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Sixth Circuit Refines Heightened Standard Applicable To Discrimination Cases In The Context Of Reduction In Force

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Sixth Circuit Refines Heightened Standard Applicable To Discrimination Cases In The Context Of Reduction In Force

For years, employers executing reductions in force have been able to rely upon the heightened standard imposed on plaintiffs alleging discrimination in the selection process to defeat those lawsuits.  A plaintiff bringing such a case in the Sixth Circuit could not establish a prima facie case of discrimination simply by alleging that they were part of a protected class, suffered an adverse employment action, were qualified for the job, and that the job was subsequently given to a person outside the protected class.  In the context of a reduction in force, a plaintiff had to present additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled him out for discharge for impermissible reasons.  See Barnes v. GenCorp, 896 F.2d 1457 (6th Cir. 1990).  Importantly, under Barnes a reduction in force occurred only where the employee was not replaced after discharge, and assigning a discharged employee's duties to a current employee in addition to his or her current duties was not considered a "replacement."  Id. at 1465.  On April 28, 2014, the United States Court of Appeals for the Sixth Circuit rendered its decision in Pierson v. Quad/Graphics Printing Corp., refining the definition of "replacement" in a way that significantly undercuts employers' ability to rely on the heightened standard set forth in Barnes

In Pierson, the 62 year old plaintiff was the Plant Facilities Manager at a printing facility owned by Quad/Graphics in Dickson, Tennessee.  Pierson's employment was terminated in August of 2011, allegedly as part of a reduction in force that impacted a large number of positions across the company.  Pierson's duties as Plant Facilities Manager were assigned to a current employee, DePriest, a 47 year old Energy Manager who worked out of a nearby office space.  Pierson sued, alleging age discrimination under both Tennessee and Federal law, claiming that he had been singled out for discharge because of his age and subsequently replaced by DePriest.  Quad/Graphics defended against those allegations by arguing that Pierson's position had been eliminated as part of a reduction in force, and that the selection of his position was motivated by economic conditions, not his age.  The trial court agreed with Quad/Graphics, dismissing Pierson's lawsuit through a grant of summary judgment, and Pierson appealed.

The Sixth Circuit reviewed the lower court's decision and reversed in an opinion that both altered the landscape for employers facing discrimination cases brought in the context of a reduction in force, and provided guidance to employers regarding the effect that "shifting" explanations for discharge can have on attempts to avoid liability for alleged discriminatory terminations.  First, the Sixth Circuit analyzed the standards applicable to a determination that an employee's position was eliminated as part of a reduction in force and found that an issue of fact existed requiring resolution by a jury as to whether Pierson's position had been eliminated at all.  Before the trial court, Pierson had presented evidence that DePriest had not simply assumed Pierson's duties in addition to his own, but instead had abandoned most of his existing job duties and stepped into Pierson's position.  For example, DePriest left his old office space and moved to the plant, spending most of his time there.  He still consulted on projects at other plants, but the majority of his time was devoted to Pierson's old job managing the Dickson plant.  Furthermore, many Quad/Graphics employees made statements supporting Pierson's view.  A manager at the Dickson plant posted a notice to all employees informing them that DePriest had joined the facility as Plant Facilities Manager, and another employee issued an internal memo stating that Pierson's duties were being "observed" by DePriest.  Altogether, the Sixth Circuit found, enough evidence existed that a reasonable jury could find that Pierson's position had not been eliminated, but instead had been reassigned to DePriest.

After finding that Pierson had presented sufficient evidence to establish a prima facie case of age discrimination, the Sixth Circuit turned to whether Pierson could establish that Quad/Graphics articulated legitimate, nondiscriminatory reason for discharge – the reduction in force – was a pretext for age discrimination.  The Court concluded that the shifting explanations provided by Quad/Graphics for Pierson’s discharge called into question the credibility of the company’s explanation as a whole, and created a question of fact that rendered summary judgment inappropriate.  For example, the decisionmaker testified that Pierson was selected for inclusion in the RIF because he believed that the position could be eliminated without hardship to the company.  But documents prepared at the time revealed that the same decisionmaker was considering terminating Pierson because he was not a team player.  When Pierson was informed of his termination, he was not told anything about a performance problem.  But when Pierson later attempted to appeal his termination, he was told that decisions were made based on “performance, not age.”  Those inconsistencies, the Court found, rendered summary judgment in Quad/Graphics’ favor wholly improper.

Pierson contains at least two important lessons for employers.  First, the case emphasizes the need for employers to carefully plan reductions in force, so that they are not vulnerable to claims that one employee replaced another when, in fact, the job duties were reassigned internally.   Had Quad/Graphics been more careful in both distributing Pierson’s job duties and in clearly communicating DePriest’s role internally, it is doubtful that the Court would have called the validity of the reduction in force into question.  Second, when an employer is communicating with an employee or a third party about the reasons for an adverse employment action, it is important to be consistent regarding the reason for that decision right from the start.  Changes in an explanation, even if they seem minor or innocuous, can be used to undermine the employer’s legitimate, nondiscriminatory reasons for an employment action.