Hiring a Younger Worker for New Job Didn’t Violate the ADEA

 

By Erin K. Walsh June 18, 2019
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​The 1st U.S. Circuit Court of Appeals upheld the principle that age discrimination cannot be inferred solely from the subsequent hiring of a younger employee for a position that is plainly inferior to a plaintiff's previous job.

The plaintiff, a 62-year-old employee, was a physical plant director at Metrohealth Inc. As plant director, the plaintiff handled maintenance issues, managed the department's budget, oversaw utilities management and repairs, attended meetings with senior personnel, procured supplies, hired contractors to perform larger projects, and maintained safety and security. The plaintiff's salary was approximately $7,432 per month, and he supervised a deputy director.

As part of an effort to cut costs, Metrohealth closed the physical plant department, fired the plaintiff and the deputy director, and hired an outside contractor to perform maintenance services. Some months later, the plaintiff discovered that Metrohealth had created a safety officer position and rehired the former deputy director, who at the time was 36 years old.   

The plaintiff sued Metrohealth under the Age Discrimination in Employment Act (ADEA), as well as under Puerto Rico's anti-discrimination law and tort law. The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

The plaintiff's claim relied on two theories:

  • Metrohealth unlawfully fired him because of his age and rehired the former deputy director, a younger employee, to perform the same job functions.
  • Metrohealth's decision to hire the former deputy director instead of the plaintiff for the safety officer position violated the ADEA.

The trial court granted judgment as a matter of law to Metrohealth on both theories, and the plaintiff appealed.

On appeal, the 1st Circuit affirmed and held that the plaintiff had failed to meet his burden of showing that either his previous job or a position involving comparable duties and responsibilities at Metrohealth was later filled by a younger person, or that he applied for a position and was not hired because Metrohealth preferred a younger candidate. In making its determination, the 1st Circuit focused on the fact that the plaintiff's original position was eliminated entirely. Additionally, although the security officer position's responsibilities did overlap somewhat with the plant director position's (e.g., safety and security), this alone was insufficient to show that the position was comparable, given that the safety officer's monthly salary was significantly less ($2,183), and the safety officer position was not a management or leadership position.

The 1st Circuit also declared that the plaintiff's failure to apply for the position was a fatal defect in his claim that the company discriminated against him when it rehired the former deputy director.

Hoffman-Garcia v. Metrohealth Inc., 1st Cir., No. 17-1544 (March 19, 2019).

Professional Pointer: Employers may fire older employees according to nondiscriminatory, legitimate business practices, including the elimination of a position. Employers nevertheless should be mindful when restructuring a department or creating new jobs. A new position that inherits a few of the responsibilities of the former position or is inferior to the eliminated position will generally not create an inference of discrimination. However, creating a new position that has the same or substantially similar job duties and responsibilities as the eliminated position may create an inference of discrimination if a younger employee is later hired for that position.

Erin K. Walsh is an attorney with Franczek PC, the Worklaw® Network member firm in Chicago. 

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