Employment Law Daily White programmer ‘replaced’ by younger Indian workers advances bias claims
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Friday, September 28, 2018

White programmer ‘replaced’ by younger Indian workers advances bias claims

By Harold S. Berman J.D.

A 60-year old Caucasian programmer analyst who was fired as part of his company’s alleged cost-reduction scheme and replaced by younger and less experienced workers of Indian national origin can proceed with his Title VII, ADEA, and state law age and national origin discrimination claims, a federal district court in Michigan ruled, denying summary judgment. Younger individuals of Indian national origin replaced the employee, the company’s proffered reason for firing him as part of a reduction in force was impossible because the client account on which the employee worked forbid a reduction in force, and an internal company memo encouraged hiring both younger workers and workers from India (Palmer v. CSC Covansys Corp., September 25, 2018, Cohn, A.).

Termination. The employee worked as a programmer analyst for an IT services provider, which assigned him to work on its Fiat Chrysler Automotive (FCA) client account. The account’s supervisors never reported the employee’s work to be unsatisfactory.

Anticipating the employee’s transfer to a project management position, he was asked to train two individuals on a portion of the FCA work. Shortly after he completed the training, the company terminated him, allegedly as part of its “Get Fit” program. Under the company’s “Get Fit” program, labor costs were reduced by replacing higher-salaried, more experienced employees with those who were less experienced and lower-salaried.

Smoking gun memo. An internal company memo concerning workforce reduction, in addition to describing replacement of more expensive and experienced employees, called for moving positions offshore, replacing a subcontractor with one in India, and emphasized the need to increase the number of younger employees, and specifically millennials.

Deviation from company policy. The employee claimed the company deviated from its own policy by not finding him other employment within the company and not terminating instead a shorter-tenured employee, by treating younger, Indian employees more favorably, and by engaging in a pattern and practice of discrimination. The employee was replaced by an Indian subcontractor, which the employee claimed breached implied company policy that his supervisors stated in an email.

The employee also pointed to two younger Indian employees with the same title who were not let go, and were paid more than the employee despite possessing less experience. He also claimed that, of 34 employees the company recently terminated, 25 were over 40 years old, 18 were over 50, and 8 were over 60. Only one recently terminated programmer analyst was under 50, and the average termination age was 55.

Who replaced the employee? The employee and the company disputed who actually replaced him. Although the company originally hired a younger subcontractor ostensibly from India to replace the employee, the company claimed that he ultimately was replaced by a different subcontractor. However, the new subcontractor also was younger than the employee, although there was no direct evidence of his specific national origin because the company failed to provide it as requested during discovery. Additionally, one of the individuals that the employee trained shortly before he was terminated could have been considered to be his replacement.

The employee sued, alleging age and national origin discrimination under the ADEA, Title VII, and Michigan’s Elliott-Larsen Civil Rights Act.

Age discrimination. The court denied summary judgment on the employee’s age bias claims because the circumstances of his termination supported an inference of discrimination given that younger employees replaced him. Although the company maintained that it fired the employee for a legitimate business reason to save costs under its “Get Fit” program, the employee brought sufficient evidence that the company’s proffered reason was pretextual. The company’s termination letter stated the employee was terminated solely because the company “made a business decision to reduce headcount in [the employee’s] group,” consistent with its reduction-in-force policy. However, the account with FCA prohibited a reduction in force, and so a jury could find that the company’s explanation for termination was an impossibility.

A jury also could find that age was the primary factor in the employee’s termination, based on evidence that the company engaged in a pattern or practice of discrimination. The company memo emphasized the importance of a young workforce, and specifically hiring younger and less experienced workers. The statements in the memo, combined with the company’s recent firing of older workers, could cause a jury to find the company’s stated reasons for termination were pretextual.

National origin discrimination. The court also refused to dismiss the employee’s national origin discrimination claims. Although disputed, a jury could find the employee was replaced by an individual who was not Caucasian-American, and so was outside his protected class. The employee had not established the national origin of two individuals who might have replaced him, but did establish that the individual he trained to assume some of his responsibilities was of Indian national origin.

Regardless of who actually replaced the employee, at the summary judgment stage, it was sufficient for him to show that a person outside his protected class was treated more favorably. The court found it evident that individuals of Indian national origin who held the same title and were paid similar salaries were given the opportunity to transfer within the company, while the employee was instead singled out for termination.

As with the age discrimination claims, the company’s proffered reason for terminating the employee as part of a cost reduction scheme could be found to be pretextual. A jury could conclude from the employee’s evidence that he trained an Indian employee to assume his duties shortly before the company terminated him, Indian employees with the same job title were paid more and were not fired, the employee had a satisfactory work record on the FCA account, and the company’s internal memo discussed hiring offshore workers and subcontractors from India.

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