About the Firm

Attorney Brian H. Alligood provides top quality, aggressive legal representation to individuals and businesses throughout North Carolina. Mr. Alligood regularly represents parties in disputes arising from all aspects of the employer-employee relationship. Employment issues frequently litigated include claims of discriminatory hiring and employment practices, sexual harassment, retaliation and wrongful discharge, wage and hour violations, breach of contract and no-compete covenants, and employee benefits litigation. In addition to confronting claims of traditional employment discrimination, Mr. Alligood represents parties with respect to statutory rights and obligations imposed by the Americans with Disabilities Act and the Family Medical Leave Act.

Mr. Alligood regularly appears in all North Carolina state and federal courts and administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the North Carolina Department of Labor, and the Office of Federal Contractor Compliance Programs (OFCCP).

Monday, March 18, 2013

North Carolina Federal Court Dismisses Age Discrimination Case Finding that Reassignment of 40 year Veteran Employee to Night shift Duty Does Not Constitute Adverse Employment Action

Our last post discussed the growing frequency with which age discrimination cases are being filed and the basic frameworks under which an age discrimination case are analyzed.  As explained, age discrimination cases are frequently difficult cases for an employee to win, in part because of exacting proof standards that the federal courts have imposed through an extensive body of case law.

One such case from the Western District of North Carolina demonstrates the proof difficulties well.  Darnell v. Tyson Foods, Inc. was an age discrimination suit brought by a longtime employee of the Tyson Foods processing plant in Monroe, North Carolina.  Plaintiff James Darnell had worked at this plant since 1969. He was 63 at the time of the events at issue.

For years, Mr. Darnell had worked as a maintenance supervisor during the plant’s 6am to 5pm shift.  As part of costs reduction measures, the plant eliminated a third shift maintenance supervisor position.  This, in turn, lead to an increased rate of equipment failures and decreased plant productivity.  

In 2010, the company arranged for Dennis Joy, a Maintenance Specialist, to conduct a plant inspection and to develop a performance improvement plan.  Mr. Joy concluded, in part, that a third shift maintenance supervisor was needed and that Mr. Darnell was the best candidate for the position.  Coincidentally, Mr. Darnell went out for prostate surgery on April 14, 2010, and returned eight days later.  Upon Mr. Darnell’s return, Mr. Joy, the Plant Manager, and the Human Resources Manager met with Mr. Darnell and asked him to accept the third shift position.  Mr. Darnell refused, saying, “There ain’t no way in hell you are going to kill me the last couple of years that I plan on working here.”  Mr. Darnell later requested two weeks of vacation to consider his options.

On May 10, 2012, Mr. Darnell again declined the move.  He was then given two alternative options of working a hybrid shift from 3:00am to 1:00pm or of continuing his existing schedule at a lower hourly rate of pay.  Mr. Darnell refused these options as well.  The parties discussed the same three options two days later and, again, Mr. Darnell refused each.  Mr. Darnell, concluding that a stalemate existed, left the plant and never returned.  He was eventually replaced by a 57 year-old replacement.

Mr. Darnell filed an EEOC Charge of Discrimination and, later, a lawsuit alleging age discrimination. 

As our last post explained, Mr. Darnell, in order to make a prima facie showing of discrimination, had to demonstrate that: (1) he is a member of a protected class; (2) he suffered adverse employment action; (3) he was performing his job duties at a level that met his employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or he was replaced by a substantially younger individual.  The parties did not dispute the Plaintiff’s satisfaction of the first and third elements.  The Defendant did contest the remaining elements and moved for a summary judgment on the basis that these elements could not be established as a matter of law.

In most discrimination cases, there is usually no dispute about whether adverse employment action occurred.  Usually, it is the occurrence of adverse employment action that triggers the case in the first place.  The Court in this case, however, demonstrated how even this element requires exacting proof.

In addressing the question of whether the reassignment to a night shift position constituted an adverse employment action, the Court explained that “An adverse employment action is a discriminatory act which adversely affects the terms, conditions or benefits of the plaintiff's employment.”  In this case, the Defendant emphasized that the reassignment would not result in a decrease in pay or benefits, not did it constitute a demotion or reduction in job responsibilities.  The Plaintiff, however, cited two principle objections to the shift change:  (1) that he has difficulty sleeping during the day and (2) that the Defendant ignored his seniority in assigning him the overnight shift.  

The Court, while recognizing that working an overnight shift can constitute a legitimate burden to a person accustomed to working normal hours did not find the shift change to constitute a significant change in employment status, which is necessary to establish the adverse employment action element.  In further support of its conclusion, the Court cited to Fourth Circuit precedent for the proposition that “a person's subjective evaluation of an employer's decision is not sufficient, standing alone, to constitute an adverse action.”

In the end, the Court determined that the Plaintiff failed to offer evidence to support a finding that the move was adverse on any objective level.  Consequently, the Court agreed that the Plaintiff failed to establish the second required element of the prima facie case of age discrimination.

The ruling on this initial issue seems harsh.  Requiring a 63 year old man, who has worked day shift hours for some forty consecutive years, to suddenly convert to third shift hours probably would strike the average, reasonable person as a significant, adverse change in employment status.  Indeed, such a dramatic change in work conditions arguably turns a person’s life upside down in several respects.  It requires adaptation and shifts in lifestyle that a 63 year old person recovering from serious health conditions is arguably not situated to make.  Nevertheless, the Court determined, without the assistance of a jury, that such a marked change in employment status was not an objectively adverse employment action.

Because this one element of the prima facie case was, in the opinion of the Court, unsatisfied, the entire case failed as a matter of law.  Note, however, that the Court’s opinion provided additional analysis, which further demonstrates the proof difficulties posed by age discrimination cases.  We will discuss these additional aspects of the ruling in our next post.  Please contact us if you have questions about the ruling in the meantime.

Saturday, March 2, 2013

Age Discrimination Cases on the Rise in North Carolina Even as Courts Require Exacting Proof

Claims of workplace age discrimination have steadily increased in North Carolina and the nation at large in recent years.  According to EEOC filing statistics, there were fewer than 20,000 age discrimination charges filed during each of years 1997 through 2007.  There have been more than 22,000 age discrimination charges filed in each year since 2007, with more than 23,000 age discrimination charges filed in three of those five years. 

The upward trend is likely due to several factors.  For example, the combination of an expanding number of elderly workers from the large baby boomer population and a sputtering U.S. economy, which continues to result in downsizing by employers, has resulted in a large field of displaced older workers.  A changing work environment, which is increasingly reliant on relatively new technology and associated skills, also renders younger workers more attractive than veteran employees in some instances.  For these and other reasons, the growing incidence of age discrimination claims is likely to continue in coming years.

There are two basic methods to proving a case of age discrimination.  First, a plaintiff can present direct evidence of discrimination.  Direct evidence is evidence that proves discriminatory motive without the need for inference.  A classic example would be if an employer fired an employee and said, “I am firing you because you are too old.”  A manager’s note or email stating, “Smith is too old for the job; we need someone younger,” would qualify as direct evidence.  Rarely is such direct, “smoking gun” evidence available in this day and age.

The second method for proving discrimination is called the McDonnell-Douglas burden-shifting paradigm.  It involves a three step process.  First, the plaintiff must establish what is called a prima facie case of discrimination.  If this can be done, the employer must then come forward with a legitimate, non-discriminatory reason for the decision.  In response, the plaintiff must then present evidence sufficient to find the employer’s explanation is a pretext, or false excuse, and sufficient to conclude that discrimination was the true motive.

In order to establish the opening prima facie showing of discrimination, a plaintiff, must demonstrate that: (1) he is a member of a protected class, (i.e., over age 40); (2) he suffered adverse employment action; (3) he was performing his job duties at a level that met his employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or he was replaced by a substantially younger individual. 

In the age discrimination context, the prima facie case often times is not difficult to establish. In fact, older workers frequently meet all of the elements as a mere function of their age and experience.  A worker over 40 satisfies the protected class requirement.  An older worker who has been with an employer for many years presumably has been meeting the employer’s expectations for some time.  Additionally, the odds are that an older worker will be replaced by someone younger.  Thus, if a veteran employee suffers an adverse employment action, he or she is well on the way to satisfying the prima facie case of discrimination.

Nevertheless, successfully proving age discrimination under the McDonnell-Douglas framework is very difficult for several reasons.  For one, the vast majority of North Carolina workers are employed at-will, meaning the employer may fire the employee for any reason so long as it is not an illegal one.  The employer need only respond to the prima facie case of age discrimination by producing a single, legitimate, non-discriminatory reason for the challenged action.  Courts have repeatedly emphasized that the offered reason need not be a wise one, so long as it was a non-discriminatory reason that the employer truly believed.  The courts simply will not second guess the business wisdom of an employer’s personnel decision. 

There are other considerations that make age discrimination claims difficult to win.  The courts, for instance, have recognized that only the plaintiff’s performance at the time of the decision is relevant to assessment of the discrimination claim.  As such, an employee with twenty more years of stellar work performance could still fail to prove his case if work performance were poor at the time of the challenged decision.  Perhaps the most difficult proof aspect is that the plaintiff must ultimately prove that the employer was motivated by discriminatory intent.  Intent is a very difficult element to prove and requires skillful, experienced counsel well-versed in effective methods for proving offered excuses pretextual and developing persuasive evidence of discriminatory animus.  Overcoming the at-will employment presumption also demands skillful representation.  Frequently, we see age discrimination claims pursued by unrepresented, pro se litigants.  Such claims are almost sure to fail given the proof difficulties involved.

In fact, perhaps because of the growing number of age discrimination claims, courts have become increasingly demanding and exacting in the level of proof required of age discrimination plaintiffs.  A recent case from the Western District of North Carolina demonstrates this tendency of the courts, as well as the proof difficulties outlined above.  We will discuss this recent case in our next post as we continue our discussion of workplace age discrimination.