Court Awards $619,000 Against Verizon for FMLA Retaliation and Age Discrimination

​A female engineer presented sufficient proof of Family and Medical Leave Act (FMLA) retaliation and age discrimination in her firing by Verizon to support a $454,000 verdict, plus a $165,000 award of interest, attorney fees and costs, the U.S. District Court for the Eastern District of Pennsylvania held.

The plaintiff, a 56-year-old member of the design engineering team, had worked for Verizon for 36 years when she was laid off in 2015. While serving as a conduit highway engineering specialist in 2013, she took approximately 2.5 months of FMLA leave. When she returned, she worked only half days through September 2013.

In her 2013 midyear review, her supervisor wrote that the plaintiff "has missed time due to an injury" and gave her a less-than-satisfactory rating of "developing" in the review.

In April 2014, the plaintiff's supervisor transferred her to the position of turf engineer. In that position, the plaintiff obtained a "fac verification" score that measured the speed with which she completed her high-bandwidth jobs. This was the most important aspect of her job as a turf engineer. Her score was 10.3, which was better than the district average score of 18.2.

By year-end, she had reduced her fac verification score to 8.4, which was better than the team average of 12.7. In her 2014 year-end review, she received a satisfactory rating. In the review, her supervisor complimented the plaintiff's growth in the turf engineer role but criticized her delegation of work to contractors. Nevertheless, the supervisor expected his turf engineers to function as project managers and use contractors to get more work done, according to the court.

In March 2015, Verizon instructed the supervisor and another manager to select one person to terminate as part of a reduction in force.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

They were asked to "rate and rank" their team members before determining whom to terminate. The rate and rank protocol required managers to evaluate the performance of their team members during the previous two years. The two managers, however, allegedly did not engage in the formal rate and rank process to make their termination decision. Instead, they purportedly spoke by telephone and verbally agreed to select the plaintiff for termination. The plaintiff's immediate supervisor then allegedly contrived a rate and rank that justified his decision to fire her.

The plaintiff and an employee who was 12 years younger had the two lowest scores on the rate and rank. The younger employee had received an unsatisfactory rating in 2013. However, unlike the plaintiff, that employee had not taken FMLA leave in 2013. If the supervisor had not assigned the plaintiff a score of "developing" in 2013, she would have received the same score as that younger employee.

Unlike the plaintiff, the younger employee was subject to a formal performance improvement plan for his poor performance. The supervisor failed to take this corrective action into account on the rate and rank form despite being required to do so. If the supervisor had done so, the younger employee would have had a worse score than the plaintiff.

After her termination by Verizon, the plaintiff brought an employment discrimination and retaliation action against Verizon. The case went to trial and, after a five-day trial, the jury returned a verdict in the plaintiff's favor on her age discrimination claim as well as her claim of FMLA retaliation. The jury, however, rejected her claim of retaliation under the Americans with Disabilities Act. The jury awarded $188,000 in back pay damages, $256,000 in front pay damages, and $10,000 in pain and suffering damages against Verizon.

Verizon filed a motion for judgment as a matter of law, notwithstanding the jury verdict. Verizon claimed that the jury instructions were not accurate and that the plaintiff had not met the causation requirements. The court disagreed, finding that Verizon had not objected to the relevant jury instructions. In addition, the plaintiff's evidence had established that her use of FMLA leave was treated as a negative factor in her 2013 evaluation and that she would not have been fired "but for" her age. The court also awarded the plaintiff most of the cost of her attorney fees, plus cost and interest.

Walker v. Verizon Pennsylvania LLC, E.D. Pa., No. 15-4031 (Aug. 25, 2017).

Professional Pointer: Employers must monitor their managers to ensure that they fairly apply their evaluation systems to subordinates. A poor rating of an employee based on a protected activity may later result in a termination decision that unfairly discriminates against the employee.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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