New England Biz Law Update
A terminated employee could hold her employer liable for age discrimination based on a single comment allegedly made by her supervisor, a U.S. District Court judge has ruled.
The defendant employer argued that the comment was a “stray remark” insufficient to warrant denial of the employer’s summary judgment motion.
But Judge William E. Smith in Providence, R.I., disagreed.
“[T]he remark may reasonably be interpreted as expressing the belief that [the plaintiff] was too old to do her job and should be replaced with someone younger,” Smith stated. “Therefore, summary judgment is inappropriate, and a jury must decide why [the plaintiff] was let go.”
The 32-page decision is Drumm v. CVS Pharmacy, Inc.
Providence attorneys R. Daniel Prentiss and Albin S. Moser are representing the plaintiff employee. Counsel for the defendant employer is Todd M. Reed, also of Providence.
Hiring and firing
The plaintiff, Wendy Drumm, began working for defendant CVS as chief creative director in September 2003. She was 52 at the time.
At the end of 2006, CVS hired Robert Price as a new vice president of retail marketing.
In that role, he took over as the plaintiff’s direct supervisor.
When the plaintiff’s former supervisor, Helena Foulkes, raised the possibility that it might be time for the plaintiff to “move on,” Price claimed that he asked Foulkes not to dismiss her yet, requested the opportunity to help “manage her development” and help her “become a success” in her role.
The basis for the plaintiff’s lawsuit was a comment allegedly made by Price to Drumm several months after he became her supervisor.
To place the remark in context, the judge explained the defendant’s marketing terminology. CVS uses a shorthand system of three names corresponding to the letters C, V and S to describe its targeted customer base, he said. The name “Sophie” refers to a “customer paradigm of a woman over the age of 65,” while “Caroline” represents the youngest segment and “Vanessa” represents the middle.
The plaintiff alleged that, when the supervisor met with her in late March 2007 to discuss marketing strategy, he said: “Wendy, we know all about your Sophie contemporaries. There is no need to contemplate your paradigm. There is no empirical mystery here. We need a younger, fresher missionary for Creative. And Wendy, let’s face it, that is not within your scope, and that is a problem for you.”
The majority of that comment was not in dispute, but the defendant denied that Price used the term “Creative.”
The defendant officially terminated the plaintiff’s employment in July 2007, when she was 56. To replace her, the defendant appointed a 37-year-old woman to the position of chief creative director.
The plaintiff later brought suit under the Age Discrimination in Employment Act and two state statutes, the Rhode Island Fair Employment Practices Act and the Rhode Island Civil Rights Act.
Pricey comment
“The decisive question,” Smith said, was whether the plaintiff could “point to sufficient circumstantial evidence of bias to allow a jury to conclude that she was actually fired because of her age.”
The plaintiff’s case depended entirely on her supervisor’s March 2007 comment.
“Price’s alleged warning to Drumm cannot be dismissed as simply a ‘stray remark,’” the judge found.
“First, there is no dispute that Price was a ‘key decisionmaker,’” he wrote. “Second, the terms ‘fresher, younger missionary’ explicitly refer to age. And the declaration that this was ‘not within [Drumm’s] scope’ and was ‘a problem’ for her, indicates that Price thought Drumm could not serve as the ‘missionary’ Price wanted because of her age,” the judge added. “Thus, a straightforward reading of Price’s statements is that they are ‘discriminatory’ because they express age-based bias.”
Finally, Smith pointed out, the last two sentences of the comment reflected a relationship to “the decisional process.” He also made note of the fact that the firing occurred a little more than a month later and that the timing of the comment thus “falls within the zone of relevance recognized in case law for evidence of pretext.”
The judge concluded that “Price’s cautionary words to Drumm display classic characteristics of remarks that preclude summary judgment: they explicitly refer to age and presage Drumm’s replacement with a younger employee.”
Smith went on, however, to allow the defendant’s summary judgment motion with respect to other counts that sought relief under theories of breach of contract and promissory estoppel.
