STATE OF
COUNTY OF
In Re: EDWARD LABONTE
Case Nuniber: 29-C1-04-000238
STEPHEN W COOPER
LORING GREEN EAST
1201 YALE PLACE SUITE A100
MINNEAPOLIS MN 55403
NOTICE OF ENTRY OF JUDGMENT
You are hereby notified on
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT
was duly entered in the above entitled matter.
A true and correct copy of this notice has been served by mail upon the parties named herein at the last known address of each, pursuant to the Minnesota Rules of Civil Procedure.
Darlene Gerbracht, Court Administrator
By LINDY BERG___________________________________________
Dated:
STATE OF
cou OF B1JBBARD NINTh JUDICIAL DISTRICT
• COURT F NO: C1-04-238
Edward LaBonte,
Plaintiff,
VS. FINDINGS OF FACT,
CONCLUSIONS OF LAW,
• •• AND ORDER FOR JUDGMENT
TEAM Industries, Inc.,
TEAM Industries Park Rapids-DL, Inc.,
TEAM Industries Baxter, Inc.,
TEAM Industries Bagley-Audubon, Inc.,
And TEAM Industries,
Defendants.
The above-captioned matter came before the Court, the Honorable Jay D. Mondry, Judge of District Court, at the Hubbard County Courthouse, for a Court trial on June 7, 8, 9, and 10; July 11, 12, 13, 14, and 15; and August 17 and 18 2005. The final argument by the parties was heard on
• proceedings herein, makes the following:
FINDINGS OF FACT
1. That TEAM Industries consists of a number of individual corporations, each of which is
engaged in distinct manufacturing operations. The individual corporations are each named as
Defendants in the instant action
2. That Plaintiff, Edward LaBonte, was employed by
a separate corporation within the TEAM Industries family (“TEAM”), from 1998 until April
7, 2003, as a machine operator.
Rapids,
Rapids facility. At the time he was laid off, Plaintiff was 60 years old.
3. That in early 2003, both the Park Rapids facility and the
cornnion General Manager, Jason Roue. In addition, both facilities were under the Human Resources Supervision of Jim Russ, an employee of TEAM Industries located out of
4. That Prior to working at TEAM, LaBonte had no experience as a machine operator and was trained for the job at Teamworks, a local non-profit training organization. TEAM paid for approximately 90% of LaB onte’s training. The evidence presented at trial established that the Plaintiff earned approximately $28,600.00 in wages per year and approximately $5,720.00 in benefits per year during his employment with TEAM Industries.
5. That TEAM’s Park Rapids facility was organized into four groups. Employees in Group 1 were responsible for operating the lathes; Group 2 employees were responsible for robotics and lathes; Group 3 employees operated mills; and Group 4 employees ran the pallet pool.
6. That Mr. LaBonte worked on the day shift in “Group 3,” which consisted of a number of milling machines. Plaintiff was qualified only to operate the vertical mills, despite having been trained on several other mills in his group. Plaintiff was not qualified to work in the robotics group, to run the lathes, or to work in the pallet pool. There is evidence that some of the other maôhine operators were able to operate a greater range of machines than Plaintiff.
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7. That in early 2003,
8. That as early as 2001, TEAM began a process of updating and reevaluating its performance measurement tools. Upon starting his employment with TEAM as General Manager, Jason Roue began a process of “cleaning up” the employee performance review process. At that time, employee performance reviews were conducted by supervisors with a trend towards scoring employees higher than was deserved. Roue began training supervisors on the proper use of the performance evaluation forms, encouraging the supervisors to more accurately review their employees.
9. That in late 2002, at the suggestion of Facilities Manager Mick Christianson, TEAM began to develop a “paired comparison forced-choice management tool,” (the forced ranking tool). Christianson had used a similar tool to evaluate employee performance in a previous job. Christianson testified that, at the time, TEAM intended that the tool would be used for evaluating and improving employee performance.
10.. That the forced ranking tool was developed, by Jim Russ, Director of Corporate Development, Training and Human Resources at TEAM, and Dr. Matt Coumbe, a consultant
.for TEAMworks, a Park Rapids non-profit organization that provides training and job evaluation services to TEAM and other area employers.
11. That Dr. Coumbe has a Ph.D. in Quantitative Tests Measures. His specific area of study
• involved statistics, as applied to testing methodologies and his dissertation focused on a job validation study in the manufacturing industry. As of October 2005, Dr. Coumbe had
completed 29 separate job validation studies, 80% of which were in metals manufacturing industries. Dr. Coumbe was recognized by the Court at trial as an expert in the area of job
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validation. “Job validation” is a process that analyzes a particular job by breaking down and evaluating all the duties involved in the job with the goal of determining what knowledge, skills, and abilities are required for the specific position and whether or not an individual is effectively performing the job.
12: That Dr. Coumbe’s review of the academic human resource and psychological literature led him to the conclusion that the forced comparison tool was considered a useful and effective tool. Similar forced choice tools have been used for the purpose of rankings and terminations by a number of major organizations in the
13. That Teamworks identified four categories to use with the forced choice tool, and assigned a weight for each category. Those criteria are: performance level (50%), criticality of position (30%), length of service (10%) and promotability (10%). The purpose of using a few clearly spelled out categories .rather than a large number of categories is to attempt to make the system as objective and free of bias as possible.
14. That in implementing the forced ranking tool, each employee is first compared “head to head” to every other employee in their respective departments. The rater compares each set of employees four times —once for each criteria set. An employee is given a “1” if he or she is perceived as outperforming the other employee in a particular measurement category. The other employee would receive a “0” for that category. (Def. Ex. 21.) The forced choice ranking tool does not determine whether an employee is a good performer on an absolute scale. Rather the tool is, in theory, an attempt to: (1) determine whether one employee is a better performer than another employee; and (2) ultimately rank all employees from most crucial to least crucial to the organization. (Def. Ex. 21.)
15. That once the comparisons were completed, the total number of points for each employee being rated orranked was then added together by category, and that number was multiplied
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by the corresponding weight assigned to the particular category, giving each employee a final score for that particular category. The numbers for all categories were thentotaled and the employees were ranked in descending order by point totals. (Def. Ex 21.)
16. That Jim Russ and Dr. Coumbe had researched different typos of ranking tools and decided to use a ranking system with four categories/criteria because that number of categories was similar to the other rating tools they had considered. The testimony of Mr. Russ and Dr. Cöunibe was that using a smaller number of categories was intended to lessen the chance that the personal bias of the raters could enter into the ratings.
17. That in early 2003, TEAM was experiencing poor sales and performance. TEAM had previously suffered a drop in sales revenue and netprofits between 2000 and 2001. By late 2002 and early 2003, it appeared that the
18. That the financial reports for the Park Rapids facility showed it was operating at a loss in late :2002 and early 2003 and Steve Kast, TEAM Industries director of finance, testified that the Park Rapids facility experienced loss.months during December 2002 and January, February, and April 2003. Mr. Kast testified that
• which was in large part due to the assistance provided by the State through the Shared Work Program.
19. That in March of 2003, TEAM was concerned that it was going to lose a substantial amount of work from two of its biggest clients. At that time, TEAM anticipated losing struts, clutch components, and wheel hubs from Polaris and brake drums and clutch components from club Car. TEAM ultimately lost the Polaris struts, wheel hubs, and some of the clutch work and the Club Car brake drum and clutch work.
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20. That Dale Maij ala testified that this type slowdown was not uncommon for that time of the year, the spring time. He recalled working only halftime during that stretch in. a previous year. He believed that they would go down to 32 hours a week until things picked up. He also stated that this was related to them at an all shop meeting by Mick Christianson, that layoffs could be avoided by reduction of their hours to 32 hours a week.
21. That on March 9, 2003, in response to loss of work and in an effort to avoid pennanent layoffs, TEAM began participating in the State of Minnesota’s “Shared Work Program,” which reduced the number of hours that production employees, including Plaintiff, worked to 32, with the State reimbursing employees for half of the remaining hours in a full-time, 40- hour work week.
22. That TEAM explored the possibility of voluntary layoffs to address budgetary and overstaffing issues, as had been done in the past. To this end, managers at TEAM determined the number of people that were willing to take a voluntary layoff. However, because not enough people expressed interest in the voluntary layoffs, TEAM General Manager Jason Roue believed that voluntary layoffs were not a solution at that time.
23. That during this time, some employees at TEAM were working more than 40 hours each
week and were being paid for overtime. These employees were employees that were needed to produce particular parts or run particular machines. According to Linda Engen, TBAM’s
• • Human Resources Manager, people who worked on the same shift and on the same machine
• • • as the Plaintiff were working overtime right up until
24. That on
• • working on a reduced schedule and that TEAM would try to deal with the shortfall by enrolling in the Shared Work Program and possibly using voluntary layoffs. Later, on March
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1,1, an all employee meeting took place where the Shared Work Programwas discussed, as were voluntary layoffs and work force reductions.
25. That in late March, Roue made the decision to reduce the number of workers at Park Rapids and
26. That on
27. That during the training session, the supervisors were told that the forced rankings would be used for purposes of employee evaluation and promotion. TEAM believed that the supervisors would more accurately rank their employees if they were not aware that the results would be used for terminations. At this time, Christianson had decided to perform the rating in stages, with the individual departments being rated first, followed by further ratings by the managers, in order to determine who would be laid off.
28. That after the supervisory training session, the managers were informed that the forced choice tool would be used to determine the layoffs. The managers were instructed not to inform the supervisors of the purpose of the tool. Dr. Coumbe testified that he was not aware that the forced ranking tool was being used for the terminations prior to the terminations being carried out. Although Dr. Coumbe was aware that the forced ranking tool could be utilized for terminations, he testified that he did not design it for that specific purpose.
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29 That immediately after the traimng session, the supervisors began the rankmg process The supervisors used a computer program to perform the actual rankings, and: simply saved their results to a folder that could be accessed by Linda Engen, TEAM Human Resources Manager.
30. That Group 3 and Group 4 machine operators were ranked as one group. The Plaintiff, who was in Group 3, was ranked with Group 3 and 4 employees by his own supervisor, Wally Knapp, and the Group 4 supervisor, Roy Stopka. Upon completion of this initial ranking, the Plaintiff ranked 15th out of 19 in Groups 3 and 4.
31. That as the supervisors were ranking their employees, management was reviewing the “indirect” positions “Indirect” positions are those not directly involved in manufacturing, but which instead provide support, mamtenance, and so forth That is when Christianson made the decision to eliminate certain indirect positions as well. Some of the employees whose indirect positions were eliminated were offered a chance to transfer back to the operations floor Ultimately, ten indirect employees were terminated as a result of their
• positions being eliminated.
:32. That the indirect workers who chose to transfer to the production floor were then “folded in”
to the original ranking lists. Harstad and Breitweser ranked the indirect employees against all the other employees in each category, creating a new ranked list, the “Rev A” list. Once the Rev. A lists were completed, the Plaintiff was rated 19 out of 23..
33. That once the ranking list for each group had been assembled, managers took the boftom
25% from each group’s final list to create a list to b.e used for the terminations. Six employees, including Mr. LaBonte, were selected off of the Group 3 and 4 Day Rev. A list. Originally, there were a total of 37 persons on the “25% list,” but that number was later • reduced to 34, after the part-time employees were taken off the list.
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34. That once the “25% list”, consisting of 34 full-time employees, was created, the employees on that list were rated against one another by the managers. This resulted in a list that was
• meant to be the final rankings for layoff purposes. Plaintiff was ranked 2ls out of 34 on that list. In other words, Plaintiff was 14 from the bottom of the list.
• 35. That approximately one week before the layoffs, Roue had detennined that the Park Rapids facility would need to lay off 35-36 employees. At the time he made his decision, Roue did not know how many employees were on the final list or the identity of any of those employees.
36. Twenty-two machinists were ultimately laid off from the Park Rapids facility. Because he was in the bottom 22 on the 25% list, LaBonte was selected for termination. Bight employees who ranked higher than LaBonte were also terminated, as well as the twelve who ranked below him. When added to the part-time and indirect employees who had been terminated at the initial stage of the pro c.ess, the total number of employees terminated on
37. That following the terminations, both Russ and Coumbe analyzed the statistical data
• produced by the layoffs at the Park Rapids and
• as one large set of terminations rather than with the terminations at the two facilities being analyzed separately. Russ’ statistical analysis of the terminations at the two facilities together showed that the results were within 1.52 standard deviations of the expected result based on age, which was within the Department of Labor’s prescribed limit of 1.96. At that time, apparently neither Russ nor Dr. Coumbe had, analyzed the data from the terminations at the Park Rapids plant separately, rather than together with ‘the
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38. That after performing his own statistical analysis, Russ retained Teamworks and Dr. Coumbe to perform a statistical analysis and validation of the layoff. According to Coumbe’s analysis, which consisted of a number of different tests as well as economic analyses of the layoffs, there was no significant statistical anomaly in the layoffs with regard to age, and that the layoff had been successful in identifying the more productive employees to retain. Twenty-two of the 32 people terminated from the Park Rapids facility, including the Plaintiff, were terminated using the forced choice ranking tool.
39. That during his employment with the Defendant, Mr. LaBonte was a dedicated, hard working employee for more than 5 years. The Plaintiff had good production rates, job evaluations, and did not have production or disciplinary problems. The Plaintiffs co-workers, for example, Mr. Dolezal, testified that the Plaintiff was a skilled and qualified worker. The Plaintiffs supervisor, Wally Knapp, testified that the job evaluations he did for Mr. LaBonte showed that Mr. LaBonte achieved or exceeded expectations for every year that he was evaluated.
40. That the Plaintiffs expert, Dr. Martin, analyzed the terminations at the Park Rapids plant by analyzing the tennination of all 32 people from the Park Rapids plant and determining whether there was an adverse impact on those workers over 40 years old, over 50 years old, and 60 years old or older. Only 11 of the terminated employees were under 40 years old, with 21 employees being 40 years old or older.
41. that Dr. Martin, through his analysis of the data, came to the conclusion that age was a factor in the terminations. According to Dr. Martin, the odds of an employee being terminated increased along with the employee’s age. Dr. Martin found that the actual terminations that occurred differed from what the expected terminations would be, if age was not a factor, by 2.65 standard deviations. This lead Dr. Martin to conclude that the termination data
supported the conclusion that the process was not neutral to age. The basic result, according to Dr. Martin, was that the older an employee was the more likely it was that the employee would be terminated.
42. That the entire termination by age group broke down as follows: 6 people from the 29 years old and under group were terminated or 10.7% of the total workplace population that was 29 years old or younger; 5 people from the 30 to 39 year old group were terminated, or 6.8% of the workplace population of that age group; 7 people from the 40 to 49 year old group were terminated, or 10.6%; 9 people in the 50 to 59 year old age group were terminated, or 33.33% of that age group in the workplace; and 5 people (including the Plaintiff) were terminated in the 60 years old and over age group, or 62.5% of that age group in the workplace.
43. That the testimony at trial indicated that the Plaintiff was terminated solely because of the forced ranking tool. Only 6 of the people t using the forced ranking tool were under 40 years old, 16 of the people terminated using the forced ranking were over 40. Twelve of the 22 workers terminated using the forced ranking tool were over age 50 (54.5%), despite only 17.6% of the workforce at Park Rapids being over 50 years old. Seventy-five percent of the workers that were over 60 years old were terminated pursuant to the forced ranking (3 out of 4). The terminations that were not carried out using the forced ranking tool did not show any disparity, with 11.11% of the workers under 40 years old being terminated and 10.86% of the workers over 40 years old being terminated. The Defense witnesses. did not offer any alternative explanation (other than age discrimination) for the reason for the disparity in the terminations using the forced ranking tool as applied to the older workers.
44. That Dr. Martin, the Plaintiff’s expert witness, testified that there was a statistically significant adverse impact (based on age) in the terminations using the forced ranking tool.
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Dr. Martin testiuiedthat the data (Park Rapids terminations), to a reasonable statistical certainty, using generally accepted methodologies recognized by statisticians, constitutes a statistically significant adverse impact of over 2.6 standard deviations, with less than a 1% chance that discrimination based on age was not a factor in the terminations. For those over 50 years old, the data reflected 4.25 standard deviations from what would be expected if age discrimination were not a factor in the terminations.
45. That during Dr. Coumbe’s testimony, he was given the formula (for determining adverse impact) that Jim Russ had used earlier from the OFCCP web site to perform calculations using the Park Rapids and Detroit Lakes data and asked, using just the Park Rapids data, to determine whether there was a statistically significant adverse impact in the Park Rapids terminations based on age. At the conclusion of his calculations, Dr. Coumbe found that the data showed 2.63 standard deviations and that there was a statistically significant adverse impact when examining the Park rapids terminations. Dr. Coumbe also testified that he had only broken out the termination data by “over 40” and “under 40” and had not investigated the impact on those over 50 or over 60 as distinct groups of terminated workers. Dr. Martin’s testimony on the increased adverse impact of the forced ranking tool on those over 50, and again for those over 60, was unrebutted on this point.
46. Thai at least three exceptions were made to the order of rankings contained in the original forced ranking lists — Susan Annexstad, April Conklin, and Dale Maij ala.
47. That Susan Annexstad was first made an exception because her husband was already on the t list (humanitarian reasons) and then later re-ranked because it was felt that she had been ranked as a machine operator and without consideration of herpressure testing abilities. The result of the re-ranking was that Annexstad was above the cutoff for termination and therefore retained her job. Even if Annexstad had not been re-ranked, the
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evidence indicated that she would have been retained anyway because her husband was being terminated.
48. That April Conklin became an exception either because of her movement on the list in relation to Trena Sunday, or due to a calculation error, as was previously asserted. At trial,
Engen stated that she had noticed Conidin’s movement on the list in relation to Sunday and became concerned because she felt it was possible that Chris Harstad had rated Conklin in a non-objective manner. This concern arose because Conklin had a conflict with Harstad and Bngen believed that it was possible that Conklin had been rated in a biased manner by Harstad. Conklin was therefore re-ranked and retained because of the intervention by Engen and others. The April Conklin exception illustrates that the rankings were subject to manipulation by management, that the criteria used by the raters was subjective, and that bias in the rating process would only be detected if it was of the type that was very obvious or known to management personnel reviewing the ratings.
• 49. That Dale Maij ala was 57 years old at the time of the tenninations and working as an
• expeditor. Maij ala had been working as an expeditor for approximately three and a half years prior to the terminations. His position was eliminated and Mick Christianson told Maijala that there was an opening on the
• immediately if he was going to take the offer of returning to the floor area and did not let him consider the offer for a day. Maij ala had arthritis and had serious doubts that he could return to the floor. Because of this Maij ala was terminated a month and a half prior to vesting 80 percent in the employee stock ownership program. There was testimony that established that Dale Maijala and the Plaintiff had moved up and down on the list, with the Plaintiff going
• 13
from three positions above Maijala to seven below him. No one was alerted to their movement on the list, unlike Conklin and Sunday, because no obvious personality issues or concerns of bias were associated with their names. In the end, both Maijala and the Plaintiff were below the cutoff for tennination.
50. That the terminations done at Park Rapids were separate from the terminations done at
51. That Dr. Coumbe compared the percentage of the total workforce over 40 years old at
52. That raters (decision makers) ranked people on three of the four criteria: (1) performance, (2) criticality of position, (3) promotability. The fourth category, length of service was computer ranked. The categories were weighted with their assigned percentages: 50% for performance, 30% for criticality, and 10% each for promotability and length of service. Dr.
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• Coumbe testified that in order for the forced ranking to be reliable it must be followed and that it also should not be used exclusively, in a vacuum, for the basis of a decision.
53. That flaws and inconsistencies existed in the implementation of the foróed ranking tool. During the course of the trial when various witnesses, who were involved in the implementation and/or ranking, were asked what criteria (of the ranking categories) contained items like attendance, the number of machines a person could operate, or what machine a person operated, there was inconsistency in placing the specific aspect within the correct criteria. There was also overlap between the criteria and some vagueness in the definitions for the criteria.
54. That the only truly objective criteria applied in the forced ranking process was length of service, which was only weighted ten percent of the overall rating. The remaining criteria/categories were applied in a subjective manner according to the rater performing the ranking with only the definitions given to the raters during the training session as guidance. That the testimony of Wally Knapp, the Plaintiff’s supervisor, indicated that a person who worked the pallet pooi would automatically have an advantage over someone, for promotability, criticality, and performance, who worked in the, mills, just by virtue of their job. The inclusion of promotability also favored younger workers over older workers in making the ratings for terminations. Also, two new workers, younger workers in their thirties, were hired in February 2003 prior to the terminations and were able to retain their jobs despite the layoffs occurring in April. •
• 55. That the manner in which the forced ranking was implemented did not assist in tracing how
the various rankings and stages of rankings affected the outcome of the final list used for
• • termination. For example, Ms. Engen had difficulty relating what exactly occurred in the
• April Conklin-Trena Sunday ranking switch. At first, she presented (as did her notes, Exhibit
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10) ‘t as a mistake due to going off of the wrong list. Later, she related the accounts of how she was worried about Chris Harstad being biased when he ranked April Conldin. This led to some sort of re-ranking and either April Conklin being re-ranked only against Trena Sunday or entirely re-ranked. A similar re-ranking was not done for the Plaintiff despite similar
movement on the lists.
56 That, pnor to the terminations, Lmda Engen prepared a report for Jim Russ that indicated that
21 employees, or 66%, of those who were going to be terminated were over age forty The terminations were carried out despite such information.
57. That in July 2003, TEAM determined that some of the work it had anticipated losing would not actually be lost. At that time, TEAM determined that it needed to hire. Engen was
instructed to start by calling former employees from the termination list, starting with the
highest ranked person terminated, and invite those persons to re-apply for work as machinists with
complete an employment application. The Plaintiff was invited to apply on July31, 2003.
The call to the Plaintiff merely told him that there were openings and that he could apply for ajob at TEAM. Ms. Engen did not tell the Plaintiff which positions were open or which shift they were on.
58. That of the eleven former employees who were asked to reapply, seven were over the age of
40. Tn fact, six were oveE the age of 50. Only four filled out applications. The four employees who actually applied were all offered 3obs. Three accepted and began working for TEAM. Plaintiff was again asked to reapply in September of 2003. He again did not apply at that time. It is possible that the Plaintiff could have been employed by TEAMPark Rapids-DL as early as
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59. That thePlaintiff eventuallytook a part-time job with Home Depot, in November 2004. Although Plaintiff had the opportunity to apply for full-time status with Home Depot in March 2005, at the time of trial he has not converted his employment into full time employment, and he testified that he is unsure whether he will do so in the future.
60. That there was testimony from the Plaintiff that his supervisor Wally Knapp referred to him as “old man” and “old guy” on occasions. Mr. Knappalso referred to Stan Burkman as “Papa.” These comments were viewed by Mr. LaBonte at the time they were made as good natured and just joking around. It was not until the layoff and ensuing litigation that Mr. LaBonte questioned whether the comments by his supervisor weighed into his rating during the implementation of the forced ranking tool. Wally Knapp denied making any such comments to or about Mr. LaBonte. The majority of the supervisors and managers performing the ratings of the employees at TEAM, including Knapp, were in their 20s or 30s. The available workforce in
• 61. That upon cross-examination regarding “red flags” in the terminations data for the Park
• Rapids layoffs, Mr. Christianson stated that it did appear that a larger percentage of workers in their 50s and/or 60s were included in the termination, more than people in their 30s or 20s. He also stated that he had not seen that data at the time of the terminations and that it was Human Resources would have monitored the data for that type of problem.
From the foregoing Findings of Fact, the Court makes the following:
CONCLUSIONS OF LAW
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1 That the Minnesota Human Rights Act (MHRA), at Minnesota Statutes § 363A 08, Subdivision 2, (b)-(c), makes it an unfair employment practice for an employer, because of age, to “discharge an employee” or “discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment” The MIHRA recognizes both disparate treatment and disparate impact theories to prove discrimination. The Plaintiff has proceeded on both theories in the present case.
2. The Plaintifflemployee may prove a claim of disparate treatment based on a protected classification, such as age, either by direct or circumstantial (indirect) evidence. See Goins v. West Group 635 N.W.2d 717, 722-724 (Mi In the present case, the Plaintiff has mainly presented indirect, circumstantial evidence to support his disparate treatment case. The Plaintiff did testif that his supervisor, Wally Knapp, had called him “old guy” and “old man” and that Knapp referred to a co-worker as Papa. These comments were not tied to the decision-making process, except for the fact that they were made by Mr. LaBonte’s supervisor. Mr. LaBonte did not consider the comments to be derogatory until he considered, after the terminations, that this type of reference to an older worker could have affected his rankmg because Knapp performed the initial rating of the Plaintiff This evidence on the part of the Plaintiff is more circumstantial than direct.
3 Where direct evidence is lacking,
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McDonnell Douglas 411
• 1166). In the present case, Ivfr. Labonte, who was 60 years old at the time of his termination, has established that he is a member of a protected classification, under the MIHRA, as a worker over the age of majority. He has also demonstrated that he was qualified for and
• cmployed in the position from which he was disbharged. The Plaintiff was qualified to perform the job with TEAM prior to any. reduction in force at TEAM, he performed his job satisfactorily and recejved satisfactory performance reviews, and therefore he has met the second prong (that he was qualified, for the position) of the prima facie case. The Plaintiff has also established that he was discharged/terminated by the Defendant pursuant to the reduction in force and therefore meets the third prong of the prima facie case (that he was
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discharged/suffered adverse employment action). The Plaintiff must then present additional
•evidence that age was a factor in his termination. Mr. LaBonte has satisfied this requirement through statistical and circumstantial evidence showing that age was a factor in his tennination. The Plaintiff has shown a statistical analysis by his expert witness that concluded that three of the criteria were subjective, age was negatively correlated with the scores for employees on the forced ranking, and that his standard deviation analysis showed age was a factor in the terminations. Additionally, the Defendant’s expert witness, Dr. Coumbe, testified that the forced ranking tool should not be 100% of the basis for an employee’s termination and acknowledged that the criteria of “promotability” should not be used in a termination situation. The Plaintiff has established his prima facie. case under McDonnell Douglas
4. Once the Plaintiff has established a prima facie case, the burden then shifts to the employer to articulate a nondiscriminatory reason for its action. Here, TEAM has presented the reduction in force for economic reasons as its justification. TEAM has pointed to the poor ècoñomic performance and declining sales revenue at the time of the layoffs as evidence that a reduction in force was necessary for economic reasons. The need for a reduction in force is a satisfactory legitimate non-discriminatory reason presented by the Defendant for termination of the Plaintiff.
5. Because the Defendant has proffered a legitimate non-discriminatory reason for terminating the Plaintiff, to succeed, the plaintiff must prove by a preponderance of the evidence that the reason is merely a pretext for discrimination. This can be done by directly persuading the Court that a discriminatory reason likely motivated the Defendant, or indirectly by showing that the employer’s proffered explanation is unworthy of credence. The Plaintiff, Mr. LaB onte, has shown evidence that the criteria were not applied in a uniform manner and that the criteria (apart from length of service) were applied subjectively. The Plaintiff presented evidence that the previous methods of evaluating employees were thrown out, the three subjective criteria in the forced choice tool were incapable of precise definition by the raters,
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that the ranking score were negatively correlated. with age, that there were irregularities and
• exceptiOns in the rankings, and that the Defendant’s witnesses had changing or multiple
• explanations for these exceptions. He has also demonstrated that the Defendant implemented a toOl to carry out the layoffs that evenits own expert stated should not have been 100% of basis of the decision to terminate the Plaintiff. Dr. Coumbe’s affidavit and testimony indicate that his, and the Defendant’s, goal was to create a system where the employees were ranked from most crucial to least crucial to the organization, but by implementing a system where the employees ranking was negatively correlated with age, the least crucial employees were generally the older ones. The Plaintiff has met his burden of proof and established that age discrimination was a causative factor in the decision to terminate him.
6. That disparate impact cases are specifically addressed by the MHRA at Minnesota Statutes §
363A.28, Subdivision 10, which reads: “If the complaining party has met its burden of showing that an employment practice is responsible for a statistically significant adverse impact on a particular class of persons protected by section 363A.08, subdivision 2 an employer must justify that practice by demonstrating that the practice is manifestly related to the job or significantly furthers an important business purpose. Upon establishment of this justification, the charging party may prevail upon demonstration of the existence of a comparably effective practice that the court finds would cause a significantly lesser adverse impact on the identified protected class.”
7. The Plaintiff has shown statistical evidence demonstrating that the forced ranking tool had a significant adverse impact on workers over 40, which increased as age increased. The Plaintiff’s expert, Dr. Martin, testified that that the odds of an employee being terminated in the Defendant’s reduction in force, via the forced ranking tool, increased with age. Dr. Martin found that the actual terminations that occurred differed from what the expected terminations would be, if age was not a factor, by more than two standard deviations. Dr. Martin testified that the data (Park Rapids terminations), to a reasonable statistical certainty, using generally accepted methodolOgies recognized by. statisticians, constitutes a statistically
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significant adverse impact Of over 2.6 standard deviations, with less than a 1% chance that discrimination based on age (for those over 40) was not a factor in the terminations. For those over 50 years old, the data reflected 4.25 standard deviations from what would be expected if age discrimination were not a factor in the terminations. The Plaintiff has met his burden of showing that the forced ranking tool is responsible for a statistically significant adverse impact on a particular class of persons based on age.
8. That, because of the statistical evidence presented by the Plaintiff, the Defendant employer must justify that practice by demonstrating tF the practice is manifestly related to the job or significantly furthers an important business purpose. TEAM points to the need for a reduction in force to reduce costs and continue successfully operating as the important business purpose that was furthered via the implementation of the forced ranking tool. There was little evidence presented indicating that the forced ranking, which negatively effected older workers, sign ficantly furthered an important business purposes. The Plaintiff presented evidence that the layoffs where the toll was not used were not carried out in a discriminatory fashion. The tool was of questionable validity and utility with all of its exceptions, inconsistencies, and discriminatory effect. It was not clear to the raters who testified what exactly the forced ranking and its subjective categories (other than length of service) were attempting to measure. The result was the implementation of a tool that put all of the emplOyees on a relative scale where age was correlated with low scores. Even if the forced ranking tool was “manifestly related to the job or significantly furthers an important business purpose,” the Plaintiff has posited numerous alternatives to the use of the forced ranking tool as it was implemented in the present case. The Plaintiff correctly points ‘out, that the Defendants had been improving the job evaluations of employees for some time prior to the terminations and these performance appraisals by the individual employees’ managers could have been averaged and weighted. But even more importantly, the Defendant’s could have created a less subjective system with checks and safeguards in place to prevent the kind of adverse effect based on age that was present in the implementation of the forced ranking
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tool at Park Rapids. The Defendants own termination of workers during the layoffs without using the forced ranking tool resulted in a less discriminatory, and just as effective, alternative to the forced ranking tool.
9. The Plaintiff has shown statistical evidence demonstrating that the forced ranking tool implemented had a significant adverse impact on workers over 40, which increased as age increased and has therefore proven his disparate impact claim against the Defendant pursuant to the frameworkset forth in Minnesota Statutes § 363A.28, Subdivision 10.
10. The court awards the Plaintiff back pay in the amount of $85,800.00 minus the amount he earned ($6,582.00) during that time (2 1/2 years), plus prejudgment interest, for a total award of back pay in the amount of: 82,650.00. This amount is based on the Plaintiff’s yearly salary, as established by the evidence adduced at trial: $28,600.00, plus benefits, $5,720.00, equaling $34,320.00 in lost income per year for 2 and a half years. The Court does not find that a multiplier for the back pay damages is appropriate in the present case.
11. That the Court, as reinstatement of the Plaintiff is not practical, finds an award of front pay is appropriate. The Court finds that 5 years of front pay is appropriate and awards the Plaintiff front pay in the amount of $171,600.00. This amount was, arrived at by taking the Plaintiff’s yearly salary and multiplying it by 5 years. The Court does not find that a statutory multiplier for the front pay damages is appropriate in the present case.
12. That the Court finds that there is no award of damages for emotional distress or punitive damages as minimal, if any evidence was submitted regarding these amounts. This brings the total damages awarded to the Plaintiff in this matter, in awards of back pay and front pay, to a total award of $254,250.00.
13. The Court awards the Plaintiff his reasonable attorney’s fees. The Plaintiff shall submit within thirty days of receiving this order its reasonable attorney fees. The Defendant shall have twenty days to respond.
14. That the Plaintiff is further awarded costs and disbursements as allowed by law.
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ORDER FOR JUDGMENT
LET THE JUDGMENT BE ENTERED ACCORDINGLY.
DATED:
/
BY THE COURT
ay Môndr$
Ju e of District Court
I hereby certif that the above Findings of Fact, Conclusions of Law, Order for Judgment and Judgment constitute the Judgment and Decree of the Court.
DATED:
2006
Ci
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