Recently, the 7th Circuit Court of Appeals in Chicago affirmed summary judgment in favor of the employer in an Age Discrimination in Employment Act (“ADEA”) suit brought by a former employee who alleged he was terminated during a nationwide reduction in force due to his age. Martino v. MCI Communications Services, Inc. d/b/a Verizon Business Service, No. 08-2405, (July 28, 2009). The employee’s discriminatory discharge claim was based on the alleged animus of his immediate supervisor. However, his supervisor was not a decisionmaker with regards to his termination, so Martino had to rely on the “cat’s paw” theory, that his biased supervisor influenced and used the decisionmaker to take the unlawful action. The Court reaffirmed that generally comments by non-decisionmakers do not suffice as evidence of discriminatory intent. Further, a company can defeat the “cat’s paw” theory by showing that even if the nondecsionmaker was biased and attempted to get an employee terminated, the decisionmaker undertook an independent analysis and came to his own conclusion.
From February 2005 through July 2006, Guy Martino was employed first by MCI, and then, following a merger, Verizon Business Network Services. Martino’s immediate supervisor was Bob Gross. Martino was employed as a business solutions consultant, responsible for providing assistance to sales teams. Other than having the good fortune of working on a large deal in his first few months of employment, Martino failed to reach his quota from March 2005 through December 2005. Further, as a result of the merger with Verizon in January 2006, Martino’s skill set also became obsolete, making him a prime candidate for reduction.
In June 2006, word came down that 35 employees needed to be terminated in Martino’s group. The VP of IT (“Franklin”) asked the manager (“Rumstein”) to submit the names of individuals least likely to contribute to the company going forward. In addition to Martino, Rumstein identified five other employees (younger) based on (1) geographic coverage, (2) demonstrated ability to sell the complete product line, with special emphasis on managed services, (3) credibility with the core sales teams and (4) actual sales performance. Rumstein submitted his list to Franklin, who decided to discharge Martino based on his sales activity when the BP deal was removed from his numbers and his demonstrated, limited ability to sell managed services.
Martino conceded that there was no evidence of age discrimination when it came to Franklin (the actual decisionmaker) or Rumstein (the manager who offered him up in the RIF). Instead, using the cat’s paw theory, Martino alleged that his immediate supervisor (Gross) sometimes called him an “oldtimer” which showed a bias towards younger employees.
The Court indicated that Martino was required to offer direct or circumstantial evidence that Verizon’s decision to terminate him was based on his age. Here, the Court noted that Martino focused on Gross’s “oldtimer” comments, but because Gross was not a decisionmaker these comments are only relevant if Gross had a “singular influence” over the decisonmaker (Franklin and, to a lesser extent, Rumstein) and used that influence to cause the adverse employment action. Further, even if Gross was prejudiced, the Court found the case was particularly weak because there was actually two layers of bias-free analysis. Rumstein considered several legitimate factors in selecting Martino as a RIF candidate, as did Franklin when he adopted Rumstein’s recommendations. The fact that Rumstein conferred with Gross about Martino’s performance does not mean that Gross’s supposed animus should be imputed to Rumstein or Franklin, defeating the cat’s paw theory.
To leave no doubt in this case, the Court noted that Martino could not survive summary judgment in the wake of the Supreme Court’s recent decision in which held that in the ADEA context, it is not enough to show that age was a motivating factor, the plaintiff must prove that, but for his age, the adverse action would not have occurred. Gross v. FBL Financial Services, Inc., __ S. Ct. ___ 2009 WL 1685684 (June 18, 2009). This case highlights two critical areas for employers to consider in connection with reductions in force: (1) the ability of decisionmakers to articulate the reason(s) for selecting employees and (2) the independence of the decisionmaker(s). Here, both Rumstein and Franklin were able to articulate their individual, non-discriminatory reasons for selecting Martino, making an age discrimination claim difficult to establish.