Employment Law Daily Arguing that jury could disbelieve reason for discharging oldest employees not enough for a trial
Friday, September 16, 2016

Arguing that jury could disbelieve reason for discharging oldest employees not enough for a trial

By Lorene D. Park, J.D. Affirming summary judgment against the state-law age discrimination claims of an employee whose job was eliminated, the Eighth Circuit found that she failed to present affirmative evidence of bias. It was simply not enough to argue that a jury could disbelieve employer’s reason for terminating her (an outside consulting firm audited operations and recommended the action for business reasons). Also, a manager’s single inquiry about retirement and testimony by an HR rep that it crossed her mind that the company was terminating its two oldest employees was not evidence of bias. It was also significant that the manager had no obligation to look for other open positions for the employee but did so, even after her termination (Haggenmiller v. ABM Parking Services, Inc., September 14, 2016, Riley, W.). The 63-year-old employee worked for an ABM parking facility located at a Minneapolis airport. ABM had a service agreement with Metropolitan Airports Commission, the corporation that operates the airport, under which ABM operated the parking facilities and Metropolitan reimbursed ABM for "authorized expenses," including employee salaries. Under the agreement the ABM general manager at the airport reported directly to Metropolitan. Employee’s duties. At first, the employee worked as an HR administrative assistant, but later became an auditor. Each week, auditors received crates of parking tickets from cashiers’ boxes. Her job was to manually check the tickets against the cashiers’ reports and balance the daily total. She then created a report by manually entering information into the computer. Her other duties included billing and administrative tasks, such as sending bad checks to collections and answering the phone. Over time, technology and automation eliminated some of her duties. Consulting firm’s recommendations. In June 2012, the renewal of the agreement with Metropolitan expired and ABM was operating month-to-month. It hired Lumin Advisors, an independent firm, to audit Metropolitan’s "landside operations," which included the Minneapolis airport parking facilities. The firm summarized the results and made 96 recommendations, all of which were implemented. These included: (1) the elimination of the employee’s position because new automation replaced the need to manually enter audit information; (2) the elimination of a payroll position (held by the oldest employee) due to a new payroll system; and (3) the hiring of two roving shift managers who would assume some auditor tasks, among other duties. Termination. Meanwhile, a new ABM general manager (who had previously worked with the employee) transferred in from St. Louis. He was brought into a meeting with two executives at Metropolitan to discuss the recommendations and felt he "had no choice" but to accept them. At the time, the Metropolitan executives were unaware which ABM employees were in the positions to be eliminated. The ABM general manager looked for other positions for the employee and the other older worker; "something along the lines of office work, something that they had been accustomed to," including cashier positions, but nothing was open. The employee was informed of her job elimination and termination on June 3, 2013. Meanwhile, the general manager searched for two new shift managers. An individual who was more than 30 years younger than the employee was hired soon after her termination. Summary judgment affirmed. Using the ADEA framework to analyze the employee’s discrimination claim under the Minnesota Human Rights Act (MHRA), the district court found that even assuming a prima facie case, she could not show the reason for her termination (a consulting firm’s recommendations following its audit) was pretext for age discrimination. On appeal, the employee did not challenge the elimination of her position, but argued that ABM was not required to terminate her. She claimed ABM justified its decision by falsely asserting that there were no open positions. In the appeal court’s view, she did not raise a triable issue. Must do more than argue that jury might disbelieve employer. For one thing, ABM contended that the employee was terminated because her job was eliminated for business reasons and not because there were no other positions open. Also, ABM’s general manager was not obligated to look for another job for her, but he did so anyway. He even looked at other locations and part-time jobs, going so far as to look after her termination, but he testified that ABM "didn’t have anything." When asked about an entry-level HR administrative position at another location, he explained that he did not pass it along to the employee or to the other worker whose position was eliminated because he "would never have sent two people . . . for one job. That’s not right." The employee claimed that the general manager’s failure to consider her for a shift manager position was "persuasive evidence that ABM was not looking for open positions as it claimed to be" but the general manager explained that ABM had already begun interviewing for those positions in March, months before her termination. Viewing this back-and-forth, the appeals court concluded that while the employee argued that a jury would find the general manager’s reasons for not considering her deficient or untrue, she had to "present affirmative evidence" of discrimination and could not simply contend that a jury might disbelieve ABM’s evidence. Even assuming the employee created a weak issue of fact on whether there were open jobs, she nonetheless readily conceded that the purported lack of open positions was not ABM’s sole justification for her termination and that she was fired "for business reasons" as indicated on her termination form. Ultimately, in the court’s view, the record did not support her position that ABM insinuated that a lack of open positions was part of the reason she was let go. Age-related statements not evidence of bias. Also unpersuasive was the employee’s argument that two statements raised an inference of bias. First, the fact that an HR rep admitted in deposition that it crossed her mind that ABM was terminating its two oldest employees should be regarded as a natural concern about potential litigation, not bias. Second, though the general manager had asked the other older employee about retirement, reasonable inquiries into retirement were "not inherently discriminatory." In sum, the employee failed to raise a triable issue as to whether ABM’s proffered reason for her termination was pretextual and her age discrimination claim failed as a matter of law.

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