Bonnie Wittenburg, the plaintiff in this case filed an age discrimination lawsuit against American Express Financial Advisors, Inc. ’s (AEFA). AEFA filed a motion for summary judgment, the district court granted and the United States Court of Appeals, Eighth Circuit affirmed. Wittenburg started working at AEFA Equity Investment Department (EID) in November 1998 at the age of 46 (Walsh, 2011). According to the portfolio managers, Wittenburg provided outstanding service and displayed excellent investment skills and in 2000, she was name Analyst of the Year (Walsh, 2011).
In 2001, AEFA hired a new Chief Investment Officer (CIO) and 2002 the CIO initiated a redesign of EID. The project would take approximately two years; add an additional three portfolio managers, a new satellite office and the merger or movement of certain funds to AEFA’s satellite office (Walsh, 2011). During a discussion regarding new hires, the CIO stated he was not averse to hiring younger managers or analysts to grow with the company (Walsh, 2011). The new design plan would include a reduction in force (RIF) which according to the CIO was necessary.
The first RIF terminated Al Henderson, age 62. Henderson made a comment that Dan Rivera told him that AEFA fired him because the company wanted to retain the younger employees (Walsh, 2011). The second RIF eliminated three analyst positions but primarily focused on portfolio managers. During the second RIF, a team of managers reviewed about 25 people in the department giving each a rating of keep, maybe keep, maybe, maybe drop or drop (Walsh, 2011). They used the ratings to educate leaders about the individuals in the department and in late 2002 held a meeting to discuss employee ratings.
Wittenburg received a low rating because of poor performance and negative input provided by portfolio managers but continued in her current position during the second RIF. Wittenburg along with two other analysts were terminated when the third RIF occurred; Wittenburg was 51 and the other two were 41 and 36. Wittenburg applied for a portfolio manager, she did not get the position and sued AEFA claiming Age Discrimination in Employment Act (ADEA) (Walsh, 2011).
Wittenburg’s defense would rely on statements from co-workers such as “those that were younger” “not averse to hiring younger portfolio managers” and notes that indicated the analyst department would maybe add a junior person. In making a decision, the court will consider if the statements were made by decision makers or by someone who may influence the decision to terminate the plaintiff, the gap between statements and the date of termination, and if the statement itself was discriminatory or merely an opinion.
The CIO’s comment regarding the company’s willingness to hire younger workers was a general comment. The statement was not discriminatory nor did it establish that age was the basis for Wittenburg’s termination over a year ago. The reference to adding a junior person did not show discriminatory intent and Wittenburg did not prove the employee equated junior person to a younger person or how such a notation related to her termination. Wittenburg admitted that Rivera was not a decision maker in the 2003 RIF and his statement made to Henderson did not relate to her termination.
The court decided that these comments did not establish a pretext based on AEFA’s nondiscriminatory purpose given for her termination. A total of 31 analyst were affected by the 2002 and 2003 RIF, 17 of the analyst were 40 years old or older and of the 17, six were terminated, four resigned and seven retained their jobs (Walsh, 2011). In addition, there were four terminated, two resigned, two transferred and six retained their positions of the 14 analysts who were not in the protected class (Walsh, 2011).
There were two members, ages 41 and 46, of the protected class who ranked first and second during the 2002 analyst ratings and the two analyst terminated in 2003 were both younger than Wittenburg, one was 41 and the other 36 (Walsh, 2011). Another analyst in the protected class whose age was the same as Wittenburg survived the 2003 RIF. Wittenburg’s accusation that scores were manipulated to retain younger employees during the 2002 RIF by ranking them in the “keep” category even though their scores were low was actually a moot point as she survived the 2002 RIF even though her score was low putting her in the maybe keep category.
AEFA stated they needed only one Technology Sector analyst and then redistributed the workload amongst other employees, Wittenburg argues that pretext was shown however, as stated by the court, “employers often distribute a discharged employee’s duties to other employees performing related work for legitimate reasons” (Walsh, 2011). As far as the two vacancies, those were among the 10 analysts who had survived the RIF, they were not new positions (Walsh, 2011). The decision to downsize and redesign the Equity Investment Department was for the betterment of the company.
Wittenburg’s argument that AEFA only relied on her 2002 performance review in making their decision to terminate does not help her case. The court noted there is nothing discriminatory in an employer choosing to rely on recent performance data in deciding which employees to RIF (Walsh, 2011). American Express had not been doing very well and the CIO explained analyst’s performance evaluations on an annual basis are important because consumers look at one-year performance and make decisions (Walsh, 2011).
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