When a long-term employee with a good performance record is terminated after a new supervisor makes ageist and sexist comments about the employee and the employee complains about the comments is then terminated, an employee has viable causes of action for age discrimination, sex discrimination and retaliation.
In Konsavage v. Mondelez Global LLC (M.D.Pa. no. 15-cv-1115) (February 3, 2017) (Conaboy, J.), the Plaintiff employee was employed for 31 years and consistently received positive performance appraisals until she began reporting to a new supervisor, the Director of Customer Service Operations. Shortly thereafter, management made ageist comments such as referring to the employee’s work area and older employees as “dead wood”; and comments like you should step aside and let the younger people shine, you’ve pretty much done everything you can do here; you have no potential at your age; you lack learning ability; and you lack agility. Evidence also included derogatory remarks about female employees and regular staff meetings that were described as “a frat house,” with the passing around pictures of women, and exist remarks and sexist stories. These actions caused the employee to complain to management and human resources.
In Konsavage, the employee was the Manager of Critical Inventory, a salary grade 12 position; shortly after her complaint, she was advised that her job was being downgraded from a salary level 12 manager to a salary level 10 team lead and her annual compensation was being reduced by over $9,000 per year. The employer advised her that the reduction was due to a company salary review, however, there was no evidence that any other employee suffered any economic loss in relation to such compensation reviews. After the salary downgrade the employee’s supervisor received a letter reflecting concerns about the employee’s performance as a manager from a subordinate, claiming that the employer requested that her team give her good rating review on an employee survey and criticizing her for micromanaging, being inflexible and being out of touch with the company’s values. The employer then conducted an investigation and terminated the employee.
The court denied the employer’s motion for summary judgment and ordered that the case should proceed to trial as a reasonable factfinder could conclude that employer’s termination of the employee’s employment was due to her age or sex, and that the demotion and termination could be found to be retaliation for engaging in protected activity (reporting discrimination at the workplace).
The federal age discrimination law (ADEA) and the Pennsylvania age discrimination law (PHRA) prohibit employers from taking adverse action against an employee who is at least 40 years old because of an employee’s age. In stances where there is no direct evidence of discrimination, a prima facie of age discrimination is established by showing that the employee was forty years of age or older; the employer took an adverse employment action against the employee (i.e. termination of employment or demotion); the employee was qualified for the job; and the employee was replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. Direct evidence of discrimination alleviates the need to establish a prima facie case. Once an employer satisfies the burden of offering evidence that supports a legitimate, nondiscriminatory reason for the adverse action, the burden shifts back to the employee to offer evidence from which a factfinder could reasonably either (1) disbelieve the employer’s reason; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action. To meet this burden the employee must demonstrate weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s reason that a reasonable factfinder could rationally find the reason to be unworthy of belief.
In Konsavage, the court concluded that the employee raised questions and came forward with evidence which would allow a reasonable factfinder to conclude that the employer’s proffered reasons for demotion and discharge were pretextual, including the employee’s 31 year tenure with numerous promotions and positive reviews prior to a change in her supervisor; numerous disparaging remarks from the employee’s supervisor about her age, his disdain for working with older women, and derogatory statements about females in general. The court concluded that such comments made by a decision maker would be indications that age and/or gender played a role in the decision to demote the employee and/or terminate her employment.
The court also found sufficient evidence of retaliation. An employee asserting a retaliation claim establishes a prima facie case by showing (1) that the employee engaged in protected employee activity; (2) the employee suffered from an adverse action after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action. To demonstrate a link between protected activity and an employer’s adverse action, an employee may rely on the temporal proximity (i.e. the amount of time between the protected activity and the adverse action) if it is unusually suggestive. In the absence of a such a close temporal proximity, courts consider the circumstances as a whole, including any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action.
In Konsavage, the court found that the employer’s argument that the employee’s retaliation claim fails for lack of temporal proximity was unavailing for several reasons including the close timing between the employee’s complaint and the downgrade of her job resulting in a reduced salary (as little as one month) and certain inconsistencies in the reasons for termination.
Andrew Abramson and Abramson Employment Law represent employees who are terminated and are the victims of age discrimination, sex discrimination and retaliation. For more information see our website at http://www.job-discrimination.com.
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