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Why do new supervisors seem to trigger age discrimination claims?

October 28th, 2015  |  Joy Waltemath

You’ve noticed it: A new supervisor comes in and heads roll—and often, it’s the older heads. It’s not surprising in itself, because often a business chooses to bring in new management in order to make changes. But how many times do the changes made by new management result in litigation? Regardless of the outcome, employers must defend such lawsuits, a time-consuming and expensive proposition.

Consider the apparently ham-handed behavior of the new supervisors in the cases below:

Insubordinate shoulder shrug. Take, for example, a 56-year old truck driver with a 20-year unblemished work history. His new supervisor fired him on the spot for insubordination because, during a routine morning meeting where the supervisor asked employees whether they were having any problems with their trucks, the driver, whose mouth was full of coffee, shrugged his shoulders to indicate he was not. Present at the meeting for the first time were two newly hired younger employers, one of whom—the 19-year-old with no feeder-truck driving experience—took over the fired employee’s duties.

Also notable was the fact the company’s written policy for non-serious offenses, which required prior notice in the form of a warning or written write-up, was not followed. Although the district court had granted the employer summary judgment on the employee’s age discrimination claim, finding no fact issues as to pretext, the Fifth Circuit reversed and remanded in an unpublished opinion (Salazar v. Cargill Meat Solutions Corp., 5th Cir., October 8, 2015, unpublished).

Meeting the metrics isn’t enough. Or what about a manufacturing supervisor in her 50s, who had previously met expectations in her performance reviews, but whose new manager began giving her performance reviews where she met all objective, metrics-based goals, but said she did not “meet expectations?” Meanwhile, the reviews he gave to three other younger supervisors were that they had not met their objective goals but did meet his expectations. Did his actions reflect age bias, or was he legitimately addressing other aspects of the job such as leadership, knowledgeability, and accountability?

By the way, those negative performance evaluations kept her from receiving salary increases or performance bonuses. He also put her on a PIP; none of the younger supervisors, though they continued to not meet metrics-based goals, were placed on a PIP. She eventually got a new manager and was able to successfully complete the PIP and get a salary increase. She sued anyway, and the federal district court in Puerto Rico allowed her age discrimination and retaliation claims to go to a jury (Colon v. Medtronic, Inc., D. P.R., August 27, 2015).

Disparate discipline. Then there was the case of the discharged 56-year-old radiology technologist who during 20 years had incurred only one disciplinary discussion and had become the Lead CT Technologist. After a new supervisor’s arrival, however, she received 26 employee discussions, two verbal warnings, two written warnings, and three 90-day action plans over the next two years. She was ultimately terminated “for continued occurrences of failure to satisfactorily perform the responsibilities of her position.” Her replacement was 32 years old.

But she presented evidence that her replacement was not disciplined for similar “incidents.” Specifically, she identified four times in a two-month period where her supervisor counseled her eventual replacement for patient-care and work-performance errors, but which did not result in formal discipline; she contrasted that to evidence that she was placed on a 90-day action plan after four incidents over a three-month period. Noting that the hospital made no attempt to distinguish the replacement’s substantially identical conduct or the supervisor’s disparately imposed discipline, the court pointed out that the hospital relied on this action plan as the foundation for the employee’s later discipline and ultimate termination. It also noted that the new supervisor told her she was “too old to cry.” and allowed her age discrimination claims to proceed to a jury (Sampson v. Sisters of Mercy of Willard, Ohio, N.D. Ohio, June 29, 2015).

Lesson for managers

In order to minimize the risks, employers might want to consider proactive litigation avoidance training for new managers, especially in the area of age discrimination. A word to the wise, in advance, might have made new managers more aware of these potential pitfalls:

  1. If you’re going to raise standards, raise them for everyone. If new management has been brought in—or promoted from within—to raise performance standards, fine. Just make sure that the standards are raised objectively for all performers, not just for a select few who have been singled out for harsher treatment, particularly if they are performing the same job as younger counterparts.
  2. If you’re going to crack down, crack down on everyone’s violations. This is a corollary to Number 1: Tightening up discipline can be an appropriate goal in a workplace that has become too lax. If you tolerate behavior in a 25-year-old because you think it’s funny, but you write-up the same behavior in a 55-year-old because it’s not funny anymore, you’re asking for trouble.
  3. Follow procedures. When the policy says progressive discipline, follow it. New managers shouldn’t get to make up new disciplinary procedures or skirt the old ones—at least not without clear guidance from HR and, if necessary, employment counsel.
  4. Don’t be cruel. New managers sometimes feel the need to prove themselves. Perhaps that was a factor in some of the “gotcha” moments from the cases above. For example: Firing someone for insubordination on the spot because he didn’t verbally answer? Having decidedly different and apparently subjective expectations for an older manager that appeared to be a moving target? After apparently unprecedented “piling on” with disciplinary action, telling an older worker she was “too old to cry?” Each of these examples suggests an inexperienced or frustrated supervisor who was not carefully considering the possible repercussions of his or her actions. Those are actions you want your clients to avoid.