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Pierson v. Quad/Graphics Printing Corp., No. 13-5784 (6th Cir. Apr. 18, 2014)

Here's a nice, simple reminder for HR professionals and laid-off employees: that when an employer can not line-up behind a single reason (or even a single decision maker) for a termination decision, and instead keeps changing its mind, the reason lurking beneath may well be discrimination. The Sixth Circuit sends an age-discrimination claim back for trial where the employer allegedly switched stories midstream, from contending that the employee's job was eliminated to arguing that the termination was based on a negative performance evaluation.

Pierson v. Quad/Graphics Printing Corp., No. 13-5784 (6th Cir. Apr. 18, 2014): As the opinion summarizes, "On August 23, 2011, Pierson was terminated. He was sixty-two years old. Lentz read from a 'script' provided by human resources that explained that Pierson was being terminated as part of a reduction in force." Joe Muehlbach, the Executive Director of Facilities and Environmental Affairs, had been charged by the company CEO with making a "review [of] every position within the company [and] make a determination on whether those positions were truly needed." Carl Lentz, QG's Southeast Regional Facilities Manager, identified Pierson as among the expendables.

The day prior to Pierson's being separated, Lentz reportedly "informed Sandra Snyder, the Human Resources Manager for the Dickson plant, that he would be visiting the plant the following day to discharge Pierson. He explained that his decision rested in part on Pierson's failure to be a 'team player.'" Though the idea of 'team player' was reflected in Snyder's notes, it was not initially communicated to Pierson. Indeed, "Muehlbach maintains that the decision was based entirely on a need to reduce employee headcount, particularly at Dickson, and that Pierson's performance was not a factor he considered." At the same time, Lentz reportedly "justified the decision by preparing performance evaluations that reflect that Pierson was not a 'team player.'"

Pierson was replaced in his duties by a 47-year-old manager named DePriest.

The Sixth Circuit, reversing summary judgment, holds that the company's replacement of a 62-year-old employee, supposedly owing to a reduction-in-force but later justified by poor performance, presented a triable issue of fact for a jury under the ADEA and Tennessee anti-discrimination law. It found that three separate channels of dissembling possibly  ran through the employer's defense.

First, despite the employer's contention that Pierson's job was eliminated, the record told another story:

"It is undisputed that DePriest's day-to-day schedule and responsibilities changed after Pierson's termination. DePriest began spending the majority of his time, often five days per week, at the Dickson plant, and he eventually moved his office to Dickson permanently. He still consulted on projects at
other plants and occasionally traveled to regional facilities to supervise energy-related or capital projects, but the majority of his time was diverted to managing the Dickson plant .... QG's position that DePriest retrained his preexisting duties pertaining to energy management, energy procurement, and project support for other local plants while also assuming Pierson's responsibilities as Plant Facilities Manager is undermined by evidence that both positions were full-time jobs with a 'huge workload,' and that DePriest's
work hours did not increase."

Second, there was a dispute about who made the decision to terminate Pierson:

"To ascertain what actually motivated QG to terminate Pierson's employment, we must first determine which QG employee or employees contributed to the termination decision. Both Muehlbach and Lentz claim to have made the termination decision independently. QG argues that Muehlbach selected Pierson's position for elimination and that Lentz did not have any role in the decision, even if he independently reached the same conclusion. Pierson, on the other hand, argues that Lentz made the termination decision after the August 19 meeting of regional managers, and that Muehlbach merely approved it through his communications with corporate human resources.  

Finally, the company's latter-day substitution of the "team player" excuse, complicated its defense of this case all more: "Although it is possible that Lentz had Pierson's allegedly poor teamwork in mind when he initially selected him for termination, and that both reasons played a role in Pierson's discharge, a reasonable jury could conclude that Lentz shifted the reasons for his decision over time"

Owing to the employer's fish-tailing through the termination process, a jury may no infer that it was hiding the true cause of Pierson's termination - his relatively advanced age.

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