The EEOC recently upheld a finding of unlawful employment discrimination where an agency removed an employee’s supervisory duties, and the employee’s own supervisor made age-based comments. Cook v. Department of Labor, EEOC Appeal No. 0720080045 (February 22, 2010).

Florida Cook, an employee of the Department of Labor (agency), brought a complaint alleging that she had been the victim of unlawful discrimination on the bases of her race, and age when the agency removed her supervisory duties. Ms. Cook also alleged unlawful discrimination on the bases of her age and reprisal for her participation in protected EEO activity when she received a rating of “minimally effective” on a performance evaluation.

Cook prevailed on her claims following a hearing before an administrative judge (AJ). The AJ found that Cook had successfully made out a case of unlawful discrimination on the basis of age with respect to the removal of her supervisory duties, and that she had also established unlawful discrimination on the basis of age and reprisal regarding her “minimally effective” performance appraisal. The agency, however, issued a final order rejecting the AJ’s findings of discrimination and filed an appeal with the EEOC’s Office of Federal Operations.

On appeal, the agency argued that the AJ had not properly taken into account its legitimate, non-discriminatory reasons for its actions. It said it removed Cook’s supervisory duties, for example, because it needed to train payroll technicians under Cook’s supervision in other areas, and so it moved them to another branch, outside her supervision. The agency also argued that any age-based comments made by Cook’s supervisor were merely inquiries related to her expected retirement for purposes of succession planning. Regarding Cook’s performance evaluation, the agency asserted Cook had failed to complete several assignments or meet certain standards necessary for a higher evaluation.

The Commission found that Cook had presented sufficient evidence to support her claim that the agency’s removal of her supervisory duties was the result of unlawful age-based discrimination, but not raced-based discrimination. At the time that the agency changed Cook’s title from supervisory human resources specialist to human resources specialist, she was approximately 59 years old. Cook testified that her supervisor made various comments about younger employees, including that “younger employees are coming in and that they are better with computers,” and “younger people are taking over and they’re the best.” Ms. Cook also testified that her supervisor asked her several times when she planned to retire.

The Commission found that despite the agency’s proffered reasons for removing Cook’s supervisory duties, the evidence was sufficient to support a finding of age discrimination. It noted that testimony from other witnesses did not always corroborate the agency’s explanation of the reasons for its actions, and one witness testified that Cook’s supervisor repeatedly talked about replacing Cook with a much younger employee. The Commission also found that although Cook had not presented sufficient evidence to show that her poor performance evaluation was the result of age discrimination, the evidence was sufficient to show discrimination based on retaliation. Cook showed that a number of the factual allegations on which the agency based her rating were not accurate, and that the agency’s reasons for the poor evaluation were therefore merely a pretext for discrimination.

This case helps to define the kinds of comments that can support a finding of age-based discrimination. Repeated questioning about an employee’s plans for retirement, combined with comments about the superior skills of younger employees, can be sufficient to show that some adverse employment action (like the removal of supervisory duties in this case) is discriminatory.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

 

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