When employers take adverse action against employees who have filed good faith age discrimination claims with the Equal Employment Opportunity Commission(EEOC) and/or the Pennsylvania Human Relations Commission(PHRC) employers can be subject to a separate claim of retaliation even when a good faith age discrimination claim is found to lack merit. In Karlo v. Pittsburgh Glass Works, LLC (W. D. Pa. no. 2:10-cv-1283), the employee filed a retaliation claim under the Age Discrimination in Employment Act (“ADEA”). The employee, a 58-year-old engineering specialist and production line supervisor, worked for the employer and its predecessor company for more than three decades. The employee was one of about 100 workers terminated as part of a company-wide workforce reduction. Thereafter, the employee and six other former employees filed Charges of age discrimination with the Equal Employment Opportunity Commission, claiming that they had excellent performance records and younger, less experienced employees were retained instead.
Ironically, after the initial termination of employment, the employee in Karlo, was rehired through a subcontractor to work as a shift maintenance supervisor for the same employer with whom he had been previously directly employed. The employee contended that after the employer became aware that he had filed a charge of discrimination with the EEOC, the employer encouraged him to withdraw his EEOC charge, and that when he refused to do so, the employee’s contract employment position was terminated and he was denied a new permanent employment position. The employee contended that the termination of his contract and not being hired for a permanent position was retaliation against him in violation of the ADEA for having filed and maintained a charge of discrimination with the EEOC. In Karlo, the jury found the motive was retaliation and that it was a willful violation of the ADEA, awarding the employee $362,052.00 in back pay and $560,008.00 in front pay for a total of $922,060.00. On May 18,2016,the Court denied Defendant’s Post Trial Motions upholding the jury’s verdict. (The employer recently filed an appeal to the U. S. Court of Appeals for the Third Circuit).
The ADEA prohibits an employer from taking any adverse action against an employee who files a charge of age discrimination. As such, the ADEA protects those who participate in certain age discrimination proceedings and those who oppose discrimination made unlawful by the ADEA. As in most discrimination and retaliation cases, where there may be an absence of direct evidence of retaliation, retaliation claims under the ADEA proceed under the McDonnell Douglas framework where a plaintiff asserting a retaliation claim first must establish a prima facie case. Under the ADEA, a prima facie case of retaliation for asserting age discrimination requires an employee to show that (1) the employee was engaged in a protected activity; (2) the employer took an adverse employment action after or contemporaneous with the employee’s protected activity; and (3) a causal link exists between the employee’s protected activity and the adverse employment action taken by an employee.
If the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the employer to present a legitimate, non-retaliatory reason for having taken the adverse action and the employer makes that showing, the burden of production returns to the plaintiff to establish that the proffered justification for the adverse action is pretextual and the Plaintiff must establish that his protected activity was a ‘but-for’ cause of the adverse employment action. To make a showing of pretext, the plaintiff employee must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a . . . determinative cause of the employer’s action. In so doing, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.
In Karlo, the court denied the employer’s post-trial motions noting that the case turned on the credibility of the witnesses and based on the verdict, the jury evidently disbelieved the employer’s witnesses and found the Plaintiff employee credible, drawing several inferences in his favor: including that a manager encouraged the employee to withdraw his EEOC charge and that after he refused to withdraw his EEOC charge and the employer terminated his contract employment position and denied him a permanent employment position. The court noted that in other words, the jury apparently found a causal connection between the end of the employee’s contract employment, the decision thereafter to not hire him as a permanent employee and his EEOC charge.
The Court also rejected the employer’s argument that a five-month gap between the filing of the EEOC charge and the adverse employment action (the termination of the contract and not hiring for the permanent position), is not close enough to support a causal connection, as the jury was entitled to find a causal connection based on more than just timing. Even assuming that the filing of the EEOC charge constitutes the only form of protected activity, the law also provides that in the absence of such a close temporal proximity, 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, could be sufficient.
The court also rejected arguments that the jury’s finding of wilfulness was not supported by the record. wilfulness is significant because the ADEA provides double damages when the employer’s discriminatory conduct is willful. The issue of whether an ADEA violation is willful depends not on any additional proof adduced by a plaintiff in excess of the evidence required to sustain an ADEA claim but whether the facts of the case meet the legal definition of wilfulness, i.e., did the employer know or show a reckless disregard for the fact that its conduct was prohibited by the ADEA.
Abramson Employment Law represents employees in age discrimination and retaliation claims. For more information on age discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126515.html.