3d Cir.: You Are a Manager. Deal With It.

Today’s post is about another recent employment-law decision from the Third Circuit.  For those of you who want the shortened version, feel free to skip to the end of the post for the valuable Lesson Learned.

Background

The plaintiff-employee, Mary Burton, founded and ran two companies, which were sold to the defendant-employer, Teleflex. Following the sale, Burton became employed by Teleflex pursuant to a written employment agreement.  Burton was 67 years old.3d businessman quits_3

From the start, Burton did not get along with her new supervisor, Edward Boarini. Their relationship was already strained when Boarini told Burton that he wanted to meet with her to discuss her performance. At a trade show, Burton asked Boarini when he wanted to meet. When he couldn’t give her an immediate answer, Burton responded by asking whether he wanted her to resign. He said that he did not but she repeated the question several times.

By the end of the conversation, Boarini believed that Burton had resigned. Burton, on the other hand, felt that she’d been fired.

Following a previously scheduled vacation, Burton received a letter from Teleflex’s HR Department, “accept[ing] her resignation.”  Despite being “in disbelief” about the letter, Burton did not call Teleflex or attempt to return to work. Instead, she called her lawyer, who attempted, unsuccessfully, to negotiate a separation agreement.

The Claims

Burton filed suit, alleging that she had been fired because of her age in violation of the ADEA. Teleflex claimed that Burton had not been fired but had resigned and, therefore, Burton had not been subject to any adverse action.  The trial court, the Eastern District of Pennsylvania, granted summary judgment to Teleflex, finding that Burton had resigned and that, even if she had not, there was no evidence that its letter was a mere pretext.  The Third Circuit reversed, finding that there “clearly” was a dispute of material fact as to whether Burton resigned or was terminated.

Lesson Learned

Instead of discussing the intricacies of the Third Circuit’s holding (i.e., whether there is sufficient evidence that Burton resigned) I think there is a more immediate lesson to be learned from this case:

Being a manager is tough.  Deal with it.

Or, to put it differently:

There are serious and costly consequences for employing managers who are conflict adverse.

I certainly understand Boarini’s desire to interpret Burton’s comments as a resignation.  But she didn’t come right out and say it, she didn’t call later and confirm it, and she didn’t submit a resignation letter (even though she was required to do so pursuant to her employment contract). Just because you want to hear her say she’s quitting doesn’t mean that is what she actually said.

The right way to handle this would have been to meet with Burton and address the performance issues that she’d been having. Just pick a time, set the meeting, and deal with it. Don’t wait for her to come to you to schedule a time. And, when she does, don’t say you’re too busy or be reluctant to commit to a time.

And then, when you have the little spat and she says, “Do you want me resign? Is that what you want,” understand that the conversation is not over. Be the manager. Tell her that she can calm down and collect her thoughts and that you will discuss the situation on Monday morning, 10 a.m., in your office.

Don’t close your eyes and hope the whole mess just disappears. It won’t. Being a manager is no easy business. But you can handle it-that’s why they gave you the job. So toughen up and deal with it head on.

(PDF) No. 11-3752 (3d Cir. Feb. 21, 2013).

See also

3d Cir. Issues a Bitchin’ Constructive-Discharge Decision

3d Cir. Confirms EEOC’s Broad Subpoena Power

3d Cir. Decides Certification Standard for FLSA Class Claims

3d Cir. Finds Individual Supervisor Liable Under FMLA

3d Cir. Employees Fired for Pornographic Emails Lose Age-Discrimination Case

3d Cir. No Protection for an Employee Who Lies

Bob Dylan’s HR Lesson: Mandatory Retirement

I went to my second Bob Dylan concert tonight. Dylan, 71, put on a good show. A good show–but not a great show. By the end of the night, it seemed that most of the wind was out of his sails. I left the show asking myself, “How do you know when it’s time to quit?” I think this is a tough question for anyone who loves what they do and really hard for anyone who is great at what they do.

The same question could be asked about lawyers and judges. Six Pennsylvania judges have taken the question to the State’s supreme court, where they’ve filed a lawsuit alleging their constitutional rights are being violated by a provision in the State constitution that mandates the retirement of all state-court judges before they turn 71.

A similar provision in Missouri was upheld by the U.S. Supreme Court in 1990 but the PA judges hope that changes in the way the Court interprets the 14th Amendment’s Equal Protection Clause and what science says about the effects of aging. Currently, 33 states and the District of Columbia impose age restrictions on judges.

EEOC Wins Summary Judgment in Balt. Co. Pension Case

EEOC was awarded summary judgment by a federal court in Maryland last week. The court found that Baltimore County’s pension plan violates the ADEA in EEOC v. Baltimore County, Civil No. L-07-2500-BEL (D. Md. Oct. 17, 2012).

The Plan
All full-time employees under age 59 were required to participate in the Plan. Employees were required to contribute to the Plan at different rates based on the age at which they joined, so that the contribution would be sufficient to fund approximately one-half of his or her final retirement benefit, with the other half to be funded by the County. Older workers were required to contribute a higher percentage of their salary than younger workers because their contributions would have less time before retirement to accrue earnings. For example, a laborer who became a member of the Plan at age 25 was required to contribute 2.75%, whereas a laborer who joined at age 45 was required to contribute 4%. The Plan was changed in 2007 so that new employees were required to contribute at a flat rate, regardless of their age at the time they were hired.

The Litigation
In 2007, the EEOC filed suit on behalf of older County employees who had been hired under the original terms of the Plan. The District Court granted summary judgment to the County in 2008, finding that the Plan did not violate the ADEA because the disparate contribution rates were justified by a permissible financial consideration–the time value of money. The Court reasoned that the system was not based on age but on the number of years an employee had until reaching retirement age. The EEOC appealed and the Fourth Circuit vacated the judgment and remanded the case.

The Decision
On remand, the District Court determined that there are no non-age-related financial considerations that justify the disparity in contribution rates. In other words, the Court concluded that the County charged different contribution rates to different employees based on age and, therefore, age is the “but-for” cause of the disparate treatment in violation of the ADEA.

See also, EEOC press release.

Taking the Mystery Out of Bad Hiring Practices

Want some free anti-harassment and anti-discrimination training? Well, have I got a deal for you! Mystery Diners is a reality show on the Food Network. The show’s concept involves a father-daughter team who pretend to be employees and/or customers at a target restaurant in order to help the owner uncover the “leaks in the dam” so to speak.

An episode that aired last week, called, “Managing Disaster,” could be used as a workplace best-practices training video. In short, you could use the video to train employees that any of the conduct by the restaurant’s manager should be considered prohibited conduct in your workplace.

Yes, it really was that bad. And I mean bad. Let me take a moment to run through just a few examples of conduct that occurred during the hiring process.

Candidate #1: Sarah the “Old Lady”

Two women are sent into the restaurant to interview for a waitress position. One of the women is Sarah, who is in her mid-30s and has lots of waitressing experience. She interviewed with the bad-guy-manager (we’ll call him “Manager,” despite he did anything but manage the employees).

During the interview, he asked her how old she was. Yes, you read that correctly. When she answered “I’m 35,” Manager nearly fell out of his seat. He quickly sent her on her way and told her he’d be in touch. After she was out the door, he ran over to the bar, where he told the bartender that Sarah “was like, in her 30s–she’d be like a mother in here!!”

Candidate #2: Destiney In a Short Skirt
The second candidate was Destiney, the daughter of the father-daughter team, who I’d guess to be maybe 21 years old. Destiney was young and cute and wore a short skirt to herinterview. As if Manager hadn’t already shown his true colors during Sarah’s interview, he took it to an entirely new level with Destiney. By the end of the “interview,” though, you can be sure that Destiney had been offered the job.

For starters, he made her sit on a couch for the interview, which was not only way too informal but also clearly uncomfortable for Destiney in light of her attire. When Destiney admitted that she had no real experience to speak of, Manager assured her that experience was not important–“as long as you’re cute.”

Ethical Standards Lower than a Short Skirt

Seeing that he couldn’t ask her about anything relevant to the duties of the job, I guess it’s natural that Manager turned to other topics. In this case, Manager chose “partying,” and began a series of questions about Destiney’s after-hour activities, such as whether she liked to “party” and whether she liked to go clubbing, which “they” (presumably, Manager and his creepy friends), “did all of the time.”

The low point of the “interview” came when Manager touched Destiney’s knee as he sat way too close to her on the low-to-the-ground couch and talked about low-life topics like “partying” and assuring her that his standards for hiring were as low as his morals. What a dirt bag. And you can imagine what the father, who sat in a trailer watching the live video stream with the restaurant’s owner, must have thought as he saw Manager Creepy touch Daughter Destiney’s bare knee. Nice.

When Busted, Blame Others
Folks, the take-aways from this episode are, admittedly, obvious to most of us. They weren’t, apparently, as obvious to Manager Creepy, who was shocked and appalled that the owner had secretly videotaped these antics. And, in a demonstration of some of the best blame-shifting skills I’ve perhaps ever seen, Manager Creepy, furious about the intrusion, turned the entire situation around and accused the owner of being an unsupportive boss.

Be sure to catch the show for some free anti-harassment-and-discrimination training.

3d Cir.: Employees Fired for Pornographic Emails Lose Age-Discrimination Case

Employee_Email.jpgEmployers can find comfort in a recent decision from the Third Circuit, which serves to remind us that we can (and should) discipline employees for policy violations–regardless of whether the employee is in a protected class.

In 2007, while investigating a complaint of sexual harassment, the employer discovered that six employees had regularly exchanged sexually explicit pictures via their company-provided email accounts. All six employees were immediately suspending pending further inquiry. Four of the six employees were subsequently terminated. Each of the terminated employees was in their late 50s or early 60s at the time they were fired.

The four employees then filed suit in federal court in the Western District of Pennsylvania, alleging that they were terminated because of their age in violation of the Age Discrimination in Employment Act (“ADEA”). The District Court granted summary judgment to the employer finding that the employees had failed to demonstrate that “but for” their ages, they would not have been fired. The employees appealed the decision to the U.S. Court of Appeals for the Third Circuit.

To carry their burden on appeal, the employees needed to offer evidence of age bias in order to show that the reason offered for their termination (i.e., the misuse of the company’s email), was merely a pretext for unlawful discrimination. The employees contended that they could demonstrate pretext because they’d been subject to discrimination in the past. They alleged that the following incidents were representation of a culture of age bias:

  1. after asking one of the four employees, Magdic, if he was ready to retire, the company’s CEO said, “it looks like you are ready to retire. You have gray hair and are fat;”
  2. one of the employees, Crossan, was transferred to a different position because the employer wanted “new blood” in the department;
  3. the CEO mentioned the need to recruit a “younger workforce;” and
  4. during meetings, older supervisors sat at one end of the table and were routinely interrupted when they tried to speak, whereas younger employees were encouraged to speak.

The Third Circuit rejected the various evidence proffered by the employees, finding each to be either a stray remarks that were “completely unrelated” to the investigation of the employees’ violation of the company’s email policy.

Hodczak v. Latrobe Specialty Steel Co., No. 11-1085 (3d Cir. Nov. 18, 2011).

Supreme Court Rules for Employers in Age-Discrimination Case

The Supreme Court issued its opinion in Gross v. FBL Financial Services last week, holding that a plaintiff bringing an age-discrimination claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Title VII permits plaintiffs to prove that the employer had several motive.  So long as the plaintiff shows that at least one of the motives was discriminatory, he has met his burden to show cause.  The Supreme Court’s ruing in Gross, on the other hand, makes clear that the ADEA does not provide for a mixed-motive analysis.

The decision will have positive implications for employers who find themselves defending against an age-discrimination claim.

Is there Really an Increased Amount of Age-Based Bias in the Workplace?

Age-discrimination claims are on the rise.  The number of age-based charges of discrimination filed with the EEOC increased by 29% in 2008, according to an article in the Wall Street Journal, More Workers Cite Age Bias After Layoffs. The rise is larger than the overall increase in charge filings, which the EEOC reported as 15% over 2007.  This news won’t come as much of a surprise to most employment law attorneys, though.  We’ve seen a steep increase in charge filings, on the state and federal levels, since the summer of 2008, with a seemingly record-high numbers of charge filed in the Delaware Department of Labor during the months of September and October.  But why have age claims, in particular, been the type subject to the sharpest increase? image

For one, there are more older workers in the workforce today than ever before.  We’re living longer.  And we Traditionalists and Silents have resisted retirement, remaining active members of the workforce.  Statistically, if there are more people over 40, then it follows that there will be more age claims. 

Layoffs are another contributing factor. When layoffs happen, employees with the highest salaries are common targets.  And salary level is often commensurate with years of service.  And, as you may have guessed by now, years of service with a particular employer is often commensurate with years of total employment.

So if these factors are by-products of modern reality, can there really be more age bias in the workplace?  As this unprecedented number of claimants take their claims through the charge process and are released from the administrative process, it will only be a matter of time until we know whether the same staggering increases will be seen in the courts around the country. 

Delaware Employers,

Don’t miss an opportunity to learn up-to-the-minute statistics on the current status of charges in the State of Delaware.  We’re honored to have Julie Klein Cutler, Administrator for the Delaware Department of Labor’s Office of Anti-Discrimination as a Keynote Speaker at Young Conaway’s 2009 Annual Employment Law SeminarRegistration for this year’s employment law seminar is open for only one more week.  If you haven’t signed up already, you can register now to participate in this must-attend educational event.  We hope to see you there!