Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

On September 26, 2011, the 9th U.S. Circuit Court of Appeals overturned summary judgment allowing a 59 year old employee’s claim of age discrimination to go to a jury, based largely on evidence that younger employees – even those over 40 years old – had been disciplined differently than she was. Christine Earl v. Nielsen Media Research, Inc., 9th Cir., No. 09-17477, Sept. 26, 2011. (You can listen to a recording of the Ninth Circuit argument on this case if you have the appropriate media player.)

For over twelve years, Christine Earl worked as a “recruiter” for Nielsen Media Research, recruiting households within specific demographics to participate in research regarding their television viewing habits. In 2005, when Earl was 57 years old, she received a verbal warning for violating the company’s gift policy, which prohibited recruiters from leaving gifts at unoccupied households. On early 2006, Earl again violated that policy, along with another that required recruiters to keep a company map with them while visiting targeted households. In February 2006, Earl was placed on a Developmental Improvement Plan (“DIP”). A DIP is an informal non-disciplinary tool used by Nielsen to inform an employee that his or her performance has fallen below company standards. A DIP differs from a performance Improvement Plan (“PIP”), a part of Nielsen’s disciplinary process during which an employee is informed that additional performance problems may result in further disciplinary action, up to and including termination. Earl had never received a PIP during her employment with Nielsen.

In October 2005, Earl made an error during the process of obtaining the consent of a household to participate in Nielsen research. The error, which consisted of writing down an incorrect address for the household, was unnoticed by Earl and her customer. However, when the Nielsen technician who was to install the company’s monitoring device realized the error (the incorrect household refused the installation), he was able to correct it. When Nielsen learned of Earl’s mistake, it fired her.

Earl brought a lawsuit against Nielsen, including a claim of age discrimination under the relevant California law. California courts look to federal decisions under the ADEA when interpreting that law, and use the familiar McDonnell-Douglas 3-part analysis. Under that analysis, an employee first must set forth a prima facie case of discrimination, a fairly straight-forward burden. The employer then must proffer a “legitimate business reason” for its actions. The final step in the analysis – and a critical one to an employee’s successful lawsuit – is that the employee must raise a triable issue for the jury that the employer’s proffered reason is simply a pretext for unlawful discrimination.

In Earl’s case, Nielsen filed a motion for summary judgment, claiming that Earl could not prove that her termination was a pretext for discrimination. While the lower court held that Earl could not create a question of fact for the jury on that issue, the Ninth Circuit disagreed, finding that Earl had produced evidence of pretext. That evidence, according to the Court, was that while Nielsen did not have a formal written policy that required a PIP before firing an employee, the procedure of doing so was viewed by the company as an integral step in the disciplinary process. In fact, less than a year prior to Earl’s termination, the company’s HR manager objected to the termination of a 42 year-old employee without first implementing a PIP because such action “would not be consistent with our procedure.” While the company argued that its written policy included language that allowed it to accelerate the disciplinary process at its discretion, the Ninth Circuit held that the company’s general reliance on the issuance of a PIP prior to termination is essence created an internal policy that was violated in Earl’s case. It reversed the lower court’s decision and remanded the case back for a trial on the issues.

The message of this case is an important one: consistency is the key to avoiding the perception that the basis of differing disciplinary actions is an employee’s protected characteristic. Here, applying a more “forgiving” policy to a 42 year old than to 59 year old Earl raised a triable issue of fact, regardless of the company’s formal policy, and will allow Earl to argue that she was terminated without a PIP solely because of her age.
 

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In order to support a claim of employment discrimination, an individual typically must show that an “adverse employment action” was taken, and that such action was based upon a protected characteristic. To constitute an adverse employment action for purposes for federal anti-discrimination laws, such action must create a significant change in an employee’s status, and includes firing, failure to promote, reassignment with significantly changed job responsibilities, or a significant change in other employee benefits. In an unpublished opinion, the 3d U.S. Circuit Court of Appeals recently joined a number of other circuits to hold that an employee’s Performance Improvement Plan (PIP) is not an adverse employment action, absent some accompanying changes to pay, benefits, or employment status. Reynolds v. Dept. of the Army, 3d Cir., No. 10-3600, July 22, 2011.

In 2004, after working for the federal government for a number of years, Raymond Reynolds took an engineering position with the U.S. Army’s Communications-Electronics Research, Development, and Engineering Center, located in Fort Monmouth, NJ. Reynolds’ supervisor (Kornwebel) felt that he did not take his job seriously, that he improperly delegated responsibilities to others, and that he failed to comply with her directives. In response, Reynolds denied the allegations of poor performance, claiming that Kornwebel treated him “dismissively” and had not provided clear job objectives.

In August 2004, Kornwebel assessed Reynolds’ performance, and found that he had failed to meet certain job goals. On November 3, she met with Reynolds and presented a PIP that allowed 90 days within which to improve his performance or face the possibility of reassignment, demotion, or termination. The day after that meeting, Reynolds applied for two early retirement incentive programs. In the following month, he filed a charge of discrimination with the EEOC, alleging age discrimination.

In order to support his claim of age discrimination, Reynolds had to show that he was at least 40 years old (he was 51 at the time), that he suffered an adverse employment action, that he was qualified for his position, and that he was replaced by a person sufficiently younger to support an inference of discriminatory animus. The district court concluded that Reynolds could not show that he was the subject of an adverse employment action, and granted summary judgment in favor of the Army.

The Third Circuit agreed, citing prior decisions by the Seventh, Eighth, and Tenth Circuits in which a PIP was determined not to have been an adverse employment action. According to the Third Circuit, a PIP “differs significantly” from the types of actions typically viewed as adverse. In fact, far from changing the status of an employment position, a PIP usually conveys to the employee ways in which an individual can better perform the responsibilities that he or she already has. The Court pointed out that to allow a PIP to be viewed as an adverse action would simply create greater frustration for employers seeking to improve and employee’s performances by taking an action that, in effect, would insure a discrimination claim.

It is worth noting here at although this holding seems beneficial to employers, it comes with one caviat: the Court’s reference to sister courts specifically notes that these other court decisions have concluded that a PIP is not an adverse employment action absent accompanying changes to pay, benefits, or employment status. Therefore, an employer who imposes a PIP while at the same time downgrading the employee’s pay, responsibilities, or other benefits could find that its actions are viewed as “adverse,” thereby potentially supporting an employee’s claim for discrimination.

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Unless an individual can prove that she is meeting the expectations of her employer, that individual cannot set forth the prima facie case necessary to support a claim of workplace discrimination. The 7th U.S. Circuit Court of Appeals has found that an employee who was fired for insubordination was not meeting an employer’s legitimate business expectations after she engaged in arguments with her co-workers, the general manager, and the owner of the business. The Court further found that the insubordination was a non-discriminatory reason that overcame the employee’s claim that her termination for insubordination was a “pretext” for discrimination. Everroad v. Scott Truck Sys., Inc., 7th Cir., No. 08-3311, May 10, 2010.

Diana Everroad filed a federal lawsuit against her former employer, Scott Truck Systems, Inc., and against the company’s general manager, who also was the wife of the company’s owner. Everroad claimed that she had been discriminated against because of her age and gender, and that she was retaliated against for reporting that discrimination. The lower court granted summary judgment in favor of the defendants, and that decision was upheld on appeal.

Scott Truck is a family-owned and operated commercial trucking company. Everroad was hired as a dispatcher in 2004 – at the age of 51 – by defendant Hantzis, the general manager and wife of the owner, David Scott. Within the first months of her employment, Everroad experienced conflicts with her co-wrokers, and was complained about by two of the Company’s largest customers. Scott and Hantzis ultimately moved Everroad from the dispatcher position to a newly created “data administrator” job with the same pay and hours, but with a more flexible schedule. In her new position, Everroad worked in close proximity with a younger female employee who, according to Everroad overused the phone for personal calls. She complained to Scott and Hantzis, who called a meeting with Everroad and the co-worker to attempt to resolve the issue. The Court colourfully described the meeting by saying that “Voices were raised, accusations were exchanged, tears were shed, and eyes were rolled.” Apparently, it didn’t go well. Upset by Everroad’s antics, and concluding that Everroad had been insubordinate, Scott and Hantzis decided to terminate her employment. When they informed her of that fact, Everroad told Scott that he and his wife were “nuts, crazy, insane” and “sick” and called Hantzis a derogatory female term, beginning with the f-word as a descriptive adjective. Later that evening, Everroad called Scott, asking for severance pay. Scott declined.

The Company’s motion for summary judgment against Everroad’s ensuing lawsuit was granted, and the case was dismissed. On appeal, the Seventh Circuit found that Everroad’s insubordination undermined the discrimination claims in two ways: first, insubordination precluded Everroad from proving that she “met her employer’s legitimate job expectations,” which is an element of the required prima facie case; second, insubordination is a non-discriminatory reason for termination, which meant that Everroad was unable to show that the Company’s actions were simply a pretext for discrimination. Further, although Everroad claimed that she was treated differently than “similarly situated” male/younger employees, she was unable to show that anyone else had been similarly insubordinate and treated more favourably.

Insubordination is a non-discriminatory reason for termination in most circumstances. The relevant inquiry at the summary judgment level is not whether a reasonable jury would conclude that an employee’s conduct was insubordinate, but whether the employer genuinely believed it to be so at the time of the complained-of adverse action. A jury may disagree with a company’s decision to terminate an employee for insubordination or may think that the decision was in error, but so long as the employer “genuinely believed the truth of their stated reason for the decision,” the reason is not pretextual, and the employee will be unable to prove discrimination. The most effective way to support an employer’s genuine belief is complete, contemporaneous, and objective documentation of the employee actions and statements on which the decision is based.
 

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Employers often are hesitant to discipline or fire an employee who is in a protected class, knowing that the potential for lawsuit can be higher in those circumstances. This issue was addressed directly by the 6th U.S. Circuit Court of Appeals in an unpublished opinion in which an employee failed to prove that the company’s reason for not re-hiring him after a layoff – that he was a “troublesome employee” – was a pretext for age discrimination. Viergutz v. Lucent Technologies, Inc., 6th Circ., No. 08-3626, unpubl., 4/23/10.

Lucent Technologies hired Brian Viergutz in 1997 as an installer. Viergutz was 43 years old at that time. In December 2002, Viergutz was laid off as part of a reduction in force. During his employment, Viergutz admittedly had numerous personal conflicts with his peers.

In 2005, and in response to a job posting by Lucent, Viergutz applied for re-employment as an installer at Lucent. Upon receipt of Viergutz’ application, Melissa Reznick, Lucent’s hiring manager, recognized Viergutz’ name because she had briefly supervised him during his initial period of employment. Based upon her own knowledge, and because she had heard comments from other managers about him, Reznick decided not to interview Viergutz. She specifically informed the HR department that Viergutz had a “bad reputation” and “would not be a good candidate” for the job. In addition, Viergutz’ level of experience was much higher than required in the new position. Lucent ultimately hired an individual who was under the age of 40, and had background as a general laborer.

Viergutz ultimately filed complaints in both state and federal courts, alleging age discrimination and various state court causes of action, including one labeled “Harassment/Defamation of Character” based upon what he alleged to be “rumors and lies” related to his reputation as a technician. The actions were consolidated in federal court, and the district court granted Lucent’s motion for summary judgment. Viergutz filed a timely appeal to the Sixth Circuit, which upheld the lower court’s decision.

In its opinion, the appellate court outlined the three-step burden-shifting process, and held that Viergutz had set forth a prima facie case of age discrimination, thereby filling the first step. Therefore, the burden shifted to Lucent to state a legitimate non-discriminatory reason for not hiring Viergutz. To fulfill that burden, the company submitted evidence and testimony, including an affidavit averring that Veirgutz’ supervisors indicated that he “did not work well with others” and “needed constant supervision.” At that point, the burden shifted back to Viergutz to prove that the reason provided by Lucent was a pretext for discrimination. The Court held that Viergutz failed to show that Lucent’s decision had a basis in fact. Viergutz was unable to show that his superior skills made him more qualified for the open position, because the job posting stated specifically that the person hired would “free up higher skilled installers for higher skilled jobs.” Further, Viergutz was unable to factually dispute his poor reputation, or that he had been sent by the company for evaluation and counseling after an incident with a co-worker in 2002. Viergutz’ own testimony chronicled multiple disputes with co-workers, although he disputed the characterization of the disagreements.

In considering whether to re-hire a former employee, employers should recognize that courts do not require that the decisional process of the company is optimal or perfect. Instead, the key is whether the employer made a “reasonably informed and considered decision” regarding the action taken. In this case, the company was able to support its position with written documentation of prior incidents, and an affidavit of a former supervisor of the applicant. Further, the written job posting, which detailed the level of experience being sought for the position, was instrumental in supporting the Court’s decision that Lucent had provided sufficient rationale for its decision.

[One additional and interesting point in this case is that Viergutz was unrepresented by counsel. In its opinion, however, the Court specifically points out that it “devoted significant effort to ensure that dismissing Mr. Viergutz’s claims is the right result under the law. . . .” and that the result “would have been the same even had Mr. Viergutz had the services of a lawyer, the only difference being that Mr. Viergutz has saved himself substantial expense in attorney’s fees.”]
 

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A public school music teacher who was replaced by a less experienced teacher eleven years her junior was unable to show that her age – rather than her work-performance – was the basis of the non-renewal of her contract. Dorfman v. Pine Hill Board of Education, 3d Cir., No. 08-4012, September 30, 2009.

Judith Dorfman was hired in 2001 at age 56 by the Pine Hill New Jersey Board of Education. Her contract was renewed in 2002 and 2003. However, at the end of the 2003-04 school-year, Dorfman was told that there was a problem with her “fit” at the school, and her contract was not renewed for the following school year. Instead, Dorfman was replaced by a qualified, but less experienced, teacher who was eleven years younger than she.

Dorman filed a lawsuit claiming age discrimination. The School Board’s motion for summary judgment was granted by the district court. To support her discrimination claim, Dorfman first had to establish a prima facie case. She was able to do that by showing that she was a member of a protected age group, that Pine Hill did not renew her contract, and that she was replaced by a younger person. The lower court found that Pine Hill then met the second step of a three-step burden-shifting process by submitting evidence of Dorfman’s negative performance evaluation and her need to improve classroom skills as the “legitimate non-discriminatory reason” for the non-renewal of the contract. In order to ultimately succeed in proving discrimination, Dorfman would have had to demonstrate that Pine Hill’s reason for its action was not the true reason for the employment decision but was, instead, a pretext for discrimination. Dorfman’s case failed at this step, and was dismissed by the district court.

On appeal to the 3d U.S. Circuit Court of Appeals, Dorfman argued that the district court should have found that Penn Hill’s “legitimate non-discriminatory reason” was a pretext for discrimination. First, Dorfman argued, earlier performance evaluations praised her classroom skills. However, upon review, the Third Circuit found that even the early evaluations noted that Dorfman “needed to improve her classroom disciplinary procedures.” Second, Dorfman argued that a remark by the school district’s Superintendent that Dorfman was “not a good fit” suggested age-based discrimination. However, without evidence of a pattern of contract non-renewals based on age, the Third Circuit was unwilling to find that the word “fit” suggested age bias.

Dorfman further argued that Pine Hill’s decision to hire a less experienced and younger replacement was strong circumstantial evidence of discrimination. However, the Third Circuit found that while the replacement had slightly less experience, she clearly was qualified for the position of music instructor. The Court held that in light of Dorfman’s job deficiencies, hiring a qualified teacher – even with less experience - did not constitute per se discrimination. In short, the school board’s evidence of Dorfman’s negative performance evaluation supported a proffer of a “legitimate non-discriminatory reason” for its action. Dorfman was unable to show that age was a determinative factor in the decision regarding her contract.

Once again, employers are reminded that fully documenting decisions, and assuring a reasonable relationship between those decisions and legitimate business-related issues, can assist in avoiding legal liability in claims of discrimination.
 

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The Age Discrimination in Employment Act (ADEA) makes it unlawful to discriminate against an individual over the age of 40, and specifically includes a prohibition against failing to hiring someone based on his or her age. The 2d U.S. Circuit Court of Appeals recently pointed out the expansive nature of that prohibition by holding that an employer may be held liable for discrimination by third parties - including an independent contractor who is authorized by the employer to make hiring decisions on its behalf. Halpert v. Manhattan Apartments, Inc., 2d Cir., No. 07-4074-cv, September 10, 2009.

In October 2001, Michael Halpert interviewed for a position to show rental apartments for Manhattan Apartments, Inc. (MAI). The interview was conducted by Robert Brooks, an independent contractor/broker who allegedly told Halpert that Halpert was “too old” to work in the prospective position, and asked why the placement center had not sent a younger applicant. Halpert was born on September 19, 1957.

In response to a lawsuit filed by Halpert, MAI filed a motion for summary judgment which was granted by the district court. That lower court found that MAI as not an “employer” under the definition of the ADEA, and dismissed the case against MAI. That decision was reversed by the Second Circuit, which remanded the case for trial. The Second Circuit based the reversal on the fact that the ADEA’s prohibitions against discrimination apply to the hiring process, whether a company uses its own employees to interview applicants, or asks an independent contractor to fill that role. If a company gives someone authority to interview applicants and make hiring decisions on behalf of the company, the company may be held liable if that contractor discriminates against an applicant because of the applicant’s age.

MAI’s potential liability under the ADEA turns on whether Brooks was hiring Halpert to work for him as a fellow independent broker, or was making the hiring decision for MAI as its agent. The Court pointed out that MAI sponsored a training program for individuals hired to show the apartments, that the successful applicants would earn commissions from MAI, that the interview took place at MAI’s offices, and that the placement person who sent Halpert to the interview testified that she believed that he was being interviewed for a position with MAI. The Court held that there were disputed issues of material fact that precluded dismissal of the action.

The controversy in this case was not whether MAI was liable for discrimination against an independent contractor (an action typically not protected against under the ADEA), but whether MAI can be held liable for age discrimination by an independent contractor when that person works as an agent for MAI. The Court found that the answer to this question is an unequivocal Yes.

This case could have a significant impact on companies who plan to contract out human resource functions to a third party contractor. Employers who believe that using an independent contractor to conduct interviews will absolve them from compliance with federal anti-discrimination laws should become familiar with this case, and must recognize that the ADEA’s reach extends to a company that uses intermediaries to conduct activities related to employees or applicants. Such a company’s potential liability does not depend on whether the individual acting for the company is an actual employee or an independent contractor – either individual can be an agent for the company for purposes of the ADEA, regardless of his or her employment status for other purposes.
 

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The Age Discrimination in Employment Act (ADEA) prohibits employers from treating employees who are 40 or older adversely on the basis of their age. Recently, however, the 7th U.S. Circuit Court of Appeals held that an employee’s “obsolete skill set” which caused him to be of “declining value” to the company was sufficient basis to support an that individual’s termination during a reduction in force (RIF), and found that the termination did not constitute age discrimination. Martino v. MCI Communications Services, Inc., No. 08-2405, 7th Cir., July 28, 2009.

Guy Martino began his employment with MCI in 2005 at the age of 54 as a business solutions consultant (BSC). In that position, he provided support to sales teams, but did not spearhead actual sales. In addition to his salary, Martino received commissions on sales to which he was assigned to work. For instance, in October 2005, Martino was part of a team working on a deal that involved British Petroleum (BO), and which resulted in substantial revenue to MCI. Although his role in that deal was peripheral, Martino received credit that boosted his sales figures and resulted in a sizeable commission to him. In fact, the BP deal resulted in nearly 85% of all of the commissions earned by Martino during his entire tenure with MCI.

Following MCI’s merger with Verizon in 2006, Verizon undertook a “redundancy analysis” to identify duplicative positions, and to support a reduction in force. As part of that analysis, a distinction was made between individuals who sold “co-location” services – which involved a client’s purchase of space, power, and cooling for its servers in the company’s data centers, but retaining management of those servers – and “managed” services, in which MCI/Verizon actually managed those servers. Co-location services were more basic, and therefore less expensive. When Verizon took over those sales, it removed the BSC force from sales of co-location services and assigned responsibility to them for the sale of managed services. Martino had only limited experience with the sale of managed services, and therefore became a prime target for termination, along with five other BSCs, ranging in age from 33 to 45.

Martino filed a federal court action, claiming age discrimination. While he conceded that the actual termination decision-makers did not discriminate against him, he invoked the “cat’s paw” theory to contend that his immediate supervisor was biased in favor of younger employees, and that the decision-makers were influenced by that bias. The cat’s paw theory is used when an adverse action is taken by an un-biased decision-maker, but on the basis of “singular influence” by a biased supervisor or manager. In this case, Martino argued that his direct supervisor sometimes called him an “oldtimer” which, according to Martino, indicated a bias in favor of younger workers. After stating that the term “doesn’t strike us as inherently offensive,” the court found that the two individuals who actually made the RIF decisions did an independent analysis of Martino’s qualifications, and based their decisions on business-related issues and skill-based criteria. According to the Court, the cat’s paw theory requires a “blind reliance” on input from a biased individual. That type of influence was not present with respect to Martino’s termination.

Martino’s skill set was limited, and Verizon’s increased focus on managed services, rather than collocation services, meant that Martino’s importance to the company was waning. Here, the Court specifically stated that while choosing to terminate someone on the basis of old age is impermissible, choosing to let someone go because they have an “obsolete skill set” is not discriminatory. The Court also noted that the U.S. Supreme Court’s recent decision in Gross v. FBL Financial Services, Inc. made this case especially difficult for Martino. Under that decision, it’s not enough for a plaintiff to prove that age was one of the motivating factors of the adverse action – instead the plaintiff must prove that but for his age, the adverse action would not have occurred.

In this case, the basis of the company’s success was its independent evaluation of employees’ skills and value to the company. Employers should make sure that independent investigations and decisions are fully documented, and that analyses are based on the needs of the company, in order to avoid the “cat’s paw” theory attempted by Martino. Further, training and counseling of supervisors and secondary managers should be undertaken to avoid the appearance of impropriety that is raised by remarks that could be interpreted as discriminatory.
 

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Litigation often ends when one party files a motion for summary judgment, asking the court to determine that there is no issue of material fact for the jury, and asserting that a decision can be made in its favor based solely on the legal issues. In reviewing a motion for summary judgment, a court must view the record in the light most favorable to the non-moving party. Recently, the 2d U.S. Circuit Court of Appeals reversed summary judgment for an employer in an age discrimination case, holding that the lower court “failed to construe the evidence in the light most favorable to [the employee] and to draw all permissible inferences in [his] favor.” Weiss v. JPMorgan Chase & Company, 2d Circ., No. 08-0801, June 5, 2009.

David Weiss alleged that he was terminated from his position at JPMorgan Chase & Company in violation of the Age Discrimination in Employment Act (ADEA) after he was replaced, at age 56, by an individual 16 years his junior. The parties agreed that Weiss presented a prima facie case of discrimination, and that JPMorgan introduced evidence that it had a legitimate non-discriminatory reason for firing Weiss. At the final stage of the now-familiar McDonnell-Douglas analysis, Weiss was required to satisfy the ultimate burden of proving that JPMorgan’s proffered reasons actually were a pretext for age discrimination. The district court reviewed the evidence, and found in favor of JPMorgan. On appeal, the Second Circuit reversed that decision, and held that based upon the available facts – when viewed in a light most favorable to Weiss – a jury may have been able to infer pretext regarding JPMorgan’s reasons for Weiss’ termination. The Second Circuit addressed each of the arguments asserted by Weiss in response to the reasons proffered by JPMorgan, and found each to have created such an inference.

JPMorgan’s asserted reasons for Weiss’ termination centered around complaints by Weiss’ sales team regarding his leadership style, and included the subjective determination (made by a supervisor who only had known Weiss for four months) that “the team had lost confidence in Weiss.” Weiss argued that his team was dissatisfied with their bonuses, over which he had little or no control; that the defection of his top sales person was not due to any action on Weiss’ part, but on JPMorgan’s refusal to match an offer to that individual made by a competitor; and that Weiss never had been put on notice regarding his failure to “cover” certain accounts, which ultimately led to his firing.

Importantly, the Court went into detail about the company’s “shifting explanations” for Weiss’ termination, stating specifically that “[i]nconsistent or even post-hoc explanations for a termination decision may suggest discriminatory motive.” After characterizing JPMorgan’s explanations as “vaguely formulated and technically inaccurate,” the Court pointed out that a jury can infer pretext from the company’s failure to present those termination reasons to Weiss initially, especially in light of an HR employee’s testimony that the company advocated “giving true reasons” to employees who are fired. Further, the Court pointed out that JPMorgan acted outside of its normal termination procedures by failing to allow Weiss an opportunity to correct his filings prior to the termination decision. While the company asserted that urgent business circumstances justified the deviations from its customary procedure, the Court stated that “Whether Weiss’ superiors were persuaded by a sense of business urgency or [by] age discrimination to contravene normal procedures to terminate Weiss is a question for the jury.”

This case is a strong reminder to employers to: (1) act consistently with company policies and procedures; (2) train supervisors and managers to effectively conduct termination meetings; (3) base employee discharge decisions on business-related, fully-documented reasons. To do otherwise may be to create a circumstance in which the company is forced to rely on subjective assessments and incomplete rationales, which can, as in this case, lead a court to find sufficient issues of material fact to allow the matter to be decided by a jury.
 

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Before an individual may file a lawsuit under Title VII or the ADEA, he or she is required to file (or cross-file) a charge of discrimination with the EEOC. The charge is legally sufficient only if it describes with particularity the parties and the actions or practices of which the individual is complaining. The scope of a plaintiff’s right to file a federal lawsuit is determined by the contents of that charge; that is, the lawsuit must be based upon the claims described in the charge, or reasonably related to those described in the charge. Typically, a claim submitted to federal court will be dismissed if the EEOC charge alleges one basis of discrimination, and the formal litigation alleges another, unrelated basis.

The 4th U.S. Circuit Court of Appeals has allowed a plaintiff to allege “retaliatory discharge” in her federal lawsuit, although her employment was not terminated until after a charge for which she already had received a right-to-sue notice and which, therefore, did not specifically claim her firing as part of the complained-of retaliation. Jones v. Calvert Group Ltd., 4th Cir., No. 07-1680, 1/05/09.

Linda Jones is an African-American female who filed a complaint with the Maryland Commission on Human Relations in 2003, alleging that she had been denied a promotion on the basis of her race, sex, and age. That complaint was resolved in 2004 by written agreement, under which the company agreed to provide certain training and assistance to Jones to enable her to qualify for promotions ion the future.

Immediately after that resolution, Jones received a negative performance evaluation - her first ever. She then filed another charge of discrimination. In the second charge, Jones alleged that in retaliation for her first charge, she was denied mentoring opportunities and that her performance was unduly scrutinized, resulting in an undeserved negative evaluation. Jones received a right-to-sue letter for the second charge on August 6, 2006. Her employment was terminated on October 19, 2006.

On November 3, 2006, Jones filed a lawsuit alleging that she was discriminated against because of her race, sex, and age, and that she was terminated in retaliation for engaging in activity protected by Title VII and the ADEA. The company argued that Jones had failed to exhaust her administrative remedies, since her second charge had not set forth specific claims of discrimination, and that her retaliatory discharge was not specifically mentioned in the charge. The lower court granted summary judgment against Jones on all of her claims. On appeal, the Fourth Circuit agreed that Jones failed to specifically include her claims of discrimination in her second charge and, therefore, failed to exhaust her administrative remedies under Title VII and the ADEA. In addition, however, the Fourth Circuit remanded the retaliation claim back to the lower court for further proceedings on that claim.

The Fourth Circuit’s decision was based on the position of a number of other courts that have addressed this issue, and which have held that a plaintiff may raise the retaliation claim for the first time in federal court if that claim is “like or related to allegations contained in the [prior, timely] charge.” Jones’ second charge alleged a pattern of conduct, including denial of mentoring opportunities, and actions that resulted in her first-ever negative performance review. She specifically alleged that she was being continually “subjected to differential treatment” in retaliation for her first charge. In light of Jones’ allegation that retaliatory conduct was ongoing, the court held that her termination was “merely the predictable culmination of [the employer’s] alleged retaliatory conduct.” Therefore, Jones’ federal court claim of retaliatory discharge was “reasonably related” to the allegations set forth in her second charge, and should be allowed to go forward in the federal court action.

Employers must recognize that discrimination and retaliation are two separate legal claims and that – as in this case – an employee who is unable to support a claim of discrimination, either substantively or procedurally, may still be able to sufficiently support a claim of retaliation. Supervisors and managers must be understand the type of activity that is protected under federal and state anti-discrimination laws, and must be trained to work cooperatively with employees who have exercised their rights to engage in such activity.

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