“I will get by, I will survive…” — Age Discrimination Case Survives Summary Judgment

Given that baby boomers are living longer and wanting to work past the usual retirement age, and that 40 is the new median age in the United States, companies should expect to see an uptick in age related claims. A recent federal district court decision serves as a refresher course on age discrimination in the context of a failure to promote. In Gonzalez-Bermudez v. Abbott Labs. PR Inc., 2016 U.S. Dist. LEXIS 140536 (D.P.R. October 9, 2016), the United States District Court for the District of Puerto Rico denied the Defendant’s motion for summary judgment on the Plaintiff’s claim under the Age Discrimination in Employment Act (“ADEA”).


The ADEA protects employees age 40 and over from discrimination in employment (hiring, firing, promotion, etc.) based on their age. The Supreme Court requires plaintiff to “establish that age was the ‘but-for’ cause of the employer’s adverse action,” a much stricter standard than that applied in Title VII cases. Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 129 S.Ct. 2343, 2351, 174 L.Ed. 2d 119 (2009). Courts have held that replacement of an employee with a younger employer cannot make a prima facie case of age discrimination if the age difference is less than five years. See Williams v. Raytheon Co., 220 F.3d 16, 20 (1st Cir. 2000).

In Gonzalez-Bermudez, the Court denied defendant’s motion for summary judgment primarily for the following reasons:

  • Plaintiff established that the demotion was an adverse employment action, she met the minimum requirements of the job, received “Achieves Expectations” performance ratings, and was never placed on an improvement plan or disciplined;
  • There was sufficient evidence to support that similarly-situated younger counterparts were treated more favorably in terms of raises and promotions;
  • Plaintiff was excluded from important company processes and meetings;
  • The job was filled by a 31-year-old external candidate (against company policy of favoring internal candidates and plaintiff met the requirements of the position); and
  • Defendant was inconsistent and contradictory on the record.

Additionally, the Court found that the employer had possessed cdec-george-sweikert-spoliation-of-evidence-2ertain relevant evidence yet destroyed it after being notified of a potential litigation. Accordingly, the Court granted plaintiff’s request for a spoliation sanction and noted that the jury would be instructed to infer that certain e-mails destroyed would have been unfavorable to the employer.

Best practice Tips: As soon as a potential claim is made, investigate it; in making a decision to not promote an employee over 40, make sure you have a reasonable basis for the decision and document it; immediately implement a document retention policy and make sure you maintain all documents relevant to claims. Following this guidance should help reduce significantly a company’s exposure to such claims.

This entry was posted in EPLI, Guest Blog and tagged , , by josejara2016. Bookmark the permalink.

About josejara2016

Jose is an attorney with over 20 years of ERISA and employee benefits law experience. In the field of employee benefits law, he provides innovative solutions to his clients by incorporating into his guidance a business and practical perspective. Jose has extensive experience in: - Guiding plan sponsors and fiduciaries through U.S. Department of Labor (DOL), Employee Benefits Security Administration (EBSA) – audits and investigations; and Office of the Solicitor – lawsuits. - Defending fiduciaries and boards of directors against ERISA class action litigation alleging breach of fiduciary duty (imprudent investments, employer stock, cash balance, excessive fees, delinquent employee contributions, ESOPS) - Advising on fiduciary responsibilities, plan fees and expenses, plan asset regulations, and ERISA prohibited transactions and exemptions - Correcting retirement plan errors under: the Internal Revenue Service, Employee Plans Compliance Resolution System (EPCRS), fiduciary violations under the DOL Voluntary Fiduciary Correction Program (VFCP), Annual Reporting failures under the DOL Delinquent Filer Voluntary Compliance Program (DFVCP) - Handle Withdrawal Liability Arbitrations and advise on Controlled Group and Affiliated Service Group, Plan Funding, and PBGC issues In the professional liability insurance arena, Jose advises on D&O, Fiduciary, and EPL insurance issues. As a former claims director at a major insurance carrier, he fully understands the triad relationship between the law firm, the client, and the insurance carrier and in litigation matters manages the relationships to produce optimal results for the trio involved. He has also acted as monitoring counsel and coverage counsel. Jose has provided advice to underwriters on a variety of provisions of the insurance policy and taught underwriters on spotting red flags and mitigating risks. Jose’s experience extends to advising his clients on a myriad of labor and employment issues, including, but not limited to: discrimination, retaliation, wrongful termination, restrictive covenants, exempt and non-exempt employees, over-time, and sexual harassment. He has also drafted employee handbooks and executive compensation agreements. Professional Affiliations - Leake and Watts Services, Inc., President of the Board of Directors - The Center for Family Support, Member of the Board of Directors - Benjamin N. Cardozo School of Law, Chairman of the Labor & Employment Alumni Group, Member and Officer of the Executive Committee of the Cardozo Alumni Association.

One thought on ““I will get by, I will survive…” — Age Discrimination Case Survives Summary Judgment

  1. Any EPL story, or pretty much any other story for that matter, that leads with lyrics from the Grateful Dead immediately gets my attention! Thanks for that.

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