Former Particle Dynamics Supervisor Alleges Age Discrimination and Retaliation

Read Jim Doyle's complete article at stltoday.com

Allegations in Lawsuit Must be "Reasonably Related" to Allegations in Charge of Discrimination to Survive Motion to Dismiss

Joseph Abellard filed a charge of discrimination against Boeing, his employer, with the Missouri Commission on Human Rights and EEOC on June 15, 2008. The charge alleged discrimination on the bases of race, age and disability. Plaintiff's charge read as follows:

I was hired by [Boeing] in November 1995. My last position held was Engineer Specialist/Sr. Engineer. In December 2007 I went on medical leave. I returned to work on March 5, 2008. I worked through March 7, 2008 but was informed that I had not provided the required documents for a release to return to work. I provided the employer with a release to return to work from my Psychiatrist. I was told I had to get another release from my primary doctor. I provided all of the required documents as instructed. Around March 26, 2008 I received a termination letter stating that I was terminated for being on leave illegally. I believe that I have been discriminated against due to a record of and/or perceived disability. I also believe that I have been discriminated against due to my race (African American) and age (52). This is in violation of the Americans with Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967.

Sometime thereafter, Mr. Abellard filed suit against Boeing alleging harassment, retaliation, failure to transfer, failure to accommodate, and being subjected to different terms and conditions of employment. Boeing filed a motion to dismiss arguing that these allegations were outside the scope of Mr. Abellard's charge of discrimination and therefore must be dismissed. The trial court agreed and dismissed these allegations finding that the allegations were not "reasonably related" to Mr. Abellard's charge and that Mr. Abellard had therefore failed to exhaust his administrative remedies.
Abellard v. Boeing, No. 4:10CV724 JCH (E.D.Mo. 2010).

Court of Appeals Upholds Jury Verdict in Human Rights Act Age Discrimination Case

Glenda Claus started working as a room attendant at the Park Place Hotel in Kansas City, Missouri, in 1984. In 2006, the head of housekeeping promoted Ms. Claus to housekeeping supervisor. On December 7, 2007, Ms. Claus was fired. She was 63 years old at the time. Ms. Claus filed a Charge of Discrimination against her employer and supervisor with the Missouri Commission on Human Rights and, subsequently, filed suit claiming that the hotel and her supervisor discriminated against her based upon her age. Ms. Claus sought actual and punitive damages under the Missouri Human Rights Act.

A jury ultimately awarded Ms. Claus $50,000.00 in compensatory damages and $150,000.00 in punitive damages and the hotel appealed. Affirming the jury verdict, the reviewing court found that the jury could more than reasonably have rejected the hotel's claims that Ms. Claus was fired for performance deficiencies given (1) the hotel's failure to allege any performance deficiencies until after Ms. Claus filed her discrimination claim, (2) Ms. Claus' record of positive job performance evaluations and lack of "write-ups," and (3) the hotel's failure to warn Ms. Claus about deficiencies in her performance despite regularly "writing-up" other employees. The court was particularly troubled that the retained house keeping supervisor, who was in her thirties, had been written up multiple times for excessive absences.

Regarding the punitive damages award, the reviewing court noted that the jury had before it evidence that Ms. Claus' supervisor had an extensive knowledge of employment law and had engaged in consulting work in human resources. The supervisor also had also trained small to medium sized businesses in employment law and assisted other employers with drafting their antidiscrimination policies. Moreover, Ms. Claus' supervisor and the hotel's owner both testified that they knew it was against the law to fire an employee because of an employee's age.

Finally, the appellate court determined that Ms. Claus was entitled to an award of attorney's fees under the Missouri Human Rights Act and remanded the case to the trial court for an award of fees and costs.

Claus v. Intrigue Hotels, LLC, No. WD 71927 (W.D.Mo. Dec. 28, 2010).

Age Related Comment Made Shortly After Hiring Decision Could be Evidence of Discrimination

In King v. United States of America, et al., the U.S. Court of Appeals for the Eighth Circuit decided that a potentially ageist comment made shortly after an allegedly discriminatory hiring decision could be direct evidence of discrimination.

In early 2005, Ms. King and Ms. Evans both applied for a position with the U.S. Department of Agriculture. King was 54 years old when she submitted her application and Evans was 25. After interviewing both women, the Department's employment selection committee offered the position to Evans "based upon her undergraduate and graduate degrees, experience, 'go-getter' attitude, computer skills, and familiarity with the Department's operations." King sued alleging that the Department discriminated against her on the basis of her age when it offered the position to Evans.

At trial, King put on evidence that between 2003 and 2005 members of the selection committee were heard commenting that they "wanted to bring educated, young blood" into the Department and that the Department "had just hired a young, skinny blonde with a master's degree." King also elicited testimony from a co-worker, Ms. Triplett, who testified that she had a conversation with one of the committee members after Evans was offered the position about the member's "philosophy of hiring younger, educated people." In addition to this direct evidence of discrimination, King elicited indirect evidence of what she believed was an atmosphere of discrimination against older employees in the Department. The Department put on evidence, through the testimony of the committee members, that age was not a consideration in its decision to hire Evans.

The trial court found in favor of the Department, concluding that statements made by the committee members were not direct evidence of discrimination because they did not "demonstrate a specific link between the alleged discriminatory animus and the committee's decision to select Ms. Evans." The court failed to mention Triplett's testimony regarding the committee's "hiring philosophy." The trial court did, however, conclude that "statements made after the hiring decision was implemented, explaining why the decision maker chose one candidate over another, may be relevant." The trial court also concluded that King failed to overcome the Department's professed "legitimate, non-discriminatory reasons for the employment decision."

The appellate court remanded the case for further proceedings. Although the court determined that the earlier comments were not direct evidence of discrimination because they were made long before the hiring decision, the court was unable to conclude that the comment made shortly after the hiring decision - that it was one of the committee member's philosophy to hire "younger, educated people" - constituted direct evidence of discriminatory animus.