By Harold S. Berman J.D.
A 60-year-old engineer who resigned from Motorola following a contentious relationship with his new 30-year-old supervisor can proceed to trial with his ADEA and state-law claims for constructive discharge and retaliation, a federal district court in Colorado ruled. Denying Motorola’s motion for summary judgment, the court found fact issues concerning whether the engineer believed his job was in jeopardy after he was repeatedly criticized for his performance, asked by his supervisor when he would retire, and placed on a performance improvement program (PIP). There also was evidence that the PIP was revised with additional, more onerous requirements after the employee complained of age discrimination (Sherman v. Motorola Solutions, Inc., August 16, 2017, Hegarty, M.).
Successful tenure. The employee worked as an engineer for Motorola for over 37 years. At 60, he was the oldest member of his engineering team when he left Motorola in April 2015. He received good performance evaluations throughout his tenure, and consistently received merit-based raises and awards. While he never received any written discipline before 2015, there were some performance issues in 2013.
Beginning in 2014, the employee reported to a new group leader. Although the group leader received complaints from project managers about the employee’s work, his 2014 performance evaluation of the employee stated he met expectations and was an asset.
New supervisor. Shortly before June 2014, a 30 year old became the engineer’s supervisor. At their first meeting, the supervisor purportedly appeared cold, hostile, and demeaning. Around October 2014, the employee told his group leader that he thought the new supervisor was going to fire him because he had higher expectations than his previous supervisor. The new supervisor met with the employee in February 2015 to tell him a client with whom he had no contact had requested he be removed from a project. The supervisor also told him he had performance issues, including repeated mistakes. The supervisor did not tell the group leader he had counseled the employee about problems, and the group leader was unaware of any repeated mistakes necessitating counseling or discipline.
Additionally, the supervisor did not discuss future goals with the employee, although the employee understood that to be the purpose of the meeting. Instead, he asked the employee when he planned to retire. When he responded that he planned to stay another 10 years, the supervisor became hostile and told him he should have retired in 2013. The supervisor had not previously complained about his work.
PIP. Also in February, another Motorola worker—who knew the supervisor and who was in danger of being laid off—asked the supervisor to help. A series of emails revealed that the supervisor wanted to keep that worker and put the employee on a PIP with the possibility of doing “something after 60 days.”
After their February meeting, the supervisor excluded the employee from meetings. It was disputed when he told the employee he was putting him on an improvement program, but the engineer ultimately was put on the PIP in April. The employee complained to the supervisor’s boss, stating he thought the issue was age-related.
Resignation and lawsuit. At a meeting in which HR discussed the PIP with the employee, he announced his resignation. He believed some of the tasks in the PIP were unreasonable and subjective. He then sued, alleging disparate treatment based on constructive discharge, retaliation, and failure to promote in violation of the ADEA and the Colorado Anti-Discrimination Act (CADA).
Constructive discharge. Denying summary judgment on the constructive discharge claim, the court found fact issues regarding whether the employee believed his job to be in jeopardy. He was repeatedly told his performance was unacceptable and the PIP was changed to include requirements he believed set him up to fail. Motorola contended the PIP was justified by the his performance issues and that he could have stayed at Motorola if he simply fulfilled the PIP’s terms. These differences underscored that a jury must determine whether the alleged conduct contributed to a work environment so intolerable that a reasonable person would have felt compelled to resign. Additionally, there was unrebutted testimony that a 29-year old engineer worked for the same supervisor and had similar responsibilities, and the employee alleged the younger engineer was treated more favorably.
Retaliation. Fact disputes also existed at to whether the employee engaged in protected conduct by complaining to Motorola about age discrimination. He complained to the supervisor’s boss about the supervisor’s purported age bias, and he alleged the PIP was then made more onerous. Motorola, however, contended the PIP was changed only in response to HR’s suggestions to ensure the performance requirements could be fairly measured. The employee testified that he easily could have fulfilled the requirements of the initial PIP but the revised plan was too subjective and time-consuming, and would have detracted from his normal workload. A reasonable juror could conclude that the supervisor retaliated against the employee based on his age bias complaint by inflating the requirements of the improvement plan to set him up to fail or encourage him to resign.
Failure to promote. The court dismissed the engineer’s failure to promote claim, concluding that he failed to exhaust his administrative remedies, and so the court lacked jurisdiction to hear it. The engineer failed to raise the failure to promote claim in his EEOC and state administrative charge of discrimination.
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