An employer lawfully demoted an employee and was within its rights not to promote her following her refusal to participate in the application process, according to the 1st U.S. Circuit Court of Appeals. The court disagreed with a jury's finding of age discrimination.
The court also ruled that a decision not to promote the worker and an end-of-year performance review that was lower than her midyear evaluation were not retaliatory. However, it also held that a jury could have reasonably concluded that the employer unlawfully retaliated against the employee by threatening to terminate her employment if she did not return early from a medical leave of absence.
The plaintiff worked for Abbott Laboratories as a supervisor until 2010, at which time the company demoted her and two other employees as part of a reorganization. In March 2013, Abbott again demoted the plaintiff. She took a medical leave of absence due to anxiety related to this demotion but returned to work early after receiving a letter from Abbott threatening to terminate her employment if she did not return by a specific date.
In late 2013, the plaintiff submitted herself for consideration for a promotion but refused to participate in a required mock sales presentation. As a result, Abbott did not select the plaintiff for the promotion. In early 2014, Abbott gave the plaintiff a performance review for 2013 that was lower than one she received prior to making her age-discrimination complaint.
The plaintiff sued Abbott for age discrimination and retaliation under the federal Age Discrimination in Employment Act and Puerto Rican law as a result of her 2013 demotion, the threat of termination and denial of promotion. After a six-day trial, the jury found for the plaintiff, awarding back pay in the amount of $250,000 and an additional $4 million for emotional distress.
The district court upheld the liability verdict but reduced the damages to just over $500,000. Abbott appealed, arguing that there was not sufficient evidence to sustain the jury's verdict.
The 1st Circuit agreed with Abbott that there was not sufficient evidence of age discrimination. The plaintiff had relied on the fact that of the three individuals Abbott demoted in 2010, only the plaintiff was again demoted in 2013. At the time of the second demotion, the plaintiff was 53 years old and the other two employees were ages 44 and 41.
The appeals court held that these two co-workers were not apt comparators because in 2013 they were performing different duties and reporting to different supervisors than the plaintiff's.
The 1st Circuit also held that the plaintiff failed to prove her claim that the decision not to promote her following her age-discrimination complaint was retaliatory, because she surrendered her eligibility for the promotion when she did not engage in the mock sales presentation.
The appeal court also scrutinized the plaintiff's performance evaluations and found that as time progressed, she missed more deadlines and failed to complete more assignments. The court concluded that because the plaintiff's performance "indisputably worsened," no reasonable jury could infer that the lower review in 2014 implied a retaliatory motive.
The 1st Circuit did not, however, reverse the jury's finding that Abbott retaliated against the plaintiff when it threatened to terminate her employment if she did not return from her medical leave of absence early. The court found sufficient evidence for this aspect of the plaintiff's retaliation claim.
González-Bermúdez v. Abbott Labs. PR Inc., 1st Cir., No. 19-2249 (March 3, 2021).
Professional Pointer: This case illustrates the importance of fully documenting employee performance problems and maintaining uniform standards for job applicants. This case also highlights the dangers in threatening to terminate employment following an employee's engagement in protected activity.
Emily G. Camastra is an attorney with Swerdlow Florence Sanchez Swerdlow & Wimmer, A Law Corporation, the Worklaw® Network member firm in Beverly Hills, Calif.
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Court Rejects Age-Discrimination Claim but Upholds Retaliation Claim - SHRM
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