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 This issue was addressed directly by the 6th U.S. Circuit Court of Appeals in an unpublished opinion in which an employee failed to prove that the company’s reason for not re-hiring him after a layoff – that he was a “troublesome employee” – was a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.”]