Skip First Level Navigation | Skip All Navigation

Home > Reasonable Grounds Decisions & Reports > Investigators Report

Investigators Report: E07-0320

 

[Complainant]

v.

[Respondent]

 

I.  COMPLAINANT’S CHARGE:

Complainant alleged that Respondent terminated his employment because of his age.

II. RESPONDENT’S ANSWER:

Respondent, denied the allegation of discrimination and said that Complainant was one of two Parts Managers and that a lull in business forced the company to downsize, leaving a need for only one Parts Manager.  Tenure and performance were cited as the two determining factors in the layoff.

III.  JURISDICTIONAL DATA:

  1. Date of alleged discrimination:  May 10, 2007.
  1. Date complaint filed with the Maine Human Rights Commission:  June 25, 2007.
  1. Respondent employs 34 employees and is subject to the Maine Human Rights Act, the Age Discrimination in Employment Act as well as state and federal employment regulations.
  1. Respondent is represented by [Attorney 1].
  1. A thorough review of the written materials provided by the parties and an Issues and Resolution Conference.

IV.  DEVELOPMENT OF FACTS:

  1. The parties and issues in this case are as follows:

    a. The Complainant, [Complainant]., is a 71-year old male who worked for [Respondent] as a Parts Manager.

    b. The Respondent operates an automobile dealership.

    c. Executive Manager, TP, was [Complainant]’s manager throughout his employment and made the termination decision; Parts Manager 2, KL, was retained; Manager, PF; Service Manager, BJ; Payroll Manager, NC; Owner, MC; Used Car Manager, TH; Co-worker, DA; Sales Manager, MA; Collision Center Manager, AH.

    d. Complainant’s employment was terminated on May 10, 2007.

    e. Complainant alleged that Respondent, terminated his employment because of his age.  Respondent denied the allegation of discrimination and said that Complainant was one of two Parts Managers and that, a lull in business forced the company to downsize, leaving a need for only one Parts Manager.  Tenure and performance were cited as the two determining factors in the layoff.

  2. [Complainant] provided the following concerning his employment with [Respondent]:

    a. “I am 71 years of age.  I was employed at [Respondent] for 11 years and I believe that I performed my job duties satisfactorily.  I was told that my gross profit was among the highest of all the [Respondent] dealerships, including Massachusetts and New Hampshire.  In 11 years, I had only missed about 5 or 6 days of work, not including vacation time.  I had a very good relationship with everyone at the store and with all of my customers, both wholesale and retail.  I was the Parts Manager for 7 of the 11 years and never had any major issues.  My first four years with the company was as a Honda Parts Counterperson before becoming the Honda Parts Manager.”

    b. “On May 10, 2007, I was laid off ( terminated ).  No reason was given.  I was simply told that I was being laid off.” 

    c. “I have learned that an hour after I left, a younger man, Parts Manager 2, ( approximately

    d. 33 – 35 years of age ) was placed into my position.  This man had also been with [Respondent] for approximately 11 years.  I trained him and had previously been his supervisor.  In January of 2007, they made Parts Manager 2 the Parts Manager of the KIA dealership.  That dealership fell apart and was closed about a month and a half ago.  So for the last month and a half, he has just been over there working on some of the owner’s used/antique cars.”

    e .“I believe that I was laid off due to my age.”

  3. [Respondent] provides the following concerning [Complainant]’s termination:

    a. “[Respondent] employed [Complainant] through May 10, 2007.  At the time [Complainant] was laid off, he was working as a Parts Manager.  Over the preceding year, [Respondent] had experienced a lull in business that prompted the company to down-size its work force.  Sixteen people were laid off in December of 2006 due to lack of business.  [Complainant] was retained through May of 2007 because a newly-acquired Kia dealership created work in the Parts Department.  In April of 2007, the dealership agreement with Kia was terminated, thereby reducing the amount of work available in the Parts Department.  At that time, [Respondent] had two Parts Managers: [Complainant] and Parts Manager 2.”

    b. “Parts Manager 2 had more tenure with [Respondent] ( he was hired in February of 1996, whereas, [Complainant] was hired in August of 1996. )”  INVESTIGATOR’S NOTE: On [Complainant]’s personnel records jacket, [Respondent] lists June of 1996 as [Complainant]’s date of hire, narrowing the issue of tenure to 4 months.

    4. c. “Executive Manager discussed [Complainant]’s performance, as well as the performance of Parts Manager 2 with other persons within the dealership who had regular contact with the Parts Department.  Executive Manager learned that Parts Manager 2 had demonstrated greater capability in the position than [Complainant].  Executive Manager stated that there was no other position to move [Complainant] to at the time he was let go, and that based upon these factors, he decided that Parts Manager 2 would be retained and [Complainant] would be laid off.  Executive Manager met with [Complainant] on May 10, 2007 to advise him that he was being laid off.”

  4. [Complainant] provided the following statements:

    a. “I was employed as the Used Car Manager at [Respondent] Auto Group.  Like many people employed with [Respondent], I have worked with [Complainant] for over a decade and have found him to be a very capable Parts Manager.  I have never known of a situation where he has been reprimanded or disciplined in any way and every management meeting I attended, his department has always met or exceeded expectations.  Based on [Complainant]’s extensive experience and knowledge of Honda parts procedures and systems, the performance of his department, and his work ethic, it would be difficult for me to say that anyone employed by [Respondent] Auto at the time was more qualified than [Complainant].”

    b. “I have known and worked with [Complainant] from 2001 through 2007.  As fellow Parts Managers, I learned a lot from [Complainant] and he has great respect from me on his work ethics, professionalism and knowledge of the job.”

    c. “As Sales Manager for [Respondent] from 2004 through 2007, [Complainant] was my Parts Manager.  [Complainant] performed his duties with utmost professionalism and was always punctual and had a work ethic second to none.  [Complainant] led a team of 3 in the Parts room and did a fine job.”

    5. d. “[Complainant] was a co-worker at the [Respondent] Auto Group.  He was the Honda Parts Department Manager and I was the Collision Center Manager.  [Complainant] and I had a good work relationship.  He was always willing to work with me and accomplish our common goal of customer satisfaction.  I rarely had the privilege to work with any other Parts Departments that were as organized or as willing to cooperate or accommodate our needs.  In my opinion, [Complainant] should have been commended for his efforts, not released from his position.”       

  5. [Complainant] has alleged that he was asked by management when he was going to retire:

    a. “On many occasions, over the several years, I have constantly been asked when I was going to retire, which I always responded with I don’t know, but I will stay to train my replacement when the time comes.  On two separate occasions, members of management, Executive Manager and Manager, asked me when I was going to retire.”

    b. “Shortly after Executive Manager asked me the question, I got laid off.”

6. [Respondent] responds to the allegations about retirement in the following manner:

a. “We have not located Manager for comment on the alleged statement about retirement that [Complainant] described.”

b. “Executive Manager denied that he ever made such a statement to [Complainant].”

c. “Executive Manager, made the termination decision and was not aware of any statement by Manager regarding [Complainant] and retirement.”           

7. [Respondent] made the following representation about the reasons for [Complainant]’s layoff:

a. “Co-workers were interviewed and, based upon verbal complaints made by co-workers, Parts Manager 2 was retained and [Complainant] was laid off.”

b. “Executive Manager did not recall any formal disciplinary or counseling actions taken with regard to [Complainant].  He did recall receiving complaints about [Complainant] from Service Manager which concerned [Complainant]’s interactions with his department.  Executive Manager recalls speaking to [Complainant] about these complaints, but does not believe that these discussions were reduced to writing.”

8. With respect to the issue of age discrimination, [Respondent] included a pie chart in its September 6, 2007 submission labeled Age Comparison for [Respondent] Auto Group:

a. The pie chart indicates that 12 employees, or 8.6% of the work force were aged 70+.

9. [Complainant] responds in the following manner:

a. “I worked for the company for 11 years and never met one of these people.”

b. “After the sale went through, they found a spot for every one of them except me.”

c. “They stated that employees that had regular dealings with the Parts Department said that Parts Manager 2’s performance was superior.  I found this interesting since I ran the Parts department 100%.  I did the hiring and firing.  I did the reviews; I gave all raises.  Parts Manager 2 made no policies or decisions.”

10. Further investigation reveals:

a. [Complainant] alleged that shortly after he left his employment, Parts Manager 2 had personnel files open on the Parts Department counter and that he and other employees were snickering about the contents of the files.

b. Executive Manager stated that no one other than authorized [Respondent] employees, which included Executive Manager, Payroll Manager and Owner, were permitted to view [Complainant]’s employment file after he left.

c. All attempts at arranging to ask Executive Manager relevant questions were unsuccessful.

d. [Respondent] was asked to provide specific information relative to the 12 employees, or 8.6% of its work force which were aged 70 +.  [Respondent] was asked to submit pseudonym, job title during relevant period, date of birth, date of hire, current job title ( with new owner ).  This information was not provided.

e. [Complainant] has alleged that “after the sale went through, they found a spot for every one of them except for me.”  Executive Manager was the only individual who could have explained what process was used in making these decisions.  [Respondent], through its counsel, attempted to arrange an interview with Executive Manager with this Investigator, but did not succeed due to the fact that “Executive Manager is in the process of preparing to move to another state” and could not be available during the time frame set for this investigation.

f. [Complainant] has asserted that in 11 years of employment with [Respondent], that he was never written up once, and that there was never even one verbal complaint.

g. [Complainant]’s personnel file does not contain any written disciplinary documentation, and confirms his assertion that in 11 years of employment, his file is completely unblemished.

h. [Complainant] was earnest and consistent in the manner in which he responded to questions during the fact finding conference.  He was credible and forthcoming and had well-organized materials to support his responses.

V.        ANALYSIS:

  1. The Maine Human Rights Act requires the Commission to “determine whether there are reasonable grounds to believe that unlawful discrimination has occurred.”  5 M.R.S.A. § 4612(1)(B).  The Commission interprets this standard to mean that there is at least an even chance of Complainant prevailing in a civil action. 
  2. The Maine Human Rights Act provides, in part, that it is unlawful employment discrimination to discharge an employee because of age.  5 M.R.S.A. § 4572(1)(A).
  3. Complainant, alleged that Respondent, [Respondent], terminated his employment because of his age.
  4. Respondent, [Respondent], denied the allegation of discrimination and said that Complainant was one of two Parts Managers and that, a lull in business forced the company to downsize, leaving a need for only one parts manager.  Tenure and performance were cited as the two determining factors in the layoff.
  5. Because there is no direct evidence of discrimination, the analysis of this case will proceed utilizing the burden-shifting framework following McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).  See Maine Human Rights Comm’n v. City of Auburn, 408 A.2d 1253, 1263 (Me. 1979).
  6. First, Complainant establishes a prima-facie case of unlawful age discrimination by showing that: (1) he performed her job satisfactorily, (2) his employer took an adverse employment decision against him, (3) his employer continued to have his duties performed by a comparably qualified person or had a continuing need for the work to be performed, and (4) those who continued to perform Complainant’s job duties were a substantially different age than Complainant.  See Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000); Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 155 (1st Cir. 1990); cf. City of Auburn, 408 A.2d at 1261; O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) (federal ADEA).
  7. Once Complainant has established a prima-facie case, Respondent must (to avoid liability) articulate a legitimate, nondiscriminatory reason for the adverse job action.  See Doyle v. Department of Human Services, 2003 ME 61, ¶ 15, 824 A.2d 48, 54; City of Auburn, 408 A.2d at 1262.  After Respondent has articulated a nondiscriminatory reason, Complainant must (to prevail) demonstrate that the nondiscriminatory reason is pretextual or irrelevant and that unlawful discrimination brought about the adverse employment action.  See id. Complainant’s burden may be met either with affirmative evidence of pretext or by the strength of Complainant’s evidence of unlawful discriminatory motive. See City of Auburn, 408 A.2d at 1262, 1267-68.
  8. In order to prevail, Complainant must show that he would not have suffered the adverse job action but for membership in the protected class, although protected-class status need not be the only reason for the decision.  See City of Auburn, 408 A.2d at 1268.
  9. Here, Complainant has established a prima-facie case by showing that (1) he performed his job satisfactorily, (2) his employment was terminated, (3) Respondent had a continuing need for the Parts Manager work to be performed, and (4) he is a 71-year-old man and the person who was retained was in his early to mid 30s.
  10. Respondent has articulated a legitimate, nondiscriminatory reason for Complainant’s termination, namely, that a downturn in business was driving the company to engage in a reduction in force, leaving a need for only one parts manager.  Tenure and performance were cited as the two determining factors in the layoff.
  11. At the final stage of the analysis, Complainant has established affirmative evidence of pretext and that unlawful age discrimination brought about his termination with reasoning as follows:               

    12. a. Two managers asked Complainant when he was going to retire; one asked the question just prior to his layoff.  [Respondent] failed to present these individuals for the fact finding conference or for individual interviews.  Executive Manager was unwilling to speak with this Investigator during the scheduled time frame because he was “moving to another state.”

    b. Respondent evaluated [Complainant]’s performance in a positive light, rewarding his performance consistently over the years with increases in remuneration, until downsizing was imminent, at which time there were allegations about his co-workers’ negative remarks about his performance.

    c. [Respondent] sent elaborate graphics demonstrating that 12 or 8.6% of employees were aged 70+, yet [Complainant] had never met one of these people in his 11 years with the company.  Questions about this segment of the workforce were sent to Respondent through counsel and went unanswered.

  12. For the reasons outlined above, there is at least an even chance of Complainant prevailing in a civil action based on the evidence gathered during this investigation.

VI.       RECOMMENDATION:

For the reasons stated above, it is recommended that the Maine Human Rights Commission issue the following finding:

  1. There are Reasonable Grounds to believe that the Respondent, [Respondent] Car Connection d/b/a [Respondent] Honda, terminated Complainant, Joseph Donahue’s, employment because of age; and
  2. Conciliation should be attempted in accordance with 5 M.R.S.A. § 4612(3).              

 


Patricia E. Ryan, Executive Director                          Michèle Dion, Investigator