Age Discrimination

Published on: May 14, 2014

IBM continues corporate trend of using arbitration to avoid responsibility for violating employees’ rights

IBM recently discontinued its longstanding practice of including in its severance packages a disclosure of the ages and job titles of the other employees it had decided to lay off. IBM made these disclosures in order to comply with the Older Workers Benefit Protection Act (OWBPA). 29 U.S.C. sec. 626(f). It has now decided to comply with the OWBPA in a different way: requiring laid off workers who accept severance packages to pursue age discrimination claims in arbitration, instead of court.

IBM has been no stranger to age discrimination lawsuits. Several years ago, it faced a class action age discrimination lawsuit which alleged that it discriminated against older workers when it instituted layoffs. More recently, a single plaintiff prevailed in an age discrimination lawsuit against IBM and received a verdict of about $2.5 million.

Arbitration is an “alternative dispute resolution” process where a privately hired arbitrator, usually a lawyer, presides over the trial and decides which party should win. Instead of a jury, the arbitrator decides both whether the defendant broke the law and how much money to award to a successful plaintiff. Many corporations have chosen to compel their employees to agree to arbitration because the corporations enjoy built-in advantages in arbitration that they do not enjoy in court. Because of these built-in advantages, many of these corporations require all employees to agree, as a condition of their employment, to pursue any claims against the corporation through arbitration.

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Published on: December 20, 2013

First Circuit affirms award of over $100,000 in attorney’s fees and costs on a jury verdict of less than $8,000

By Maine Employee Rights Group

Earlier this week, the First Circuit Court of Appeals affirmed a trial court’s decision to award the plaintiff’s attorney in Diaz v. Jiten Hotel Management, Inc. over $100,000 in fees and costs after she won a jury verdict of only $7,650 for her client in an age discrimination case. The plaintiff’s attorney incurred this relatively high amount of fees and costs, in part, because the case was appealed to the First Circuit three times.

Jiten Hotel Management’s attorneys argued that the First Circuit should reduce the amount of fees and costs that the trial court awarded to the plaintiff’s attorney because they were so much higher than the jury verdict she obtained for her client. The First Circuit rejected Jiten Hotel Management’s argument because the statute that entitles prevailing plaintiffs’ attorneys to compensation for their fees and costs was designed to encourage attorneys to pursue civil rights cases even if the plaintiff suffered relatively little harm. These “fee shifting” statutes ensure that civil rights laws are enforced. If defendants who violated civil rights laws did not have to pay the fees and costs that plaintiffs’ attorneys incurred, many plaintiffs’ attorneys could not afford to pursue civil rights cases and the civil rights laws would not be enforced. Thus, it makes sense for the court to award Diaz’s attorney with such a large award of fees and costs because if it didn’t, she may have never taken Diaz’s case and Jiten Hotel Management could have gotten away with discriminating against Diaz because of her age.

Published on: December 5, 2012

CEO of Bangor medical firm allegedly said he only wanted to hire “young women with big boobs”

By Maine Employee Rights Group

The former Human Resources Director for Sunbury Medical Associates, in Bangor, claims that the CEO of the firm told her that she should only hire “young women with big boobs.” Afterwards, the CEO allegedly continued to express this desire and make hiring decisions designed to fulfill it. The former HR Director, Barbara Mann, claims that when she complained that the CEO’s hiring preferences constituted age and sex discrimination, Sunbury fired her in retaliation. An investigator for the Maine Human Rights Commission (MHRC) has recommended that the MHRC find reasonable grounds to believe that Sunbury fired Mann in retaliation for her complaints.

According to Mann, the CEO said more than once that he liked it when Mann hired women who were “cute and had big boobs.” The CEO also allegedly hired some waitresses to work for the firm. Mann recalls that one of the waitresses wore a low cut sweater that exposed her cleavage on the day that the CEO introduced her to the office. According to Mann, the CEO called her into his office and told her that he did not like her reaction when he introduced the new employee who was wearing the low cut sweater. Mann claims she just told him that the new employee should be required to wear “appropriate business attire.” Later, Mann says she told the CEO that some of the women in the office wore revealing clothes to get his attention and that it made her uncomfortable when he would look at their breasts.

Shortly after Mann complained about the CEO looking at the breasts of the women wearing revealing clothes in the workplace, Sunbury hired an attorney to conduct an investigation. The attorney issued a report in June 2011 which concluded that Mann’s complaints were baseless. Just three months after the attorney issued his report, Sunbury fired Mann who had worked for the firm for 8 years.

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Published on: October 31, 2012

First Circuit affirms verdict against hospitality company for retaliation against its former senior VP

By Maine Employee Rights Group

Today, the U.S. First Circuit Court of Appeals, which has jurisdiction over Maine and other New England states, affirmed a Massachusetts trial court’s decision to hold HEI Hospitality liable for unlawfully retaliating against its former senior vice-president. HEI fired the former senior vice-president, Lawrence Trainor, a few hours after he complained that it was discriminating against him because of his age (he was in his 60’s at the time). Under federal and Massachusetts law, it is not only illegal for an employer to discriminate against an employee because of his age; it is also illegal to retaliate against an employee who complains of age discrimination–even if no age discrimination occurred. That is exactly what the jury found in this case. It found that HEI did not discriminate against Trainor because of his age but that it did retaliate against him for opposing what he thought constituted age discrimination.

The First Circuit’s opinion also contains important holdings on the issues of front pay, attorney fees, and damages for emotional distress. With respect to front pay, the First Circuit held that an award of liquidated damages, designed to punish an employer for its unlawful retaliation, does not foreclose an award of front pay. This is because front pay is designed to compensate the victim of retaliation for wages that he would have earned in the future had the employer not violated his rights–not to punish the employer.

With respect to attorney fees, when a plaintiff in an employment discrimination case prevails at trial, the employer is typically required to pay the plaintiff’s reasonable attorney fees. HEI argued that the fees in this case should be reduced because Trainor only prevailed on his retaliation claim, not his age discrimination claim. The trial court and the First Circuit disagreed with HEI because the age discrimination and retaliation claims were so intertwined that all of the work that Trainor’s attorney performed on the case was necessary for both claims.

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Published on: October 11, 2012

First Circuit reverses trial court’s decision to dismiss age discrimination case against Novartis

By Maine Employee Rights Group

Yesterday, the U.S. First Circuit Court of Appeals reversed a trial court’s decision to dismiss an age discrimination case against Novartis Ex-Lax, Inc. (“Novartis“). The case arose in Puerto Rico when Novartis fired the plaintiff, Hernan Acevedo-Parrilla (“Acevedo”). The trial court in Puerto Rico dismissed the case based on a procedure called summary judgment. When a court dismisses a case at summary judgment, it must determine that no reasonable jury could possibly find in the plaintiff’s favor even if it viewed the facts in the light most favorable to the plaintiff. The First Circuit held that the trial court misapplied the summary judgment standard.

Acevedo worked for Novartis as a Maintenance and Engineering Manager for 11 years before his supervisor, Carlos Ceinos, fired him on February 23, 2007. At the time of his termination, Acevedo was 57 years old. On at least two occasions, within 6 months of the date of his termination, Acevedo heard Ceinos say that “the main problem” at the plant where they worked was that “the persons who had been in the company for a long time were not performing.” Acevedo understood this to mean that Ceinos thought the older employees at the plant were a problem. Indeed, after Ceinos began working at the plant in 2003, the plant hired 140 employees, 114 of whom were under 40 years old. It also fired 17 employees, 15 of whom were older than 40.

In addition to this evidence of age discrimination, the First Circuit held that a jury could reasonably infer that Ceinos discriminated against Acevedo because of his age since it could disbelieve Ceinos’ purported reasons for the decision. A jury could disbelieve him because, in essence, Ceinos blamed Acevedo for several problems that were not Acevedo’s fault. Acevedo also presented evidence that Ceinos did not comply with Novartis’ policies because he did not consult with human resources (HR) before he fired Acevedo. Furthermore, Acevedo presented evidence that Ceinos was far more lenient with his much younger replacement when the replacement made errors similar to the errors that Acevedo supposedly had committed.

Published on: July 27, 2012

U.S. District Court of Maine compels former CEO to pursue age discrimination claims in arbitration

By Maine Employee Rights Group

Yesterday, Judge Torresen of the U.S. District Court of Maine held that Great Falls Insurance Company’s former CEO must pursue his age discrimination and related employment law claims against the company, and others affiliated with it, in arbitration. An arbitrator is a private individual, not affiliated with the courts, who essentially serves as judge and jury in cases where the parties agree to such a procedure. For a variety of reasons, many believe that arbitration is an unfair process for employees.

Van Curan opposed Great Falls’ motion and argued that the judge must decide whether the arbitration agreement he signed was enforceable. Judge Torresen reasoned that the arbitration agreement incorporated the Employment Rules of the American Arbitration Association and those rules permit arbitrators to decide whether an arbitration agreement is enforceable. Furthermore, Judge Torresen held that even some of the defendants who did not sign the arbitration agreement could take advantage of it anyway because Van Curan had argued that Great Falls and these other defendants were actually all part of the same enterprise.

Published on: June 28, 2012

U.S. District Court of Maine rejects the University of Phoenix’s attempt to transfer discrimination case to Arizona

By Maine Employee Rights Group

Yesterday, Judge Woodcock of the U.S. District Court of Maine denied the University of Phoenix’s request to transfer an age discrimination case against it to a court in Arizona, where it is headquartered. Two former employees of the university, one of whom lives in Maine, filed this lawsuit against the university claiming that the same group of people discriminated against both of them. The university argued that it would be more convenient to litigate one of the plaintiff’s claims in Arizona. However, the court held that “the convenience of the parties and the witnesses would be unquestionably enhanced with one trial of two Plaintiffs in Maine rather than two trials of single Plaintiffs in Maine and Arizona.”

Interestingly, the court held that the location of documents, which was once a weighty factor, no longer carries that much weight when a judge considers whether to transfer a case to another court. This is because documents are not kept in paper form as much as they used to be and they are easily transported to distant places. Indeed, the University of Phoenix is an international business which regularly transfers documents to other countries where it has operations.

Published on: April 25, 2012

U.S. District Court in Bangor permits discrimination claims against the Chancellor of the University of Maine System and the System itself to go forward

By Maine Employee Rights Group

Yesterday, the U.S. District Court in Bangor refused to dismiss a lawsuit that a group of six former University of Southern Maine employees have brought against the University of Maine System (UMS) and the Chancellor of UMS (the “Defendants”). The former employees, ranging in age from 55 to 65, claim that the Defendants discriminated against them on the basis of their age and, for one of them, on the basis of disability. The claims arose when the University of Southern Maine restructured its Career Development/Student Advising/Student Success Departments. The former employees worked in those departments but, rather than just continue to employ them in the new restructured department, the Defendants required them to go through a hiring process so they could decide whether to continue to employ them. None of the six made it through this hiring process and, consequently, the Defendants terminated them.

The former employees, represented by the Maine Employee Rights Group, have asserted claims against the Defendants under the federal Age Discrimination in Employment Act (ADEA), the Maine Human Rights Act (MHRA), and the federal Rehabilitation Act (Rehab Act). The Defendants filed their motion to dismiss on the basis of their constitutional right to sovereign immunity under the Eleventh Amendment. They argued that the constitution prohibited individuals from bringing claims against arms of the state, like them, unless they had waived their immunity to those claims. They also argued that the Court should not permit the former employees to amend their complaint to correct the Eleventh Amendment issues in it. The former employees conceded that the Eleventh Amendment barred their MHRA claims but argued that their amended complaint contained claims that the Eleventh Amendment did not bar. So, the Court had to decide whether to allow the former employees to amend their complaint and then whether the ADEA and Rehab Act claims, as asserted in the amended complaint, could go forward.

The Court permitted the former employees to amend their complaint. It held that the Rehab Act claim, brought by one of the former employees, could go forward finding that the Defendants had waived their sovereign immunity to Rehab Act claims. With respect to the ADEA claims, which all six of the former employees had brought, the Court held that the former employees could pursue claims against the Chancellor for “prospective injunctive relief.” This means that, if the former employees prove that they suffered age discrimination, the Court can order the Chancellor to take actions to prevent the age discrimination against them from continuing.

Published on: October 12, 2011

Maine Human Rights Commission finds that Saco-based machine shop discriminated against applicant because of his age

By Maine Employee Rights Group

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.

Published on: March 16, 2011

A new bill in Congress would protect unemployed Mainers from discrimination

By 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.