AVERN COHN, District Judge.
This is an age and national origin discrimination case under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) —2(a)(1) ("Title VII"), and the Michigan Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101 et seq. ("ELCRA"). Plaintiff, John Palmer, is suing his former employers, CSC Covansys Corporation and Computer Sciences Corporation, claiming that he was wrongfully terminated because of his age and national origin. Palmer's complaint is in four counts:
(Doc. 1). Palmer asks for compensatory damages, punitive damages, equitable and injunctive relief, and attorney's fees, costs, and interest.
Now before the Court is Defendants' Motion for Summary Judgment (Doc. 21, 47). For the reasons that follow, the motion is DENIED.
Plaintiff, John Palmer ("Palmer"), filed a complaint against his employer, CSC Covansys Corporation and Computer Sciences Corporation ("CSC"), saying he was unjustly terminated because of his age (60) and ethnicity/national origin (Caucasian/US) (Doc. 1). Defendants, CSC, respond by saying that Palmer's termination was motivated by a reduction-in-force program and not because of his age or national origin (Doc. 9).
At the close of discovery, CSC filed a motion for summary judgment (Doc. 21), and Palmer filed a response (Doc. 26, 27). On February 22, 2018, the parties held a phone conference in which Palmer said there were still outstanding discovery issues. Palmer's motion on the outstanding discovery issues related to information about the employee(s) that ultimately replaced him at CSC. After hearing oral arguments on Palmer's motion, the Court decided not to grant his motion to compel. Instead, the Court ordered the parties to supplement their briefs to reflect whether Palmer is entitled to an adverse inference regarding the allegedly unanswered discovery requests. (Doc. 45). The Court took the motions under advisement.
Palmer began working for CSC in 1997 as a Professional Programmer Analyst.
The "FCA account" was divided into two sub-portfolios, "Powertrain" and "Assembling and Stamping." These sub-portfolios were supervised by Ajay Gedela and Rajesh Singh, both of whom reported to manager Sudhir Baddam. The FCA account also had an administrative manager, Fiajeshwar Lingampally. These supervisors/managers never reported that Palmer's work on the FCA account was unsatisfactory.
In 2015, Palmer received his certification in Project Management. After his certification, Palmer asked his supervisors/managers to look for a Project Management position for him within CSC. Anticipating his departure to a Project Management position, Palmer was asked to train two individuals on the applications he supported within the FCA "Powertrain" sub-portfolio. After he completed training the two individuals, Palmer was transferred to the "Assembly and Stamping" sub-portfolio. There was no Project Management positions available at the time of his transfer. Shortly after his transfer, Palmer was notified that "CSC made a business decision to reduce headcount in your group, consistent with Human Resource Management Policy 213, Reduction in Force (RIF). As a result, we regret to inform you that your position will be impacted by this decision, and your employment will be terminated effective February 5, 2016." (Doc. 27-21, Ex. 28, pg. 15).
CSC periodically evaluates its workforce to determine where profit margins can be increased through a reduction of labor costs. CSC refers to this internal evaluation as a "Get Fit" or "cost take-out" program. This program is essentially the reduction-in-force ("RIF") referenced in Palmer's termination letter.
According to Defendants "Get Fit" program, labor costs can be minimized by replacing higher-salaried, more-experienced employees with lower-salaried, less-experienced employees. This experienced-based employee swap is referred to as "pyramiding." It was pursuant to this policy that Palmer was terminated.
In addition to the "Get Fit" program calling for a replacement of more-experienced, higher-salaried employees, FCA required CSC to maintain on-site staffing levels. This contractual obligation makes a reduction of on-site employees a non-option for CSC.
In conjunction with Defendants'"Get Fit" program, Defendants circulated an internal company memorandum (Doc. 27-7, Ex. 14).
(Doc:27-7, Ex. 14) (emphasis added). Palmer says this document proves that his termination and replacement by a younger, Indian employee at CSC was motivated by improper, discriminatory factors.
Palmer says that there are several instances on the record that show his termination was based on age and national origin discrimination: (1) Defendants deviated from company policy in regards to finding other employment for Palmer within the company, (2) Defendants treated younger, Indian employees more favorably, and (3) Defendants have a pattern and practice of discrimination.
Palmer says that Defendants deviated from company policy because they did not find him other employment within CSC. According to Palmer's termination letter, he was terminated pursuant to "Human Resource Management Policy 213, Reduction in Force (RIF)" (Doc. 27-21, Ex. 28, pg. 15). Under this policy, "when two people, in CSC's judgment, possess equal knowledge, skills and ability, reliability, and substantially similar conduct and performance records, the person with the least length of service shall be selected first for involuntary termination." (Doc. 26-9, Ex. 29, pg. 1-2). Additionally, "[i]nternal sourcing resources will be used to identify placement opportunities within the company prior to a reduction in force. Employees have the responsibility to engage with the internal sourcing resources and actively participate in pursuing opportunities of interest."
First, Palmer says that CSC deviated from company policy when he was terminated over persons of similar knowledge and performance record with less length of service. Palmer generally references 21 individuals on the FCA account with less seniority, but fails to show how these individuals had similar knowledge and experience.
Second, Palmer says that CSC deviated from company policy when it failed to consider him for internal placement. Under the CSC policy, it is the employee's "responsibility to engage with the internal sourcing resources and actively participate in pursuing opportunities of interest." However, Palmer proffered an email between his supervisors/mangers that shows he was singled-out and purposely excluded from the benefits of CSC's internal placement policy. In the email, John Palmer (and Carlo Toppi, another 60 year-old Caucasian-American) are identified by supervisors/mangers as being qualified for opportunities within CSC, but then states that "there is an expectation from the senior execs that the resources identified have to be let go from CSC and not used on any future opportunities." (Doc. 27-17, Ex. 24).
In addition to a deviation from formal company policies, Palmer says that CSC breached an implicit policy/practice when it replaced him with a "subcontractor"
Palmer says that Defendants treated younger, Indian employees favorably. In support of this assertion, Palmer primarily points to Mohan Rao Pallapothu ("Mohan") and Lalith Myneni ("Lalith").
Comparatively, Mohan and Palmer held the same job title of "Professional Programmer Analyst." (Doc. 27-12, Ex. 19, pg. 2). Mohan had less experience at CSC, was younger than Palmer, was known by CSC to be of Indian national origin, and had an annual salary that was slightly higher than Palmer's. Similar to Palmer, Mohan was initially identified as a candidate for CSC's "Get Fit" program and was to be released from the FCA account (Doc. 27-18, Ex. 25). However, Mohan was subsequently taken off the RIF list and given other employment within CSC (Doc. 26-3, Ex. 2, pg. 17-18).
Additionally, Lalith was also a "Professional Programmer Analyst" within CSC. Lalith was younger than Palmer, had less experience within CSC, and had an annual salary that exceeded Palmer's by more than $5,000 (Doc. 27-15, Ex. 22, pg. 2). Nevertheless, Laith was retained by CSC and not selected for termination.
Lastly, Palmer says that his discrimination claims can be further evidenced by CSC's pattern and practice of discrimination. To support this assertion, Palmer says that the internal company memo (Doc. 27-7, Ex. 14 (quoted supra pg. 5)) evidences a discriminatory practice of favoring younger, Indian employees. In addition to the internal company memo, the record reflects that of the 34 individuals terminated from recent "Get Fit" action, 25 individuals were over the age of 40, 18 individuals were over the age of 50, and 8 individuals were over the age of 60 (Doc. 42, Ex. 3). The average age of recent RIF terminations is 48 years-old. Additionally, with respect to Palmer's specific job title—Professional Programmer Analyst—only one employee recently terminated was under the age of 50, and the average age of termination was 55 years-old. Palmer says that this shows that CSC's "Get Fit" program (RIF) is not only explicitly discriminatory, but also shows a pattern and practice of company-wide discrimination.
It is undisputed that the FCA account did not permit a reduction of on-site staffing levels. Thus, CSC had to replace Palmer on the FCA account. It is not clear from the record, and disputed between the parties, who "replaced" Palmer.
Originally, CSC hired a subcontractor, Aditya Thummala ("Thummala"), to assume Palmer's duties and responsibilities. (Doc. 21-9, Ex. E, 48:21-49:3). Thummala had Java/J2EE experience, which Defendants say was a factor in deciding to terminate Palmer. Thummala was younger than Palmer, and although Palmer does not submit direct evidence proving Thummala's national origin, he does submit evidence of Thummala having ties to India (e.g. Thummala went to school in India and worked for Macy's "offshore India").
Defendants say that even though Palmer was supposed to be replaced by Thummala, Palmer's "ultimate replacement" was Venkata Gadey ("Gadey") because Thummala quit just two weeks after being hired (Doc. 37, pg. 18, ¶29). Similar to Thummala, Gadey was younger than Palmer,
Notably, the CSC employee record for Gadey states that his employment "Term. Date" was 09/09/2016 (Doc. 34-1, Ex. 11). Palmer's interrogatories to Defendants requested the identity, national origin information, age and other personal information regarding "each person and/or persons who were employed or hired by Defendants to replace, assume, and/or perform all or some of the duties previously performed by Plaintiff
Moreover, the record reveals another employee that could be considered as Palmer's replacement. When Palmer made it clear that he desired a Project Management position, a "knowledge transfer" began between him and Sudhakar Munjuluri ("Sudhakar") to replace him on the "Powertrain" sub-portfolio.
A motion for summary judgment will be granted if the moving party demonstrates that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). There is no genuine issue of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party."
Michigan's "ELCRA claims are analyzed under the same standards as federal ADEA claims."
To establish a prima facie case of age discrimination, a:plaintiff mustshoW: "(1) membership in a protected group;
"Once the plaintiff succeeds in making out a prima facie case of age discrimination, the defendant must `articulate some legitimate, nondiscriminatory reason' for the termination."
To prove pretext, Plaintiff must show that (1) the proffered reason for termination had no basis in fact, (2) the proffered reason did not actually motivate the decision to discharge, or (3) the proffered reason.was insufficient to motivate a discharge.
In the Sixth Circuit, claims of national origin discrimination under Title VII and ELCRA are reviewed under the same standards.
Similar to age discrimination, circumstantial evidence of race and national origin discrimination is subject to the
A pretext analysis in the national origin context is similar to the pretext analysis in an age discrimination case. The Plaintiff must demonstrate that a jury could find Defendants' proffered reasons for termination "(1) has no basis in fact, (2) was not the actual reason, or (3) is insufficient to explain the employer's action."
In the Sixth Circuit, "the pattern-or-practice method of proving discrimination is not available to individual plaintiffs."
Here, Plaintiff has established a prima facie case of age discrimination. First, Plaintiff was a member of a protected group because he was over 60 at the time the claimed discrimination occurred (Doc. 25 - ¶4). Second, although factually contested, Plaintiff was arguably qualified for the job in question (Doc. 25 - ¶14).
Furthermore, Palmer is not subject to the heightened evidentiary standard required by an RIF action because there was not a de facto reduction-in-force with respect to Palmer's position on the FCA account. It is undisputed between the parties that the FCA account did not permit a reduction of on-site staffing levels. Thus, CSC had to replace Palmer on the FCA account. Because Palmer is not held to the heightened evidentiary standard required by RIF actions, and Palmer has satisfied a prima facie case of age discrimination, the burden shifts to Defendants to proffer a nondiscriminatory reason for termination.
Here, Defendants have successfully proffered a legitimate business reason for termination. Defendants state that the reason for Palmer's termination was the "Get Fit" program. The "Get Fit" program allowed for lower labor costs by replacing Palmer with a less experienced employee. Thus, the burden shifts back to Plaintiff to show that a reasonable jury could find that the proffered reason for termination is pretext.
Palmer has offered sufficient evidence that would permit a factfinder to decide that Defendants' proffered reasons are pretext. First, although there is a sufficient factual basis that Palmer was terminated because of the "Get Fit" program (and that he lacked Java/J2EE experience), CSC's termination letter stated that Palmer was terminated solely because "CSC made a business decision to reduce headcount in [Palmer's] group, consistent with . . . Policy 213, Reduction In Force (RIF)." (Doc. 27-21, Ex. 28, pg. 15). Because Palmer's termination letter states that he was terminated due to a reduction in headcount, which was impossible at FCA, and later Defendants stated additional reasons for termination (such as lacking Java/J2EE experience), a jury could find such reasons are pretext.
Additionally, a jury could find that age was the primary factor in termination based on Palmer's pattern-or-practice evidence (e.g. the company memo emphasizing the importance of a young workforce). Although Defendants' internal memo is policy-or-practice evidence not specific to Palmer, the evidence can be used to establish pretext. The memo states, "our clients . . . need to appreciate the value of building out the `base' with younger, less experienced people . . ." (Doc. 27-7) (emphasis added). This statement, coupled with the advanced age of persons recently terminated, could lead a jury to find that Defendants' proffered reasons were pretext. Thus, Palmer has advanced sufficient evidence under the
Palmer has also established a prima facie case of national origin discrimination. First, Plaintiff is a member of a protected class because he is Caucasian-American. Second, although factually contested, Plaintiff was qualified for the job in question (Doc. 25 - ¶14). Third, Plaintiff suffered an adverse employment decision when he was terminated from employment (Doc. 22 - ¶27). Lastly, although factually disputed, a jury could find that Plaintiff was replaced by a person outside the protected class.
Palmer's arguments primarily relate to the last element of his national origin claim because he has failed to establish the national origin of Gadey or Thummala. However, Palmer has established that he trained Sudhakar, an employee of Indian national origin, as a replacement regarding a prior position he held shortly before termination.
The Court does not need to entangle itself with the nuances of who "replaced" Palmer, as it is sufficient to show that a person outside the protected class was treated more favorably. For example, in
Similar to
Defendants' reasons for termination are consistent with the reasoning given above in regards to the age discrimination claim: Plaintiff was terminated as the result of a "Get Fit" program (RIF action), which was implemented to reduce labor costs. This reasoning is sufficient to shift the burden back to Plaintiff to establish pretext.
Here, Palmer has submitted enough evidence to create a genuine issue regarding whether Defendants discriminated based upon national origin. Returning to
For the reasons stated above, Defendants' Motion for Summary Judgment is DENIED. The Court will schedule a status conference to discuss pretrial matters.
SO ORDERED.
