Yarelyn Mena and Edgar M. Rivera, Esq.
On October 15, 2013, after twenty-five years of employment Dr. Farrokh Seifaee was one of fifteen employees terminated from AREVA, Inc. (AREVA) as a part of a reduction in force (“RIF”). The group of fifteen all had one thing in common: every member was over the age of fifty-five years old. On May 12, 2014, Seifaee filed a complaint alleging age discrimination in violation of the Massachusetts Anti-Discrimination Law and the Age Discrimination in Employment Act (ADEA).
In 2011, AREVA lost funding on major projects, resulting in several layoffs in an initial RIF. For the next several years, Seifaee’s team and various others had little work to do as projects began to diminish. In September 2013, AREVA’s management began preparing for another RIF. Department heads, including Seifaee’s supervisor Bret Boman, created criterion to determine which employees would be laid off. The criterion considered business needs, current and past evaluations of each employee, and the employee’s critical or unique skills. Each employee was rated on a scale from one to ten, along with written documentation supporting the evaluation.
Seifaee earned a satisfactory job performance on his performance evaluations in 2011 and 2012, and his department earned internal awards that recognized his good performance in 2012 and 2013. Seifaee only received one negative review; former supervisor, Virgilio Esquillo, writes that Seifaee “did not demonstrate the necessary intellectual horsepower to solve the problem.” When electing to terminate Seifaee, Boman veered from the criterion by considering only Seifaee’s 2012 performance evaluation instead of the more recent evaluations with positive ratings and failing to gather more information about Seifaee’s performance or unique abilities.
Seifaee brings age claims based on disparate treatment and disparate impact. While both disparate treatment and disparate impact theories can be used by a plaintiff to show an employer’s discriminatory practices, they are used in different ways. Disparate treatment claims that an employer treated an employee differently than other similarly situated employees. Under disparate impact, a discriminatory motive is not required; plaintiff must show that a facially neutral employment practice disproportionally affected one group and cannot be justified by any business necessity.
AREVA maintained that the terminations were solely due to work shortages caused by loss of funding. Seifaee, relying on an expert statistician, demonstrated that it was statistically improbable that a supposedly objective system that evaluated 136 employees coincidently identified fourteen employees all over the age of fifty-five to terminate. This information was used to show that a disparate impact stemmed from AREVA’s RIF criteria to the detriment of older workers.
Seifaee moved for summary judgment on his disparate impact claims while AREVA moved for summary judgment on all counts. On November 10, 2015, the court denied summary judgment for both parties finding genuine issues of material fact. The court decided that the credibility of Seifaee’s data was a question for a jury to decide, and thus would not be decided in summary judgment.
Employees should be aware of both disparate treatment and disparate impact claims. Where disparate treatment typically is clearer to the affected employee, both may result in illegal discriminatory termination. Employees need to be aware and suspicious of policies that only affect members of one protected class.
If you believe you have been discriminated against based on your age, please contact The Harman Firm, LLP.