Company liable for wilful age discrimination by employment lawyer-turned HR manager
In Appelbaum v. Milwaukee Metropolitan Sewerage District (7th Cir. 8/28/03), the 7th Circuit affirmed a jury verdict including liquidated (double) damages. Such damages require proof the age discrimination was “willful” — that the employer either knew or was recklessly indifferent to the possibility that the employment decision at issue was unlawful. The court said it would be “extremely difficult” to argue the violation was not willful, given the main decisionmaker’s background as a labor and employment lawyer.
Evidence supporting the finding of age discrimination in the termination of the plaintiff at age 60 included:
1) When the HR manager first told her of the termination, he said it was for both her allegedly poor performance and for a confidentiality breach. “He later backed off somewhat from the performance rationale in response to the concerns [she] raised about his failure to follow through on her purported deficiencies.” But later he still cited her performance as an aggravating factor in his decision. At trial, however, the employer abandoned the charge of poor work performance, and the manager said it played “zero role” in the termination. “One can reasonably infer pretext [hence discrimination] from an employer’s shifting or inconsistent explanations for the challenged employment decision.”
2) The employer had previously decided to lay off the plaintiff in a reduction in force rather than a younger employee who had “glaring” performance problems. Only the unexpected departure of another employee had saved the plaintiff’s job on that occasion. “The fact that [the employer] had chosen to layoff someone on the verge of retirement eligibility rather than someone substantially younger and so evidently less qualified supports the inference that its decisionmaking (at least as to [the plaintiff]) was tainted by considerations of age”
3) The jury also could have inferred pretext from the disparate way in which the employer had disciplined the plaintiff as compared to another employee. “Disparate discipline of an employee who is situated similarly to the plaintiff but is outside of the protected class may support an inference of age discrimination.” “Such a showing normally entails establishing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer’s treatment of them.”
Lessons: 1) don’t hire an employment lawyer who can’t make it practicing law to be an HR manager; 2) don’t change your story radically–get it right the first time and express it consistently thereafter; 3) consistency, consistency, consistency [in discipline of similarly situated employees] . . . .
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