Monthly Archives: November 2013

November 14, 2013

No Age Discrimination Established by “Shelf Life” Comment

By Mark Wiletsky 

MessagingAn HR manager asks about an employee’s “shelf life” in an instant message to another HR manager.  Evidence of age discrimination?  The employee argued it was, but the Tenth Circuit Court of Appeals ruled it was not.  In Roberts v. IBM, the Court recently held that the comment did not amount to direct evidence of age discrimination and “was nothing worse than an inartful reference to [the employee’s] queue of billable work.”  The employee’s alternative argument that the term “Project Blue” somehow constituted evidence of age discrimination similarly failed. 

Employee Terminated For Poor Performance 

George Roberts worked for IBM and was assigned to provide technical assistance to one of IBM’s clients, the Williams Companies (Williams).  Williams’ employees repeatedly complained about Roberts’ work, resulting in a critical performance review.  Although a subsequent review reflected some improvement, he later received more criticism.  IBM offered Roberts the option of resigning with a severance package or committing to a 60-day performance improvement program with the understanding that failure to show sustained improvement would lead to termination.  Roberts chose to complete the program.  Once again, although he showed some improvement, the client continued to complain.  IBM terminated Roberts for his continued negative performance.  

Absence of Direct Evidence of Age Discrimination  

Roberts sued IBM in federal court, alleging that instant messages between two HR managers showed that IBM fired him because of his age.  The HR managers were discussing whether IBM should eliminate Roberts’ position because he did not have enough billable work to do.  One of the HR managers questioned Roberts’ “shelf life,” which he argued referred to his age.  The Court, however, disagreed, finding that the fair reading of the comment within the context of their discussion was that it referred to his workload, not his age.  The Court found that any inference related to the “shelf life” comment would, at most, be circumstantial rather than direct evidence of age discrimination.  

Roberts then asserted that the name “Project Blue,” which was IBM’s program of eliminating positions that were not cost-justified, constituted direct evidence of age discrimination.  Surmising that Roberts believed that “blue” referred to older people who sometimes have blue hair, the Court rejected the argument, stating that the HR department’s use of the color blue cannot reasonably be taken as a reference to anyone’s age, especially in light of the fact that IBM is itself often called “Big Blue.”  Moreover, because Roberts was not terminated as part of that project but through a different process months later, the project name could not lead to the conclusion that IBM fired him because of his age. 

No Evidence of Pretext 

Leaving no stone unturned, the Court then considered whether Roberts’ claim could proceed as a circumstantial case of age discrimination.  Under the McDonnell Douglas burden-shifting analysis, if a terminated employee can establish a prima facie case of discrimination, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for firing the employee.  Upon such showing, the employee can still succeed on his or her claim by establishing that the employer’s reason is a mere pretext for discrimination.  In this case, assuming (without deciding) that Roberts could establish a prima facie case of discrimination, the Court held that Roberts could not show that IBM’s legitimate, non-discriminatory reason for terminating him was pretext.  

Roberts’ poor performance was well-documented and even if there were times where his performance improved, the prior improvements were not sufficient to show that later unsatisfactory evaluations were pretextual.  Roberts also tried to show pretext by pointing to a handful of other employees for whom IBM received customer complaints but who were not disciplined for it.  The Court found that some of the other employees were not similarly situated as they were not supervised by the same HR manager as Roberts.  In addition, none of the other employees had the extensive history of performance issues as Roberts.  Therefore, the Court held that Roberts failed to establish any sign of pretext. 

The Court went on to reject Roberts’ state law claims as well. 

Even Informal Communications Can Land You in Court 

While IBM won this case, it also serves as an important reminder for managers and human resources personnel to be careful when discussing employees via e-mail and instant messaging.  Avoid using words or phrases that can be taken out of context or have multiple meanings.  It is sometimes easy to use shorthand or be informal when communicating via e-mail, or text or instant messaging.  But such communications are discoverable, and when taken out of context or misinterpreted, they can turn an otherwise legitimate termination into a hotly contested case.    To avoid that from happening, train your managers, supervisors and HR personnel to draft all communications carefully and deliberately, even if using more informal communication technology.

Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.

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