the agency’s workforce. He also claimed that female employees were promoted in a series of personnel decisions that involved the manipulation of agency procedures.

Bartlett decided to challenge the decision. In February of 2007, after exhausting his administrative remedies, he filed a lawsuit against the DCMA claiming that he was discriminated against because of his age and sex in violation of the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964.

The Defendant filed a motion for summary judgment which was referred to a magistrate for a report and recommendation. In October of 2008, the magistrate issued a report which found that Bartlett established a prima facie case of discrimination under Title VII, but the DCMA provided a non-discriminatory reason for its promotion decision and Plaintiff failed to rebut it by showing pretext.

The federal district court judge adopted the recommendation and granted Defendant’s motion for summary judgment against Bartlett. He appealed.

The Sixth Circuit Reverses

Burden of Proof Under The Title VII  And The ADEA

Under McDonnell Douglas, a plaintiff may establish a prima facie case of discrimination in a failure to promote case when he:

  • is a member of a protected class
  • objectively qualified for the position
  • considered for but is denied the promotion
  • an individual outside of plaintiff’s protected class is selected for the position

Once the plaintiff presents a prima facie case of discrimination, the burden shifts to the employer to articulate a nondiscriminatory reason for its action. In order to overcome summary judgment, the plaintiff must produce evidence which can rebut the employer’s explanation demonstrating pretext – which means “only enough evidence … to rebut, but not to disprove, the defendant’s proffered rationale.”

A plaintiff can prove pretext with evidence that the employer’s stated reason for its adverse business action either

  • has no basis in fact
  • was not the actual reason, or
  • is insufficient to explain the employer’s action

It’s worth noting that the Sixth Circuit in this decision joined a number of other circuits in holding that age discrimination claims — post Gross -- should continue to be analyzed under McDonnell Douglas.

The Court’s Analysis Of The Evidence

Since the Defendant conceded that Bartlett established a prima facie case of discrimination the appeal turned on Defendant’s explanation for its decision, and whether Bartlett presented sufficient evidence of pretext to rebut it.

As to its reason, Defendant claimed that Angela Lucas was the best qualified candidate based on the written submissions of the applicants and Lehman’s personal knowledge of their background, performance, work product, and communication abilities.

It further claimed that Lucas was highly motivated, very experienced and a strong communicator who had earned performance awards and commendations of her peers.

Bartlett, it claimed in contrast, was an average employee who lacked a sufficient background in contract negotiations as well as a strong writing ability.

Bartlett offered several grounds of support for his argument for that Defendant’s reasons were pretextual.

Relative Qualifications

As the Court noted, the relative qualifications of applicants as well as discriminatory remarks may establish pretext in a failure to promote case.

In this case, the Court pointed to:

  • Bartlett’s 24 years of experience as a contract administrator: Lucas had 8
  • Bartlett’s superior educational credentials including a bachelor’s degree and advanced course work: Lucas did not graduate from college
  • Bartlett’s communication skills, as well as those of Greenberg, which were satisfactory if not superior to Lucas’s as evidenced by favorable performance reviews, education credentials, and scholarly publications and familiarity in the area of contract negotiations.

The Court stated:

Construing the fact in the light most favorable to the Plaintiff, we find that while Plaintiff may not have been a “plainly superior candidate” that rendered a DCMA’s promotion decision unreasonable on its face …Plaintiff was as qualified if not more qualified than Lucas.

Although this finding does not conclusively establish pretext, it warrants denial of summary judgment where other probative evidence of discrimination is presented.

Discriminatory Remarks

As the Court noted, discriminatory remarks may constitute direct evidence of discrimination and also serve as evidence of pretext.

In this case, Bartlett presented evidence that his supervisor, Gail Lewin, and the selecting official Kathleen Lehman:

  • informed him that 34 years on the job was enough
  • joked about whether he had taken up “antiquing or traveling or something like that”
  • suggested that he should retire – a topic which Bartlett had neither broached nor considered

The Court stated:

Because these statements were made by DCMA decisionmakers just weeks before the promotion decision and because the ostensible motivation of the comments was to hasten Plaintiff’s departure from the agency, these remarks provide strong ‘probative evidence of pretext.’

Furthermore, when coupled with record evidence that Plaintiff was as qualified if not more qualified that the selectee, these statements created triable issues of fact on the question of pretext.

Defendant’s Explanation Was Not Believable

In addition, the Court held that Bartlett had presented evidence of pretext because the reason given for its failure to promote him was not credible.

As the Court noted, Lehman testified that she made the decision that Lucas was the best qualified candidate without conducting interviews because she was familiar with the applicants experience, backgrounds, and competency. However, when asked, Lehman was unable to answer basic questions about the candidates’ qualifications.

The Court noted:

The fact that Lehman was unable to describe the candidates’ credentials creates a triable issue of fact as to the actual basis for Defendant’s promotion decision, suggesting it was pretext for discrimination based on sex and age.

In sum, the Court concluded that Bartlett presented sufficient evidence to suggest that DCMA’s proffered explanation for its promotion decision was pretextual, and had no basis in fact. Accordingly, DCMA was not entitled to summary judgment.

The case was reversed and remanded for trial.

Take Away

This case is a good example of something that’s often wrong with many federal court decisions when it comes to employment discrimination cases.

When reviewing summary judgment motions, trial court judges are, according to the Supreme Court “required to view all facts and draw all inferences in favor of the nonmoving party.” In employment discrimination cases, the nonmoving party is almost always the plaintiff employee.

It’s no secret to plaintiffs’ employment lawyers that, for some reason, many trial court judges fail to abide by this requirement in case after case and instead seem to draw all inferences in favor the employer.

The result of what appears to be this employer oriented approach in discrimination cases, or as some call it  — a hostility on the federal bench to employment cases —is a clogging of the docket with summary judgment motions and appeals, as well as considerable delay and expense to both sides.

It also encourages management side lawyers to file summary judgment motions in every case no matter what record of evidence has been established by the plaintiff because they just might win – and just might get affirmed or the employee might just get worn down and give up.

Mr. Bartlett filed his lawsuit in 2007. The events giving rise to claim occurred in 2005. While it’s a great victory to have won the reversal in the Court of Appeals, let’s not forget that it’s almost 2011 – and that all he has won thus far is his right to get a trial and have his case decided by a jury.

The reality is that if someone chooses to litigate an employment discrimination case, it’s virtually certain that it’s going to be a long road to justice.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Tenth Circuit Decides Important Age Discrimination Case

Wednesday, September 22nd, 2010

ellen simonA Boot To Pretext Plus, A Favorable Interpretation Of Gross, And More Age Discrimination Gems From The Tenth Circuit

For anyone interested in representing employees in age discrimination cases, the recent case of Jones v. Oklahoma City Public Schools from the Tenth Circuit Court of Appeals is a must read.

The case is loaded with great stuff including a helpful reading of the Gross case, an affirmation of the use of the McDonnell Douglas burden shifting framework in ADEA cases, a pro-employee interpretation of adverse action and a much needed kick in the pants to pretext plus which was resurrected from the dead by the district court.

What Happened In The Case

Judy Jones began working as a teacher for the Oklahoma City Public Schools (“OKC”) in 1969. She then served as an elementary school teacher for approximately fifteen years. In 2002, Jones was promoted to the position of Executive Director of Curriculum and Instruction.

In 2007, a new superintendant decided to reorganize OKC’s executive team. In particular he decided that Jones’ position could be eliminated and that her duties would be absorbed by other directors.

Jones was reassigned as an elementary school principal. At first she retained her previous salary level though her vacation benefits were affected immediately.

After Jones completed her first year as principal, her salary was decreased by approximately $17,000. The pay cut  reduced her retirement benefits and her daily pay rate was also reduced.

One month after Jones’ reassignment, the superintendant decided to create a new Executive Director of Teaching and Learning position. The job description and responsibilities for this new position were virtually identical to those of Jones’ former position of Executive Director of Curriculum and Instruction.  The new position was filled with an individual who was forty seven years old. Jones was nearly 60 at the time.

The evidence showed that funding for Jones’ position stayed on the books for the 2007-2008 fiscal year, and that her former staff continued to work in the department both before and after the position of Executive Director of Teaching and Learning was created.

In addition, several of her fellow OKC directors, including the interim superintendant, made age-related remarks to Jones regarding her retirement plans.

Jones filed suit in the District Court for the Western District of Oklahoma alleging that that OKC violated the Age Discrimination in Employment Act (ADEA) when it demoted her to the position of elementary school principal.

Quoting Reeves v. Sanderson Plumbing Products, Inc. the district court held that this was a case where the plaintiff established a prima facie case of age discrimination and set forth evidence to reject the defendant’s explanation for its decision, but “no rational factfinder could conclude that the action was discriminatory.”

Although the district court acknowledged that OKC leadership had made age-related comments, it faulted Jones for not providing any “additional evidence to show that age played a role in the reassignment decision.” Summary judgment was granted against Jones. She appealed.

The Tenth Circuit Court Of Appeals Reverses

Interpreting “But For” Causation Under Gross v. FBL Financial Services, Inc.

The first issue addressed by the Court involved an interpretation of the Supreme Court’s Gross v. FBL Financial Services, Inc. 2009 decision and it’s an important holding for anyone litigating a case under the ADEA.

The ADEA prohibits an employer from discriminating against an individual in employment “because of such individual’s age.” The statute, which does not define “because of”, was interpreted in the Gross decision to require “but for” causation.

OKC contended this required a plaintiff to prove that her employer was motivated solely by age discrimination when making an adverse decision. In other words, “but for” causation under the ADEA means that age must have been the only factor in the employer’s decision making process.

The Tenth Circuit rejected the argument. It stated:

The Tenth Circuit has long held that a plaintiff must prove but-for causation to hold an employer liable under the ADEA (citations omitted). Moreover, we have concluded that his causal standard does ‘not require [plaintiffs] to show that age was the sole motivating factor in the employment decision.’ (Citations omitted)

Instead, an employer may be held liable under the ADEA if other factors contributed to its taking an adverse action, as long as ‘age was the factor that made a difference.’ (citations omitted)

Gross does not hold otherwise … and does not place a heightened evidentiary requirement on ADEA plaintiffs to prove that age was the sole cause of the adverse employment action.

McDonnell Douglas Applies To the ADEA

Under the McDonnell Douglas framework of proving discrimination claims, a plaintiff may survive summary judgment by proving circumstantial rather than direct evidence of discrimination. To do that:

  • the plaintiff must first demonstrate a prima facie case of unlawful discrimination
  • if she succeeds at this first stage, the burden of production shifts to the employer to identify a legitimate, nondiscriminatory reason the adverse employment action
  • once the employer advances its reason, the burden shifts back to the employee to prove that the employer’s proffered reason was pretextual

Most circuits have long held that plaintiffs can use the McDonnell Douglas three step analysis to prove age discrimination. The problem is that Gross left open the question of whether the McDonnell Douglas framework was applicable to the ADEA.  The Court addressed the issue. It stated:

Although we recognize that Gross created some uncertainty regarding burden-shifting in the ADEA context, we conclude that it does not preclude our continued application of McDonnell Douglas to ADEA claims. .. While Phillips (citation omitted) is not precedential, we agree with its reasoning and join all of our sibling circuits that have addressed this issue. (citations omitted)

In sum, the Tenth Circuit joined the majority of other circuits, in holding that McDonnell Douglas applies to ADEA cases which permits proof of discrimination through a framework of inference and circumstantial evidence.

Jones Suffered An Adverse Action

In applying McDonnell Douglas to the case, Jones was required to prove that:

1) she was a member of the protected class

2) she suffered an adverse employment action

3) she was qualified for the position at issue and

4) she was treated less favorably than others not in the protected class

OKC did not dispute that Jones was protected by the ADEA, qualified for her former position, and that she was treated less favorably than others not in the protected class.

It contended that she did not suffer an adverse employment action because she remained in a job with similar responsibilities and a daily rate that was almost exactly the same as her per diem rate as a director. Therefore, according to the defense, she had no case.

The Court rejected this argument pointing to evidence of:

  • a $17,000 decrease in salary the following year after her reassignment
  • an immediate reduction of vacation benefits
  • a reduction of retirement benefits

The Court also noted:

Although OKC argues that Jones did not experience a demotion, she certainly lost professional prestige and fell to a lower position in the district’s hierarchy. Also, OKC’s argument that a five-dollar reduction in daily pay is not sufficient to constitute an adverse employment action is simply incorrect. All told, the record in this case conclusively shows that Jones suffered and adverse employment action and proved a prima facie case of age discrimination.

The District Court Erroneously Applied A “Pretext Plus” Standard

In discrimination cases which use the McDonell Douglas framework, once the employer advances its reason for the adverse employment action, the burden shifts back to the employee to prove that the employer’s proffered reason was pretextual – in other words, not believable or false.

As explained by the Court:

A plaintiff produces sufficient evidence of pretext when she shows such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that her employer did not act for the asserted non-discriminatory reasons.

There was a period of time in which some courts required plaintiffs using the McDonnell Douglas framework to show pretext plus produce additional evidence of discrimination in order to avoid summary judgment. In 2000, the Supreme Court squarely rejected the so called “pretext plus” standard in Reeves.

As the Court noted:

Reeves expressly held that ‘a plaintiff’s prima facie case [of discrimination] combined with sufficient evidence to the find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.’

No additional evidence is necessary because proof that the defendant’s explanation is unworthy of belief is simply one form of circumstantial evidence that is probative of intentional discrimination.

In this case, OKC proffered two reasons for Jones reassignment:

  • the superintendant’s reorganization of IKC’s executive team was done in a revenue ne-neutral fashion
  • the superintendant’s believed that Jones former position contained only narrow duties that could be absorbed by other directors

Jones produced evidence of pretext:

  • her former position stayed on the books for the 2007-2008 fiscal year
  • staff in her department stayed employed in the same positions after her transfer
  • a new position, with duties just like her former position, was created shortly after her transfer

She also produced evidence of discrimination which included age-related comments by three executive directors all involved in the reassignment decision.

The district court concluded that Jones had created only a weak issue of fact as to whether the employer’s reason for its decision was untrue and that there was abundant evidence that no discrimination had occurred.

The Court of Appeals reversed. It held that Jones’ evidence was sufficient to satisfy McDonnell Douglas’s third step and that the district court’s grant of summary judgment was improper.

According to the Court, the district court:

  • “improperly favored OKC’s version of the facts” when it was “required to view the facts in the light most favorable to Jones.”
  • refused to consider Jones evidence of discrimination which included age-related comments by three executive directors all involved the reassignment decision
  • erroneously applied “pretext plus.”

As the Court stated:

Rather than properly applying Reeves, the district court erroneously held Jones to the discredited pretext plus standard. The court faulted Jones for not presenting ‘additional evidence that age was a determining factor in her reassignment. But after showing that OKC’ s reasons for her transfer were pretextual, Jones was under no obligation to provide additional evidence of age discrimination. (citations omitted)  Accordingly, . . . we reverse the district court’s grant of summary judgment and REMAND for further proceedings.

Take Away

This case covers so much territory on the ever changing battlefield of age discrimination law. It should be very helpful to those facing arguments under Gross which suggest that plaintiffs in age discrimination cases should be held to a higher or different standard of proof than employees in other kinds of discrimination cases.

It gives a much needed reminder that an application of “pretext plus,” even when disguised in a different form, is reversible error.

The case also serves as an admonition to courts to refrain from the all too common practice of crediting an employer’s version of facts over an employee’s instead of  viewing the facts in the light most favorable to the employee opposing summary judgment.

Even though Reeves has been around for ten years, it seems that some just don’t get it, so thanks to the Tenth Circuit for this very cogent reminder.

This article was originally posted on Employee Rights Blog.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Age Discrimination Gets Attention Of Congress

Friday, May 14th, 2010

Hearings Held On Federal Discrimination Bill To Overturn Gross Decision

Last week, both the House and Senate held hearings on the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756). The legislation would overturn the awful Gross v. FBL Financials Services, Inc. case decided by the Supreme Court last year. If passed,  the bill will apply retroactively to all cases pending on or after June 17, 2009, the date of the Gross decision.

Simply stated, the Gross decision holds age discrimination plaintiffs to a higher standard of proof than other victims of discrimination by requiring them to prove that their age was the “but for” cause of the employer’s adverse decision instead of  “a motivating factor.” I predicted, as did others, that Gross would get a Congressional fix and that’s exactly what POWADA does – and more.

For one, POWADA allows the plaintiff to win an age discrimination case by proving that:

(A) an impermissible factor under the Act (the discrimination statute) was a motivating factor for the practice complained of  — even if other factors also motivated the practice, or

(B) the practice complained of would not have occurred in the absence of an impermissible factor.

The legislation also establishes that:

  • standards of proof for all federal laws forbidding discrimination and retaliation (including whistleblowing) are the same
  • the plaintiff can choose the method of proof for the case, including the McDonnell Douglas framework
  • employees can rely on any type or form of admissible circumstantial or direct evidence to prove their discrimination and retaliation cases

The Act explicitly states that the standard for proving unlawful disparate treatment under the Age Discrimination in Employment Act of 1967 and other anti-discrimination and anti-retaliation laws is no different than the standard of proof under Title VII of the Civil Rights Act of 1964, including amendments made by the Civil Rights Act of 1991.

In other words, all plaintiffs in discrimination cases will be held to the same standards of proof and will be able to prove their discrimination cases in the same way. While this is most certainly what Congress intended in the first place, it will be very beneficial for all of us who litigate these cases — and our clients — to have these evidentiary matters settled once and for all.

image: www.conversantlife.com/files/imagecache/blog_wizard/files/blog_wizard/proof.png

*This post originally appeared in Employee Rights Post on May 9, 2010. Reprinted with permission.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Will Congress Restore Equal Opportunity for Older Workers?

Wednesday, May 12th, 2010

Image: LazarusOn May 5 and 6, House and Senate committees held back-to-back hearings on legislation to override a June 2009 Supreme Court decision that stripped older workers of vital protections against bias on which they had relied for over 40 years. In this ruling, which Justice Stevens in dissent characterized as “unabashed judicial law-making,” “irresponsible,” and in “utter disregard” of the Court’s own precedents and “Congressional intent,” a narrow 5-4 majority so weakened the 1967 Age Discrimination in Employment Act (ADEA), that employers are left with little incentive to comply. The case, Gross v. FBL Financial Services, illustrates the accuracy of President Obama’s recent observation that we “are now seeing a conservative jurisprudence” that is both “activist” and bent on gutting laws that, like the ADEA, were enacted to protect ordinary people.

The case arose out of circumstances all too familiar to older workers at all levels in our economy, especially in the hard times from which much of the nation has barely begun to recover. In 2003, Jack Gross, aged 54 and a 32-year employee of FBL Financial, was demoted from his position as claims administration director, and transferred to a newly created position with drastically reduced responsibilities. Gross sued, and at trial introduced “evidence suggesting that his reassignment was based at least in part on his age” (as stated by Justice Clarence Thomas writing for the majority). Gross’ employer responded with the claim that the reassignment was part of a “corporate restructuring.” The jury found for Gross and awarded him $46,945 in lost compensation, after receiving the judge’s instructions that they must rule for the employee if he proved by a preponderance of the evidence that “age was a motivating factor” in his demotion. “However,” the judge instructed, the jury must rule for the employer if the employer proves by the preponderance of the evidence that the employer would have demoted Gross “regardless of his age.” This instruction tracked settled law. But the Supreme Court majority changed the law, and held that Gross and others in his situation needed to show that age was the “but for” cause of their adverse treatment, and that evidence that age was a motivating factor would not shift the burden of proof to the employer to prove that the adverse action would have occurred regardless of the employee’s age.

After the Supreme Court bounced him back to square one, Mr. Gross testified before Congress that the conservative Justices had “hijacked” his case to make an ideological point. His view cannot be dismissed as sour grapes. On the contrary, this 5-4 reversal of the jury verdict in Mr. Gross’ favor creates a veritable perfect storm for older workers. Numerous surveys show that the current financial crisis has forced older workers at all economic levels to shelve plans for retirement, and attempt to stay in, or re-enter the job market. Or hope to. When recession strikes, employers often target veteran employees in reductions in force, and disfavor older candidates for whatever new positions they may need to fill. Age discrimination claims submitted to the Equal Employment Opportunity Commission spiked nearly 30 percent in June 2009 compared with the same month a year earlier.

For these claimants, the Supreme Court’s decision offers a Catch-22. The aptly named decision will largely nullify the ADEA and guarantees that a vast proportion of age bias complaints will fail, whatever their merit. As Senate Health, Education, Labor, & Pensions Committee Chair Tom Harkin (who blogged for ACSblog here) observed in his committee’s March 6 hearing on the bill, in real-world workplaces, employers create paper trails purporting to justify adverse actions on legitimate business-related grounds. In such circumstances, it will rarely be possible to prove that age was the “but-for” cause (a standard some courts have interpreted to mean “exclusive”), rather than a “motivating” factor. Virtually any evidence of any other factors, whether business-related or not, suffices to throw a legitimate age discrimination victim out of court. Employee-side lawyers will know that, so they will rarely waste their time and resources to bring cases when age bias victims come to them for help. Business lawyers will also know that, and will counsel clients that they have nothing to fear if they pay lip-service to the ADEA but ignore it in practice.

As noted above, few cases confirm more clearly than Gross v. FBL President Obama’s observation that recent conservative judicial activism “ignores the will of Congress” and “democratic processes.” “Not only,” Justice Stevens wrote in his impassioned dissent, did the Court’s own precedents reject the “but-for” standard, but “so did Congress when it amended Title VII (of the 1964 Civil Rights Act) in 1991.” Moreover, the majority’s “far-reaching” new rule answered a question completely different from the one the parties had raised with the Court or the courts below and which the Court “granted certiorari to decide.”

When issued a bit less than a year ago, the Gross decision provoked indignant opposition on Capitol Hill, and on October 6, 2009, Senators Harkin and Patrick Leahy and Representative George Miller, simultaneously introduced identical corrective bills, entitled the Protecting Older Workers Against Discrimination Act. The fact that legislative hearings have now occurred on both sides of the Capitol indicates that Congress may well restore equal opportunity guarantees for older workers – just as it did in February 2009, when it overturned the infamous 2007 5-4 Ledbetter v. Goodyear decision that undermined equal pay opportunity safeguards in Title VII. Only through such prompt action can Congress prevent the further metastasizing of this threat to the economic security of older Americans, and all Americans.

*This post originally appeared in American Constitution Society on May 7, 2010. Reprinted with permission.

About the Authors:

Simon Lazarus is Public Policy Counsel for the National Senior Citizens Law Center, where he is responsible for the Washington DC advocacy effort of NSCLC’s Federal Rights Project. He writes frequently on the politics of judicial nominations, on Congressional authority to protect ordinary Americans’ basic needs, and on the ability of individuals to enforce rights under federal and state law.  His articles have appeared in the Atlantic, the Washington Post, The American Prospect, Roll Call, and Huffington Post.  His DePaul Law Review article, “Federalism R.I.P.? Did the Roberts Hearings Junk the Rehnquist Court’s Federalism Revolution?,” expanded an issue brief he authored for the American Constitution Society.  His ACS issue brief, “Mandatory Health Insurance: Is it Constitutional?,” has been widely referenced in the current debate.  His Atlantic article, “The Most Dangerous Branch?”, was republished in two anthologies, The Best American Political Writing 2003, Royce Flippin, ed., and Principles and Practice of American Politics: Classic and Contemporary Readings, 2d ed., Samuel Kernell and Steven S. Smith, eds. (CQ Press 2003).   Si has served as Associate Director of President Jimmy Carter’s White House Domestic Policy Staff (1977-81), as a partner in Powell, Goldstein, Frazer, and Murphy LLP (1981-2002), and as Senior Counsel to Sidley Austin LLP (2002-2006). A Trustee of the Center for Law and Social Policy, he graduated from Yale Law School, where he was Note & Comment Editor of the Yale Law Journal.

Sergio Eduardo Munoz is a staff attorney for the Federal Rights Project. Most recently, he was the Public Policy Director of a health reform organization where he coordinated advocacy for the amelioration of health difficulties facing adolescents of color and limited income. This position built upon Sergio’s work directing Latino outreach in the greater Denver area for federal Democratic candidates in the successful 2008 elections. He specialized in bringing first-time voters into the political process, preventing voter suppression, and laying the groundwork for a sustainable and diverse political majority. A graduate of Brown University and the University of Michigan Law School, he has completed legal fellowships at the ACLU of Michigan, the Center for Reproductive Rights, and the Pediatric Advocacy Initiative. Prior to starting law school, Sergio was a social worker for foster children with medical conditions and a civil rights and liberties investigator of police misconduct in New York City.

Could This Be News? Employee Fired Because She Was Too Old And Too Expensive Has Right To Age Discrimination Trial

Wednesday, March 17th, 2010

Direct Evidence Of Age Discrimination Gets Plaintiff Jury Trial: Court Wrongfully Applied Mixed Motive Standard To Bounce The Case

It’s hard to believe that this age discrimination victim got thrown out of court and had to go to the Eleventh Circuit Court of Appeals for a reversal but here’s what happened in the recently decided case of Mora v. Jackson Memorial Hospital.

Facts Of The Case

Sixty-two year old Josephine Mora worked for Jackson Memorial Hospital (“Hospital”) as a fundraiser. She initially worked for someone named Chea who recommended to the Hospital’s chief executive, Rodriguez, that she be fired. The reasons for the recommendation are not set out in the opinion.

Rodriguez first agreed, but then decided to give Mora a different position in his own office “where he could observe her more closely.” Mora worked with Rodriguez for a month. Rodriguez claimed during that time Mora was responsible for several errors and displayed a lack of professionalism.

At the end of the month, Rodriguez fired Mora. When he did so, according to Mora, Rodriguez called her into his office and said:

I need someone younger I can pay less … I need Elena [Quevedo, a 25 year old employee]

In addition, one employee heard Rodriguez tell Mora:

You are very old and inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control.

Another employee heard Rodriguez say “she’s too old to be working here anyway” in reference to Mora.

In the course of Mora’s lawsuit filed under the Age Discrimination in Employment Act, (“ADEA”) Rodriguez denied making these discriminatory remarks. In addition, the Hospital argued that even if it did discriminate against Mora, she would have been fired anyway because of poor performance.

The district court agreed with the defendant, concluded that the Hospital had met its burden under the “same decision” affirmative defense, and granted judgment in favor of the Hospital. Mora appealed.

The Eleventh Circuit Reverses

Mixed Motive Analysis Wrongfully Applied

Part of the reason why the Eleventh Circuit reversed the decision was because it found that the district court wrongfully applied a Title VII mixed motive analysis to an ADEA case.

The discussion involves a lot of complicated and tortured law, but here’s the simplest I can make it.

In the landmark Supreme Court case of Price Waterhouse v. Hopkins decided in 1989, the evidence showed that the partners at Price Waterhouse made sexist remarks and engaged in gender stereotyping when they denied Ann Hopkins partnership in the firm. In other words, there was direct evidence of discrimination.

In its holding the Supreme Court set out a new standard which could be applied to cases with direct evidence of discrimination. In sum, when a plaintiff shows that race or sex discrimination was a motivating or substantial factor in an employment decision, the burden of persuasion shifts to the employer to prove that it would have made the same decision anyway (in the absence of the discriminatory motive.)

Since the Price Waterhouse decision, this kind of discrimination case is often referred to as a “mixed motive case” with a “same decision defense.”

In Moro’s case, the district court applied the Price Waterhouse mixed motive analysis and ruled that the Hospital proved its “same decision” defense. It concluded that Mora ‘s termination was inevitable given the number and severity of her workplace problems and that no reasonable jury could find otherwise. And so she lost as a matter of law.

The problem with the district court’s ruling — according to the 11th Circuit — is that the Supreme Court’s decision in Gross v. FBIS Financial Services (2009) held that the Price Waterhouse mixed motive burden shifting analysis only applied to discrimination claims brought under Title VII and did not apply to the Age Discrimination in Employment Act. ( I wrote about the awful Gross case here and here)

Consequently, since the mixed motive burden shifting analysis was wrongly applied, the defense was not entitled to its same decision defense, and the district court’s reliance on that defense in finding against the plaintiff was reversible error.

The Jury Should Decide Whether Mora Was Fired Because Of Her Age

After the 11th Circuit explained why the district court’s analysis was wrong, it went on to explain what the correct analysis is – and unlike the above discussion, it’s all very straightforward from there.

A plaintiff in an ADEA case may prove illegal age discrimination with either direct or circumstantial evidence. Moro testified that she was fired because of her age, and two co-employees substantiated her. The Hospital denied that the comments were made which meant that material facts were in dispute and the case properly belonged in front of a jury.

As the Court put it:

The resolution of this case depends on whose account of the pertinent conversations a jury would credit. …..

A reasonable juror could find that Rodriguez’s statements should be taken at face value and that he fired Plaintiff because of her age. For us to conclude otherwise would be to deny Plaintiff the benefit of resolving all reasonable inferences in her favor as the nonmoving party.

Given the disputed question of material fact, Defendant was unentitled to a summary judgment.

Take Away

It’s awfully common for people to be let go because they are considered by some to be too old and too expensive. I can’t count the number of times I have represented people who were fired for just those reasons.

In this case, Josephine Mora was told, “you’re too old. I need to find someone younger and cheaper.” If it’s not a case of age discrimination, I don’t know what is.

It’s both astounding and disheartening that forty three years after the passage of the Age Discrimination in Employment Act, a court faced with such strong evidence of age discrimination could throw the plaintiff out, grant judgment in favor of the employer, and deprive the employee of her right to a jury trial

It’s a good thing the Eleventh Circuit fixed the mistake and published this opinion, because if this woman can’t get her age discrimination case in front of a jury, I have a hard time figuring out who can.

image: lawblog.legalmatch.com

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

JetBlue Loses Appeal On Hostile Work Ennvironment Age Discrimination And Retaliation Claims

Wednesday, March 10th, 2010

Complaints To Supervisor/Harasser Are Sufficient To Overcome Affirmative Defense On Hostile Environment Claim

There’s lots of meaty reading in the Second Circuit case of Gorzynski v JetBlue Airways Corporation decided this month. The 31 page opinion hits multiple issues including sexual harassment, age discrimination, race discrimination, and retaliation.

The Federal District Court threw out the case on summary judgment. The Second Circuit Court of Appeals reversed and this is why.

Facts Of The Case

It’s a long story, but here’s the gist of it.

JetBlue hired Diane Gorzynski as a customer service agent in January 2000 for its operation at Buffalo International Airport. She was 54 years old at the time. In May 2000 she was promoted to the position of Customer Service Supervisor and stayed in that position until she was fired on July 5, 2002.

The customer service supervisors were managed by James Celeste, the General Manager. William Thro, a regional manager, was responsible for overseeing the General Managers of several JetBlue stations.

During her employment, Gorzynski experienced age and gender discrimination including sexual harassment. She also observed discrimination of other employees. The main culprit was her supervisor, James Celeste.

Gorzynski complained to Celeste on numerous occasions about the discrimination and harassment she experienced and about the discrimination and harassment of her co-employees.

She was retaliated against and fired, she believed, because of her complaints.

The Lawsuit

Gorzynski filed a lawsuit claiming that JetBlue:

* discriminated against her because of gender in violation of Title VII of the Civil Rights Act of 1964

* discriminated against her because of age in violation of the Age Discrimination in Employment Act

* retaliated against her for complaints to her supervisors about age and gender discrimination and race discrimination of co-employees in violation of Title VII and the ADEA

She also claimed numerous violations on the New York Human Rights Law.

The federal District Court granted JetBlue’s Motion for Summary Judgment of all claims. Gorzynski filed an appeal.

The Second Circuit Reverses

The Faragher/Ellerth Defense

One of the most important and interesting parts of the decision is its holding regarding JetBlue’s affirmative defense on which the District Court hung its hat to throw out Gorzynski’s sexual harassment claim – and it’s a holding which can effect lots of people.

In order to establish a hostile environment sexual harassment claim, a plaintiff must produce enough evidence to show that the workplace was:

* permeated with discriminatory intimidation, ridicule, and insult that is

* sufficiently severe or pervasive to alter the conditions of the victim’s employment and

* create an abusive working environment

In analyzing a hostile environment claim, the court is required to “look at the record as a whole and assess the totality of the circumstances.”

In this case, Gorzynski presented evidence that Celeste:

* grabbed Gorzynsi and other women around the waist

* tickled them

* stared at them as if” he was mentally undressing them”

* made numerous sexual comments including remarks about wanting to suck on or massage their breasts.

The District Court did not consider this evidence. Instead, it found that JetBlue was entitled to win as a matter of law because of its “affirmative offense” under the Supreme Court Faragher and Ellerth decisions.

The employer is entitled to raise the defense in certain sexual harassment scenarios involving supervisors and co-workers if it can show that:

* it exercised reasonable care to prevent and promptly correct any harassing behavior and

* the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

With respect to the first element, JetBlue presented evidence of its sexual harassment policy (contained in its employee handbook) which stated that: “any crewmember who believes that he or she is the victim of any type of discriminatory conduct, including sexual harassment, should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.”

JetBlue argued that Gorxynski was not entitled to proceed on her sexual harassment claim because she failed to take advantage of the policy in the handbook when she:

* only complained to her supervisor — the harasser

* did not complain to other members of management.

The District Court agreed with JetBlue and granted judgment in its favor on Gorzyynski’s sexual harassment claim.

The Second Circuit rejected the District Court’s conclusion and reversed. It stated:

We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints.

Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly.

Accordingly, we hold that an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.

Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.

In this case, the Court noted that:

* the other manager Gorzynski could have complained to was Thro — the regional manager

* the evidence showed that Thro was not receptive to receiving complaints from employees

* the evidence also showed that Thro was intimidating

* Thro retaliated against those who made complaints

Therefore, the Second Circuit held — in reinstating the sexual harassment claim — the question of whether or not Gorzynski unreasonably failed to take advantage of the options provided in the sexual harassment policy was a jury question.

Remaining Issues Of Fact For The Jury

Age Discrimination

Gorzyski established a prima facie case of age discrimination:

* she was over 40

* she was qualified for her position

* she was fired

* she was replaced by a woman in her 40’s

JetBlue countered this inference of age discrimination with its “legitimate business reason”: it fired Gorzynski because of her “management style,” “unprofessional conduct and poor interpersonal skills” and the “hostile work environment she created.”

The District Court found that Gorzynski did not present any evidence that JetBlue’s reasons were false or pretextual – and threw out her age discrimination claim.

The Second Circuit disagreed. Some of the evidence it noted was:

* the negative evaluation Gorzynski received from Celeste — a 2 out of 5 — was conducted after he had supervised her for only one week

* a contemporary, anonymous crewmember gave her a 4 out of 5

* at the same time Celeste gave Crowly, a 30 year old customer service rep. a 4 out of 5 even though Crowly had been written up and counseled on numerous occasions –Celeste then promoted him

* JetBlue’s investigation regarding an incident which immediately preceded Gorzynski’s discharge was “questionable at best”

* Celeste told Gorzynski she reminded him of his 80 year old aunt

* younger employees were not disciplined for violating numerous policies including smoking and sleeping on the job

The Court stated:

Given the cumulative weight of this evidence, we believe that a reasonable jury could find not only that the explanations given by JetBlue for Gorzynski’s termination were pretextual, but also that, together with Celeste’s passing comment about his aunt, it was her age that was the ‘but for’ cause of Gorzynski’s termination.

Accordingly, we vacate the District Court’s dismissal of Gorzynski’s age discrimination claims.

(the case also has a very interesting discussion of “age plus” discrimination in connection with her claim that Celeste discriminated against older women)

Retaliation

The District Court also dismissed Gorzynski’s claim that she was discharged in retaliation for complaining about race, gender and age discrimination.

In order to establish a retaliation claim, the plaintiff must show

1. that she participated in a protected activity
2. suffered an adverse employment action
3. a causal connection between her engaging in the protected activity and the adverse employment action

The Second Circuit reversed the District Court’s holding on the retaliation claims noting in part:

* five months – the time between Gorzynski expressed concern about a co-workers race discrimination and her discharge – was “not too long to find a causal relationship.”

* a complaint about a sexual harassment incident two months before her discharge sufficiently alleged a causal connection between her protected complaint about sex discrimination and her termination

* Gorzynski’s statements in her affidavit that there was unequal enforcement of the rules at the Buffalo station with respect to older employees versus younger employees should have been considered by the Court

In sum, the Court said

JetBlue has articulated a legitimate nondiscriminatory reason for Gorzynski’s termination, and Gorzynski has produced evidence that casts significant doubt on that rationale, leaving a triable issue as to whether JetBlue retaliated against her for complaining about prohibited discrimination.

Lessons To Be Learned

The decision is filled with points of law that are very helpful to employees who have filed employment discrimination claims. It gives numerous examples of what may be considered evidence of disparate treatment, pretext, and retaliation.

It also has a very interesting discussion of gender/age “plus” discrimination, where a subset of women are being discriminated against in the workplace, ie., older women, or black women, but not all women — which in reality is quite common.

Most noteworthy is the discussion of the Faragher/Ellerth defense. While it is critical for those who have been sexually harassed to complain to someone in management, the opinion makes it clear that victims of sexual harassment will not lose their rights because they did not complain to each person designated in a company’s sexual harassment policy.

Complaints to the supervisor/harasser are sufficient. That particular point of law will be a huge help to many victims.

Images: www.bajanfuhlife.com/news/news

*This article was originally published in Employee Rights Post on February 28, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

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