A New Jersey federal court recently declined to dismiss an age discrimination lawsuit because an employer’s failure to discipline employees in a consistent manner could be construed as evidence of discrimination.
“Bruce” began his employment with General Nutrition Corporation (GNC) as a sales associate in 1999. GNC promoted him to store manager in 2001, and he remained in that position until his discharge in 2014. He was 58.
Throughout his employment with GNC, Bruce received numerous awards, including a “Sales Leader Award” and a “Certificate of Appreciation” for his sales performance in 2013. He improved the classification of his store from a “D” to a “B” based on sales, profits, and growth.
GNC evaluated Bruce’s performance annually through two assessments—an evaluation of his individual performance and an evaluation of his store. He received individual scores indicating he was not meeting performance expectations in 2006, 2008, and 2014, although his supervisor acknowledged that managers, including himself, had good and bad years. Bruce’s store received failing scores in 2010, 2011, and 2012.
GNC issued Bruce a written warning in June 2012. In 2013, his store received another failing score. As a result, in January 2014, GNC placed his store on an action plan and gave him 30 days to improve the store’s performance or face disciplinary action, including termination. GNC terminated Bruce’s employment approximately 1 month later for his failure to improve the performance of his store.
On the same day, Bruce received a letter from GNC’s CEO acknowledging that his efforts and hard work contributed to the company’s success in 2013. In recognition of those achievements, GNC promised a “discretionary match” to his 2013 401(k) contribution.
GNC replaced Bruce with an employee in his 20s. Bruce filed a lawsuit against GNC alleging age discrimination under the New Jersey Law Against Discrimination (NJLAD). Following the closure of discovery (the pretrial exchange of evidence), GNC filed a motion seeking dismissal of the lawsuit on the grounds that there were no factual disputes that needed to be resolved before a jury and judgment should be entered in its favor. Although GNC acknowledged Bruce’s proficiency in sales, it maintained that he failed to comply with the requirements of his action plan.
District Court’s Decision
The court declined to dismiss the lawsuit, finding that Bruce presented sufficient evidence for a reasonable fact finder to conclude that GNC’s proffered reason for terminating his employment (namely, poor performance as store manager) was pretextual (i.e., fabricated).
The court determined that the following evidence could support an inference that GNC treated Bruce differently because of his age:
- He improved his store’s performance classification from a “D” to a “B.”
- He received accolades for his performance throughout his employment with GNC.
- Six younger store managers in his region had performance issues from 2011 to 2015 and were not placed on action plans. In addition, the similarly situated managers were not terminated within 30 days of their performance reviews.
- GNC sent him a letter on the date of his termination recognizing that his “efforts and hard work” contributed to a successful year in 2013. The company provided him additional compensation for his performance without mentioning “sales” or “sales performance.”
- His supervisor included ageist language in the action plan, referring to him “following old ways” and “not growing with the times.”
Accordingly, the court concluded that the evidence sufficiently indicated “weaknesses, implausibilit[ies], inconsistencies, incoherencies, or contradictions” to create a genuine question of fact sufficient to deny summary judgment (dismissal without a trial).
This case is an important reminder that employers must discipline employees in a consistent manner to avoid the appearance of discrimination. While GNC may have terminated Bruce’s employment because of his poor performance as a store manager, its failure to treat similarly underperforming younger store managers the same way—as well as its inconsistent positive messages regarding his contributions—called into question whether the discharge decision was motivated by age rather than job performance.
Kennell Sambour, an associate of Day Pitney LLP, is a contributor to New Jersey Employment Law Letter.