Age discrimination case: it was all in the details

by on December 15, 2008 · 0 Comment POSTED IN: HR Info Center

ADEA Case: They cooked up excuses for firing older woman

Before you fire an employee – especially one who’s in a protected class – ask yourself if there’s any conceivable way your reasons for the termination could be seen as pretexts. Even the slightest possibility that you were manufacturing reasons for the dismissal can be enough to create a discrimination case against you.

Here’s an Age Discrimination in Employment Act (ADEA) case where that happened.

Employee confidentiality

Don Schriefer, HR director at a local government agency in Milwaukee, WI, was trying to decide what to do about what he considered a violation of employee confidentiality by an HR secretary, Doris Appelbaum, age 60.

What had she done? She’d been asked by another employee whether she’d heard a co-worker had been suspended, and she responded, “Yes, I heard.” She also said she wasn’t at liberty to discuss the matter, and suggested that the inquirer discuss the issue with the co-worker herself.

Even though Appelbaum hadn’t gone out of her way to reveal confidential information, in Schriefer’s eyes her response did just that. And he had told his staff that breaching employee confidentiality would be punished by termination.

Schriefer had another reason for his displeasure with Appelbaum: Lately her performance had been slipping. She wasn’t completing tasks on time and the work that she did was often sloppy and incomplete. Schriefer, aware that Appelbaum was an older employee who was entitled to ADEA protection, gave her several written warnings about her performance. He also documented the events surrounding the alleged breach of confidentiality.

Armed with that documentation, he fired her.

Appelbaum filed a lawsuit claiming age discrimination, claiming that Schriefer had acted in bad faith. Because she was close to retirement age, getting rid of her before she was fully vested would save the employer thousands of dollars.

Although Schriefer advanced what he considered legitimate reasons for discharging her, she won in court.

What swayed the court

Until just a few months before her dismissal Appelbaum was one of two secretaries in the department. The other secretary, Cassandra Reynolds-Taylor, was much younger than Appelbaum. While Appelbaum was well respected by nearly everyone in the organization, Reynolds-Taylor’s work was universally thought of as “poor.”

During a reduction in force, Schriefer’s predecessor wanted to eliminate Appelbaum’s job. But several department managers objected.

Appelbaum was highly competent, they said, and Reynolds-Taylor wasn’t. Ultimately, both the women’s jobs were saved when another member of the department resigned. But it appeared as though she had been targeted because of her age. Shortly after that, Schriefer took over the department. Almost immediately, he fired Reynolds-Taylor, leaving Appelbaum as the only secretary. Overworked, she did the best she could. Until that time, she’d always received excellent performance evaluations.

Inconsistent complaints

When the court reviewed Appelbaum’s “poor performance” before and after she’d taken over Reynolds-Taylor’s job, it became clear that Appelbaum had been a good worker until her workload was doubled. When questioned about this, Schriefer backed off from his “poor performance” position, saying only that she’d violated confidentiality.

In reaching its decision, the court noted the shifting nature of the claims against Appelbaum, as well as an inference that she’d been targeted during the earlier RIF because of her age. The court said a reasonable person could conclude that the employer had been looking for an excuse to get rid of her and the employer’s claims were a pretext for age discrimination. She was awarded $202,660 in lost pay and damages.

Bottom line:

Before firing a worker in a protected class, look deep into the details of the person’s employment history and ask if there’s anything there that suggests the possibility of pretext – because that’s exactly what a court will do.

Cite: Appelbaum v. Milwaukee Metropolitan Sewerage District, U.S. Court of Appeals, 7th Circuit, No. 01-2977, 8/28/03.

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