Articles Posted in Age Discrimination

Overview: In Dateo v. Springfield BBQ LLC dba Famous Dave’s BBQ, the MCAD found in favor of the Complainant, awarding back pay and emotional distress damages after finding that the Complainant’s hours as a bartender and waiter were reduced and given to young women. The Complainant had decades of experience as a successful bartender and was hired by the Respondent restaurant when he was 48 years old. In an effort to “put a new face to the bar,” the Respondent altered the staff so that the bartenders and waitstaff consisted of the Complainant and six women who were all under 30 years old.

The Complainant successfully established a prima facie case of discrimination based on age and gender, and the Respondent failed to rebut the case because it declined to participate in the MCAD hearing. The Respondent similarly defaulted on the claim of retaliation. The hearing officer awarded lost wages for a 21-month period and emotional distress damages.

Overview: In Codinha v. Bear Hill Nursing Center, the MCAD found in favor of the Complainant and awarded emotional distress damages for unlawful termination based on age and disability. The Complainant, a Certified Nursing Assistant, was in her early 70s when she fell at home and broke her wrist. After a period of medical leave, the Respondent informed her that it would not be feasible for her to return to work.

The Respondent claimed that the Complainant was terminated due to concerns over her attitude and poor performance, but the hearing officer determined that this was not credible. The hearing officer noted that the timing was suspect, that coworkers had not previously complained to management about the Complainant, that there were no negative reports about the Complainant’s performance, and that her most recent evaluation was positive. In addition, the Respondent had characterized the termination as a layoff, and not as a termination for cause.

Overview: In Ke v. New England Baptist Hospital, the MCAD dismissed a complaint accusing the Respondent orthopedic hospital of unlawful termination on the basis of age, disability, race, and national origin. The Complainant was a trained cardiologist of Chinese national origin who worked as an echocardiographer after coming to the United States in 1983. She injured her back while at work in April 2010 and was terminated following an incident in May 2010 that prompted a patient complaint regarding quality of care.

The hearing officer concluded that the Respondent “articulated a reasonable belief, based on a thorough investigation, that Complainant had engaged in serious breaches of policy for which she accepted no responsibility,” which justified termination. There was insufficient credible evidence to conclude that the Respondent was motivated by discriminatory intent. Even if the termination was harsh or unfair, it was clear that the decision to terminate arose from misconduct and subsequent failure to accept responsibility rather than discriminatory animus.

Overview: In Carta v. Wingate Healthcare, the MCAD found in favor of the Complainant, a 69-year-old and qualified handicapped individual who was terminated from her health care position. The MCAD awarded emotional distress damages and ordered the Respondent to conduct training of certain human resources employees after the Complainant was injured during the course of her employment and was subsequently terminated. After her injury, the Complainant returned to work on a part-time basis but was ultimately fired because she could not return to full-time work.

Finding the essential issue to be whether further extending the Complainant’s part-time work schedule was a reasonable accommodation, the hearing officer reasoned that that the Respondent did have a further obligation to the Complainant. The prognosis for the Complainant’s recovery was unclear, and so termination was premature. The evidence ultimately did not support a finding that the Complainant could have worked full time, however, so she was not entitled to lost wages beyond what she had already been compensated by worker’s compensation and a third-party lawsuit recovery relating to her injury.

Age discrimination continues to garner public attention as older workers challenge traditional notions of what is deemed a “normal” retirement age. Like other forms of employment discrimination claims, it is rare to find direct or “smoking gun” evidence of age discrimination. Rather, age bias claims are typically proven through circumstantial evidence. Specifically, under the McDonnell Douglas framework, employees who suffer age discrimination must first establish what is known as a prima facie case by showing that they: (1) are at least 40 years old, (2) possess the qualifications to do the job, (3) experienced some type of of adverse employment action (e.g., termination, demotion, failure to promote), and (4) were replaced by someone who is “substantially younger.”

In Knight v. Avon Products, the Massachusetts Supreme Judicial Court defined “substantially younger” as an age disparity of at least five years. In addition, the Supreme Court in O’Connor v. Consolidated Coin Caterers made clear that satisfying the fourth element does not require the replacement to be under 40 years old. As such, a 65 year old employee would still meet his or her burden under the fourth prong if the replacement is 60 years old or younger.

Overview: In Mayer v. Boston Children’s Hospital, the MCAD found in favor of the Respondent and dismissed the complaint accusing the hospital of terminating a sixty-four-year-old nurse due to age-based discrimination. The hearing officer found no direct evidence of discriminatory animus in stray remarks apparently made to the Complainant, such as compliments for having youthful looks and energy for a person of her age.

Although the Complainant satisfied the elements of a prima facie case for discrimination based on age, the Respondent met its burden of production by showing legitimate reasons that the Complainant’s dismissal was not discriminatory. The hearing officer credited evidence of three separate lapses in clinical performance over a five-month span, followed by a violation in hospital policy when the Complainant told a woman seeking medical care to find an adult hospital instead. The Respondent had previously terminated a twenty-seven-year-old nurse for threatening a coworker and shouting obscenities without any prior discipline, a noteworthy contrast to the Complainant’s lengthy disciplinary record.

Whether it’s a disability discrimination or sexual harassment claim, employment discrimination cases in general tend to be very fact-intensive, making the discovery process and depositions in particular all the more critical. As the moving party, it is the employee’s ultimate burden to prove discriminatory bias which, as discussed here, can be inferred in several ways. Generally, the greater the opportunity to gather information through the discovery process, the better an employee’s chance of prevailing at trial.

The opportunity to gather sufficient evidence, however, can be severely hindered where an employer engages in obstructionist tactics. Namely, in depositions, such tactics take the form of speaking objections, witness coaching, and improperly instructing a deponent not to answer a particular question. In addition, even after a deposition, a deponent may attempt to distance his or herself from unfavorable testimony by making substantive changes to an errata sheet.

Overview: In Lammlin v. Seder Foods, the MCAD found in favor of the Complainant and awarded back pay and emotional distress damages. This is the MCAD’s first decision in 2016. This case included direct evidence of discriminatory bias, where the Respondent testified at public hearing that he sought a “salesperson who not only spoke Spanish, but who was culturally Latino.” As expected, the hearing officer rejected Respondent’s perceived “cultural affinity” defense and applied the mixed-motive analysis. In arriving at emotional distress damages, the hearing officer noted “the meager evidence proffered regarding his emotional distress, including the absence of testimony regarding its nature, severity and duration” and ultimately characterized its award as de minimis.

Decision Date: January 20, 2016

Proving employment discrimination without direct evidence – regardless of whether its based on age, handicap, or some other protected category – ultimately boils down to whether the employee can show that the employer’s stated reason for the adverse employment action (e.g., termination, demotion, failure to promote) is a pretext for unlawful discrimination. As discussed in Proving Employment Discrimination Through Circumstantial Evidence, employment discrimination cases are typically proven through circumstantial (as opposed to direct) evidence under a three-part, burden-shifting framework.

It is in the final stage of this framework that an employee must carry the burden of showing pretext. As the non-exhaustive, baker’s dozen list below illustrates, there are numerous ways in which pretext for unlawful employment discrimination can be inferred:

Aside from cases involving direct or “smoking gun” evidence, which is rare, proving an employment discrimination claim is often nuanced and accomplished through the use of circumstantial evidence. As the Supreme Court in Rogers v. Missouri Pacific has long recognized, such evidence can even be the most powerful of the two:

Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.