10/31/2009 4:09:00 PM Age discrimination lawsuit re-instated against Arizona company
By Howard Fischer Capitol Media Services
PHOENIX -- A federal appeals court has reinstated an age-discrimination suit filed by former Phoenix employees of an international firm.
In a unanimous decision, a three-judge panel of the 9th U.S. Circuit Court of Appeals concluded there was sufficient evidence for a jury to conclude that Inland Paperboard and Packaging improperly terminated three workers because of their age. The court said that made it wrong for U.S. District Court Judge Neil Wake to toss the case before the trial.
The decision gives the U.S. Equal Opportunity Employment Commission, which is representing the workers, a chance to make its case to a jury.
The lawsuit involves several workers.
One is David Neal, born in 1946, who became general manager of the Phoenix plant in 1997, before Inland bought the facility in 2002. He was terminated nine months after that and replaced with someone born in 1961.
Another is Clifton McGraw who was born in 1941. He was hired as production manager in 2002 and became logistics manager, a position created by the regional manager, two years later. The regional manager filled the production slot with a worker born in 1961. He then eliminated the logistics manager slot and had the duties assigned, at least in part, to that same new production manager.
The third worker was John Vanecko who was born in 1941. He had been controller at the plant before Inland acquired it.
In 2003 the company created a position of regional controller with an office in Phoenix, consolidating that with the local controller two years later. The decision was made to have the regional controller, born in 1968, get the consolidated job.
Wake concluded -- and the 9th Circuit agreed -- that the changes, by themselves show the basis to show disparate treatment based on age. But Wake said the EEOC did not present enough evidence to conclude that there had been actual illegal discrimination.
The three-judge appellate panel, in an unsigned opinion, decided otherwise.
For example, they rejected Inland's argument that the EEOC had failed to show that Neal was performing his job satisfactorily, one of the elements required to show discrimination.
The appellate judges said evidence was presented that Neal never received a negative rating or any warning that his job was in jeopardy. There also was evidence that his supervisors were satisfied with his plans for the plant.
They also brushed aside Inland's arguments that Neal's replacement, Juan Garza. was more qualified because he had held a higher-ranking position than Neal in which he oversaw multiple plants and because the person who replaced Neal had previously been involved in saving two other unprofitable Inland plants. They said that didn't necessarily make Garza more qualified to run the Phoenix plant, which Neal had done for six years.
"Garza's duties as regional director differed from those of a plant manager, and an executive is not necessarily qualified for a job merely because the position reports to him,' the appellate judges wrote. "Likewise, while the Phoenix plant became profitable after Garza took over, the fact that a facility was profitable under one manager and not another does not mean the two managers (ITALICS) qualifications (ROMAN) differed.'
And the judges said the evidence of what Garza had done at two other plants was not conclusive.
As to the other two workers, the appellate judges said the evidence showed that while their positions were eliminated, the job functions were still being performed -- and by people who were younger.
Finally, the appellate court concluded that EEOC presented enough evidence for a jury to conclude that the reasons offered by Inland for the firings were merely an excuse, saying there were comments from supervisors which could conclude that they "harbored discriminatory animus' toward older workers.
