Age Discrimination Claim Survives Summary Judgment; Performance Issues Not Raised Until After Termination

In Rysak v. Ferro Corporation, Civil Action No. 22-2311, 2023 WL 3138937 (E.D.Pa. April 28, 2023), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s age discrimination claim under the Age Discrimination in Employment Act.

Initially, there was no question that plaintiff made out a prima facie case of age discrimination; specifically, she was 66 years old when she was terminated, and a significantly younger employee was selected for the consolidated position.

The court additionally explained:

Rysak has produced evidence from which a fact finder could conclude that Ferro’s legitimate, non-discriminatory reasons are pretext for age discrimination. She points to discrimination against other older persons, arguing that the VERP [voluntary early retirement program] “target[ed] only those over fifty-five (55) as an express message from the company that this category of people was no longer wanted.”

Ferro argues that the VERP was lawful when it was offered. Ferro is correct. “[A]n offer of early retirement can only benefit an employee and, while it may present her with a difficult decision, the mere offer without more does not support a claim of age discrimination.” But, it is not irrelevant. It may, together with other evidence, show that Ferro intended to wean its older employees from the work force in favor of younger ones.

Rysak was terminated on March 6, 2020. Three other older employees who declined the program were terminated: Barb Getting, John Moore, and Samy Palanisamy. Moore and Palanisamy were terminated three weeks after Rysak. Getting was terminated on August 8th, 2020. Although all four employees were told their positions were eliminated, the reorganization plan documented only Moore and Rysak’s eliminations. Ferro has not identified any employee younger than 55 whose position was eliminated.

Ferro argues that its VERP is not evidence of age bias because it had been offered nearly a year before the company’s reorganization. It claims that the program was optional for eligible employees who were free to decline and continue their employment without consequence.

Whether there was a causal connection between the VERP and the terminations of Rysak and the other older employees who had rejected the offer of early retirement is for the fact finder. A jury could reasonably find that Ferro intended to replace older employees and found ways to do so after the initial step—the VERP—failed. The jury could decide that Ferro was patiently implementing a plan to avoid the appearance of age-motivated discrimination.

[Cleaned up.]

The court continued by explaining that defendant’s “proffered explanation that Rysak’s performance was a factor in the decision to choose the younger employee is not supported by the record”, noting that plaintiff’s “performance was not raised until after she was terminated.”

Share This: