The ADEA and "New Eyes"

Earlier in my career I tried to compile a list of the alleged "age conscious statements" addressed by federal court decisions.  It was fun, but impossible to keep up to date.  I still use it from time to time. 

A CA6 decision issued today (Metz v. Titanium Metals) involved a new one for me.  In making a reduction in force decision, a decision maker (Heatherington) sent an email which compared the respective candidates.  The email said:

 [Dickinson] has been employed with us for seven-and-a-half years and has continually performed in various capacities at a high level. He is a solid performer and will bring new eyes and tools to the material movement area of the plant . . . . The two Supervisors currently in that area have been with Timet for many, many years, Hercules, 42-plus, Metz, 23-plus, and Mike Saletta is looking to bring new ideas to the area. Hercules will most likely retire within six-to-nine months. [Dickinson] is well-suited to ensuring improvement in this area. 

The court rejected the argument that these comments reflected an age bias, explaining: 

These comments do not require the conclusion that Timet discriminated against Metz. Heatherington was describing Metz’s and Hercules’s tenures at Timet, which is not the same as their age. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993) (an employer’s consideration of an employee’s years of service does not equal discrimination). Heatherington’s remarks about “new eyes and tools” and “new ideas” are ambiguous and do not necessarily refer to age. See Abnet v. Unifab Corp., No. 06-2010, 2009 WL 232998, at *4 (6th Cir. Feb. 3, 2009) (a supervisor’s statement about the need to bring in “new blood” or a “change agent” did not show discrimination). And her mention of Hercules’s plan for retirement does not show age-based animus. See Woythal v. Tex-Tenn Corp., 112 F.3d 243, 247 (6th Cir. 1997) (comments on an employee’s planned retirement, without more, do not show discrimination).

While the court ruled these comments were not discriminatory, employers should not take this as permission to use these words.  It is best to play it conservatively.  The better practice is to avoid the use of somewhat conclusory statements ("new eyes and tools") in favor of a more detailed explanation of the critical skills the surviving employee possesses.

Subjective Assessments

There's nothing automatically wrong with basing employment decisions on subjective assessments.   For many jobs, particularly exempt jobs, it can be the only way to evaluate an employee's performance.

It is important, however, to do it right.  That means being able to explain the reason for the subjective decision adequately.  In the disciplinary context, it also helps, strongly helps, to be able to point to past attempts to correct the employee's problematic conduct.

A decision (Segal v. Kimberly Clark) from the Sixth Circuit released today demonstrates the difference between an unsupported subjective decision made in a vacuum and laying the proper groundwork.   Consider Kimberly Clark's reason for firing Segal:

First, Kimberly-Clark’s reasons for Segel’s termination are richly supported by the record. Segel’s annual performance reviews persistently expressed concern regarding Segel’s inflexibility toward his colleagues and his clients as early as 2000. When Segel’s 2006 performance review indicated a heightened level of dissatisfaction with Segel’s inflexibility, Kimberly-Clark provided Segel with both a 90-day PIP and a 30-day Last Chance Agreement to improve his behavior. Both documents highlighted Segel’s inflexibility as the reason for Segel’s probationary status with Kimberly-Clark and made clear that Segel’s failure to improve would result in termination.

Segal argued that “flexibility” is an entirely subjective criterion, and that “[s]ubjective assessments are easily susceptible to manipulation in order to mask the interviewer’s true motivations.”  He tried to rely upon a a previous CA6 decision, White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008). The court, however, explained what White held and why that didn't apply to Segal:

In White, an African-American employee appealed the district court’s grant of summary judgment in favor of his prior employer. 533 F.3d at 384. The employee in this case had received stellar performance reviews and was interviewed for an internal promotion; ultimately, however, another candidate was selected for the job. Id. at 386-87. The employer explained that the other candidate was selected because the interviewers considered the employee “extremely aggressive” and “confrontational.” Id. at 387. This Court reversed the district court’s grant of summary judgment, holding that:

any evaluation of [plaintiff’s] interview performance is an inherently subjective determination, and thus easily susceptible to manipulation in order to mask the interviewer’s true reasons for making the promotion decision. Indeed, since the very issue in dispute is whether the reasons given by these interviewers for their decision should be believed, it would be highly inappropriate for us to assume . . . that their own subjective perceptions of [plaintiff] were accurate.

Id. at 394. Accordingly, this Court found that a jury could reasonably disbelieve the employer’s proffered explanation and that the employee’s case was entitled to go forward.

The facts in this case are distinguishable from White. The record in this case presents a longstanding concern with Segel’s flexibility; whereas the adverse employment decision in White occurred in a vacuum of otherwise glowing reviews, Kimberly-Clark’s decision to terminate Segel took place after years of documented concerns regarding his flexibility. Further, the plaintiff in White was interviewed by only four people on one occasion, whereas Segel was evaluated by a greater number of individuals on multiple occasions over the course of many years. So, even though a subjective term like “aggressive” was not a sufficiently clear motivating factor in White, we find that a similarly subjective term—“inflexible”—is adequate where it was repeatedly utilized by varying people on numerous occasions.

So, wise employers won't rely upon subjective decisions "in a vacuum of otherwise glowing reviews" but will lay the ground work by showing a history of addressing the problematic conduct with the employee.