As regular readers of this Newsletter know, we have been tracking developments in an important age discrimination lawsuit, Currier v. United Technologies Corporation, having described it as a matter that deserved attention “by any employer wrestling with decisions concerning a potential reduction in force (RIF).”  Following trial, a jury in U.S. District Court in Portland rendered a verdict in the plaintiff’s favor, which was subsequently entered as judgment in excess of $376,000.  Since then, the defendant appealed that verdict to the First Circuit Court of Appeals, which appeal was rejected last December.

Durwood Currier was 61 when he was fired from Pratt & Whitney’s North Berwick plant, where he had worked since it opened in 1979.  He later became a business unit manager and oversaw more than 200 workers.  Currier received numerous commendations for his work as well as regular merit pay increases.  Ultimately, he was one of five people fired in a layoff.  At trial, Currier claimed his supervisor used workers' potential future contributions to decide whom to fire -- a calculation he says was inherently biased against older workers.  Moreover, Currier’s counsel effectively presented the testimony of a statistician -- as an expert witness – to support the argument that older workers were disproportionately impacted by the reduction in force.

Despite the size of the jury’s verdict, the trial court judge viewed the case as “very close,” meaning that, in all likelihood, Mr. Currier narrowly avoided a pre- or post-trial ruling that might have resulted in a dismissal or order in favor of Pratt & Whitney.  On appeal, Pratt & Whitney attacked the trial court’s rulings in connection with the statistical evidence, as it had done vigorously during trial, arguing that Currier’s expert’s statistical findings were flawed and therefore misled the jury.   In addition, it contended that the evidence presented to the jury simply failed to add up to a case of age discrimination. 

Recognizing that the expert’s statistical analysis “skittered near the line of inadmissibility,” the First Circuit failed to agree with Pratt & Whitney that the trial judge erred by not withholding that evidence from the jury.  The appeals panel noted that ample rebuttal evidence was provided to the jury by Pratt & Whitney that might have undermined the probative value (weight) of this evidence.  Clarifying that Pratt & Whitney was not arguing that the statistics themselves were an inaccurate representation of what the expert analyzed, the First Circuit found no reversible error in connection with the trial judge’s admission of that evidence and his willingness to let the jury evaluate the expert testimony against rebuttal evidence that tended to blunt the significance of the statistics.

Pratt & Whitney’s second argument on appeal involved whether Currier met his evidentiary burden to prove that the employer’s layoff decisionmaking in connection with his separation was driven by a discriminatory motive.  Again, the First Circuit recognized that this was a close call.  Ultimately, it concluded that the jury could have relied for its verdict upon certain problems in the testimony of Pratt & Whitney’s primary decisionmaker.  Referring to the data that Currier’s supervisor relied upon, the Court stated:

In assessing Currier’s skills, Mayes did not review Currier’s past performance reviews, which included the praise for his ‘going-forward’ potential.  On the evidence offered, the jury reasonably could have concluded that Mayes gave an inadequate explanation for Currier’s decline from the excellent evaluations he was given just a few years earlier.

In effect, the First Circuit believed that the inadequacy of that explanation could support an inference, drawn by the jury, of pretext.  Even more importantly, the Court also held that a slim, but adequate, quantum of evidence was offered to the jury to support a conclusion that Currier’s age – not performance – motivated the layoff decision.  Specifically, the Court cited two pieces of evidence that the jury may have relied upon in reaching this conclusion.  First, it referred to evidence that Currier was passed over for two different jobs in the months prior to the layoff that ultimately were provided to much younger employees with no prior experience as division managers.  Second, it noted evidence of the substantive differences between the contents of a performance evaluation that Currier’s supervisor wrote for him and his evaluations of other, younger managers. 

So, even if Currier’s evidence in support of discrimination was not particularly strong, the First Circuit determined it was strong enough to uphold a devastating verdict in its entirety.