Summary judgment for the employer is appropriate, therefore, if the plaintiff fails to make a factual showing sufficient to 1) establish her prima facie case; or 2) refute the defendant's articulated non-discriminatory reasons. SmithKline asserts that Plaintiff cannot establish his prima facie case, and that even if he could establish a prima facie case, Plaintiff has not offered evidence refuting SmithKline's proffered nondiscriminatory reasons.
A plaintiff may establish her prima facie case of age discrimination by proving that she "(1) belongs to a protected class; (2) was qualified for the position; (3) was dismissed despite being qualified; and (4) ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination." Billet, 940 F.2d at 816 n.3.
SmithKline does not dispute that Plaintiff belongs to the protected class, that he was qualified for the position, or that he was dismissed despite being qualified. SmithKline argues, however, that Plaintiff was not replaced. Plaintiff replies that he was replaced by Geraghty, an individual almost twenty years his junior. Plaintiff faces an arduous task, however, because he was not directly replaced by Geraghty. Instead, Plaintiff avers that SmithKline indirectly replaced him with Geraghty to conceal any hint of age discrimination.
To support his replacement "theory," Plaintiff offers details of five separate events occurring over approximately thirteen months. First, in December 1991, Oleksiuk and Holland discussed whether Geraghty might return as a shift supervisor. Oleksiuk Aff. P 7. Second, at the same approximate time period, Barber included Geraghty's name on the Adverse Impact Analysis, even though Geraghty had transferred to an operations analyst position approximately four months earlier. App. at 1422. Third, Holland retained Denton and terminated Plaintiff, even though Oleksiuk ranked Denton lower than Plaintiff in terms of performance. Holland Dep. at 177-79; Oleksiuk Aff. P 4. Plaintiff asserts, with no evidentiary support, that Holland retained Denton specifically so that she could later "dispose of" him at any time due to his supposed incompetence. Pl.'s Reply Opp'n Def.'s Mot. Summ. J. at 21. Fourth, in late October 1992, approximately nine months after Plaintiff was terminated, Holland terminated Denton because of poor performance.
Oleksiuk Aff. P 10. Fifth, in January 1993, almost one year after Plaintiff was terminated, and two months after Denton was terminated, Geraghty was asked to return as a shift supervisor to replace Denton. Geraghty Dep. at 73.
Plaintiff's replacement theory fails for two independent reasons. First, because of the extended delay between Plaintiff's termination and Geraghty's return as a shift supervisor, there is an absence of evidence that Plaintiff was replaced. See, e.g., Rose v. Wells Fargo & Co., 902 F.2d 1417, 1422 (9th Cir. 1990) (claim of replacement by a younger worker is substantially weakened when the replacement did not occur until six or seven months after plaintiff's discharge); Simpson v. Midland-Ross Corp., 823 F.2d 937, 941 (6th Cir. 1987) (replacement claim questionable when replacement occurred three months after plaintiff's discharge). Additionally, Plaintiff has not offered facts showing that the shift supervisor position requires specialized knowledge or that the position normally goes unfilled for long periods of time, such that Geraghty's return almost one year after Plaintiff's termination might possibly be considered a replacement. See Powell v. Syracuse University, 580 F.2d 1150, 1156 (2d Cir.) (in the context of university employment, gap of two years between the non-renewal of a teaching contract and the hiring of a new teacher does not preclude a finding of "replacement," where teaching post requires specialized skills, hiring is very sporadic, and such positions normally are not quickly filled), cert. denied, 439 U.S. 984, 99 S. Ct. 576, 58 L. Ed. 2d 656 (1978); Nordquist v. Uddeholm Corp., 615 F. Supp. 1191, 1199 (D. Conn. 1985) (six month time lag between plaintiff's discharge and defendant's advertisement of an open position does not preclude finding of replacement because the position required specialized knowledge and hiring decisions for such positions were made infrequently).
Second, because Plaintiff's theory is internally inconsistent, there is no genuine issue that Plaintiff was replaced. Initially, Plaintiff argues that Holland could not have based her decisions solely on performance because Denton "was not competent and had serious problems carrying out his third shift duties including sleeping during his shift." Pl.'s Reply Opp'n Def.'s Mot. Summ. J. at 14.
Additionally, Plaintiff avers that Holland "realized that Mr. Denton could be disposed of at any time because of his serious employment inadequacies." Id. at 21. Later, however, Plaintiff contends that Denton was competent, and that Holland wrongfully terminated Denton in October 1992 simply to replace him with the much younger Geraghty. Id. ; Oleksiuk Aff. PP 9-10. Thus, Plaintiff's replacement theory requires belief that Denton was so incompetent in February 1992 that Holland's decision to retain him and terminate Plaintiff was a pretext for later age discrimination, but also that Denton was sufficiently competent in October 1992 that Holland's decision to terminate Denton was a "setup," unjustified, and solely based on age bias. No jury reasonably could conclude from this inconsistent evidence that SmithKline replaced Plaintiff with Geraghty.
Because Plaintiff has failed to offer facts sufficient to establish that he was replaced, and because no jury reasonably could conclude from the facts that Plaintiff has offered that he had been replaced by Geraghty, SmithKline is entitled to summary judgment on Count I of Plaintiff's amended complaint.
B. SmithKline's Separation Benefit Plan
As part of its separation benefit plan, SmithKline offered enhanced severance benefits
to terminated employees who signed a general release of all claims against SmithKline.
SmithKline asserts that the Plan does not violate ADEA, and that Plaintiff's claim fails under both the disparate treatment and disparate impact theories of employment discrimination. I shall address these issues in turn.
Disparate treatment discrimination exists where "the employer . . . treats some people less favorably than others because of their race, color, religion [or other protected characteristics.] Proof of discriminatory motive is critical, although in some situations it can be inferred from the mere fact of differences in treatment." Hazen Paper Co. v. Biggins, 123 L. Ed. 2d 338, 113 S. Ct. 1701, 1705 (1993). If the challenged employment policy is facially discriminatory, no further proof of intent is necessary. See U.A.W. v. Johnson Controls, Inc., __ U.S. __, 499 U.S. 187, 113 L. Ed. 2d 158, 111 S. Ct. 1196, 1203-04 (1991).
SmithKline's separation benefit policy constitutes disparate treatment because it facially discriminates based on age. By its express terms, SmithKline's Plan conditions enhanced benefits on the waiver of any and all claims arising under ADEA. Because ADEA provides a cause of action for age discrimination only to persons age forty and above, the Plan explicitly treats older employees differently than younger employees. An employment policy explicitly mandating different treatment of persons within the protected class facially discriminates. See, e.g., Thurston, 469 U.S. at 121, 105 S. Ct. at 622. As the Supreme Court has noted, "whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination." Johnson Controls, 111 S. Ct. at 1204.
SmithKline argues, however, that the Plan does not facially discriminate because all employees are required to release all claims to receive enhanced benefits. SmithKline is incorrect. In order for an older employee to receive the same enhanced benefit as a younger employee, the older employee must release her right to file an ADEA claim. This treatment is patently different because the younger employee cannot have an ADEA claim. Moreover, this difference in treatment is solely related to age.
Furthermore, the Plan discriminates against individual older employees. ADEA makes it unlawful to "discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's age." § 623(a)(1) (West 1985) (emphasis added). The statute focuses on individuals, and precludes treatment of individuals as simply components of an age-based class. In this regard, Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978) is highly instructive.
The Los Angeles Department of Water and Power administered its own retirement, disability, and death benefit programs for its employees. Id. at 1373. The monthly retirement benefits for men and women of the same age, seniority, and salary were equal. Id. Based on a study of mortality tables showing that women, on average, outlive men, the Department required its 2000 female employees to make monthly contributions to its pension fund that were 14.84% higher than the contributions of its 10,000 male employees. Id. at 1374. The Department contended that the differential was not prohibited by Title VII because the value of the average female employee's pension benefit was greater than that of the average male employee. Id. The Supreme Court rejected this argument, stating that "even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply." Id. at 1375. The Supreme Court concluded that
An employment practice that requires 2,000 individuals to contribute more money into a fund than 10,000 other employees simply because each of them is a woman, rather than a man, is in direct conflict with both the language and the policy of [Title VII]. Such a practice does not pass the simple test of whether the evidence shows treatment of a person in a manner which but for that person's sex would be different.
Id. at 1377 (internal quotation omitted). Similarly, an employment practice that requires older individuals to release more rights than younger workers simply because each of them is at least age forty, rather than below age forty, is in direct conflict with both the language and the policy of ADEA. Such a practice does not pass the simple test of whether the evidence shows treatment of a person in a manner which but for that person's age would be different.
SmithKline argues that it is incorrect to assume that an older employee gives up more than a younger employee because the older employee may not have a viable age discrimination claim. This argument is completely inapposite because SmithKline does not limit enhanced benefits solely to those employees willing to release all viable claims. Instead, SmithKline extends enhanced benefits to any employee willing to sign the release, regardless of whether the employee has viable claims. Additionally, all employees age forty and above are protected by ADEA, and therefore have potential age discrimination claims. Some older workers may have meritorious claims, while others may have no valid basis for claiming age discrimination. But SmithKline's policy exchanges valuable consideration for the release of all potential claims, meritorious and meritless. Viability is immaterial, therefore, because SmithKline does not limit enhanced benefits solely to employees who release viable claims. Rather, the Plan targets the right to make claims, and explicitly discriminates because older workers only receive the benefit enhancement if they waive potential claims that younger workers simply cannot have.
Concluding that SmithKline's policy facially discriminates, however, does not end the inquiry, because ADEA permits a limited category of employment practices that explicitly discriminate based upon age. See § 623(f); see also Hazen, 113 S. Ct. at 1709 (stating that "ADEA is not an unqualified prohibition on the use of age in employment decisions"). Specifically, the statute states that "it shall not be unlawful for an employer . . . to observe the terms of a bona fide employee benefit plan where, for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker." § 623(f)(2)(B)(i). An employer may only invoke this statutory exception, however, where a reduction in employee benefits is justified by age-related costs. See Older Workers Benefit Protection Act, S. Rep. No. 263, 101st Cong., 2d Sess. 12 (1990) [hereinafter Senate Report ], reprinted in 1990 U.S.C.C.A.N. 1509, 1517 (noting that limitation of § 623(f)(2) to benefit reductions justified by age-related cost considerations is consistent with congressional intent).
Where the employee benefit involves no age-related costs, however, such as paid vacation and uninsured paid sick leave, the statutory exception does not apply. See id. at 18, 1990 U.S.C.C.A.N. at 1524. Similarly, § 623(f)(2) does not apply to lump-sum severance pay. See id. at 12, 1990 U.S.C.C.A.N. at 1517 (citing with approval EEOC v. Borden's, Inc., 724 F.2d 1390 (9th Cir. 1984), and EEOC v. Westinghouse Elec. Corp., 725 F.2d 211 (3d Cir. 1983), cert. denied, 469 U.S. 820, 105 S. Ct. 92, 83 L. Ed. 2d 38 (1984)). Because SmithKline's enhanced separation benefits are distributed in the form of a lump-sum severance payment involving no age-related costs, § 623(f)(2) does not apply.
Amicus EEAC asserts on behalf of SmithKline that the Plan does not require older workers to give more than younger workers to receive enhanced benefits, but that even if it did, the principle underlying § 623(f)(2) supports a conclusion that the Plan does not violate ADEA. Specifically, EEAC argues:
Like the increased cost of some benefits due to age, a particular employee's membership in the ADEA protected class is a fact of life over which the employer has no control. Congress did not require employers to pay extra life insurance premiums so that older workers could be insured for the same amount as younger workers. In the same manner, Congress did not require employers to pay extra consideration in order to obtain a valid ADEA waiver.