Tag Archives: Age discrimination

November 3, 2016

$4.25M Age Discrimination and Retaliation Verdict Tough Pill For Abbott Laboratories To Swallow

Four-and-a-quarter million dollars. That is what a federal jury recently awarded an ongoing employee at Abbott Laboratories for her age discrimination and retaliation claims. What caused the jury to award such a large amount in damages? Here is a look at the facts, followed by tips on how to avoid such liability when dealing with older employees.

All Seems Fine—Until Employee Hits Her Fifties

Luz Gonzalez-Bermudez (Gonzalez) has worked for Abbott since 1984, beginning her career as a pharmaceutical representative followed by promotions that ultimately made her the HCP national sales manager. In that role, Gonzalez was classified in Abbott’s compensation system as a Level 18 position, warranting a six-figure salary, an annual incentive bonus, stock options, and a company car.

But, eighteen months after her promotion to the HCP national sales manager, when Gonzalez was about 51 years old, her position was eliminated and she was demoted to a marketing manager position. Her new job was a Level 17 position, but Abbott allowed her to keep her Level 18 compensation and benefits for up to two years.

In the marketing manager position, Gonzalez reported to Kim Perez, the Director of Marketing (and later, the General Manager). Perez evaluated Gonzalez’s performance as a marketing manager negatively. Gonzalez complained internally that Perez was creating a hostile work environment, due to repeatedly asking her about outstanding work, sending a lot of emails following up on pending matters, and a lack of communication about things Gonzalez needed to know to do her job.

When Gonzalez’s two years of Level 18 compensation was up, Perez and the Human Resources Director told her that she had been assigned a Product Manager position, which was a Level 15 classification. At that level, Gonzalez took a pay cut, lowered bonus, loss of stock options, and lowered company car benefits.

Employee Lawyers Up

About six months later, Gonzalez’s attorneys sent a letter on her behalf to Perez and others at Abbott, notifying them that they had been retained to represent her in any age discrimination claims that Gonzalez may have against them. Despite the letter, Abbott did not conduct an investigation into any possible claims. Shortly thereafter, Gonzalez filed an administrative charge with the Antidiscrimination Unit of the Puerto Rico Department of Labor and Human Resources alleging age discrimination and retaliation. Read more >>

September 13, 2016

Colorado Hospital Targeted For Alleged Age Discrimination Against Nurses

By Steve Gutierrez

senior nurse A Chief Nursing Officer (CNO) is alleged to have stated that a younger nurse could “dance around the older nurses.” Not hard to imagine that such a statement would raise the hackles of many nurses over age 40, but do comments like that mean that the hospital discriminated against one or more nurses on the basis of their age when the nurses were discharged or resigned? That is the question facing Montrose Memorial Hospital after the Equal Employment Opportunity Commission (EEOC) filed an age discrimination lawsuit against the Western Slope hospital last Friday.

EEOC Cites Numerous Age-Related Comments

In its complaint, the EEOC alleges that Montrose Memorial Hospital’s CNO, Joan Napolilli, made various age-biased statements to charging party Katherine Casias and other nurses. Casias began work for the hospital in 1985 as a licensed practical nurse but then earned her degree cum laude as a registered nurse (RN). The alleged comments attributed to Napolilli include:

a younger RN could “dance around the older nurses;”
younger nurses are “easier to train” and “cheaper to employ;”
Casias was not “fresh enough” and was chastised for not smiling or saying hello enough;
referring to Casias as an “old bitch;”
older workers at the hospital were “a bunch of monkeys” and she’d “like to fill the hospital with new nurses and get rid of all the old ones;” and
telling a nurse supervisor to “work that old grey-haired bitch into the ground” and to work her “long and hard until she quit or got fired.”

The complaint also alleges that Nurse Manager Susan Smith told an RN that “you’re getting too old for this job.”

If proven to have actually been said, comments expressing an aversion to workers over 40 and a preference for younger workers can be direct evidence of age discrimination under the Age Discrimination in Employment Act (ADEA). Read more >>

November 14, 2013

No Age Discrimination Established by “Shelf Life” Comment

By Mark Wiletsky

An HR manager asks about an employee’s “shelf life” in an instant message to another HR manager. Evidence of age discrimination? The employee argued it was, but the Tenth Circuit Court of Appeals ruled it was not. In Roberts v. IBM, the Court recently held that the comment did not amount to direct evidence of age discrimination and “was nothing worse than an inartful reference to [the employee’s] queue of billable work.” The employee’s alternative argument that the term “Project Blue” somehow constituted evidence of age discrimination similarly failed.

Employee Terminated For Poor Performance

George Roberts worked for IBM and was assigned to provide technical assistance to one of IBM’s clients, the Williams Companies (Williams). Williams’ employees repeatedly complained about Roberts’ work, resulting in a critical performance review. Although a subsequent review reflected some improvement, he later received more criticism. IBM offered Roberts the option of resigning with a severance package or committing to a 60-day performance improvement program with the understanding that failure to show sustained improvement would lead to termination. Roberts chose to complete the program. Once again, although he showed some improvement, the client continued to complain. IBM terminated Roberts for his continued negative performance.

Absence of Direct Evidence of Age Discrimination

Roberts sued IBM in federal court, alleging that instant messages between two HR managers showed that IBM fired him because of his age. The HR managers were discussing whether IBM should eliminate Roberts’ position because he did not have enough billable work to do. One of the HR managers questioned Roberts’ “shelf life,” which he argued referred to his age. The Court, however, disagreed, finding that the fair reading of the comment within the context of their discussion was that it referred to his workload, not his age. The Court found that any inference related to the “shelf life” comment would, at most, be circumstantial rather than direct evidence of age discrimination.

Roberts then asserted that the name “Project Blue,” which was IBM’s program of eliminating positions that were not cost-justified, constituted direct evidence of age discrimination. Surmising that Roberts believed that “blue” referred to older people who sometimes have blue hair, the Court rejected the argument, stating that the HR department’s use of the color blue cannot reasonably be taken as a reference to anyone’s age, especially in light of the fact that IBM is itself often called “Big Blue.” Moreover, because Roberts was not terminated as part of that project but through a different process months later, the project name could not lead to the conclusion that IBM fired him because of his age.

No Evidence of Pretext

Leaving no stone unturned, the Court then considered whether Roberts’ claim could proceed as a circumstantial case of age discrimination. Under the McDonnell Douglas burden-shifting analysis, if a terminated employee can establish a prima facie case of discrimination, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for firing the employee. Upon such showing, the employee can still succeed on his or her claim by establishing that the employer’s reason is a mere pretext for discrimination. In this case, assuming (without deciding) that Roberts could establish a prima facie case of discrimination, the Court held that Roberts could not show that IBM’s legitimate, non-discriminatory reason for terminating him was pretext.

Roberts’ poor performance was well-documented and even if there were times where his performance improved, the prior improvements were not sufficient to show that later unsatisfactory evaluations were pretextual. Roberts also tried to show pretext by pointing to a handful of other employees for whom IBM received customer complaints but who were not disciplined for it. The Court found that some of the other employees were not similarly situated as they were not supervised by the same HR manager as Roberts. In addition, none of the other employees had the extensive history of performance issues as Roberts. Therefore, the Court held that Roberts failed to establish any sign of pretext.

The Court went on to reject Roberts’ state law claims as well.

Even Informal Communications Can Land You in Court

While IBM won this case, it also serves as an important reminder for managers and human resources personnel to be careful when discussing employees via e-mail and instant messaging. Avoid using words or phrases that can be taken out of context or have multiple meanings. It is sometimes easy to use shorthand or be informal when communicating via e-mail, or text or instant messaging. But such communications are discoverable, and when taken out of context or misinterpreted, they can turn an otherwise legitimate termination into a hotly contested case. To avoid that from happening, train your managers, supervisors and HR personnel to draft all communications carefully and deliberately, even if using more informal communication technology.

Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.