RIF’d employee can proceed with discrimination lawsuit

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A Superior Court judge has decided that a discrimination complaint against Verizon New England Inc. can move forward even though the telecommunications company may have legitimately terminated a disabled employee as part of an economy-driven reduction in the workforce.

Verizon argued that the claim could not proceed as a matter of law since the company had a legitimate business reason for eliminating the plaintiff employee’s position, and its decision to do so was not a pretext for any improper intent.

But Judge Douglas H. Wilkins disagreed and denied summary judgment after finding a jury could conclude that both legitimate and illegitimate considerations contributed to the termination.

Once an employee makes a preliminary showing that a discriminatory reason played a role, an employer must then establish that a permissible basis, standing alone, would have led the company to make the same decision, the judge said. Whether such a burden has been met is for a jury to decide.

“For that reason, a mixed-motive situation is not a good candidate for summary judgment,” he said. “The defendant’s position boils down to the assertion that Verizon’s conduct was unrelated to Plaintiff’s medical conditions. That proposition is less than certain.”

The 15-page decision is Haraden v. Verizon New England, Inc., et al., Lawyers Weekly No. 12-138-12. The full text of the ruling can be ordered by clicking here.

Clearing the hurdle

When an employer points to a “reduction in force” as the basis for a firing, it is extremely hard for a plaintiff to prevail, said Michael L. Mason, who represented the employee.

Although Mason said there are few appellate RIF opinions on point in Massachusetts, the majority of judges considering the issue at the trial court level have sided with employers.

“In general, it is difficult for an employee to survive summary judgment; in RIF suits, it’s markedly more difficult,” he said.

RIF suits have become increasingly common due to the economy, Mason said. Larger companies tend to lay off employees in groups if they are trying to cut costs, but cases like Verizon show that employers can get caught up in that practice for the wrong reasons.

“As a lawyer evaluating these kinds of suits, you know it’s going to be nearly impossible to prove that the overall RIF was motivated by discrimination, and that dissuades a lot of people from taking them on,” said Mason, who practices at Bennett & Belfort in Cambridge. “But hopefully this decision gives some insight into how an employee can actually succeed in prosecuting a claim.”

Mason said his client suffers from a disability that required Verizon to make accommodations. During discovery, he uncovered more than 15 pieces of evidence supporting his claim that a Verizon supervisor held the plaintiff’s condition, chronic iron deficiency anemia, against her.

The judge’s ruling, he said, establishes it is not enough for an employer to simply respond that a legitimate reason for the firing existed.

“We cleared that hurdle in the case by showing that a proscribed discriminatory factor played a role in the firing. At that point, it was on the employer to prove they would’ve made the same decision regardless,” he said.

Verizon’s Boston counsel, John P. McLafferty of Day Pitney, declined to comment.

Brigitte Marie Duffy, who successfully argued a Supreme Judicial Court RIF case cited by Wilkins, said companies have to be protected when making good-faith assessments about how best to proceed with layoffs.

Duffy, who now works at LPL Financial in Boston, said the SJC clearly held that employers should only be second-guessed in cases in which an unlawful purpose can be shown.

“You might disagree with the employer’s decision, and in hindsight there might’ve been other options,” she said. “But so long as an employer is exercising its business judgment and isn’t being influenced by a discriminatory intent, they have to be entitled to make such a judgment.”

John F. Tocci of Boston, who was not involved in Verizon, said, it is often conceded in mixed-motive cases that a company’s business was bad and that legitimate grounds for a layoff existed. But the question for the court is whether the poor business condition was the true reason for an individual plaintiff’s termination, he said.

“From the plaintiffs’ bar perspective, poor economic conditions and layoffs will often result in employers improperly including in the layoffs those employees they see to be problems,” he said. “The employer now has an automatic, legitimate, non-discriminatory reason for the termination. An employee’s ability to prove that it was a pretext is really the key.”

Unearthing such evidence is a difficult proposition for plaintiffs, Tocci noted.

“There is no doubt it’s a lot harder for an employee to say they think they are being singled out when you are in a boat with dozens, maybe even hundreds, of other employees who are all in the same position,” he said. “It sounds like the judge simply believed there were too many facts in dispute here for summary judgment.”

Last day

Plaintiff Patricia Haraden began working at defendant Verizon in 1989.

In May 2006, her supervisor told her that her job was being eliminated and she had 30 days to find a new position in the company. She eventually was offered a job as executive assistant to co-defendant Wendy Prouty in September 2006.

The plaintiff took an approved medical leave of absence that fall due to her fatigue and related symptoms. While she was out of work, her boss completed her performance evaluation for the year and gave her a “developing” rating.

The plaintiff challenged the review, after which the rating was changed to “performing.”

She returned to work in June 2007. Three months later, Verizon determined that it needed to implement a reduction in force.

When Prouty’s manager informed her she had to eliminate one person in her work group, the plaintiff was chosen for the layoff. She was selected, Prouty said, because other employees in the department had a greater connection to sales and their terminations could have had a more adverse impact on the company’s bottom line.

The plaintiff was told her last day would be Nov. 30, 2007. Although she searched for a new job at Verizon, she was unable to secure a position prior to her departure.

In early 2008, she brought an MCAD complaint, which was eventually filed in Middlesex Superior Court.

Wilkins found that sufficient facts existed in the summary judgment record to support the employee’s inference of unlawful discrimination.

Although Verizon presented the employee with a legitimate reason for the firing, that fact alone did not mean the company was free to make its employment decision on impermissible grounds, he wrote.

“The key question, then, is whether Prouty’s stated reason was a pretext for targeting [the employee] because of her disability,” he said. “The giving of a false reason may warrant an inference of pretext.”

Such an inference is enough to support a finding that a company acted with discriminatory animus, the judge found.

Wilkins said a plaintiff “need not point to a smoking gun” to prove pretext and can meet its burden with circumstantial evidence.