Maine Employment Lawyer Blog

The Maine Human Rights Commission (MHRC) has found reasonable grounds to believe that Lank Machining discriminated against Ronald Vilandry because of his age. According to the report from the MHRC, Mr. Vilandry interviewed for a job with Lank Machining as a CNC Operator. Mr. Vilandry maintains that during his interview the owner of Lank Machining correctly surmised that Mr. Vilandry was in his 60's; told Mr. Vilandry that he was also in his 60's; and said that people their age should be thinking about retirement.

Instead of Mr. Vilandry, Lank Machining hired an applicant who was about 40 years old and less qualified than Mr. Vilandry. Mr. Vilandry had experience working with the equipment that Lank Machining used. The younger applicant that the company hired did not. Mr. Vilandry also had more experience, in general, than the younger applicant that the company hired. Lank Machining claimed that the younger applicant's lack of experience was irrelevant because it hired him for a position different than the CNC Operator position that Mr. Vilandry sought. This claim is contrary to what Lank Machining told the temp agency that it used to find the younger applicant. Lank Machining told the temp agency that it hired the younger applicant as a CNC Operator.

Mr. Vilandry is represented by Chad Hansen of the Maine Employee Rights Group.

Currently, it is legal for an employer to refuse to hire anyone who is unemployed. Obviously, if this practice becomes widespread, the current high unemployment rate would remain high for much longer. A Congressman from Georgia believes this is unfair and he has proposed legislation to make it illegal. Under the Congressman's bill, The Fair Employment Act of 2011 (H.R. 1113), the same federal law that protects job applicants from religious discrimination, race discrimination, and sex discrimination would also protect applicants from discrimination on the basis of their employment status.

This bill comes on the heels of claims that discrimination against the jobless is a covert way of discriminating against the aged and racial minorities. Older workers and racial minorities were particularly hard hit during the recession. Thus, if an employer refuses to hire an unemployed applicant, it is more likely that it will not hire an older worker or a racial minority.

On September 9, 2010, Judge Hornby of the U.S. District Court for the District of Maine adopted the recommendation of Magistrate Judge Rich to permit Joseph Donahue, Jr.'s age discrimination case to go to trial. Mr. Donahue brought the case against his former employer, Clair Auto Group.

Clair Auto Group terminated Mr. Donahue's employment in 2007. At the time of his termination, Mr. Donahue worked in Clair Auto Group's Honda store in Saco as the Parts Manager. Clair terminated Mr. Donahue so that it could replace him with someone almost 40 years younger. Clair had transferred this younger replacement to the Honda store prior to Mr. Donahue's termination because it believed Mr. Donahue would retire in the near future. Mr. Donahue claims that he had a conversation with the Executive Manager of Clair not long before the Executive Manager terminated him. During that conversation, the Executive Manager asked Mr. Donahue when he planned to retire. Mr. Donahue told him that he did not have any plans to retire. Soon afterwards, the Executive Manager terminated him.

The Court determined that a jury could reasonably disbelieve Clair's purported explanation for its decision to replace Mr. Donahue with someone almost 40 years younger. It further determined that a jury could conclude that the actual reason for Mr. Donahue's termination was age discrimination. The Court made this determination, in part, because Clair failed to keep its story straight. Clair told the Maine Human Rights Commission (MHRC) that Mr. Donahue and his younger replacement were both generally good workers and capable parts managers. They claimed that they had to make a tough decision between Mr. Donahue and his replacement because they were both capable parts managers and Clair could only afford to keep one of them. Later on in the case, the Executive Manager contradicted what Clair told the MHRC. He testified that Mr. Donahue was generally not a good worker. He described Mr. Donahue not as a capable parts manager but, rather, as an employee who he had to repeatedly discipline for performance problems.

Mr. Donahue denied that the Executive Manager ever disciplined him. The Executive Manager admitted that, contrary to company policy, he did not document this alleged discipline. He had no explanation for his failure to follow company policy.

Additionally, there was evidence that some of Mr. Donahue's co-workers regularly referred to him as an "old geezer." There was also evidence that these co-workers influenced the Executive Manager's decision to terminate Mr. Donahue.

The Court also decided that Mr. Donahue could only bring his age discrimination claims against the Clair Saco Honda store where he worked, as opposed to against the Clair Auto Group as a whole.

This case is currently scheduled for a jury trial this fall.

On September 2, 2010, Chief Judge for the United States District Court for the District of Maine, John A. Woodcock, Jr., denied Defendant Mid-State Machine Product's Motions for Summary Judgment in the case captioned Glenn Duckworth v. Mid-State Machine Products, Docket No. 09-CV-279-B-W. As set out in the Court's decision, Mr. Duckworth worked for Mid-State Machine for over six years until he was laid off in 2002 in a reduction in force. The decision to lay off Duckworth in 2002 had nothing to do with his performance of his Gage Control Technician position. Duckworth continued to periodically contact Mid State Machine seeking employment. In 2005, Mid State Machine was, in fact, seeking someone to fill Duckworth's former position of Gage Control Technician. When Duckworth contacted Mid-State Machine during this period he was told that they had nothing for him. Mid-State Machine subsequently hired a much younger candidate without any experience performing the job in question. Duckworth continued to contact Mid State about possible employment and in 2008 was called in by Mid State Machine's new Human Resources Manager for an interview. Mid State Machine interviewed Duckworth and a much younger candidate with no experience performing the Gage Control Technician position and hired the younger candidate. Duckworth was 60 years old at the time that he was passed over for the position in 2008. Duckworth alleges that during one of his interviews that the manager conducting the interview told Duckworth that they needed someone who would be in the position for a long time in a way that Duckworth understood to be an ageist comment relating to Duckworth's age and assumptions about when he would retire. Duckworth subsequently filed a Charge with the Maine Human Rights Commission and then filed a complaint in federal Court alleging violations of the federal Age Discrimination in Employment Act ("ADEA") and the state Maine Human Rights Act ("MHRA") by failing to hire Duckworth because of his age in 2005 and 2008. (The Defendant filed a Motion attempting to end Duckworth's 2005 claim on the basis that it was not timely. The Court previously denied this early Motion. See April 18, 2010 Blog Entry ) Both the ADEA and MHRA prohibit employers from refusing to hire an employee because of that employee's age. The ADEA applies to all employers with 20 or more employees and protects all persons age 40 and older. The MHRA applies to all employers in Maine and protects all persons from discrimination in hiring on the basis of age regardless of age.
As set out in Judge Woodcock's Order, Mid State Machine argued in its Motion that Duckworth did not fill out a formal application in 2005 and so could not make out a claim under either the ADEA and MHRA for the 2005 failure to hire. Duckworth argued that he had made every effort to express his interest in open positions and had been told by Mid State Machine, incorrectly, that no positions were available and that the Defendant's refusal to allow him to apply for the position in question should not be held against him. The Court concluded that Duckworth could still make out a failure to hire claim even though he had not completed a formal application and denied the Defendant's Motion on this issue. While a handful of federal courts had previously addressed this issue with respect to the ADEA, Judge Woodcock's decision appears to be the first resolving the issue of whether an employee can make out a discriminatory failure to hire claim without having formally applied for a position under the state MHRA.
The Defendant also argued in its Motion that there was insufficient evidence to permit Duckworth's claims to be presented to a jury. With respect to this argument, the Court found that, applying the so-called McDonnell Douglas burden shifting regime, there was sufficient evidence in the record from which a jury could conclude that the Defendant had discriminated against Duckworth in hiring on the basis of age in 2005 and 2008. The Court's decision highlights the evidence in the record supporting its denial of Defendant's Motions including evidence that 1) Mid State Machine shifted its rationales for not hiring Duckworth in 2005; 2) Mid-State Machine's policy about whether and when it accepted outside applicants was ambiguous; 3) the hiring manager's recollections about what he had heard from others regarding Duckworth's past performance was false; 4) Duckworth had superior qualifications to the younger candidates who were hired; 5) Mid-State eschewed technical qualifications and used subjective standards to deny Duckworth employment; and 6) statements by the hiring manager that he wanted someone in the position for "a long time" directed towards Duckworth's age of 60.
The Court has placed the case on the November 2010 trial docket. Duckworth is represented by the Maine Employee Rights Group.

The Maine Human Rights Commission (MHRC) found on May 24, 2010 that there were reasonable grounds to believe that the Town of Sanford discriminated against a Lyman woman, Lynnia Burpee, because of her age. She was 58 years old at the time.

The Town denied Ms. Burpee a position as a dispatcher. Ms. Burpee had over 19 years experience as a dispatcher at the time she applied for the job. She had worked the previous 8 1/2 years for York County as a dispatcher. Ms. Burpee applied for the job with the Town of Sanford because York County discontinued its dispatch service. The other York County dispatchers who lost their jobs with the County also applied for positions with the Town. The Town offered all of the York County dispatchers jobs except Ms. Burpee. These other dispatchers were 31, 32, 38, and 49 years old.

According to the MHRC Investigator, the Town claimed that it did not hire Ms. Burpee because she had a low score on her Oral Board review. However, the Town hired a 32 year old who had a lower score than Ms. Burpee. It also hired a 34 year old applicant who did not even go through the Oral Board process.

The next step in the MHRC process is for the parties to engage in efforts to resolve the case prior to filing a claim in court.