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No age bias when 55-year-old webmaster replaced by younger “web guru” in restructuring

By Marjorie Johnson, J.D.

A 55-year-old website coordinator who was laid off during a restructuring in which his employer adopted a web-based multimedia marketing model, and hired a younger “web guru” to rebuild the website with the latest technology, could not advance his ADEA and state law claims of age bias, a federal district court in New York ruled. Dismissing the employee’s pro se claims on summary judgment, the court held that the disparity in age between him and his “replacement,” standing alone, was insufficient to prove age discrimination (Harnack v Health Research Inc, November 3, 2013, Skretny, W).

Change in marketing strategy. In December 2005, the then 52-year-old employee was hired by Health Research Institute as the online content coordinator for Roswell Park Cancer Institute. In March 2007, a newly appointed president and CEO at Roswell Park tasked its marketing department with spearheading the effort to attain national recognition by changing its marketing strategy to a contemporary web-based, multimedia model. To meet its new mandates, the marketing department began to assess its in-house capabilities and skill sets.

The marketing department discovered that its website did not appear prominently in the results of popular search engines like Google. It became clear that the only way to achieve the CEO’s objective was to create an in-house multimedia marketing agency and use every type of media available, including newly emerging web-based technologies. To meet this goal, Health Research determined it needed an in-house “web guru” as web marketing manager. This individual would be charged with identifying the issues plaguing the website, rebuilding it with the latest technology and spearheading the new focus on web-based and social media marketing.

The head of the marketing department asked the employee’s supervisor if she or the employee had the technological expertise to update the website. The supervisor acknowledged that they did not since neither possessed the requisite sophisticated technological skill. Thus, the company decided to restructure the marketing department, eliminate six positions and lay off five individuals. The 55-year-old employee was among those selected for discharge.

Younger “web guru” hired. A younger individual was subsequently hired for the “web guru” position. He concluded that the website was irreparably broken and needed to be completely rebuilt with a new technology platform. He also determined that he needed assistance in rebuilding the server side of the website and thus the position of web project coordinator was created and filled by a younger individual. These two individuals rebuilt the Roswell Park website from the ground up.

Meanwhile, the employee’s prior work was allegedly passed on to two low-level, part-time consultants, one of whom was 63 years old. The marketing department’s web content team was now made up of three positions — two digital content coordinators and one web editor, all of whom were responsible for writing and publishing content for Roswell Park’s digital properties, mobile apps, social media sites and website. The employee did not apply for any of the positions.

Was employee replaced. The main dispute concerned the similarity between the employee’s old position and the new positions created by Health Research after he was laid off. He contended that the positions were similar and that therefore his younger replacements demonstrate that he was fired due to his age. Conversely, Health Research claimed that the new positions required a skill set the employee lacked and that this was the true reason for his release. The court noted that while he claimed that the new positions were the same, the employee undermined the argument by claiming that he was never offered the requisite training despite demonstrating his ability to learn web development technologies. Thus, even if he could have easily acquired the skills needed for the new job, it was implicit in his argument that he did not yet possess them. His supervisor expressed a similar belief, testifying that she told the marketing department head hat neither she nor the employee had the skill set to fill this new position.

No pretext showing. But even assuming that the “web guru” or any of the new hires replaced the employee, his age bias claim still failed because he could not establish that Health Research’s assertion that it discharged him because he did not have the technical expertise to handle the new job requirements was pretext for age discrimination. Indeed, even if the company was wrong about this belief, or even if he showed that the decision to restructure the marketing department was pretext for releasing him for some other reason, there was insufficient evidence to establish both that the reason was false and that discrimination was the real reason.

The only evidence the employee presented to support his claim of age bias was the disparity between his age and that of his “replacement,” which typically, without more, is insufficient to prove age discrimination. While it may be enough to establish his prima facie case, it was not enough to create a triable fact issue about whether Health Research’s proffered reason for his discharge was pretextual. And, although he identified several instances that he argued demonstrated a culture of age discrimination at Roswell Park, none added any weight to his claim.

Comments not age-related. First, the fact that a department manager may have repeatedly asked the employee his age during birthday celebrations did not suggest pretext. The simple act of asking the employee’s age — especially during an event where age was relevant — did not demonstrate that he was discriminated on the basis of it. And, although the employee characterized a manager’s off-the-cuff sarcastic comment suggesting that he was lazy as ageist, there was no evidence to support his speculation. The manager did not say that older employees, as a group, were lazy, only that the employee was. If anything, the comment only suggested that the employee’s performance was a motivating factor in the company’s decision to release him.

The court also declined to infer pretext from an email in which the marketing department head wrote that she wanted “long-term employees” who were being released to “feel that it is about their skill level and not about the work product they’ve contributed while they’ve been here.” First, the employee was not a “long-term employee” as he had only been at Roswell Park for a few years. Indeed, his own tenure demonstrated that “long-term employee” could not simply be a euphemism for older employees. Moreover, the comment could only tend to show that the motivation for the release of these employees was something other than age.

In sum, aside from the fact that younger employees were hired after the employee was discharged, he offered no evidence of age bias. Summary judgment was further bolstered by the undisputed fact that the employee was hired while he was in the protected class, by a member of the protected class; and, less than three years later, was discharged by the same person.