Ocala, FL Wrongful Termination Lawyers Serving Central Florida

For more than two decades, our Marion County, Florida wrongful termination lawyers have fought for the rights of employees who have been wrongfully terminated, including employees who have been wrongfully discharged pursuant to a reduction in force. Having dedicated their practice to representing employees against unlawful employment practices, our Ocala, Florida wrongful termination attorneys have learned that although a reduction in force that results in an elimination of jobs is sometimes a legitimate reason for dismissing an employee, employers often use a reduction in force rationale for discharging employees as a pretext to mask unlawful discrimination.

Reduction In Force Used To Hide Discrimination

Because of the employer friendly approach adopted by many courts to the employment discrimination laws, employers know that when they claim an employee was fired pursuant to a reduction in force necessitated by economic considerations, such as a business decline or an economic downturn, their assertion often will not be subjected to judicial scrutiny. Indeed, many courts when ostensibly enforcing the employment discrimination laws frequently make statements similar to this one made by the U.S. Eighth Circuit Court of Appeals in Regel v. K-Mart Corp., 190 F.3d 876 (8th Cir. 1999): “the employment discrimination laws have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgment made by employers[.]” In applying this elastic principle in the reduction in force context, courts, such as the U.S. Tenth Circuit Court of Appeals in Furr v. Seagate Technology, Inc., 82 F.3d 980 (10th Cir. 1996), declare that the “wisdom of a [reduction in force] is not for a court or jury to decide” because a reduction in force “is a business decision, and the [employment discrimination laws] are not a vehicle for reviewing the propriety of business decisions.” Knowing that the “wisdom” or “fairness” of their reduction in force business decision will not be scrutinized, employers believe they can use a reduction in force rationale to cover unlawful discrimination and evade liability for employment discrimination in all but the most egregious of cases.

Employee Rights In Reduction In Force

The widespread misconception underlying these approaches to the employment discrimination laws is that reductions in force are rarely initiated for a discriminatory reason or implemented in a discriminatory manner. These approaches to the employment discrimination laws also disingenuously conflate scrutinizing an employer’s reduction in force with “second-guessing” the employer’s decision-making process. As observed by the U.S. Second Circuit Court of Appeals in Montana v. First Federal S & L of Rochester, 869 F.2d 100 (2d Cir. 1989), although courts do not “second-guess” an employer’s business decision, federal courts, “to ensure that the business decision was not discriminatory, [are] not forbidden to look behind the employer’s claim that it merely exercised a business decision in good faith.” “To hold otherwise,” the Montana court explained, “would effectively insulate an employer from the constraints of the federal anti-discrimination laws during any structural reorganization or reduction in force.” Thus, as the U.S. Eighth Circuit Court of Appeals explained in Yates v. Rexton, Inc., 267 F.3d 793 (8th Cir. 2001), “even within the context of a legitimate reduction in force, an employer may not fire an employee because” of the employee’s race, color, national origin, sex, pregnancy, religion, disability, or age.

Based in Ocala, Florida and representing employees throughout Central Florida, our Marion County, Florida wrongful termination lawyers are dedicated to vindicating the rights of employees who have been unlawfully terminated as part of a reduction in force.

Definition Of Reduction In Force

Some courts, such as the U.S. Third Circuit Court of Appeals in Hook v. Ernst & Young, 28 F.3d 366 (3d Cir. 1994), have determined that an employee who is terminated pursuant to a reduction in force “carriers a heavier burden in supporting charges of discrimination than does an employee discharged for other reasons.” Knowing that the employer-friendly approach of many courts to the employment discrimination laws creates substantial litigation disadvantages for employees in the reduction in force context, unscrupulous employers often seek to exploit those litigation disadvantages by falsely claiming that employees fired for other reasons were terminated as a result of a reduction in force. Because the discharged employees in many cases were not, in fact, terminated pursuant to a legitimate or genuine reduction in force despite the employers’ claims to the contrary, it is necessary to define what constitutes a true reduction in force.

In Barnes v. Gencorp Inc., 896 F.2d 1457 (6th Cir. 1990), the U.S. Sixth Circuit Court of Appeals determined that “[a] work force reduction situation occurs when business considerations cause an employer to eliminate one or more positions within the company.” “An employee is not eliminated as part of a work force reduction,” the Barnes court explained, “when he or she is replaced after her discharge.” Thus, as noted by the U.S. Seventh Circuit Court of Appeals in Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687 (7th Cir. 2000), a reduction in force “occurs when an employer permanently eliminates certain positions from its workplace.” “Because the employer has removed the position entirely,” the Michas court pointed out, “the position will never be refilled.”

As the Seventh Circuit observed in Bellaver v. Quanex Corp., 200 F.3d 485 (7th Cir. 2000), reductions in force “typically involve the layoff of many employees at once, and employers will not be allowed cynically to avoid liability by terming a decision to fire an employee . . . as a [reduction in force] when the decision was nothing more than a decision to fire that particular employee.” However, as explained by the U.S. First Circuit Court of Appeals in LeBlanc v. Great American Ins. Co., 6 F.3d 836 (1st Cir. 1993), “an employer need not dismiss any particular number of employees, or terminate a set percentage of the work force, to institute a reduction in force.” Reduction in force plans, as pointed out by the U.S. Eighth Circuit Court of Appeals in Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363 (8th Cir. 1987), “generally include objective criteria by which to determine which jobs will be eliminated and often include objective evidence of a business decline.”

Proving Discriminatory Discharge

To prove a discriminatory discharge in the context of a reduction in force, an employee must first establish a prima facie case of discrimination. As determined by the U.S. Tenth Circuit Court of Appeals in Juarez v. ACS Gov. Solutions Group, Inc., 314 F.3d 1243 (10th Cir. 2003), when an employer claims that it discharged an employee as a part of a reduction in force, an employee may establish a prima facie case of discrimination by demonstrating that: (1) he or she is a member of a protected class on the basis of race, color, national origin, sex, pregnancy, religion, disability, or age; (2) he or she was doing satisfactory work; (3) he or she was discharged despite the adequacy of his or her work; and (4) there is some evidence that the employer intended to discriminate against the employee in reaching its reduction in force decision.

A prima facie case of discrimination raises a presumption of intentional discrimination. That presumption mandates a finding of intentional discrimination, as the U.S. Supreme Court explained in Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981), because a prima facie case “eliminates the most common non-discriminatory reasons” for the employment decision. In other words, the Burdine Court explained, that employment decision, “if otherwise unexplained, [is] more likely than not based on the consideration of impermissible factors.” Thus, as the U.S. Sixth Circuit Court of Appeals in Rose v. Nat’l Cash Register Corp., 703 F.2d 225 (6th Cir. 1983) observed, “to say that an [employee] has established a prima facie case is simply to say that he has produced sufficient evidence to present his case to the jury.”

Once an employee establishes a prima facie case of discrimination, the employer must proffer a legitimate, non-discriminatory reason for the termination. In the context of a reduction in force, as pointed out by the U.S. Eleventh Circuit Court of Appeals in Watkins v. Sverdrup Technology, Inc., 153 F.3d 1308 (11th Cir. 1998), this means that the employer must explain “the reasons behind its implementation” of the reduction in force and the employee’s “inclusion in it.” If the employer shows that it had a legitimate, non-discriminatory reason for the discharge, the employee must demonstrate that the employer’s articulated reason for the termination was a pretext for discrimination.

The employee may prove pretext by demonstrating that the employer was more likely than not motivated by a discriminatory reason or by demonstrating that the employer’s proffered explanation is unworthy of belief (i.e., is false, a lie, not credible, a phony reason, or implausible). Evidence that an employer’s articulated reason for discharging an employee is unworthy of belief permits a jury to find that unlawful discrimination was the true motive or real reason for the discharge decision. Thus, as the U.S. Eighth Circuit Court of Appeals explained in Pye v. Nu Aire, Inc., 641 F.3d 1011 (8th Cir. 2011), “[e]ither route amounts to showing that a [discriminatory] reason, rather than the employer’s stated reason, actually motivated the employer’s action.”

Proving A Discriminatory Reduction In Force

As explained by the U.S. Sixth Circuit Court of Appeals in Tulley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 124 (6th Cir. 1995), “there are no hard and fast rules as to what evidence is needed in order to establish pretext.” Thus, as the U.S. Tenth Circuit Court of Appeals determined in Kendrick v. Penske Transp. Services, Inc., 220 F.3d 1220 (10th Cir. 2000), “[t]he evidence which [an employee] can present in an attempt to establish that [an employer’s] stated reasons are pretextual may take a variety of forms.” In the reduction in force context, there are three principle methods by which employees seek to establish pretext.

The first method of showing pretext is by demonstrating that the employee was not, in fact, terminated as part of a true reduction in force. Under this method, the employee contends that he or she was not terminated pursuant to a legitimate or genuine reduction in force. In other words, the employee claims that the purported reduction in force never happened or, if it happened, he or she was not terminated as part of the reduction in force. Factors indicating that an employee may not have been not terminated pursuant to a legitimate or genuine reduction in force include: the employee was replaced after his or her discharge; the employer hired new employees shortly before, during, or shortly after the alleged reduction in force; the employer’s strong financial condition showing that reductions in the work force were not in fact needed; and a lack of evidence regarding the employer’s objective plan to implement a reduction in force. When an employee shows that he or she was not terminated as part of a legitimate or genuine reduction in force, the employee has demonstrated pretext because the proffered reason for the discharge—a reduction in force—is unworthy of belief.

The second method of showing pretext, even if the reduction in force was otherwise legitimate or genuine, is by demonstrating that the specific reason given by the employer for selecting the employee for termination as part of the reduction in force is unworthy of belief. Under this method, the employee is claiming that the employer included him or her in the reduction in force based on a discriminatory reason and that the employer used the reduction in force rationale for the discharge as a pretext to hide unlawful discrimination.

The final method of showing pretext, even if the reduction in force was otherwise legitimate or genuine, is by demonstrating that the employer used the reduction in force to get rid of workers because of their race, color, national origin, sex, pregnancy, religion, disability, or age. Under this method, the employee is claiming that the employer initiated the reduction in force based on a discriminatory reason or implemented the reduction in force in a discriminatory manner.

The decision by the U.S. Eighth Circuit Court of Appeals in Gaworski v. Commercial Finance Corp., 17 F.3d 1104 (8th Cir. 1994) is illustrative of a case where pretext was established by showing that the employer’s assertion that the employee was terminated pursuant to a reduction in force and that the employer’s explanation for including the employee in the alleged reduction in force were unworthy of belief. In that case, the employer claimed that the employee was terminated as part of a reduction in force when his position as Manager of Credit Operations was eliminated. The employer further claimed that it retained a younger employee over the discharged employee because the discharged employee lacked a substantive understanding of credit analysis. In upholding the jury’s verdict that the employee was fired because of his age in violation of the Age Discrimination in Employment Act, the Eighth Circuit focused on two separate strands of evidence, with each strand of evidence being sufficient to establish that the employer’s justification for the termination was a pretext for age discrimination.

First, the Eighth Circuit found that the evidence established that the purported reduction in force never happened. In support of this finding, the appellate court pointed to evidence showing that “business was increasing” at the time of the layoffs and that the discharged employee’s position was not in fact eliminated. Instead, the position was filled by a younger employee. Based on this evidence, the court of appeals determined, the jury could have reasonably found that the employer’s purported reduction in force “was a pretextual explanation” for the employee’s discharge. Second, the Eighth Circuit found that the evidence established that the employer’s reason for including the employee in the alleged reduction in force was not credible. In support of this finding, the appellate court pointed out that the discharged employee had served with the company president and other top-level management as the “final arbiter” in assessing credit analyses conducted by other employees. This evidence, the court of appeals reasoned, demonstrated that the discharged employee’s substantive understanding of credit analysis. Based on this evidence, the Eighth Circuit concluded, the jury could have reasonably rejected the employer’s proffered explanation for including the discharged employee in the reduction in force.

No Reduction In Force: Employee Replaced

In Phair v. New Page Corporation, 708 F.Supp.2d 57 (D. Maine 2010), the U.S. District Court for Maine explained that “an employee is not eliminated as part of a reduction in force when he or she is replaced after his or her discharge.” Indeed, as observed by the U.S. District Court for Minnesota in Hillins v. Marketing Architects, Inc., 808 F.Supp.2d 1145 (D. Minn. 2011), “when a company fires one worker and replaces him with another, there is no net loss in the number of employees and no ‘reduction in force’ as the term is commonly understood.” Thus, when an employer claims that an employee was terminated as part of a reduction in force but replaces the employee following the discharge, then the employee was not terminated pursuant to a legitimate or genuine reduction in force. In other words, no true reduction in force occurs when the discharged employee is replaced.

As observed by the U.S. Sixth Circuit Court of Appeals in Pierson v. Quad/Graphics, 749 F.3d 530 (6th Cir. 2014), the discharged employee is not replaced when another employee is assigned to perform [the discharged employee’s] duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work.” Instead, the Pierson court explained, “a person is replaced only when another employee is hired or reassigned to perform [the discharged employee’s] duties.” Thus, as the Pierson court pointed out, an employer “replaces” a discharged employee when it hires another employee to perform the discharged employee’s duties or “when it reassigns an existing employee to assume the discharged employee’s duties in a way that fundamentally changes the nature of his employment.” However, as the Sixth Circuit determined in Barnes v. GenCorp., Inc., 896 F.2d 1457 (6th Cir. 1990), an employer cannot “avoid liability by changing [the discharged employee’s] job title or by making minor changes to a job indicative of an attempt to avoid liability.”

The decision by the U.S. Second Circuit Court of Appeals in Carlton v. Mystic Transp., Inc., 202 F.3d 129 (2d Cir. 2000) is illustrative of the principle that an employer “replaces” a discharged employee when another person fills the discharged employee’s position. In that age discrimination case, the employer claimed that the employee was terminated pursuant to a reduction in force when his position of director of marketing was eliminated. Three months after the employee was fired, the employer hired someone twenty-five years younger than the discharged employee for the director of marketing position.

In reversing the trial court’s dismissal of the employee’s claim that he was unlawfully fired on the basis of age in violation of the Age Discrimination in Employment Act, the Second Circuit found that the employee’s evidence established that the purported reduction in force never happened. In support of its conclusion, the appellate court reasoned that “in spite of the company’s need to downsize, the company hired a substantially younger person only three months after the employee was discharged, tending to refute the reduction in force reason for [the employee’s] discharge.” This evidence, the Second Circuit observed, suggested that “perhaps some other motive—beyond the company’s finances—motivated [the employee’s] dismissal.”

The decision by the Sixth Circuit in Tinker v. Sears, Roebuck & Co., 127 F.3d 519 (6th Cir. 1997) is illustrative of the principle that an employer “replaces” a discharged employee when another employee is reassigned to perform the discharged employee’s duties. In that age discrimination case, the employee was terminated as part of a reduction in force. Shortly after the employee was fired, a younger employee assumed the discharged employee’s duties. In order to enable the younger employee to assume the discharge employee’s duties, however, the employer changed the younger employee’s employment status from part-time to full-time. In “fundamentally changing” the nature of the younger employee’s employment by “promoting him to full-time status,” the Sixth Circuit determined, the employer “effectively replaced [the discharged employee] by reassigning another employee to assume [his] duties.” In other words, the Sixth Circuit reasoned, the circumstances were analogous to hiring a new employee to assume the duties of the discharged employee and thus the younger employee “replaced” the discharged employee.

No Reduction In Force: Job Not Eliminated

In the reduction in force context, employers often tell employees they are being terminated because their position or job is being eliminated as part of a reduction in force. Under such circumstances, as the U.S. Tenth Circuit Court of Appeals explained in Abuan v. Level 3 Communications, Inc., 353 F.3d 1158 (10th Cir. 2003), “whether a position has been eliminated is relevant to the issue of discrimination in a [reduction in force] case because it bears on whether the [employer’s] proffered justification” is unworthy of belief. As explained by the Tenth Circuit in Miller v. EBY Realty Group, LLC, 396 F.3d 1105 (10th Cir. 2005), “one way” a discharged employee may show that an employer did not, in fact, implement a reduction in force is by showing that his or her “job was not eliminated but remained a single, distinct position.”

The decision by the Tenth Circuit in Atchley v. Nordam Group, 180 F.3d 1143 (10th Cir. 1999) is illustrative of the principle that showing the discharged employee’s position was not eliminated is sufficient to establish that an employer’s reduction in force explanation is unworthy of belief. In that case, the employer claimed that the employee’s position was eliminated as part of a “corporate restructuring.” In upholding the jury’s verdict that the employee was fired because of her pregnancy in violation of the Pregnancy Discrimination Act, the Tenth Circuit found that the employer did not eliminate the employee’s position as part of the purported “corporate restructuring.” In support of its conclusion, the appellate court pointed to evidence showing that the employee was the only employee who was discharged as part of the alleged corporate restructuring and after the employee’s job “elimination,” the employer hired another person for her position. Based on this evidence, the Tenth Circuit concluded that the jury was entitled to reject the employer’s assertion that the employee’s “position had been eliminated” through the “so-called restructuring,” and find that the employer’s proffered “corporate restructuring” justification for the discharge was a pretext for pregnancy discrimination.

No Reduction In Force: Strong Financial Condition

Evidence of an employer’s financial health or profitability may be used to undermine the credibility of an employer’s assertion that an employee was terminated as part of a reduction in force. An employer’s strong financial condition may be demonstrated directly through evidence that business had increased rather than decreased or indirectly through an employer’s failure to provide evidence of financial distress. Indeed, as observed by the U.S. Eighth Circuit Court of Appeals in Hardin v. Hussman Corp., 45 F.3d 262 (8th Cir. 1995), a reduction in force is generally accompanied by “objective evidence of a business decline” and the lack of such evidence “militates against [the] claim of genuine business decline.” Thus, evidence of an employer’s strong financial condition can be used to demonstrate that an employee was not terminated pursuant to a legitimate or genuine reduction in force and that the employer’s purported reduction in force justification for the termination is unworthy of belief.

The decision by the Eighth Circuit in Hillebrand v. M-Tron Industries, Inc., 827 F.2d 363 (8th Cir. 1987) is illustrative of the principle that an employer’s failure to provide objective evidence of a business decline can be used to show that employer did not terminate the employee as part of a legitimate or genuine reduction in force. In that age discrimination case, the employer contended that its non-discriminatory reason for firing the employee was a reduction in force. The employee argued that the reason was pretextual because there was no true reduction in force. In reversing the trial court’s dismissal of the employee’s claim that he was fired on the basis of age in violation of the Age Discrimination in Employment Act, the Eighth Circuit found that there was sufficient evidence to establish that there was no bona fide reduction in force.

In support of its finding, the Eighth Circuit observed that there “exists little evidence” of an “objective plan to reduce expenses at the time [of the employee’s] discharge, nor is there much evidence of a genuine business decline.” In fact, management never “identified the targeted positions nor described an objective plan.” Moreover, the appellate court noted, the evidence showed the company was planning a broad based “personnel buildup,” suggesting “that the company was not in the dire economic straits it now alleges.” Because the evidence supported the employee’s claim that “there was no genuine reduction in force,” the Eighth Circuit concluded that a jury could reasonably find that the employer used the reduction in force explanation for the discharge as a pretext to mask age discrimination.

No Reduction In Force: Hiring Continues

An employee can establish that he or she was not terminated as a result of a legitimate or genuine reduction in force by showing that the employer continued to hire new employees shortly before, during, or shortly after the purported reduction in force. As observed by the U.S. First Circuit Court of Appeals in Brennan v. GTE Gov. Systems Corp., 150 F.3d 21 (1st Cir. 1998), “such evidence, in undercutting the employer’s proffered reason for reducing the work force, is probative of pretext” because it shows that “the reductions were not in fact needed.” Echoing the reasoning in Brennan, the U.S. Tenth Circuit Court of Appeals in Beaird v. Seagate Technology, Inc., 145 F.3d 1159 (10th Cir. 1998) determined that an employee can also establish that his or her termination did not arise out of a legitimate or genuine reduction in force by showing that “an employer actively sought to replace a number of reduction in force-terminated employees with new hires.”

The decision by the U.S. District Court for Minnesota in Stenberg v. I.C. Sys., Inc., 2009 WL 1507417 (D. Minn. May 29, 2009) is illustrative of the principle that evidence that an employer hired new employees shortly before the reduction in force began shows that the employer’s reduction in force justification was pretexual because the reductions were not in fact needed. In that age discrimination case, the employer discharged an employee and another worker who both held the position of credit reporting representative as part of a purported reduction in force. The employee argued that the alleged reduction in force was a ruse to mask age discrimination because the company hired two younger credit reporting representatives only months before she and the other credit reporting representative were fired in the alleged reduction in force. In denying the employer’s motion for dismissal of the employee’s claim that she was fired on the basis of age in violation of the Age Discrimination in Employment Act, the trial court found that the evidence showing the company hired two younger credit reporting representatives months before the alleged reduction in force was implemented was sufficient to establish that the reduction in force was “not genuine.” Thus, the trial court determined that it was for a jury to decide “whether or not the proffered reason for [the employee’s] termination, the [reduction in force], is unworthy of credence” and a pretext for age discrimination.

Employer Must Explain Why Employee Chosen

Even if the reduction in force was otherwise legitimate or genuine, an employer must still provide an explanation as to why the employee was selected for termination as part of the reduction in force. Indeed, “the question” in a reduction in force case, as observed by the U.S. Fifth Circuit Court of Appeals in Thornbrough v. Columbus and Greenville R. Co., 760 F.2d 633 (5th Cir. 1985), “is why, given the employer’s need to reduce its workforce, it choose to discharge [the employee claiming discrimination] rather than [another] employee.” Thus, although a bona fide reduction in force is a legitimate, non-discriminatory reason for an employer’s decision to terminate an employee, the employer must still justify why the employee was included in the reduction in force. If an employer is only required to explain why employees, in general, were discharged—a reduction in force—then the reasons for the employer’s decision to include the employee claiming discrimination in the reduction in force remain unexplained.

The decision by the U.S. District of Columbia Court of Appeals in Steele v. Mattis, 899 F.3d 943 (D.C. Cir. 2018) is illustrative of the principle that an employer must provide an individualized explanation as to why the discharged employee was included in the reduction in force. In that case, an associate professor claimed that he was fired because of his age in violation of the Age Discrimination in Employment Act. The college contended that the assistant professor was terminated due to budget cuts, which necessitated the elimination of three faculty positions.

In reversing the trial court’s dismissal of the associate professor’s age discrimination claim, the D.C. Circuit observed that although “budget reductions seemingly necessitated the termination of three faculty members, that does not explain why [the associate professor] was one of those whose job was chosen for the chopping block.” “In other words,” the appellate court explained, the college “came forward with a legitimate, non-discriminatory rationale for firing someone, but not for firing [the associate professor] rather than another [ ] faculty member.” “In the absence of an individualized explanation for why or how [the associate professor] was chosen,” the court of appeals determined, “jurors could sensibly conclude that the college’s story comes up short.” In support of its conclusion, the D.C. Circuit pointed to evidence that the college refused to tell the associate professor “at the time of his termination why he was targeted,” and that two substantially younger faculty members “were untouched by the budget cuts.”

Discriminatory Failure To Follow Policy

In the reduction in force context, an employee may show that he or she was included in the reduction in force based on a discriminatory reason by establishing that the employer failed to follow its own reduction in force policies or procedures. When an employer deviates from its own reduction in force policies or procedures when selecting an employee for termination, such an irregularity undermines the credibility of the employer’s proffered explanation for including the employee in the reduction in force. Indeed, if an employee’s membership in a protected class was truly irrelevant to the employer’s decision-making process, it presumably would have followed its own reduction in force policies or procedures when implementing the reduction in force. In other words, the employer failed to follow its own reduction in force policies or procedures when including the discharged employee in the reduction in force because those policies or procedures conflicted with the employer’s intent to discriminate.

The decision by the U.S. Seventh Circuit Court of Appeals in Christie v. Foremost Ins. Co., 785 F.2d 584 (7th Cir. 1986) is illustrative of the principle that an employer’s failure to comply with its own reduction in force policies or procedures when including an employee in a reduction in force is evidence that discrimination motivated the termination decision. In that age discrimination case, the employer contended that its non-discriminatory reason for firing the employee was a reduction in force necessitated by an economic downturn. The employee claimed that the reason was pretextual because there was no genuine reduction in force.

In upholding the jury’s verdict that the employee was unlawfully fired because of his age, the Seventh Circuit found that the employee had presented evidence “from which the jury could have found that [the employer] did not comply with its own reduction in force policy and thus was probably not making a legitimate reduction in force.” The appellate court also observed that the managers who decided to terminate the employee “did not even know that [the company] had a policy governing reductions in force.” “A jury could infer from this fact,” the court of appeals reasoned, that the employer “was not actually making a reduction in force, because if it was its managers would have known of or located the company policy and followed it.” From this evidence, the Seventh Circuit determined, “the jury could have inferred that had [the employer] actually followed its own reduction in force policy, [the employee] would not have been discharged.”

Fired Despite Good Work Performance

As explained by the U.S. Seventh Circuit Court of Appeals in Palluck v. Gooding Rubber Co., 221 F.3d 1003 (7th Cir. 2000), even if the reduction in force was otherwise legitimate or genuine, an employee “may show pretext by demonstrating that the specific reasons given for including her in the reduction in force were pretextual.” In the reduction in force context, employers invariably claim that an employee was chosen for termination as part of the reduction in force because of an unsatisfactory work performance. If an employee can show that the employer’s proffered basis for selecting him or her for termination in the reduction in force—poor work performance—is unworthy of belief, a jury can find that the employer did not act for the asserted non-discriminatory reason and that the decision to include the employee in the reduction in force was motivated by unlawful discrimination.

Phair v. New Page Corp., 708 F.Supp.2d 57 (D. Maine 2010) is illustrative of cases where an employer claims that an employee was chosen for termination as part of a reduction in force because of an unsatisfactory work performance. In that case, the employee claimed that he was fired because of his age in violation of the Age Discrimination in Employment Act. The employer asserted that the employee was fired as part of a reduction in force. In explaining why the employee was selected for termination as part of the reduction in force, the employer alleged that it “engaged in a thorough and fair process which revealed [the employee] to be among the lowest performing employees and that he was selected for termination on this basis.”

In denying the employer’s motion to dismiss the employee’s age discrimination claim, the trial court found that the evidence “calls into question the veracity” of the reason for including the employee in the reduction in force. The trial court pointed out that the employee had “produced extensive evidence showing his positive work history at the [company] right up to the time of his termination.” The trial court also noted that the company had “produced nothing but anecdotal evidence (which the employee rebutted) showing that he was a poor performer.” In fact, the trial court observed, the “only person alleged to have provided any feedback” on the employee during the termination meeting denied making “any negative comments” about the employee’s work performance. Based on this evidence, the trial court determined, a jury could reasonably find that the proffered justification for including the employee in the reduction in force was “unworthy of credence and, therefore, infer that [the employer] did not act for the reasons asserted” and that the employee’s age was the real reason for including him in the reduction in force.

Employer Manipulates Selection Criteria

Even if the reduction in force was otherwise legitimate or genuine, an employee may show that he or she was included in the reduction in force based on a discriminatory reason by establishing that the employer deliberately manipulated or falsified the criteria used when selecting him or her for termination in the reduction in force. In other words, as the U.S. Seventh Circuit Court of Appeals explained in Gustovich v. AT & T Comm., Inc., 972 F.2d 845 (7th Cir. 1992), an employee can demonstrate that he or she was chosen for termination in the reduction in force based on a discriminatory reason by showing that the criteria used by the employer when selecting him or her for termination as part of the reduction in force, such as performance evaluations or performance rankings, had been “cooked in order to do [him or her] in.”

As observed by the Gustovich court, one method of establishing that the employer manipulated or falsified the criteria used when selecting an employee for termination as part of the reduction in force is by showing that management “expressed discriminatory attitudes, or acted in discriminatory ways, on other occasions.” Another method of establishing that the employer manipulated or falsified the criteria used when choosing an employee for termination as part of the reduction in force is by showing that the employer treated other employees differently or less favorably with respect to the reduction in force implementing criteria. The other method of establishing that the employer manipulated or falsified the criteria used when selecting an employee for termination as part of the reduction in force is by showing that the factors are patently subjective. As the U.S. First Circuit Court of Appeals in Robinson v. Poloroid Corp., 732 F.2d 1010 (1st Cir. 1984) explained, when an employer uses factors such as employee work performance, knowledge, qualifications, or future potential when determining which employees would be selected for termination as part of the reduction in force, such factors “call[ ] for patently subjective evaluations which could easily mask covert or unconscious [ ] discrimination.”

Discriminatory Reduction In Force

As observed by the U.S. Seventh Circuit Court of Appeals in Paluck v. Gooding Rubber Co., 221 F.3d 1003 (7th Cir. 2000), even if the reduction in force was otherwise legitimate or genuine, “pretext may be shown by demonstrating that the reduction in force was used to get rid of workers belonging to a protected class.” In this context, an employee is claiming that the employer initiated the reduction in force based on a discriminatory reason or implemented the reduction in force in a discriminatory manner. For example, evidence showing that an employer decided to use a reduction in force in order to assemble a younger work force would establish that the employer initiated the reduction in force based on a discriminatory reason. Similarly, even when an employer ostensibly had a non-discriminatory reason for reducing its number of employees, evidence showing that the employer targeted older workers for termination as part of the reduction in force would establish that the employer implemented the reduction in force in a discriminatory manner.d

The decision by the U.S. District Court for the Eastern District of Michigan in Kulling v. Grinders for Industry, Inc., 115 F.Supp.2d 828 (E.D. Mich. 2000) is illustrative of circumstances where an employer initiated a reduction in force based on a discriminatory reason. In that age discrimination case, two middle-management employees were terminated pursuant a reduction in force. In denying the employer’s motion to dismiss the employees’ age discrimination claims, the trial court found that the employees had produced sufficient evidence to establish that they were terminated because of their age in violation of the Age Discrimination in Employment Act. In support of its conclusion, the trial court pointed to remarks made by management reflecting a desire to purge older workers from the workforce. When they inquired about the reason for their discharges, the employees were allegedly told that they were “the first of a number of retirement age employees being let go,” that there was a “corporate plan . . . to bring . . . the younger employees up the ladder,” and that the “company was downsizing, and they were letting go of the older, more senior people.”

The decision by the U.S. Sixth Circuit Court of Appeals in Blair v. Henry Filters, Inc., 505 F.3d 517 (6th Cir. 2007) is illustrative of circumstances where an employee was included in an otherwise legitimate or genuine reduction in force based on a discriminatory reason. In that age discrimination case, the employee worked as a salesperson and was responsible for the company’s account with Ford Motor Company. The employee was terminated as part of a reduction in force involving sixty-seven employees. The employee claimed that he was selected for termination in the reduction in force because of his age in violation of the Age Discrimination in Employment Act.

In reversing the trial court’s dismissal of the employee’s age discrimination claim, the Sixth Circuit found that the employee had presented sufficient evidence to establish that he was chosen for termination in the reduction in force because of his age. In support of its conclusion, the appellate court pointed to age-related remarks made by managers involved in selecting the employee for termination. One manager said that the employee was “too old” to handle the Ford account. Another manager referred to the employee as the “old man on the sales force” and the “old guy.” That same manager also said that “he needed to set up a younger sales force.” Based on this evidence, the Sixth Circuit concluded, a jury could reasonably find that the employee was “singled out” for termination as part of the reduction in force on the basis of his age.

Failure To Transfer To Available Position

When an employer implements a reduction in force, it is not required by the federal anti-discrimination laws to transfer or re-hire employees whose employment was terminated as part of a reduction in force. However, although an employer initially has no legal obligation to transfer or re-hire laid off workers, once an employer beings to transfer employees to other positions within the company or re-hire laid off workers, it is required to do so on a non-discriminatory basis. Some courts, such as the U.S. Eleventh Circuit Court of Appeals in Maddow v. Proctor & Gamble Co., Inc., 107 F.3d 846 (11th Cir. 1997), have also determined that an employee can establish a prima facie case of discrimination in the reduction in force context by showing, in relevant part, that the discharged employee was qualified for the position held or another position at the time of discharge. Thus, as observed by the U.S. District Court for the Eastern District of Missouri in Foster v. BJC Health System, 121 F.Supp.2d 1280 (E.D. Mo. 2000), the fact that an employer did not offer the discharged employee a new job after eliminating his former position in the reduction in force “may support a finding of discrimination.”

Wrongful Termination & Employment Law Blog

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Based in Ocala, Florida and representing employees throughout Central Florida, our Marion County, Florida wrongful termination attorneys have represented Florida employees for more than two decades. If you have lost your job due to a reduction in force or have questions about your protection against wrongful termination under the employment discrimination laws, please contact our office for a free consultation with our Ocala, Florida wrongful termination lawyers. You will received personalized and individual attention from our wrongful termination attorneys. Our employees’ rights law firm takes wrongful termination cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Our Marion County, Florida wrongful termination lawyers are ready to take your case and fight for your employee rights.