In a 35-page opinion, the Court made three significant rulings.

First, the Minnesota Supreme court held that a plaintiff may prove age discrimination on a hostile work environment theory.  The Court held that the same severe or pervasive standard from hostile work environment based on sex applies to hostile work environment based on age.  They also noted that courts and the standard must “evolve to reflect changes in societal attitudes towards what is acceptable behavior in the workplace.”  This is an important reminder that while conduct may not have met the severe or pervasive standard 20 years ago, it may meet that standard now.  While the Court held that whether conduct meets that standard is usually a jury question, it is not always; and, in fact, the Minnesota Supreme Court affirmed dismissal of the hostile work environment claim based on age.

Second, the Court also addressed a claim of age-based disparate-treatment, analyzing whether the plaintiff met her prima facie case of discrimination when she quit. To show a prima facie case of discrimination, a plaintiff must meet the standard announced in McDonnell Douglas, that she is a member of a protected class, that she suffered an adverse employment action, that she met her performance expectations, and that she was treated differently from those not members of the protected class. In Henry, the parties disputed whether Plaintiff’s resignation was constructive discharge when she resigned, thus whether she met the adverse employment action requirement.  The Court affirmed prior precedent in holding whether working conditions are intolerable is an objective one. evaluating when a reasonable person would have felt compelled to resign.  However, the Court held that just because the plaintiff’s claim for hostile work environment failed does not mean there isn’t an intolerable working environment.  The court reasoned:

A disparate treatment claim is based on differential treatment due to a plaintiff’s protected status, while a hostile work environment claim is based on harassing conduct due to a plaintiff’s protected status. . . . Accordingly, though plaintiffs alleging constructive discharge based on disparate treatment or hostile work environment must always demonstrate working conditions that warrant quitting, the discriminatory workplace conduct that catalyzes resignation will differ depending on the underlying theory because the theories aim to address different forms of discrimination.

. . .

Thus, we hold that the objectively intolerable conditions necessary to support a constructive discharge based on disparate treatment are not necessarily the same as those required to support a constructive discharge based on a hostile work environment. . . .  In other words, a disparate-treatment-based constructive discharge can occur where, due to the employer’s illegal discrimination in the form of unfavorable treatment based on the employee’s protected status, “the handwriting [is] on the wall and the axe was about to fall.”

The Court did adopt the employer-intent requirement, requiring a plaintiff show the employer intended to make the employee quit.  However, the Court held that an employee is not required to notify the employer of the intolerable conditions, resulting in no mitigation requirement.  Once again, the court emphasized it is an objective requirement—whether a reasonable person would quit.  Under the facts of the case, Ms. Henry’s constructive discharge claim survived the defense’s motion for summary judgment.

Third, the Minnesota Supreme Court then discussed the Court of Appeals’ suggestion that an employee can establish an adverse employment action based on “the cumulative evidence submitted.”  The Court reasoned that “[t]his theory would permit plaintiffs to establish an adverse employment action based on the aggregation of discrete acts that would not otherwise amount to a constructive discharge or would not otherwise be actionable if considered in isolation.”  The Court “decline[d] to adopt the . . . expansion of ‘the concept of an adverse employment action’ under the Human Rights Act.”  As a result, the Court dismissed that theory advanced by the plaintiff.

Bottom Line

Employers in Minnesota should take note of the Court’s decision to avoid claims of discrimination and hostile work environment under the MHRA.

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After retiring from a career in the City of Toledo Water Department, 62 year-old Alan Rose decided that retirement was not for him.  He therefore applied with the City for a water control room operator’s position, the same job he held when he retired.  The City interviewed and tested eight candidates and Rose finished third in the process.  The City offered the job to the second-ranked candidate who rejected it, and then hired the fourth-ranked candidate, who was 49 years old.

Later, the City hired another of the candidates, a 43-year old who ranked sixth in the process, to fill another opening for the same job.  Rose then sued the City in federal court under the Age Discrimination in Employment Act (ADEA) claiming that he was rejected from the job because of his age.  The City moved for summary judgement seeking early dismissal of the claim.

Don’t Say the Quiet Part Out Loud

In support of their position, one of the City officials testified that despite Rose’s experience, he was not hired because they did not consider him to be “long term” option because of his recent retirement.  He admitted, however, that this was simply his assumption based on Rose’s previous retirement and that he had never asked he had never asked Rose about his long term plans.  The City further justified their decision on the grounds that the two successful candidates had experience as operators and were working toward licensure, but acknowledged that Rose also had experience (obviously) and was already licensed.

The judge concluded that the evidence would permit a jury to conclude that the City assumed he would not work long term because of his age.  This assumption, combined with the hiring of two substantially younger but lesser ranked candidates, raised an inference of discrimination that allowed him to defeat the dismissal motion and advance to trial.

Bottom Line

There certainly are good reasons for deciding not to rehire someone who recently quit or retired.  You might doubt their commitment to an organization that they have already chosen to leave once before, or perhaps they were only a moderate performer and you are seeking someone more promising.  If that is the case, it is a good idea to ask those questions and probe those issues during the hiring process.

You could even maintain a policy that bars reemployment for a certain period of time after a resignation or retirement to avoid situations like this one.

What you should not do is make assumptions based on an applicant’s age and then offer weak defenses when those assumptions are challenged in court.

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Diane Ford, a fifty-eight year old woman, has been a flight attendant for Delta Air Lines since 1987.

In August 2017, Delta put Ford on probation for eighteen months, citing “reliability issues” based on the following alleged behaviors on her part:

• Giving a union card to a sick workmate during a flight;
• Allowing economy passengers to use the bathrooms designated only for first-class passengers; and
• Taking improper sick leave and checking in late for a flight.

Ford claimed that she became “terrified” about going in to work because she felt that Delta was looking for reasons to fire her.  As a result, she claimed she missed some workdays and lost wages.

Employee Airs Grievances

Ford contested her probation internally on the basis of age discrimination. She claimed in her lawsuit that while Delta ultimately decided to “drop the charges” against her, she remained on probation.  Ford continued to press her complaints about age discrimination and asked that the incidents leading to her probation be permanently removed from her personnel file.  Delta denied this request.

Ford encountered no further problems on the job until August 2018, when her manager allegedly scolded her regarding the length of her hair.  Although she received no formal disciplinary action, Ford believed this to be more evidence of age discrimination since a younger flight attendant with even longer hair was not similarly reprimanded.

Ford filed an age discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) and then sued Delta in federal court for age discrimination under federal and state law. Delta immediately filed a motion to dismiss.

Age Discrimination Claims Fail to Take Wing

Minnesota District Court Judge David Doty granted Delta’s motion to dismiss the case for the simple reason that Ford failed to identify sufficiently adverse action that would give rise to a recognizable claim of discrimination.  Judge Doty explained that a discrimination claimant must be able to show some sort of adverse action, e.g. termination, a cut in pay or benefits, or some other action that produces a “material employment disadvantage.”  Citing previous decisions of the 8th Circuit Court of Appeals in which Minnesota sits, Judge Doty ruled that simply being placed on probation with no actual impact to the tangible aspects of employment does not meet this standard.

The judge then noted that in this instance, Ford suffered no change in pay, benefits, schedule or responsibilities as a result of being placed on probation.  Ford disagreed, arguing that she did in fact lose work time and corresponding wages because she was afraid of receiving more complaints if she came to work.  Judge Doty was unpersuaded, explaining that the decision to miss work and forfeit wages was Ford’s alone, and that an employee “cannot manufacture an adverse employment action by simply not going to work.”

Ford also argued that in other cases, Delta employees on probation did not receive benefits or consideration for promotion.  The judge observed, however that Ford had not actually presented any evidence that she herself suffered these losses during her probation, and that “bald factual statements” to the court are not palpable evidence of discrimination.

Finally, Ford tried to contend that she encountered a hostile work environment based on age.  This claim also failed to get off the ground as Judge Doty found no evidence of an objectively hostile work environment or of any age-based behavior that might have contributed to an intolerable work setting.

Bottom Line

It appears that in the 8^th Circuit, simply being placed on probation without any corresponding disciplinary action or diminution in pay or position will not be sufficient to allow an age discrimination case (and presumably other types of discrimination claims) to move forward. That is good to know.

 A special thanks to Summer Associate Kau Guannu for her substantial contributions to this article.

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While working for Jacobs Technology, Inc. one day, Raymond Montoya asked co-worker Louis Lombardi if he could borrow his work truck.  Lombardi agreed but before Montoya could enter the vehicle, Lombardi decided to check with Montoya’s team leader and told Montoya to wait until he got proper authorization to turn over the truck. Lombardi then drove off in search of the team lead.

Upon his return, Lombardi saw Montoya standing in the middle of the road.  Lombardi claims that he was driving slowly to maneuver the truck around Montoya when Montoya suddenly reached out and struck the passenger side of the truck with his arm and fist.  Montoya, on the other hand, claimed Lombardi deliberately drove the truck toward him and hit him on his left side.  Both men agreed that after contact was made, Lombardi got out of the truck and they began to argue.

Yes You Did – No I Didn’t

Both workers reported their version of the incident to the team leader. Subsequently, Human Resources Manager Yolanda Ramos interviewed three witnesses to the event.  The first two said they had not seen anything but the third – an employee of an outside contractor working at the facility – confirmed Lombardi’s version, recalling that Montoya stepped forward to slap and punch the truck (although it appears that nobody ever asked or confirmed why Montoya decided to actually punch a truck).

Ramos prepared her investigative report and recommended that Montoya be terminated for various reasons, including providing untruthful and misleading information during the investigation. She further recommended that Lombardi be suspended for three days for violating several company rules.  The company accepted Ramos’ recommendations and terminated Montoya for two reasons: (1) safety violations, and (2) the belief that Montoya had lied about the incident.

Montoya sued for a variety of claims, all of which were dismissed by the lower court.  Montoya then appealed to the federal Tenth Circuit Court of Appeals but only in regard to his claim under his age discrimination claim under the Age Discrimination in Employment Act (ADEA).

You Don’t Need To Be Right, Just Reasonable

The Appeals Court began their analysis by noting that there was no dispute that Montoya established an initial inference of discrimination or that the company had dispelled that inference by articulating a legitimate, nondiscriminatory reason for their action.  Thus, their decision turned on whether Montoya met his burden to show that the employer’s reasons for their actions were a pretext for illegal discrimination.

One way for Montoya to have shown pretext was to establish that the reasons articulated for the termination decision were “so incoherent, weak, inconsistent, or contradictory that a rational fact finder could conclude they are unworthy of belief.” Meeting this standard would require more than just proving that the company should have decided differently or that their decision was unwise or unfair.  Instead, the critical question was whether the employer “reasonably believed at the time of the termination that [Montoya] had violated company policy, and acted in good faith upon that belief.”

To put it another way, it was not enough for Montoya to show that the company came to the wrong conclusion; he needed to establish that the company really did not believe their own reasons and may have been pursuing an illegal agenda. 

Montoya offered several arguments in favor of a finding of pretext, most notably:

–  It was unreasonable for the company to believe one version of the story over another when the two versions were so very different;

– He was treated more harshly than the similarly situated co-worker (Lombardi); and

– The employer deviated from their policies in deciding to terminate his employment.

Employer’s Belief Was Justified

The Court was unpersuaded by any of these arguments and ruled that Montoya failed to meet his burden of proof.  In regard to accepting one version of the events over the other, they explained that it is not a court’s role function to decide who was right and who was wrong.  Rather, the Court must determine whether whatever decision the employer came to was made for illegal reasons.  Merely showing that the employer favored one employee’s story without attacking the underlying reasons for doing so, is not sufficient to establish a wrongful motive.

Montoya’s claim of differential treatment also failed because he did not compare himself to a similarly situated co-worker. Montoya was terminated in large part because he told a story that was uncorroborated and therefore considered untruthful.  Lombardi, on the other hand, benefited from an independent witness who verified his version of the events.  As such, Montoya and Lombardi were not similarly situated in regard to their credibility and it therefore was not improper for Lombardi to be treated more favorably in regard to the truthfulness of his account of the interaction with Montoya.

Finally, while deviation from established policy can be a strong indication of pretext, no such deviation occurred in this instance.  Montoya pointed to the company’s failure to follow their progressive disciplinary policy but the Court aptly noted that the policy permits the employer to terminate for a serious offense and grants the employer discretion to determine what is serious.  Thus, there was no deviation from the policy at all.

The Court concluded that the employer had a reasonable belief that Lombardi’s story was more credible than Montoya’s.  Since they were justified in coming to that belief, and the conclusion was not so inconsistent or contradictory as to be unworthy of credence,  Montoya was unable to show that the de3cision was a pretext for an illegal motive.

Bottom Line

This case demonstrates the critical nature of conducting a thorough and credible investigation into allegations of employee wrongdoing.  If the investigation is thorough, the evidence is credible and the determination is reasonable, a court will be reluctant to disregard it even if it can be coherently argued that the findings were inaccurate or that a reasonable person might have decided things differently.

This is why each allegation of misconduct requires an effective, well-reasoned and thoroughly documented investigation. Don’t jump to conclusions or skip steps – the credibility of the investigation is perhaps the best defense of all.

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Nothing, according to the Eighth Circuit Court of Appeals (which hears cases from Minnesota).

What’s New?

James Aulick was the senior IT Director of Fulfillment for Skybridge Americas Inc., a retail order fulfillment business.  The company determined that its two operations (the warehouse and distribution center, and the call center) should be serviced by a single, unified IT department and that they should create a new Chief Technology Officer (CTO) position to oversee the combined operation.

Although Aulick was considered, the company ultimately hired an outside applicant for the new CTO position and eliminated Aulick’s position.  Aulick then sued under the Federal Age Discrimination in Employment Act (ADEA) and its state law counterpart, the Minnesota Human Rights Act.  The lower court dismissed the claim on a motion for summary judgment and Aulick appealed.

Aulick maintained that he had direct evidence of an age-based motivation for his termination, namely Skybridge CEO Kevin Cattoor telling Aulick that the company hired an outsider because they were seeking “a new face.” Aulick argued that “new” meant “young” and that this was a direct admission of age discrimination.

New Can Be Young or Old

The Eighth Circuit strongly disagreed, ruling that the phrase ”new face” was facially and contextually neutral, presumably because a face that was new to the company could be old just as easily as it could be young.  They concluded that “[n]o reasonable fact finder could hold otherwise.”

Aulick tried again, citing the company’s conflicting testimony as to who made the decision to let him go, as well as a recent string of four terminations of employees who were 60 or older.   The court countered that the law focuses on why the decision was made, not who made it, and that the evidence regarding the company’s rationale for Aulick’s termination had remained quite consistent.  Moreover, despite the fact that the company had let go some older workers, they also had hired three new executives age 57 or older (including Cattoor) in the last two years.

The Eighth Circuit therefore affirmed the dismissal of Aulick’s lawsuit.

Bottom Line

Courts tell us that “stray remarks” or statements unrelated to the employment decisions being challenged typically are not viewed as direct evidence of discrimination.  This prevents employees from cherry-picking occasional slips of the tongue and turning them into evidence in a lawsuit.  The “new face” comment appears to fall in this category.

On the other hand, this is not a license to occasionally say anything you want or to argue that words never matter.  As we noted in our piece earlier this year entitled Just. Stop. Talking, improvident or improper remarks about an employee’s protected classification can contribute to a finding of unlawful harassment or discrimination.

The best advice is something we hear all the time – think before you speak and choose your words carefully.  In this instance, the employer won the case but just think how much time, effort and resources might have been saved if the employer had just told the employee that they were looking for “different viewpoints” or “an outsider’s perspective” instead of “a new face.”

Words may not always carry the day they do matter in the right context.  Consider your words carefully and try to use terminology that conveys your meaning without possible subtext.

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This decision radically diverges from other federal court rulings and may set the stage for resolution by the US Supreme Court.

Age is More Than a Number

In 2008, automotive glass manufacturer Pittsburgh Glass Works, LLC undertook workforce reductions in response to declines in the American automobile industry.   One stage of the process resulted in one hundred salaried employees losing their jobs.  A number of those employees over the age of 50 (“the 50’s”) objected to what they felt was an unfair impact on their age group and sued in federal court under the Age Discrimination in Employment Act (ADEA).

Among other claims, the 50’s asserted the theory of disparate impact – a claim that a facially neutral policy or decision unfairly burdened those within a legally protected group more than those outside the group.  If the disproportionate burden is proved, the burden falls to the employer to show that the policy or decision was nevertheless a legitimate business decision.  Otherwise, the action will be considered illegally discriminatory.  In other words, this type of claim addresses practices that are “fair in form, but discriminatory in operation.”

Layoffs and staff reductions are often targeted with this sort of claim.  If a disproportionate number of protected workers (e.g. minority employees or older workers) are affected, the employees might claim adverse impact.  The employer in turn will then be called upon to show that their methodology for choosing the affected employees, such as seniority or job performance, was a legitimate basis for decision-making.

Discrimination is Old Fashioned

In this case, the employer did not appear to have bona fide criteria for their decision.  Nevertheless, the lower court dismissed the case on a motion for early decision, predictably concluding that despite the adverse effect on the 50’s, the impact on the actual class of employees protected under the ADEA (those 40 and older) was neutral. As such, there was no adverse impact upon a legally protected group.

The 50’s appealed to the Third Circuit Court of Appeals, who reversed and allowed the 50’s to proceed to a full trial. They noted that the “plain language” of the ADEA provides that employees are protected from adverse employment actions because of their age, not because they belong to a group of people 40 and over.  If someone is adversely affected because they are 50, that is age discrimination regardless of how well a 40-year-old might have been treated.

The court explained that unlike other protected classes such as race or gender, age is a “continuous” variable. People in their 50’s and 60’s who endure obvious age-based discrimination therefore are not likely to feel comforted by hearing that people far younger (but still in the protected age group) have been treated favorably.

In fact, the Third Circuit suggested that adopting the position of the other appeals courts would harm “those most in need of the statute’s protection” by allowing employers to “average out” the harms suffered by their oldest employees by according favorable treatment toward employees in their 40’s. The Third Circuit therefore rejected the reasoning of the other federal courts, which they deemed unpersuasive and incorrectly concerned with proliferation of additional employer liability.

Bottom Line

The Federal Eighth Circuit Court of Appeals, which hears cases arising in Minnesota, is one of those other federal courts that has come down differently on this issue.  As a result, this case is troubling since it could inspire adversely affected employees to pursue claims seeking to persuade the Eighth Circuit to change their position on this issue.

To guard against that possibility, it would be wise for Minnesota employers engaged in staff reductions to consider expanding their adverse impact analysis to incorporate age-related subgroups as well as the comprehensive 40-and-over protected class.

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