Employment Law Daily Age bias plaintiff sanctioned; he pursued case despite evidence he was replaced by older worker
Wednesday, April 20, 2016

Age bias plaintiff sanctioned; he pursued case despite evidence he was replaced by older worker

By Cynthia L. Hackerott, J.D. Not only did a magistrate grant an employer’s motion for summary judgment against a former employee on his claim that he was fired due to age discrimination, but the court also granted the employer’s motion for Rule 11 sanctions against the plaintiff and his attorney. Sanctions were warranted because the plaintiff continued to pursue his case even after he was fully aware that his factual contentions regarding his replacement did not support a finding of age discrimination, and were instead based on his mere speculation in the face of the employer’s evidence that he was in fact replaced by a worker who was 10 years older (Sansone v. Kormex Metal Craft, Inc., April 14, 2016, Schenkier, S.). The plaintiff had been the general manager for Kormex Metal Craft. He entered into negotiations to purchase the company. When those negotiations fell through, Kormex’s assets were sold to another company. Prior to the sale, one of the two prospective owners visited the facility to observe its operations. As part of the visit, the prospective owner spoke to various workers and some customers. Based on these conversations, the prospective owner told current company management that the plaintiff would not be a good fit for the company because he was not a good leader and was not motivated. Moreover, the plaintiff’s salary negotiations with the prospective owners fell through, apparently because they viewed his salary demand as too high. The prospective owner even went so far as to indicate that he would not buy the company if the plaintiff was still employed there as general manager. Replaced by older worker. The plaintiff was in fact terminated, and he was replaced by a worker who was 10 years older than he was, according to evidence offered by the employer. (The plaintiff was 52 years old at the time of the court’s decision.) However, the plaintiff asserted that after his termination, he was replaced by one of the new owners, a man in his 30s. He offered no documentation to support this assertion, and he acknowledged that he was not at the defendant company after his termination and did not observe the new co-owner working there. Indeed, the new co-owner has never been an employee of the defendant company, and the plaintiff conceded that he does not know for certain who replaced him, and did not take steps to confirm who replaced him before filing his lawsuit alleging age discrimination. As such, the plaintiff simply had no competent evidence that would allow a jury to reasonably find either that he was replaced by someone considerably younger, or that similarly situated younger employees were treated more favorably. Rather, the undisputed evidence was that the person whom the plaintiff claimed was his actual replacement was at all times a prospective—and then actual—purchaser of the defendant company’s assets. Indeed, the plaintiff himself acknowledged this fact in an email to one of the company’s then-shareholders. On top of all that, the plaintiff also failed to offer any evidence to genuinely dispute the company's assertion that he was actually replaced as general manager by the older man the company showed was his replacement. Comparator evidence lacking. The plaintiff argued for the first time in his summary judgment response that a number of similarly situated, younger employees were treated more favorably because they were not fired when he was. However, he did not offer any evidence of these alleged comparators during discovery and, thus, his failure to do so barred him from using such evidence to defend against the company’s summary judgment motion. In any event, he failed to offer evidence that any of the twelve employees he identified were in fact similarly situated. Moreover, he failed to rebut evidence that each of these employees was an hourly, nonexempt, blue-collar worker, who actually reported to him. And he offered no evidence that any of these employees were in fact retained, and in what capacity, after the sale. Rule 11 sanctions. The court also found that Rule 11 sanctions were warranted against the plaintiff and his attorney. While acknowledging that a mere disagreement about the facts is not on its own grounds for Rule 11 sanctions, “that disagreement must be based on more than a plaintiff assuming the posture of an ostrich and firmly placing his head in the sand,” the court wrote. Here, the plaintiff was confronted with undisputed evidence that he was not terminated because of his age. By the conclusion of discovery, the plaintiff knew or should have known that (1) the new co-owner had purchased the company’s assets and had not taken on the role of general manager; and (2) the person who took his place as general manager was the identified worker who was ten years older than the plaintiff. Accordingly, the court ordered the plaintiff and his attorney to pay defendant's costs and attorneys' fees incurred after the date the defendant served its motion for sanctions on the plaintiff, including the costs and fees the defendant incurred to draft and file its motion for summary judgment (but not the sanctions motion), as well as the costs and fees incurred to file the replies in support of both the motion for summary judgment and the motion for sanctions.

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