Elizabeth Gomez

Saratoga Hostel v. Avila (2009)

In 1999, Maria Avila was hired as a housekeeper by Saratoga Hostel; she was 42 years old. Her duties included: cleaning twelve rooms a day, doing some laundry, and cleaning the hallways as well. Due to the economic crisis of 2009, Saratoga Hostel hired a new business consultant to find ways to reduce costs and personnel. The housekeeping department let go 3 of their 10 employees. The manager then decided to train all employees to clean 14 rooms per day instead of 12. When the training was over, 3 employees could not handle the pressure of the new routine, Avila was of them. These three employees were given another week of training. After that week, when their performance did not improve, the manager called each of the 3 employees to a private meeting, and opened a new part-time/seasonal housekeeper position. Avila was given a verbal warning for her current poor performance (up to this point, Avila’s performance was always described as “good” or “excellent”.) Comments about Avila’s age starting to be heard around the hotel after her warning; she was called “grandma”, and constantly asked if she usually uses her “senior discount” at stores. She was the oldest housekeeper. Also, rumors around the employees were saying that, out of the three employees who were called to speak to the manager, only Avila’s was given a verbal warning. When her performance did not improve, she was terminated in January 2010. She was 53 years old.

Avila brought suit against Saratoga Hostel claiming (1) age discrimination under the California Fair Employment and Housing Act (“FEHA”), as well as (2) wrongful termination in violation of public policy. She claimed the other one of the other two employees that were called to the manager’s office was younger than her (under 40) and that she was never disciplined in any way, and that the hotel hired a much younger person to replace her. Saratoga Hotel Saratoga Hostel claimed Avila’s termination was based merely on her poor performance, and that all employees were “at-will.” They also claimed that to stay in business they were implementing a new performance standard where employees were asked “to do more in less time,” Avila was not able to follow this, and that the new part-time position offered was also included in the new business plan. Saratoga Hostel also claimed one of the employees who kept her job was over the age of 40.

Brian Reid v. GOOGLE, INC., (Cal. Supreme 2010) Plaintiff Brian Reid joined Google at the age of 52 as the company's director of operations and director of engineering. His performance review during his 2 years at Google indicated that he "consistently [met] expectations" - Reid's supervisor commented: "adapting to Google’s culture is the primary task for the first year here... right or wrong, Google is simply different: younger contributors, inexperienced first line managers, and the super-fast pace are just a few examples of the environment." According to Reid states, during his two years at Google, an executive to whom Reid occasionally reported (then aged 38) made age-related comments to Reid "every few weeks," telling him that his ideas were "obsolete" and "too old to matter," and that Reid was "slow," "fuzzy," "sluggish," and "lack[ed] energy." A little more than a year after joining Google, Reid was relieved of from most of his duties and asked to focus on developing and implementing an in-house graduate degree program and recruitment program. Soon thereafter, Google terminated his employment, allegedly stating that he was not a "cultural fit." The court agreed the that while the remarks about the plaintiff’s age constitute in fact evidence of a possible discrimination case, those remarks alone are not direct evidence of age discrimination, and that Google showed evidence to support that a non-discriminatory reason was the main factor for terminating Reid, “i.e., the elimination of the graduate degree program.”

In Maria Avila’s case, there were also comments alleging her “old” age, and while she did not know who started them, those remarks alone, as seem above in Reid v. Google, while they can be enough to file a claim, are not by themselves enough to prove age discrimination. Reid was fired for not being a “fit” to Google’s culture; Avila was terminated because she was not a fit to the new Saratoga Hostel’s performance standard policy. Under FEHA, the employer is required to establish that its practice is justified by business necessity. In Avila’s case, Saratoga Hostel can prove that under the new business plan, the company was forced to change their performance standard in order to stay in business.

In Earl v. Nielsen Media Research, No. 09-17477 (9th Cir. Sept. 26, 2011) Christine Earl was hired by Nielsen Media, Inc. (“Nielsen”) in 1994 at age 47. She worked for 12 years as a Membership Representative, or “recruiter” until her termination. Nielsen committed three company policy violations before being placed in Development Improvement Plan (“DIP”) in February 2006. The “DIP” “stated that her failure to meet company expectations in the future “may result in the implementation of the disciplinary process,” a “PIP” “states that failure to meet expectations may result in further disciplinary action up to and including termination.” At no point during her time at Nielsen was Earl placed in a Performance Improvement Plan (“PIP”.) The same year, Earl’s supervisor prepared Earl’s annual performance review and wrote “Overall, she had a good year.” In September 2006, Earl was diagnosed with a peripheral neuropathy, and she told everyone in the company. The plaintiff made another violation before being terminated in January 2007, she was 59 years old.

In 2007, Earl suited Nielsen in California Superior Court claiming age, and disability discrimination under the California Fair Employment and Housing Act (“FEHA”.), and wrongful termination in violation of public policy. Earl claimed that Nielsen treated younger employees who made the same violations more favorably (they were put in a “PIP”), and that Nielsen hired new and significantly younger employees than Earl before and after the plaintiff’s termination, and even though Nielsen did not have an official disciplinary policy, the HR Manager comment that he would consider a “PIP” as part of Nielsen’s formal disciplinary process. Nielsen claimed that only non-discriminatory reason for Earl’s separation was her multiple violations of company policy. Earl alleged Nielsen’s motive was pretextual. Employee prevails. The Company deviated from its regular procedure when it terminated Earl without first placing her on a PIP, as it did with the other employees. Even if the Company did not have an official policy of first placing employees on PIPs, there was evidence that the Company applied a more forgiving disciplinary process to younger recruiters who were similarly situated to Earl.

Like in the case above, Maria Avila’s claim also alleged that when she was disciplined, she was in fact treated differently than a younger employee with the same performance problem. She was also hired and terminated past the age of 40 (as Earl.) (rephrase sentence) Here we see that main reason why Avila was separated was her poor performance.

In Sheppard v. David Evans & Assoc., No. 11-35164 (9th Cir. Sept. 12, 2011), the age protected plaintiff, Kathryn Sheppard, claimed she was victim of discrimination under the Age Discrimination Act (“ADEA”), and “wrongful discharge” under Oregon State Law. Sheppard, who constantly received satisfactory or better performance reviews, alleged there were five other comparators employed by Evans of which she was the oldest and the only one terminated. Prior to her termination, the plaintiff had a surgery which qualified her for Family Medical Leave for a serious illness, her right as an employee. The district court dismissed the action under FRCP 8(a)(2), finding that “the plaintiff failed to plead her causes of action with sufficient factual detail to state a claim.” However, The Court of Appeal reversed the district decision, holding that the plaintiff satisfied the Rule 8(a) (2) requirement that the complaint be supported by “a short and plain statement of the claim showing that the pleader is entitled to relief.” As to the ADEA claim (McDonnell Douglas Corp. v. Green, 1973,) the Court held that the plaintiff alleged a plausible prima facie case of age discrimination by alleging that: (1) she was at least forty years old; (2) “her performance was satisfactory or better” and that “she received consistently good performance reviews”; (3) she was discharged; and (4) her five younger comparators kept their jobs.

Maria Avila did in fact establish a prima facie of discrimination: (1) she was over 40 years old; (2) her performance reviews prior her termination were was always good; (3) she was terminated; (4) younger employers kept their job. However, even when the plaintiff has established the four requirements for a prima facie case, under the ADEA, the defendant now has to prove that their decision was based on legit legitimate and non-discriminatory issues. Even though this is an Oregon case (where FEHA is not applicable), in Avila’s case, Saratoga Hostel can refuse Avila’s claim of discrimination by proving that, due to budget cuts and following its new business plan, a new performance standards was now asking employees “to do more in less time.”

Conclusion

We conclude that Saratoga Hostel should try the case since its decision of terminating Maria Avila was legitimate and non-discriminatory. Avila alleges disparate treatment discrimination under the FEHA against Saratoga Hostel; disparate treatment occurs when an employer treats an individual less favorably than others because of the individual's protected status. However, the defendant had kept an employee who is also protected under FEHA, and was in the same position as Avila regarding performance.

Practical Recommendations to Avoid Future Liability Claiming Age Discrimination

• RIF’s are commonly related with age discrimination cases. Review and document each case in order to avoid liability (performances reviews, appraisals, meetings, etc.)

• Train, and re-train all managers in the issue of age discrimination. They should never permit, encourage, or participate in any kind of remarks or comments (“jokes”) related to the employees’ ages.

• Avoid differentiating employees, whether is about promotions or appraisals, all work practices should be consistent.

• When in doubt, consult with a Human Resources Manager or a legal professional before taking a decision that involves any kind of adverse impact on a staffing decision.