An HR executive, allegedly terminated for poor performance and not complying with the terms of his performance probation, argued that his termination was in retaliation for complaining about the CEO’s age-related comments.
Background. In 2005, “Russell” was hired as vice president of worldwide human resources (HR) for Corbis Corporation. In July 2007, the CEO who hired Russell was replaced by 37-year-old, “Bradley.”
Although the outgoing CEO expressed concerns about Russell’s performance, Bradley promoted Russell, who was 55-years-old at the time.
Bradley regularly made comments indicating his preference for younger workers—talking about older workers as being “out of touch,” “an old-timer,” “grandmotherly,” or “the old guy on [the] team.”
On several occasions, Russell cautioned Bradley for his comments, explaining that age should not be considered in hiring or firing employees.
Russell grew so concerned about the comments that he spoke with the company’s general counsel in late 2007. At around the same time, Bradley promoted Russell to senior vice president and awarded him a pay raise and an incentive bonus.
In January 2008, Bradley organized executive team members and an independent consultant to conduct Russell’s annual performance review. Russell was subsequently put on probation. Russell maintained that in retaliation for his complaints, Bradley recruited team members whom he knew would find fault with Russell’s performance and compile a list of reasons to fire him.
After Russell was terminated on March 26, 2008, he filed suit, alleging age discrimination and retaliation under the Washington Law Against Discrimination (WLAD). Corbis counterclaimed, alleging, among other things, Russell’s breach of fiduciary duty as a Corbis officer for failing to record any vacation time, accepting a payout of $41,155 plus a 401(k) match of $1,235 for 329 hours of accrued but unused vacation time (even though he allegedly took 35 more vacation days than permitted), and accepting an erroneous double payment of a $35,000 bonus.
The jury found that the company had not engaged in age discrimination, and the court granted summary judgment to Corbis on the retaliation claim, concluding that Russell was not engaged in protected activity because his warnings about potential age discrimination were part of his ordinary job duties.
After a second trial on the fiduciary duty counterclaim, the jury found that Russell breached his fiduciary duty only on the vacation issue and awarded $42,389 in damages to Corbis. Russell appealed to the state Court of Appeals, and Corbis cross appealed.
What the court said. The appeals court reversed the order granting summary judgment to Corbis on the retaliation claim but otherwise affirmed the lower court’s decision.
Corbis maintained that the “step outside” requirement that has developed in federal Fair Labor Standards Act cases should apply in this case. “Under this standard, Corbis argues that … [Russell] was not engaged in statutorily protected activity, because he was merely doing his job as a human resources officer advising … [Bradley] about his potentially discriminatory practices” (i.e., Russell did not step outside his usual role).
The court disagreed, noting that, among other things, the WLAD protects any person who opposes unlawful workplace discrimination and that “[t]he ordinary meaning of ‘oppose’ is not limited to activity outside the normal job duties of the employee.” The court continued, “ … [A]dopting the step outside rule would strip human resources, management, and legal employees of WLAD protection.”
Regarding the bonus issue, the court said Russell “did not act in bad faith in mistakenly receiving the double bonus. For instance, he did not have the power to authorize the double payment and was not responsible for compelling its payment. No one at Corbis knew the bonus was erroneously paid and no one requested its return.” Once Russell learned of the overpayment, his offer to pay it back was rejected. (Lodis et al. v. Corbis Holdings, Inc., et al.)