Employment Law Daily Fired Verizon employee keeps $454K award in age bias, FMLA retaliation case
Wednesday, August 30, 2017

Fired Verizon employee keeps $454K award in age bias, FMLA retaliation case

By Brandi O. Brown, J.D.

A federal district court in Pennsylvania declined to disturb a jury verdict and $454,000 judgment in favor of a 56-year-old employee who sued Verizon for firing her based on her age and in retaliation for her use of FMLA leave. A reasonable jury could have found that the employee received a lower performance score several years before she was terminated in a RIF because of her use of FMLA leave;  and that lower score, in turn, was factored into the RIF determination. Moreover, she presented evidence that her supervisor and another manager did not correctly follow the company’s formal “rate-and-rank” process in selecting her for layoff; if they had, a much younger employee would have been fired instead. Verizon’s motions for judgment as a matter of law and for a new trial were denied and the employee’s motion for liquidated damages, prejudgment interest, attorneys’ fees, and costs was granted (Walker v. Verizon Pennsylvania LLC, August 25, 2017, Bartle, H., III).

FMLA leave noted in performance review. A 56-year-old employee who had worked for Verizon for over 36 years was fired in a 2015 reduction in force. During her tenure, she had held various positions. In 2013 and 2014 she worked in a conduit highway position, and in the remainder of 2014 through her termination in 2015 she worked as a turf engineer. In April 2013, the employee took FMLA leave, after which she returned and worked half-days for a couple of months. Approximately three weeks after she returned, she had a formal mid-year performance review. In that review, her manager noted the time she had missed due to her injury and stated that it made her transition in the position “difficult.” Her year-end review, moreover, was lower than usual—she received a “Developing” score overall, rather than the “Performing” score that she and most other employees usually received. A “Developing” score indicated she had not met her objectives, requirements, or expectations and that she needed to improve.

Selected for RIF. In April 2014, the employee was transferred to be a turf engineer, and in that position her speed measurements were much better than the district average and continued to improve until she was better than the team average in her 2014 year-end review. Nevertheless, when in March 2015 her supervisor and another manager were told to work together to determine a person to terminate in the RIF, she was chosen. Though the managers were required to follow a formal rate-and-rank process, they spoke by phone instead and agreed to select the employee. Her supervisor then contrived a way to rate and rank her in order to justify the decision. Had it been done properly, she would not have been ranked at the bottom and, thus, would not have been selected for lay-off. Another employee who ranked above her had been placed on a performance improvement plan and should have received reduced points because of that. Moreover, had the employee’s 2013 year-end review not been marked as Developing, she would have ranked higher.

Jury verdict for employee. The employee’s ADEA and state-law age discrimination and FMLA retaliation claims ultimately went to a jury. The court denied a motion for judgment as a matter of law (JMOL) at the close of evidence, and the jury found for the employee on the age and FMLA claims. The jury awarded her over $450,000 in back pay, front pay, and pain and suffering damages. The court entered judgment. Verizon renewed its Rule 50 motion for JMOL and filed a motion for a new trial. The employee moved for liquidated damages, interest, attorneys’ fees, and costs.

JMOL denied, again. Denying Verizon’s motion, the court explained that employers may not consider an employee’s use of FMLA leave as a negative factor in adverse employment actions. Verizon argued that the employee failed to prove a causal link, noting the time between her use of leave and her termination. However, a reasonable jury could have found that the employee received a lower performance score in 2013 because of her use of leave and that score, in turn, was factored into the RIF determination. Moreover, when justifying his decision to fire her in 2015, the manager emphasized that she had been slow to learn her job responsibilities in 2013.

With respect to her age claims, the court found sufficient evidence for a reasonable jury to conclude that the employee was fired because of her age. If, as the manager claimed, she had been selected after his discussion with the other manager, it was reasonable for the jury to find pretext. Use of the rate-and-rank protocol, moreover, was fraught with opportunities for subjectivity and, in addition, the manager did not complete it in accordance with instructions. If he had, a much younger employee would have been fired instead. A reasonable jury could have based a determination of pretext on this evidence.

The court also denied a motion for a new trial, explaining that the weight of the evidence was not contrary to the verdict and that the employer’s concerns about the jury being confused by the instructions were without merit.

Damages and fees. The court awarded prejudgment interest on the backpay damages awarded by the jury, at the federal prime interest rate rather than the standards of 28 U.S.C. sec. 1961(a) urged by the employer. The court also awarded liquidated damages in an amount equal to the sum of the jury’s back pay award and its award of prejudgment interest. Finally, it awarded the employee’s petitions for attorneys’ fees and costs, although at a somewhat reduced rate to reflect the fact that the employee abandoned certain claims before trial.

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