Ageist Comments Support Discrimination Claim Against Sears

A recent Eastern District decision, Sandvik v. Sears Holding/Sears Home Improvement Products, Inc., illustrates the nature and quantity of evidence necessary to overcome summary judgment in an age discrimination case under the federal Age Discrimination in Employment Act and its state/city law counterparts.

Plaintiff – who worked for defendant for 38 years before his departure – claimed that he was subjected to age discrimination by being demoted and ultimately constructively discharged because of his age. While the court granted the defendants’ motion for summary judgment as to a discriminatory demotion (since it was not contained within or “reasonably related to” his EEOC charge), it denied their motion in other respects.

For example, in upholding plaintiff’s constructive discharge claim, the court noted:

[P]laintiff claims he frequently was told that SHIP “needed more young blood in the organization” and “to get rid of the old wood.” At job fairs, [defendant’s Regional Vice President] allegedly said, “I don’t know what’s wrong with these older guys, they don’t want to work, we need younger blood.” [The Regional Vice President to whom plaintiff directly reported] also allegedly said, “We got to get rid of these old guys, we have to fill them with new, younger blood.” According to plaintiff, “[t]here just seemed to be a perception with all the individuals that we need younger people in the organization because they felt that the younger people had more energy, and they wanted to mirror other parts of the country where there was an overall younger organization in the home improvement business.” Superiors also allegedly exploited performance numbers to manipulate them and develop “sham PPIs” for older employees. Plaintiff also points to the lack of any documentary evidence about plaintiff’s demotions, and that [two employees who are significantly younger than plaintiff] immediately replaced him after each demotion. In addition, there is evidence [plaintiff was] told [that] he was in a precarious situation … regardless of any offer of promotion back to [District Sales Manager] after the demotion to [Field Service Manager]. Thus, plaintiff asserted that the promotion offer was dubious given that the same supervisors previously had falsely taken issue with his performance.

Furthermore, although “[t]here are no statements from any supervisor indicating that plaintiff was demoted or treated poorly because of his age … to be successful in such a suit, plaintiff need not present direct evidence of discrimination.” The court concluded that “the evidence suggests more than a performance-related demotion” and that “a reasonable factfinder could conclude that plaintiff’s demotion was part of a policy to push out older employees.”

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