RIF Age Discrimination Claim Advances to Trial

But claim of religious bias fails

By Marissa L. Abraham Apr 13, 2016
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A Jewish former systems engineer with Swiss Re America Holding Corp. (Swiss Re) failed to prove that he was laid off because of religious bias, but a jury must determine whether his age was the cause, the 2nd U.S. Circuit Court of Appeals held.

Swiss Re employed Gene Friedman from 1996 until 2008. In November 2008, Swiss Re implemented a reduction in force (RIF) as part of a reorganization of the information technology division. Swiss Re terminated the 50-year-old Friedman in that RIF. Friedman’s direct supervisor at the time was Risto Wieland. Wieland also previously managed Friedman’s prior direct supervisor.

Friedman filed suit claiming he was terminated on the basis of his religion and age in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the New York State Human Rights Law. Friedman alleged that Wieland was anti-Semitic, alleging that, in December 2005, Wieland told Friedman’s direct supervisor that he (Wieland) hated “Jews and blacks.” Friedman also alleged that Wieland was biased against older employees because of the following reasons: Wieland asked the age of every employee at a March 2007 meeting; Wieland told Friedman, then 48 years old, that his “hair and teeth would be falling out soon”; Friedman’s pay raises decreased; and Friedman was replaced by an employee in his thirties. Further, out of the 37 employees laid off in the RIF, 31 were over the age of 40.

The district court granted Swiss Re’s motion for summary judgment as to both of Friedman’s claims. The 2nd Circuit affirmed the judgment for the Title VII claim and held that Friedman had not presented any evidence that Wieland knew Friedman was Jewish. The only evidence Friedman proffered was one comment by Wieland, which was inadmissible as hearsay. The 2nd Circuit reversed the ruling on the ADEA claim, however, and sent the case back to the district court for further proceedings, noting that the court erred in two ways.

First, the district court wrongly determined that certain ageist comments made by Wieland constituted inadmissible hearsay. Second, the district court failed to consider the record as a whole to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of Swiss Re. Instead, the district court viewed each piece of evidence in isolation. For instance, the district court discounted the allegation that Swiss Re replaced Friedman with a younger, less-qualified employee because “the replacement of an older worker with a younger worker or workers does not itself prove unlawful discrimination.” Based on the record viewed as a whole, including the evidence of ageist comments, statistics indicating that a majority of the employees terminated pursuant to the RIF were older than 40 and a decline in Friedman’s bonus under Wieland’s supervision, Friedman had brought up material issues of disputed fact sufficient to survive summary judgment.

Friedman v. Swiss Re Am. Holding Corp., 2nd Cir., No. 15-1155 (March 18, 2016).

Professional Pointer: This case serves as a reminder that an employer engaging in a RIF should carefully consider exposure to age discrimination claims. In addition, the employer should regularly train and remind supervisors of its policies against discrimination and retaliation.

Marissa L. Abraham is an attorney with Marr Jones & Wang LLP, the Worklaw® Network member firm in Honolulu.

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