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.

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.

City of Greensboro Moves for Summary Judgment in Discrimination Case filed by Former Police Chief, David Wray

Former City Manager, Mitchell Johnson and former Police Chief, David Wray.  Photo credit: News-Record.com.

For those of you who live in the Triad area of North Carolina, you may recall that in 2005, the City of Greensboro police department was fraught with allegations of internal racial discrimination.  The police chief at the time was David Wray.  Allegedly, Mr. Wray used an internal affairs unit to secretly investigate numerous black officers for alleged misconduct.  Furthermore, it was reported that a binder known as the “Black Book” allegedly contained photographs of black police officers.  As reported by NPR, there were rumors that crime suspects were sometimes promised more lenient treatment if they could identify black officers in the “Black Book” for misconduct.    

According to reports by the Greensboro News and Record, the former City Manager, Mitchell Johnson, met with Mr. Wray and the human resources director on January 6, 2006.  During that meeting, Mr. Johnson informed Mr. Wray that he had reviewed two internal reports detailing how Mr. Wray’s administration had investigated its own officers.  According to news articles, Mr. Johnson then informed Mr. Wray that he was being placed on administrative leave.  Mr. Wray subsequently tendered his resignation on January 9, 2006.

Mr. Wray filed a discrimination lawsuit against the City of Greensboro in 2009.  Mr. Wray alleges that the City of Greensboro violated his rights under the Civil Rights Acts of 1866 and 1870, 42 U.S.C. § 1981.  In short, Mr. Wray alleges the city discriminated against him based on his race (white) in an effort to appease a segment of the African American community by publicly stripping him of his authority and forcing him out of office.  A copy of the complaint can be viewed by clicking here.

Section 1981 prohibits all forms of intentional employment discrimination based on race which are considered “disparate treatment”.  The prohibition against disparate treatment applies to hiring, firing, demotion, and failure to promote decisions, as well as to unequal pay and hostile work environment claims.  Proving a Section 1981 claim can be difficult.  A Section 1981 plaintiff alleging discrimination based upon a protected trait must produce sufficient evidence from which one could determine that the protected trait (race) actually motivated the employer’s decision.  See, e.g., Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 286 (4^th Cir. 2004).   

More than four years after the complaint was first filed (and nearly four years after the Court ruled on the City's earlier motion to dismiss), the City has moved for summary judgment.  The City of Greensboro is asking the Court to summarily rule that Mr. Wray cannot prove that he was placed on administrative leave because he is white or that former police chief Tim Bellamy was selected as Mr. Wray’s replacement because he is black.  Instead, the City of Greensboro contends that the evidence demonstrates that Mr. Johnson placed Mr. Wray on administrative leave because of concerns over Mr. Wray’s truthfulness and leadership decisions.   

In defense of its actions against Mr. Wray, the City of Greensboro relies on a decision by the Fourth Circuit Court of Appeals (the Circuit with jurisdiction over North Carolina's federal courts) holding that an employee's dishonesty is a legitimate, non-discriminatory reason for termination.  See Curry v. Alamance Health Services, 1994 WL 242288 (M.D.N.C. Apr. 11, 1994), aff'd 54 F.3d 772 (4th Cir. 1995).    

In support of its motion for summary judgment, the City has included a transcript of the closed door January, 2006 meeting between Mr. Wray and Mr. Johnson.  A copy of the transcript on file with the court can be viewed by clicking here.   The City of Greensboro emphasizes that during the meeting, Mr. Johnson informed Mr. Wray that he was placing him on administrative leave pending further investigation and that Mr. Wray agreed that appointing then Assistant Chief Tim Bellamy as Acting Chief was an appropriate choice.  

This case demonstrates how even corrective personnel actions can sometimes lead to discrimination complaints, regardless of the plaintiff's race.  The case and its long timeline are also good examples of how protracted and expensive employment discrimination cases can become.  A review of the docket shows some 52 filings over the course of 4 years, which likely has generated prodigious legal fees for the City of Greensboro.  

Similarly, the plaintiff's counsel has likely incurred substantial fees over the course of this protracted litigation.  If the plaintiff were to prevail in the case, these fees would present an additional exposure to the City that could very well prove greater than the plaintiff's damages.  This is so because courts routinely award prevailing plaintiff's their attorney's fees as part of the final judgment in employment discrimination actions.  Whether this plaintiff ultimately prevails or not, it seems clear that the City of Greensboro will have paid substantial, costly attorney's fees and expenses over the course of a litigation that has already consumed more than four years of time.  The importance of experienced counsel capable of streamlining litigation and achieving timely and economical results in employment litigation matters cannot be understated.

Mr. Wray will have an opportunity to file a brief in opposition to the City of Greensboro’s motion, but has not yet done so.  We will discuss issues raised by Mr. Wray’s response once his brief is available, so please check back.  In the meantime, please feel free to contact me directly at (336) 333-6375 to discuss this post or other North Carolina employment law matters.  For more information about my Greensboro law firm of Sharpless &Stavola, please visit our website at www.sharpless-stavola.com. 

North Carolina Supreme Court Finds Communications of Professor’s Negative Review Findings to Other University Officials Insufficient to Constitute Publication

As previously discussed, the North Carolina Supreme Court recently ruled, in the case of White v. Trew, that an employment defamation action brought by a public University professor against his department head should have been dismissed at the trial court level.  As we explained last week, the Supreme Court first determined that the plaintiff’s action against his department head, a state employee, failed on sovereign immunity grounds.  The Court also determined that the department head’s communication of the negative review findings to NCSU’s College of Engineering Dean and to the University’s in-house counsel did not constitute a publication of the allegedly defamatory statements in any event.  The lack of publication constituted an additional ground for dismissing the complaint.

The Court’s discussion of this second dismissal basis was relatively short and straightforward.  To be actionable, a defamatory statement must be publicized, or communicated to third-party.  While the defendant in this case did share the allegedly defamatory statements with other persons, several state regulations and statutes allowed him to do so.  The Court cited to various regulations that require the department head to review faculty member performance and “to keep the appropriate dean apprised on the status of the reviews.”  Additionally, the regulation authorized the department head to consult with tenured faculty of the department and to “seek such other advice as the department head deems appropriate.”  Finally, the regulation provided that the written review would become part of the personnel file, which would be open for inspection by “any individual in the chain of administrative authority above the faculty member.”

The Court additionally cited to similarly worded state statutes.  From these authorities, the Court concluded that the dean had a clear right to review the review contents and that it was reasonable for the department head to have consulted in-house counsel given the contentious nature of his relationship with the professor under review.  The Court reasoned that it would run contrary to the referenced statutory and regulatory directives to have required the defendant to keep information about the plaintiff’s allegedly hostile and aggressive workplace behavior to himself.  Consequently, the defendant’s communication of the review findings in conformance with the rights and obligations imposed by the statutes and regulations could not constitute a publication for purposes of a libel suit.

On this particular issue, the Supreme Court based its ruling entirely upon the extensive statutory and regulatory language, which provided extensive support for the Court’s reasoning.  It is noteworthy, however, that the Court did not also characterize the communications as privileged in nature.  Other cases have acknowledged that statements communicated in good faith between persons sharing a common interest or duty and relevant to that common interest or duty enjoy a qualified privilege.  By providing no discussion of privilege protection, the ruling arguably supports a narrow application of the qualified privilege in the context of discussing employee review findings.

The law firm of Sharpless & Stavola, P.A., based in Greensboro, North Carolina, provides counsel and representation in the area of employment defamation.  Please contact us with questions or concerns relating to this or other North Carolina employment law issues.