FedEx Boss’s Inconsistent Story Spurs Age Bias Trial

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By Patrick Dorrian

A 45-year-old sales executive who was fired by FedEx Corporate Services and replaced with a 38-year-old can move forward on her age discrimination claims, a federal judge in Pennsylvania ruled ( Larison v. Fedex Corp. Servs., Inc. , 2017 BL 196229, E.D. Pa., No. 16-5921, 6/9/17 ).

Two younger sales executives—ages 34 and 31—did worse than Justine Larison on the sales metric used to justify Larison’s discharge, but they weren’t fired. That raises fact issues for a jury, even though their common supervisor testified that she expected more of Larison because she’d been in the position eight years versus their two years and one year, respectively, the U.S. District Court for the Eastern District of Pennsylvania found June 9.

The supervisor, 34-year-old Stephanie Nardiello, also testified that the “entire sales team” was held to the same standard, regardless of experience, the court said. In light of the inconsistency in Nardiello’s account, a jury should review whether Larison, whom Nardiello previously had tried to fire despite her generally acceptable performance ratings, was held to a higher standard because of her age, the court decided.

The ruling reaffirms that the gap in age between a discharged worker and her replacement doesn’t need to be overly lengthy to support a claim under the Age Discrimination in Employment Act. The U.S. Court of Appeals for the Third Circuit, which includes Delaware, New Jersey, and the Virgin Islands in addition to Pennsylvania, has held that an age difference of as little as five years is sufficient, Judge Mark A. Kearney said.

The Equal Employment Opportunity Commission will be marking the 50th anniversary of the ADEA on June 14, during a public meeting at agency headquarters in Washington. The agency will be exploring the state of age bias in U.S. workplaces and the challenges ahead for both employers and workers.

Those challenges may include the aging of the American population, a rise in the number of older workers putting off retirement, lawsuits alleging bias in the traditional practice of campus recruiting, and the potential drawbacks for older workers of online job seeking.

Nevertheless, EEOC statistics show a drop in age-based discriminatory firing charges every year since 2010—from 12,777 to 10,837 in 2016. Larison’s lawsuit is one of two brought in or removed to federal district court within the past five years against FedEx Corporate Services alleging age discrimination against a sales executive, according to Bloomberg Law analytics.

FedEx said it would continue to defend the current lawsuit. “We are pleased the court dismissed the retaliation claim, but respectfully disagree with the ruling on the age claim,” a company spokesperson told Bloomberg BNA in a June 12 email. “FedEx does not tolerate discrimination of any kind. We believe this claim is without merit, and we will continue to defend the lawsuit.”

With Company Since 1994

Larison joined FedEx Corporate Services in 1994 and held other positions before becoming a sales account executive in March 2007. Nardiello became her supervisor in 2012. As did Larison’s prior supervisors, Nardiello initially rated her performance as “Generally Acceptable” overall but somewhat lacking in the area of closing new business.

Nardiello first proposed firing Larison in 2014, but human resources suggested a “warning letter” instead. Nardiello ultimately issued two warning letters to Larison, sharpening the criticism of her closing-new-business skills, especially large accounts. When Nardiello proposed Larison’s termination again the following year, FedEx followed the supervisor’s recommendation.

Larison also argued that statistical evidence of Nardiello’s penchant for hiring younger workers, along with anonymous complaints about the supervisor’s animus toward older workers, showed the performance-based reason used to justify Larison’s firing was a cover for bias. The court found otherwise but said the inconsistencies in Nardiello’s standards for assessing the sales performances of Larison and her two younger comparators warranted review by a jury. That was so even though Larison had been in the sales role longer than the younger workers and experience can be a relevant factor in grading employee performance, the court said.

Attorneys for Larison didn’t respond June 12 to Bloomberg BNA’s request for comment.

Console Mattiaci Law LLC represented Larison. FedEx in-house attorneys and Cozen O’Connor represented FedEx.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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