Friday, December 25, 2009

When is a dinosaur just a dinosaur? Ambiguity and employment law.(laborlaw).

Holiday 2008

Dinosaur Jr., originally uploaded by desdeaquinet.

A common misconception about the law is that it is very precise and certain. Words and conduct are either unlawful or they are not. In reality, ambiguity pervades the law. This is true of employment law as well as other areas of law. Statutes can be construed in multiple ways. Words can be susceptible of different interpretations. Various motives can be ascribed to the same behavior. Individuals differ enormously in how they perceive identical circumstances. This includes supervisory and managerial employees, rank and file employees, and judges. A recent case, Torrech-Hernandez v. General Elec. Co., 102 FEP Cases 1551 (1st Cir. 2008), is a perfect example of ambiguity on many levels.

The plaintiff in the case had worked for the defendant company for 28 years in different positions. In July 2000, at the age of 49, he was transferred from one plant manager position in Puerto Rico to another by the President and General Manager of Caribe GE. His new position involved oversight of a much more complex operation. Nine months later, the manager who had selected the plaintiff for his new position was replaced. The new President/GM had concluded that the company's Puerto Rican plants needed substantial improvement, with the one that the plaintiff was responsible for needing improvement in five different areas. He met with the plaintiff to discuss his concerns and ideas for improvement, and the plaintiff agreed that the manager's ideas were good ones. However, the plaintiff did not implement the ideas or correct the deficiencies that had been identified. Observers perceived that the plaintiff was not receptive to change. Even the plaintiff conceded that his performance had its ups and downs. Despite this, the company stated that it had no plans to terminate him. Rather, if problems persisted the company would have placed the plaintiff on an improvement plan before taking any action against him.

Four months later, the plaintiff left the company. The plaintiff argued in his lawsuit that he was fired, or in the alternative, was the victim of a constructive discharge by the company, motivated by unlawful age discrimination under the Age Discrimination in Employment Act. That statute prohibits employment discrimination against employees who are 40 years old and older, including discharge based on age-based reasons.

The plaintiff pointed to several incidents that he believed supported his claims of discrimination. These primarily consisted of what he interpreted as age-based comments that were made after the new President came on board. The first occurred at a retirement party in honor of the previous President. A company executive to whom the President reported told the plaintiff that there was an assumption at the company that the plaintiff s energy level had declined. Several weeks later, the new President also commented on the plaintiff' s lack of energy. On neither occasion did the plaintiff inquire as to the meaning of those comments. The plaintiff also asserted that the President on another occasion in a meeting had referred to the staff as "'dinosaurs.'"

In June 2001, the President visited the plaintiff s plant. The plaintiff stated that the President while touring the plant pointed to an "'old person'" and stated that in another facility no one walked that slowly anymore. In a meeting with the plaintiff the President indicated that the plant was not meeting his expectations and that he would implement improvements himself if he did not see change.

That evening the plaintiff called the human resource manager and asked if there were any plans to replace him. The human resource manager assured him that there were no such plans. Despite this assurance, the plaintiff told the human resource manager that he would be willing to leave "'peacefully'" if he could get a severance package. The human resource manager forwarded this information to the President who responded that they should analyze the situation and determine what would be involved. There ensued communications back and forth with the plaintiff about the nature of the severance package that he wanted. During this time period, the President informed corporate headquarters about the discussions with the plaintiff, their intent to develop an exit plan, and a suggestion about a possible replacement. The replacement mentioned was a 33 year old employee who had been with the company for many years.

In mid-July, the plaintiff communicated to the human resource manager the following: he needed money; the severance amount had to be $150,000; he wanted to be on the payroll until the end of September; and the announcement of his resignation could be made the next day. Two days later the human resource manager sent the plaintiff a draft of the resignation announcement and solicited his comments. Rather than responding to her, the plaintiff sent his own retirement announcement to his staff. The human resource department sent an official announcement out later that day and the next day sent the plaintiff a confirming e-mail enclosing the final severance agreement and miscellaneous financial information, along with a request that he return specified company property.

One day after that, the plaintiff responded that he was not signing anything and threatened litigation. At the same time, he asked for an extension of time to consider the company's offer. Subsequently, the plaintiff asked for another extension of time to consider the company's offer. The last extension was to expire on August 15, almost a month after the plaintiff had himself sent out a retirement announcement. Before that date, however, the plaintiff met with an attorney and then informed the company that he was rejecting their severance offer and that he wanted a severance amount of $400,000-- $250,000 above what he had previously stated he wanted. If the company did not agree to that amount, the plaintiff stated that he wanted his position back as plant manager. He threatened litigation if the company did not meet his demands. The company rejected the plaintiffs demands and removed him from the payroll on August 15.

At that point, the plaintiff brought legal action under the Age Discrimination in Employment Act. This was the first point at which the plaintiff had complained of unlawful discrimination, despite the fact that he knew of the company's policies and procedures with respect to discrimination that were available to him to redress problems. The district court granted summary judgment for the defendant company, and the plaintiff appealed. On appeal, the 1st Circuit affirmed the grant of summary judgment although it used a different analysis in finding the company not liable.

The appellate court observed that many of the plaintiff's assertions with respect to the motives behind various managerial statements and actions were simply his own highly subjective interpretations as opposed to concrete facts. Thus, they were not to be regarded as "material facts" in considering a motion for summary judgment. For example, the plaintiff stated in his deposition that the President had brought into his new position the idea of getting rid of old people and that the President's message when he gave the plaintiff his performance evaluation was that he was going to get rid of the plaintiff because of the plaintift's age. The court described these statements as the plaintiffs mental "musings" and not actual words used by the President.

Discounting those statements by the plaintiffs, the appellate court proceeded to analyze the plaintiff' s legal case. First, the plaintiff had to establish a prima facie case. He had to show that he was at least 40 years old, that his performance met or exceeded legitimate expectations, that he had been actually or constructively discharged, and that the company continued to need the services provided by his position. The company argued that the plaintiff had not met the second requirement--that of meeting the company's reasonable expectations for performance. The court responded that the company could not have it both ways. In other words, the company could not both say that it had no plans to take action against the plaintiff and that the plaintiff was not meeting legitimate expectations. Furthermore, the plaintiff had received a positive performance review within six months of his departute along with a raise. The fact that the plaintiff described his own performance as having ups and downs was irrelevant. It was the employer's perception that was important.

Here, the appellate court believed that the company was attempting to improperly "'play both sides against the middle.'" It was simultaneously arguing that the plaintiff was doing well enough so that no action was being planned to terminate him and that the plaintiff was not meeting performance expectations so that the company was justified in dismissing him. The court interpreted the company's attempts as tactical legal maneuvering rather than legitimate legal arguments. Holding that the company could not have it both ways, and conceding that the plaintiff could have performed better, the court stated that it would consider the plaintiff as having met the legitimate performance expectations of the defendant with respect to establishing a prima facie case.

It was the third prong of establishing a prima facie case on which the plaintiff faltered. The plaintiff did not come forward with sufficient evidence to show that he was discharged. Rather, it was clear that he resigned. It was the plaintiff who initiated the discussion of his resignation in exchange for a severance package. It was the plaintiff who, by his own volition, sent out a resignation announcement. There were virtually no facts supporting the plaintiffs claim that he was fired. There was no way to take seriously the plaintiff' s claim that his letter was not a resignation letter. The court felt that even the plaintiff did not really forcefully argue that he was discharged. Rather, the bulk of the plaintiff's argument was that if he did resign, it was because he was forced to do so because of the circumstances. In other words, the plaintiff was arguing constructive discharge.

While constructive discharge--a claim that working conditions are made so unpleasant that a reasonable person would feel forced to resign--is a legitimate basis for an age discrimination claim, the plaintiff had not shown that his circumstances met the requirements of a constructive discharge. He had not shown that his situation was so intolerable that it basically deprived him of free choice in making a decision to quit. Looked at another way, the plaintiff had to show that the company acted in such a way as to have led a reasonable employee to believe that if he did not resign, he would have been discharged.

The plaintiff argued that the words and actions of the company led him to believe that he was about to be terminated. For example, the plaintiff argued that the comments about lack of energy were age-based because of the perception that older people lack energy. The court countered that the plaintiff was completely aware of the company's credo of the "Four E's," two of which were "energy" and "energized." Energy did not necessarily have age-related implications; it also had performance implications. Thus, "energy" comments could be a sign of age bias; or they could be a call to be more active. Similarly, the plaintiff argued that the use of the word "dinosaur" to describe staff, along with the pointing out of the older, slow-walking employee, meant that the company no longer wanted older employees and would have eventually terminated him. Again the court countered that, while use of the word "dinosaur" could be indicative of age bias, it could also refer to procedures and equipment. The human resource manager, who was at the meeting where this term was used, interpreted the comment to refer to the plant's obsolescence problems, not to its people. Courts had on several occasions looked at use of the word "dinosaur" with no uniformity as to whether the word was indicative of age bias. Most of the time the court's decision depended on the context in which the word was used. Even if such words were used to describe a person, they could just be stray workplace remarks and not an indicator of age-based hostility.

When looked at in context, the plaintiff's assertions did not constitute persuasive evidence of age-based discrimination. Although the plaintiff argued that the President's job placement practices, including replacing him with a much younger employee, along with the President's emphasis on charge, supported an inference of age discrimination, the plaintiff did not offer any supporting proof. To the contrary, the company had pointed to many high level job placements of individuals 40 and over.

The plaintiff's subjective interpretations of the company's statements and actions did not create an intolerable work environment such that his departure could be considered a constructive discharge. Even if some of the comments could be construed as indicative of age bias, the court noted that a constructive discharge finding is not justified by a difficult or unpleasant work environment. As noted by one court, ""It is not enough that the plaintiff suffered the ordinary slings and arrows that workers routinely encounter in a hard, cold world.'" No rational fact-finder could conclude that the company deliberately created a work environment so miserable that the plaintiff reasonably believed that he had to resign. The court also doubted that a reasonable employee in the plaintiff's situation would have felt that he was about to be fired. The plaintiff had asked the human resource manager if he was about to be terminated, and he was told that there were no plans to do so. Instead of relying upon that, the plaintiff promptly proposed that he would leave in exchange for a severance package. Quoting another court, the 1St Circuit observed that an employee can be too sensitive to his working environment. An objective, rather than subjective, analysis is used to analyzing a constructive discharge situation. Again quoting another court, the 1st Circuit stated that an employee should not assume the worst or too rapidly jump to conclusions.

Pursuing another tack, the plaintiff suggested that the negotiations leading up to his termination constituted a constructive discharge. Specifically, he argued that he was confronted with a take it or leave it proposal. This argument the court characterized as classic "'bait and switch'" -a deceptive approach the court refused to countenance. The plaintiff initiated the resignation talks and stated what he was willing to take. He tentatively agreed to the company's last proposal, on his own issued a resignation announcement, and quit coming to work. Then he reopened negotiations, threatened litigation if he did not receive his new demands, and stated he wanted his old job back if he did not get what he wanted. His new monetary demand was considerably more than he had initially requested. The company was justified in relying on his initial overture, coming up with proposals, formulating an exit plan, and selecting a replacement. It was not obligated to continue negotiating with someone who the company could reasonably have thought had agreed to a proposal then confronted the company with increasingly unreasonable requests and threats.

Although the court believed that summary judgment in favor of the company was justified at this point in the analysis, it went on to add that the plaintiff could not show that the company's actions were a pretext for age discrimination. The comments that the plaintiff complained of, as discussed before, were subject to differing interpretations. The plaintiff could not show any discriminatory behavior on the part of the company, much less a pattern of discriminatory behavior.

This case is interesting and illustrative because it shows the ambiguous nature of some employment law cases. Here, the words complained about were subject to different interpretations. A different employee might have had totally different subjective interpretations about what was going on and his future with the company. The radically different understanding the company and the plaintiff argued before the court about whether any agreement was met underscores the complexity of such cases.


(1.) Employment law, and the cases composing it, is not always clear. Gray areas exist in the law and in interpreting conduct under the law.

(2.) In age discrimination cases, words such as "energy" and "dinosaur" may be susceptible to different meanings, with some lawful and some indicative of age-based bias.

(3.) Employees can differ greatly in their subjective interpretations of what company statements and conduct mean and what their implications are for the employees.

(4.) In sorting out ambiguities in age discrimination cases, courts look at the context in which statements and behavior are made, and whether a reasonable person in the employee's situation would look at the circumstances in the same way.

(5.) In determining whether a constructive discharge, as opposed to an outright termination has occurred, courts look at whether a reasonable employee would have considered himself or herself forced into resigning because of an intolerable workplace environment.

(6.) Supervisors and other managerial employees should be aware of the different employee interpreations accompanying company language and behavior and become adept at evaluating circumstances from the standpoint of a "reasonable" employee' however, they are not compelled to comply with unreasonable demands.

Source Citation
Zachary, Mary-Kathryn. "When is a dinosaur just a dinosaur? Ambiguity and employment law." Supervision 69.6 (2008): 22+. Academic OneFile. Web. 25 Dec. 2009. .

Gale Document Number:A179707597

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