Septuagenarian Replaced by 68-Year-Old Wins Age Bias Case

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Patrick Dorrian

A Massachusetts employer discriminated against a 74-year-old custodian based on age when it replaced him with a 68-year-old woman, a state appeals court held ( Massasoit Indus. Corp. v. Mass. Comm’n Against Discrimination , 2017 BL 91368, Mass. App. Ct., No. 16-P-459., 3/23/17 ).

The decision should serve as a reminder that under federal law and many state statutes, an employee doesn’t need to prove he was replaced by a worker outside the age-protected class to recover for age discrimination. Rather, he only must show that he was replaced by someone “substantially younger.” The gap needed to demonstrate a substantial difference in age varies from court to court.

Here, the Massachusetts Commission Against Discrimination didn’t err when it upheld an administrative judge’s finding that Massasoit Industrial Corp. discriminated against William Glynn under Massachusetts General Laws Chapter 151 when it fired him in May 2007, the Massachusetts Appeals Court ruled March 23. The decision upholds awards of $141,650 to Glynn in damages and attorneys’ fees.

“Notably, the hearing officer found that while Massasoit employed older individuals, it drew the line at someone in his mid-seventies who was confronting sequential health issues,” Justice Amy Lyn Blake wrote.

Fired After Heart Attack

Glynn was fired when he tried to return to his job as a general custodian at the registry of the state’s Department of Motor Vehicles in Brockton, Mass., following a run of poor health. He initially missed three days of work while being treated for pneumonia, and soon after was admitted to the hospital after having a heart attack, the appeals court said.

Prior to those health problems, Glynn had “a spotless personnel record” with Massasoit and “had never called in sick or missed work due to illness,” the court wrote.

The decision also upheld a finding by MCAD that Glynn was subjected to disability discrimination by the employer. The evidence was “more than sufficient” to support the conclusion that Glynn was regarded as disabled, Blake said.

Justices Elspeth B. Cypher and Diana L. Maldonado joined the opinion.

Wendy A, Cassidy represented MCAD. Susanne Hafer represented Massasoit. Christopher Maffucci represented Glynn as an intervenor.

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; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law