CHRO: 9330373, Alexavich - Decision

9330373, Alexavich - Decision

Commission on Human Rights and Opportunities,  ex rel. Bruce Alexsavich and Ronald Ferguson, Complainants
CHRO ## 9330373, 9330374
v. :
United Technologies Corporation, Pratt & Whitney Aircraft, Respondent

October 4, 2000

Memorandum of Decision

I.    Parties

    Complainants:
    Bruce Alexsavich
    71 Williams Street
    Bristol, CT 06010

    Ronald Ferguson
    44 Sixth Street
    Bristol, CT 06010

    Represented by:
    Richard E. Lacey, Esq.
    22 Pine Street, Suite 300
    Bristol, CT 06010

    Commission:
    Alix Simonetti, Esq.
    Commission on Human Rights and Opportunities
    21 Grand Street, 4th Floor
    Hartford, CT 06106

    Respondent:
    Vivian Chow
    Pratt & Whitney Aircraft
    United Technologies Corporation
    400 Main Street
    East Hartford, CT 06108

    Represented by:
    Sarah Moore Fass, Esq./Kenneth W. Gage, Esq.
    Day, Berry & Howard, LLP
    One Canterbury Green
    Stamford, CT 06901-2047

II.    Procedural Background

On May 14, 1993, Bruce Alexsavich and Ronald Ferguson (collectively, "Complainants") filed complaints with the Connecticut Commission on Human Rights and Opportunities ("Commission") against the United Technologies Corporation, Pratt & Whitney Division ("Respondent") alleging violations of the Age Discrimination in Employment Act of 1967, 29 U.S.C.A. § 621 et seq., ("ADEA") and General Statutes §§ 46a-60(a)(1) and 46a-58(a). The Complainants allege that they were demoted from their salaried positions of Supervisor1 to hourly positions of Lead Man2 on the basis of their age at the time of demotion (Alexsavich-45 and Ferguson-51). The Respondent alleges that the demotions were necessitated by a downturn in business and a resulting company-wide reduction in force ("RIF") made pursuant to a neutral evaluation system based on each individual employee’s performance.

After due investigation, a reasonable cause finding was made. Following unsuccessful attempts at conciliation, proper notices for public hearing in these matters were issued to all parties. The Complainants’ complaints were consolidated by the Honorable Linda Sullivan, Hearing Officer, on May 26, 1998. The complaints were reassigned to the undersigned as presiding human rights referee on February 19, 1999 pursuant to Public Act 98-245. At the request of the parties, the public hearing was bifurcated and testimony concerning liability only was held on January 18, 19, 21, 28, February 7, 28, March 1, 2, 3, 7 and 9, 2000.

The Commission filed its Post-Hearing Brief3 on May 30, 2000, the Respondent filed its Post-Hearing Brief on June 29, 2000 and the Commission filed a Reply thereto on July 28, 2000.4

III.    Findings of Fact

From the evidence and testimony adduced at public hearing, the complaint, answer and other pleadings, the undersigned human rights referee finds the following facts relevant to the present decision:

A.     Procedure

  1. All statutory and procedural prerequisites to the public hearing were satisfied and these complaints are properly before the undersigned presiding human rights referee. Record Exhibits ("Ex.") 1-29.
  2. The jurisdictional matters regarding these complaints were satisfied and stipulated to by the parties. Transcript ("Tr.") 20.

B.     Complainant Bruce Alexsavich

  1. Complainant Alexsavich was born on April 13, 1947. At the time of his demotion by the Respondent in November of 1992, he was 45 years of age. Tr. 22.
  2. Complainant Alexsavich followed the industrial technical program in high school where he received varied training in machine shop, electronics and other technical applications. Tr. 22-23.
  3. Complainant Alexsavich was first hired by the Respondent straight out of high school as a Labor Grade 9 machine operator to operate vertical turret lathes. He worked in this position for approximately one year, until he was drafted by the United States Army. Tr. 23-24.
  4. Complainant Alexsavich served in the Army for two years. He was trained in infantry and transportation and his major duty assignment was working with ordnance, including the processes necessary to bring the ordnance up to standard. Tr. 24-25.
  5. In 1968, after his tour of duty in the Army, Complainant Alexsavich reapplied for his position with the respondent and was rehired as a vertical turret lathe operator, Labor Grade 8 (a promotion from Labor Grade 9). Tr. 25-30, Commission ("C") Ex. 1.
  6. Over a period of years, Complainant Alexsavich received promotions to Labor Grade 7, Labor Grade 6 and Labor Grade 4 (Lead Man) all with increasing requirements for skill level, degree of accuracy, knowledge of machinery and supervision of other workers. Tr. 30-38, C Ex. 1, 2, 3.
  7. In October 1979, Complainant Alexsavich was promoted to Salary Manufacturing Analyst, Labor Grade 43, a position he held until 1983. In this position, he was primarily responsible for inventory, scheduling, troubleshooting and expediting. Tr. 38-43.
  8. On May 16, 1983, Complainant Alexsavich was promoted to Statistical Process Control Analyst, a salaried position, at Salary Grade 44. In this position, as part of a team, he was responsible for testing and sampling parts on the shop floor for nonconformance rates in order to suggest improvements to engineering. He was next promoted to Manufacturing Process Planner in the industrial engineering group. Tr. 44-55.
  9. At times throughout his work history up until 1987, Complainant Alexsavich received various training with the company as both an hourly and salaried employee, including basic skills training for Foremen, environmental safety training, financial orientation and performance management training, among others. Tr. 73-96, C Ex. 4A, 4B, 4C.
  10. At times throughout his work history until 1987, Complainant Alexsavich received performance management reviews indicating that his job performance was satisfactory. Tr. 57-73, C Ex. 5, 6, 6A, 6B, 6C, 6D, 6E.
  11. Complainant Alexsavich had perfect attendance throughout his work history with the Respondent from 1972, at least until the time of public hearing, excluding the days off for the death of his parents. Tr. 278.
  12. During the time frame of 1987-92, the Respondent’s organizational structure was to divide the Southington plant where both the Complainants worked into Business Units. Each Business Unit was then further divided into separate and independent Business Units comprised of product Flowlines. Each Flowline was a small manufacturing unit assigned to produce a specific jet engine part or perform a particular process. Tr. 1215. Within each Business Unit there were, in order of ascending rank, Supervisors, a Senior Supervisor5 and a Business Unit Manager ("BUM"). These supervisory personnel reported to the Operations Manager and Plant Manager, who ultimately reported to management in the Respondent’s East Hartford office. Tr. 688-89.
  13. In August 1987, Complainant Alexsavich successfully applied for a salaried Supervisor position. He was assigned to work in Department 3556 (a finishing area) on second shift. He reported to Senior Supervisor Robert Triano who reported to BUM Robert Jackson in Business Unit 3. As a Supervisor, he was responsible for overseeing the day-to-day operation of the area, managing the capital equipment and supervising the bargaining unit employees. He held this position until his demotion on November 23, 1992. Tr. 56-57, 97-103, C Ex. 72.
  14. Complainant Alexsavich received a performance management review for 1988 with several ratings in the "Developing" category (less than "Fully Competent") and a rating of "Unsatisfactory" in the "Creating a Shared Vision" and "Building Effective Relationships and Communications" categories. Tr. 186-198, C Ex.9.
  15. In 1989, Department 3556 was moved from Business Unit 3 to Business Unit 1 which already consisted of four Flowlines (also known as Departments 3511, 3512, 3513 and 3514) as well as a technical supervisor supervising a staff of Manufacturing Engineers, Department 3742 (JTAT spacers) and Department 3754 (surface treat area) Tr. 1216-18. At this time, Complainant Alexsavich reported to Senior Supervisor Robert Baigert who reported to BUM Harold White. Tr. 103-4, 106.
  16. At some point in 1989, Complainant Alexsavich received the assignment of supervising Flowline 1 (Department 3511) in addition to supervising Department 3556. The addition of Flowline 1 required him to supervise an additional 19 employees as well as manage and plan for additional machines and schedules. Tr. 107.
  17. BUM White gave Complainant Alexsavich a list of job objectives for him to accomplish between January and December of 1989. Alexsavich met most of the objectives, except for "Increase Supportability Index of Over 50%", a shared department objective for all shifts. Tr. 198-205, C Ex. 10.
  18. On February 2, 1992, BUM McCauley presented Complainant Alexsavich with an "Appreciation Award" for his "outstanding effort and success in reducing leadtimes in Unit 301." C Ex. 17.
  19. On or around April 23, 1990, Complainant Alexsavich received an overall "Fully Competent" performance management review for 1989, which he received with several categories rated higher than "Fully Competent." Tr. 206-217, C Ex. 11.
  20. On or around September 19, 1991 Complainant Alexsavich received a performance management review for the year 1990 jointly completed by BUMs White and Barikowski. Once again, he was rated overall as "Fully Competent" with one competency rated higher than and two competencies rated lower than "Fully Competent." When reviewing this evaluation with BUM Barikowski, Alexsavich asked where he was ranked among the Supervisors in the manufacturing area in the Southington plant, and was informed he was an "M" or in the middle. Tr. 228-260, 513-519, C Ex. 14.
  21. Michael McCauley became acting BUM of Business Unit 1 late in the third quarter or early fourth quarter of 1991, replacing Barikowski, who had replaced BUM White. McCauley became the permanent BUM for Business Unit 1 in May of 1992. Tr. 120-22, 1205-08, 1210.
  22. On or around July 27, 1992, Complainant Alexsavich received a performance management review for the year 1991 co-produced by BUM Barikowski and Acting BUM Michael McCauley rating him as overall "Fully Competent." He was rated less than "Fully Competent" in one and better than "Fully Competent" in three competencies. Tr. 260-272, C Ex. 16.
  23. The Supervisors within Business Unit 1 were rotated around supervisory positions from time to time. The workload also changed in various Flowlines from time to time, to the point of even shutting down Flowline 1 at times. Tr. 1219-20.
  24. In April of 1992, Complainant Alexsavich stopped supervising Flowline 1 (Department 3511) and was assigned to supervise Departments 3742 and 3754 while still maintaining supervision over Department 3556. This rearrangement was part of a larger reorganization which merged Business Unit 4 into Business Unit 1. Tr. 120-127.
  25. In the end of April 1992, Michael Burke, age 27, a member of the CORE program (see section III.D., infra), was assigned to supervise Flowline 1 (Department 3511) in place of Complainant Alexsavich. Tr. 129-131, 177-178.
  26. Around this same time, Complainant Alexsavich noticed he no longer receiving e-mails, memos, notices and in-house information. He was also mistakenly sent to a training course for non-Supervisors, intended for a different "Bruce". Tr. 290-300, 305-308.
  27. After Complainant Alexsavich stopped supervising Flowline 1, he felt his position as a Supervisor was undercut by BUM McCauley on an occasion when BUM McCauley engaged in direct dialogue with one of the Complainant’s subordinates on a labor relations issue in violation of the Respondent’s traditional chain of command. Tr. 300-303.
  28. BUM McCauley was informed by Operations Manager Bob Jackson that he would be required to reduce the number of Supervisors in Business Unit 1 by one in October or November of 1992. He was required to make the determination based on performance by using the PMRR/CAP (see section III.F., infra). Tr. 1255-56.
  29. On Monday, November 16, 1992, at the beginning of his shift, Complainant Alexsavich was notified by BUM McCauley in a private meeting that he was being demoted from his salaried Supervisor position to an hourly Lead Man position due to a slowdown in business conditions and a concomitant need to reduce salaried supervision. He was demoted from a Salary Grade 92 Supervisor to a Labor Grade 3 Specialist6 with a commensurate reduction in wages and benefits and was ordered to report to the floor as an hourly employee on the following Monday, November 23, 1992. Tr. 309-315, 318, C Ex. 36.
  30. BUM McCauley did not know the age of the Supervisors in Business Unit 1 at the time he completed their performance management reviews, nor at the time he made the decision about whom to select for demotion. Tr. 1229, 1255.
  31. Out of the eight Supervisors in Business Unit 1 as of November 16, 1992, no one was replaced but the duties were reorganized among the remaining seven supervisors. Dan Kendzior, age 39, took over Complainant Alexsavich’s responsibilities. Tr. 478-79, 1214. C Ex. 20, 30.
  32. The following employees in Business Unit 1 were not demoted in November of 1992: Senior Supervisor Bob Baigert, age 54, David Merriman, age 53, Bob Boudreau, age 46, Wilford Palmer, age 47, Ed Killian, age 48, Roger Polvinen, 47. There was only one person younger than Complainant Alexsavich in Business Unit 1 at the time of his demotion, Willie Eason, age 41, and he was also not demoted. Tr. 480-82, 543, C Ex. 19, 20, R Ex. P.
  33. Willie Eason, a Salary Grade 92 Supervisor in Business Unit 1, received far superior performance management reviews compared to those received by Complainant Alexsavich. Tr. 1235-39, R Ex. P.
  34. Supervisors held the rank of Salary Grade 92. Senior Supervisors held the rank of Salary Grade 93. Tr. 1614.
C.    Ronald Ferguson
  1. Complainant Ferguson was born on October 5, 1941. At the time of his demotion by the Respondent on November 16, 1992, he was 51 years old. Tr. 649.
  2. Complainant Ferguson is a high school graduate and enrolled in several courses in the business field at Tunxis Community College between 1980-1983. Tr. 649-655, C Ex. 60.
  3. Complainant Ferguson entered the United States Navy upon graduation from high school in 1959 and left in early 1962. He was an Airman responsible for handling the catapults and arresting gear aboard the Carrier USS Forrestal. Tr. 655-56.
  4. After leaving the Navy, Complainant Ferguson’s first job was as a machine operator for Coding Products in New Britain where he worked for less than one year. Tr. 656-657.
  5. After leaving Coding Products, Complainant Ferguson was hired in late 1962 by Pratt & Whitney as a Vertical Turret Lathe Operator, Labor Grade 9. He stayed in this position until he was laid off in 1964. After his layoff he was hired by Metallurgical Processing Company in New Britain where he worked until September of 1965 when he was rehired by Pratt & Whitney into the same position from which he had been laid off. Tr. 657-659.
  6. Complainant Ferguson was promoted to Vertical Turret Lathe Operator, Labor Grade 8, in April of 1966, a position he held until February of 1968 when he was promoted to Labor Grade 7. In April of 1969, he was promoted to Labor Grade 6, a position he held until April of 1974, when he was promoted to Lead Man, Labor Grade 4. He remained a Lead Man until he was promoted in 1978 to the salaried position of Supervisor. Tr. 662-665, 668-670.
  7. Complainant Ferguson completed numerous trainings over the course of his employment with the Respondent, including basic Foreman training, statistical process control, manufacturing and management development and "supervising for success" training. Tr. 670-683, 718-19, C Ex. 53, 59B.
  8. In October 1978, Complainant Ferguson became a Supervisor in Department 3563 and was responsible for manufacturing high quality products in a timely manner. Tr. 683-86.
  9. During 1988-92, Complainant Ferguson was a Supervisor in Departments 3521, 3531 and 3532 and reported to Senior Supervisor Billy Hills and BUM Ed Cannon. All of these supervisory personnel reported, in turn, to Operations Manager Robert Jackson and, in 1992, Plant Manager Joe Lubinstein. Tr. 706-7, 716-17.
  10. On or about April 23, 1990, Complainant Ferguson received a performance management review jointly signed by BUMs Cannon and Mike Gauchum rating him as overall "Fully Competent" for his work during calendar year 1989. He was rated as "Exceptional" in one KJR and better than "Fully Competent" in one KJR and the majority of KPCs and KLCs (see section III.F., infra). Tr. 756-7, 761-68, 769-71, C Ex. 61A.
  11. On or about April 24, 1991, Complainant Ferguson received a performance management review signed by BUM Cannon rating him as overall "Fully Competent" for his work during calendar year 1990. He was rated as better than "Fully Competent" in two KJRs, one KPC and two KLCs. Tr. 756, 768-69, 778-809, 810-11, 819-21, 824-26, C Ex. 61B.
  12. On or about July 8, 1992, Complainant Ferguson received a performance management review signed by BUM Cannon rating him as overall "Fully Competent" for his work during calendar year 1991. He was rated as better than "Fully Competent" in three KJRs, one KPC and two KLCs. Tr. 809-19, 821-23, 826-38, C Ex. 62.
  13. BUM Cannon recommended that Complainant Ferguson be awarded a merit pay increase of around 5% reflecting his performance in calendar years 1991 and 1990. The raise was to be effective January 1, 1992; later he was told the recommended merit raise was "put on hold" due to "restructuring". Tr. 838-45, 848-54, C Ex. 52, 63.
  14. BUM Cannon did not know the ages of the Supervisors in Business Unit 2 at the time he completed their performance management reviews or at the time he made the selection of whom to demote in the RIF. Tr. 1626, 1634.
  15. After Complainant Ferguson’s demotion, his job duties were distributed to Andy Currier, age 47, and Gene Gallant, age 52. Tr. 1014-15.
  16. There was a reduction in hourly workers in 1992 and a corresponding need to decrease the number of Supervisors. Operations Manager Jackson told BUM Cannon in the end of October/beginning of November 1992 that he needed to reduce the number of Supervisors in his Business Unit by one. Tr. 1628-30.
  17. On November 16, 1992, BUM Cannon informed Complainant Ferguson that he had been selected for demotion and that he was expected to return to work as an hourly employee effective November 23, 1992. He was demoted to a Lead Man, Labor Grade 3, on Flowlines 7 and 8. At the time, various reasons were given for his selection by Cannon, including that the number of supervisory employees had to be reduced from 6 to 5, that Complainant Ferguson did not have a college degree, did not take risks and that he did not participate in the Q plus program. Tr. 854-863, 996-97, C Ex. 36.
  18. In Business Unit 2 under BUM Cannon in 1992, there were approximately 140 hourly and between 20-30 salaried employees. There were six Salary Grade 92 and 93 Supervisors, namely, Ron Ferguson, age 51, Sonny Mattice, age 50, Frankie Tardiff, age 43, Billy Hills, age 48, Andy Currier, age 47 and Dan Kendzior, age 39. Tr. 1613-15, C Ex. 19, 20.
  19. In the 1992 "Racking and Stacking" (see section III.F., infra), Complainant Ferguson ranked "in the middle" out of the pool of Grade 92 and 93 Supervisors. Tr. 900-06.
  20. Complainant Ferguson filed a salary grievance based on his demotion in November of 1992. On or about November 18, 1992, as part of the grievance procedure, he met with Operations Manager Jackson. Jackson informed him that it was BUM Cannon’s decision as to who was demoted and that he agreed with the decision made. Tr. 867-71.
  21. On or about December 17, 1992, Ferguson also met with BUM Cannon and discussed the reasons for his demotion, his performance, the Team Leader concept and "measurement objectives". Tr. 923-935. Complainant Ferguson also asked why Tom Nadeau, age 32, was continuing to act in a supervisory capacity at the time of Complainant Ferguson’s demotion when Nadeau was a Methods Engineer. Ferguson was told that Nadeau was only there for cross-training purposes. Tr. 940-47, C Ex. 28.
  22. At the December 17 meeting, BUM Cannon also told Ferguson that Del Moore, age 47, and Greg Osterling, age 32, were promoted from hourly positions to the position of Supervisor in December of 1991, even when the management knew that there was likely going to be a layoff in salary workers in 1992. Tr. 954, C Ex. 28.
  23. In March of 1993, as part of his salary grievance process, Complainant Ferguson met with Operations Manager Jackson. Jackson indicated that he was not satisfied with the way that Business Unit 2 performed, particularly Flowline 6, which was not under the control of Ferguson (who supervised Flowlines 5, 7 & 8). Jackson also said that the reason for the demotion in Business Unit 2 was that based on the size of the hourly workforce that the supervision needed to be reduced from 6 to 5. Tr. 967-68.
  24. On or about March 19, 1993, as the final part of his salary grievance, Complainant Ferguson met with Plant Manager Lubinstein. Lubinstein stated that although employees were evaluated on performance the real reason for the demotion was that the organizational structure at different levels had to be changed. He stated that future supervisors in the going forward organization needed to have manufacturing-type backgrounds and that he was willing to train them. He also allowed the individual BUMs to decide whatever method they believed was best to select individuals for demotion, including seniority (Quality Unit), education (Support Services Unit) and performance (Manufacturing Units). Tr. 984-89.
  25. As a salaried employee, Complainant Ferguson was not covered by a collective bargaining agreement (which required demotion decisions to be based on seniority) and was aware that as a salaried employee, adverse employment decisions were not based on seniority. Tr. 1018-1019.
  26. The following Supervisors in Business Unit 2 were older than Complainant Ferguson at the time of his demotion in November of 1992 and were not demoted: Pete Hart, age 54, Joe Phillipon, age 53, Bob Baigert, age 54, Dave Merriam, age 53 and Dick Dwire, age 51. Tr.1052-54.
  27. A Supervisor younger than Complainant Ferguson, Dan Boissoneault, age mid-30s, was also demoted in November of 1992. Tr. 1056-57.
D.    Pratt & Whitney and Its Training Programs
  1. The Respondent is a designer of jet turbine engines for commercial and military use. Tr. 1208.
  2. The Respondent had at least two internal training programs for different groups of its employees. One of the training programs was the CORE7 program which was designed to expose certain salaried employees to core assignments in its core businesses. Tr. 131, 1208, 3/7/00 Tr. 123.8 Each assignment was for a six-month period and participants normally were placed in the financial, quality, manufacturing and manufacturing engineering departments. Tr. 1611.
  3. Another training program was the Manufacturing Engineering Development (MED) program run by the Engineering Group. The program was designed to expose engineering employees to manufacturing processes and daily operations of different departments and Business Units for a two-year interval consisting of rotating assignments of up to six months in length. Tr. 132, 134, 1208-10. The MED program also selected participants from colleges and universities for graduate engineers and was used as a recruitment device. 3/7/00 Tr. 58, 113-14, 122.
  4. BUM Cannon had both CORE and MED program participants (approximately 10-11) working under him in Business Unit 2 in the 1992 timeframe. Tr. 1609.
  5. After their training, CORE participants could be hired into any department. They were generally hired at labor grades higher than Supervisor, such as Business Unit Managers. Tr. 1611.
  6. Employees had to apply to enter the CORE program. Tr. 1612.

E.    Economic Climate, Aerospace Recession and Reduction-in-Force (RIF)

  1. In or around December of 1991, Plant Manager Joseph Lubinstein, met with the Salary Grade 92 and 93 Supervisors, including both Complainants. Lubinstein announced that seniority was no longer going to be a factor in evaluating the salaried employees; instead, performance would be the deciding factor. This announcement was contrary to past historical practice, when seniority had been taken into account in manufacturing supervision. Tr. 393-401, 538, 3/7/00 Tr. 46. Seniority was still part of the decision-making process for bargaining unit employees. 3/7/00 Tr. 46-47. He also introduced the concept of the "Team Leader" as related to the future of the Respondent’s business. Tr. 886-89.
  2. At this meeting, Lubinstein also announced that there was an upcoming business slowdown and a possible reduction in the work force was expected. In preparation for this downturn, a number of hourly employees left through a voluntary layoff/separation and early-incentive, early retirement program, necessitating a reduction in the number of supervisory employees. Tr. 401, 539-540.
  3. Lubinstein expected in January 1992 that the work force of Supervisors was going to be reduced based on the downturn in the aerospace business cycle over the following 12-18 months. The aerospace recession affected all jet engine makers and was one of the worst recessions the industry ever suffered. 3/7/00 Tr. 11-12, 102.
  4. At some point in 1992, Lubinstein received instructions from the Respondent’s central office concerning the appropriate adjustments to the work force which needed to be made based on the workloads in each of the plants including the Southington plant where both Complainants worked. The work force reduction was based on an analysis of the upcoming shop load and a comprehensive decision about full plant employment levels for all types of employees. When the decision concerning the necessary hourly work force reduction was made, the data showed the necessary reduction in the supervisory work force. 3/7/00 Tr. 39-42, 98-100.

F.    PMRR/CAP & Restructuring

  1. The Respondent had a procedure called the Performance Management Recognition and Rewards Process (PMRR) which was used by managers who supervised salaried employees. One component of this process required managers to meet and rate employees as compared to other employees. This comparative process was called the Comparative Assessment Process (CAP) or was referred to by the slang expression "racking and stacking." Tr. 358-360, 380-86, 1221-22, C Ex. 14-16, 61B, 62, 69A.
  2. The PMRR was a rating tool (also called the performance management review) used by management to evaluate employees in conjunction with the CAP process for purposes of determining both positive and adverse employment actions, including assigning merit increases as well as selecting individuals for demotion or layoff. The PMRR for the Supervisor position held by both Complainants listed a number of Key Job Requirements (KJRs), Key Personal Competencies (KPCs) and Key Leadership Competencies (KLCs) on which the employees were evaluated by their respective BUMs. Tr. 758-60, 876-77, C Ex. 70.
  3. The BUMs rated each of his Business Unit’s Supervisor’s abilities in specific areas as "Exceptional, Fully Competent, Development Needed or Unsatisfactory." These ratings were then assigned numerical values, with the highest numerical value given for the exceptional rating and the lowest for a rating of unsatisfactory. Tr. 1221-22, C Ex. 14, 16, 61B, 62.
  4. The first step of the CAP required each BUM to compare the performance of each of his Supervisors using the numerical scores multiplied by a weighted factor for each of the KJRs, KPCs and KLCs. The BUM would then add these figures to obtain scores on which to rank the Supervisors from the strongest performer to the weakest performer in each Business Unit. This initial process is called the Level 1 (or L-1) process. Tr. 1408-09. For example, BUM McCauley created a ranking of the permanent Salary Grade 92 and Salary Grade 93 Supervisors who reported to him for calendar year 1991. R Ex. P, Tr. 1227-30.
  5. At the next level of the CAP, Level 2 (or L-2), the BUMs collectively reviewed the performance of all Salary Grade 92 and 93 Supervisors at a meeting, comparing Supervisors from different Business Units with one another. The purpose of the L-2 meeting was to merge the various Business Units’ L-1 lists into one list of all of the Supervisors in the manufacturing area, ranking them in order of job performance. Tr. 1240-41, 1409. This level of the CAP could involve an extremely boisterous meeting, often with a great deal of heated discussion between BUMs.
  6. Following the generation of the L-2 list, each Supervisor was then labeled as a "T", (a top performer), an "M", (a middle performer), or an "L", ( a low performer). Tr. 1241. For example, after BUM McCauley completed the ranking of his subordinate Supervisors, he met with the other BUMs to compare their lists and generate one long ranking list of the permanent Supervisors in the facility. On this list, employees were grouped into the top, middle and low performance groups. Tr. 1239-42. BUM McCauley placed Complainant Alexsavich into the low category as related to his peers in the Grade 92 and Grade 93 permanent Supervisor pool, even though his work was "Satisfactory." Out of the eight permanent Supervisors in Business Unit 1, Complainant Alexsavich was rated eighth. Tr. 1242-50. R Ex. P.
  7. The final list (or L-3) was created by merging all the L-2 lists together. None of the L-1, L-2 or L-3 lists included MED or CORE trainees who were located in Business Unit 1 at the time. Participants in these programs were not evaluated under the PMRR/CAP because they were "temporary and transitional." These participants were evaluated for development purposes on a form different from the one used for permanent Supervisors. Tr. 1227-30, 1611, R Ex. P.
  8. One of the Supervisors on Business Unit 1’s L-1 list, Henry Piotrowski, age 49, was replaced by another Supervisor, Roger Polvinen, age 47, before the decision to demote Complainant Alexsavich was made. Although no performance management reviews were completed to include him on the ranking list, Polvinen’s performance was superior to that of Complainant Alexsavich. Tr. 1251, C Ex. 19, 20.
  9. BUM Cannon based his decision about whom to demote on performance. He used the performance management reviews in the L-1s and chose the lowest one. He also did not consider demoting part-time or temporary CORE or MED participants because they were not eligible for demotion because they "belonged to someone else." Tr. 1631-34, R Ex. D, R, S.
    1. Legal Standards and Discussion
    A.    Statutes

    Under the federal Age Discrimination in Employment Act ("ADEA"), it is "unlawful for an employer . . . to fail or refuse to hire or to discharge or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age." 29 U.S.C. § 623(a)(1). The Connecticut state statute similarly makes it a discriminatory employment practice for an employer " . . . to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s . . . age . . . ." General Statutes § 46a-60(a)(1).

    Although the federal and state statutes differ, Connecticut courts look to the federal standards in interpreting our anti-discrimination statutes. Wroblewski v. Lexington Gardens, Inc., 188 Conn. 4, 53 (1982). "Although we are not bound by federal interpretation of Title VII provisions, we have often looked to federal employment discrimination law for guidance in enforcing our own anti-discrimination statute. Nevertheless, we have also recognized that, under certain circumstances, federal law defines the beginning and not the end of our approach to the subject." (Internal citations omitted.) State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 470 (1989).

    To prevail in a discrimination claim, a complaining party must prove discriminatory intent. Intent may be proven by direct or circumstantial evidence. In most cases, a complainant must rely on circumstantial evidence and prove discrimination indirectly by inference. In the present case, the claim of discrimination on the basis of age must rely heavily on circumstantial evidence in order to prove disparate treatment because there was no overt or direct evidence, such as a memorandum requiring all employees over the age of 40 to be demoted or any remarks concerning the suitability of older employees for continued employment. To prove disparate treatment, "liability depends on whether the protected trait [age] actually motivated the employer’s decision." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (emphasis in original). The Supreme Court clarified that the plaintiff’s age must have "actually played a role in [the Respondent’s decision-making] process and had a determinative influence on the outcome." Id.

    The traditional allocation of proof for discrimination cases was first articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green9, 411 U.S. 792 (1973) and later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary’s Honor Center v. Hicks, 113 S.Ct. 2742 (1993). The typical requirements in the burden-shifting analysis described in this line of cases are as follows: (1) if the complainant establishes a prima facie case of discrimination, (2) the employer must articulate a legitimate non-discriminatory reason for its actions and (3) the complainant must then prove that the employer’s reason is in fact a pretext. McDonnell Douglas, supra. The burden of persuasion remains, at all times, with the complainant. Id.

    B.    Prima Facie Case

    The U.S. Supreme Court outlined the traditional requirements for proving a prima facie case in McDonnell Douglas, supra. Under that basic scheme, a complainant must establish that (1) the complainant belongs to a protected class; (2) that he was qualified for his job; (3) that, despite his qualifications, he was demoted; and (4) that his demotion occurred in circumstances giving rise to an inference of discrimination. Id. The Court continued that the elements of proof are only a guideline and should be flexible in their application to effect the intent of the underlying civil rights legislation. Id. "The facts necessarily will vary . . . , and the specification above of the prima facie proof required . . . is not necessarily applicable in every respect to differing factual situations." Id. at 802 n.13. The elements of a prima facie case, "will not apply identically to all factual scenarios, and therefore represent only a flexible guideline for how a plaintiff may choose to establish a prima facie case." Id. at 802. Anti-discrimination statutes are meant to be remedial in nature and should be construed broadly. "[T]he McDonnell Douglas elements constitute only a flexible guideline, and no element is ‘essential.’" Lloyd v. WABC-TV and Capital Cities/ABC Inc., 879 F.Sup. 394, 401 (S.D.N.Y. 1995). The case at hand, however, demands a more specific analysis since it is a reduction-in-force (RIF) case and thus requires an adjustment to these typical elements.

    The Supreme Court has not yet addressed the question of the appropriate requirements for proving a prima facie case in a RIF scenario and there is a split of opinion in the Courts of Appeal. The Fifth Circuit held that a plaintiff in a workforce reduction case may "establish[] a prima facie case by: (1) . . . showing that he is within the protected age group and that he has been adversely affected, discharged or demoted by defendant’s employment decision; (2) showing that he was qualified to assume another position at the time of discharge or demotion; and (3) producing evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue." Williams v. General Motors Corporation, 656 F.2d 120, 129 (5th Cir. 1981), cert. denied, 455 U.S. 943 (1982). Similarly, the Eleventh Circuit’s standard in RIF cases also places the burden on plaintiffs to show that the employer intended to discriminate. Jameson v. Arrow Co., 75 F.3d 1528, 1531-32 (11th Cir. 1996). Additionally, in the Eighth Circuit, employees must "provide some additional showing that age was a factor in the termination." Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1316 (8th Cir. 1996) (Internal citations omitted.)

    In contrast, the Seventh Circuit has reasoned that under these types of analyses, since the RIF is the starting point of the trier-of-fact’s review, that it sits the McDonnell Douglas framework "on its head—in effect, requiring the employee to rebut the employer’s putatively legitimate, nondiscriminatory reasons for its actions, not the other way around." Oxman v. WLS-TV, 846 F.2d 448, 454 (7th Cir. 1988). The Court, therefore, set out an alternative framework that it found to be more consistent with the intent of McDonnell Douglas. Id. at 456. Under the Oxman analysis, a plaintiff "can establish a prima facie case by showing that he was within the protected age group, that he was performing according to his employer’s legitimate expectations, that he was terminated, and that others not in the protected class were treated more favorably." Id. at 455.

    Furthermore, the Second Circuit realized that in a RIF case, the last standard element of the prima facie case is problematic, especially when an employee’s job duties are parceled out among remaining employees not adversely affected by the RIF. Montana v. First Federal Savings and Loan Association of Rochester, 869 F.2d 100, 106 (2d Cir. 1989). The Court thus ruled "that in a structural reorganization case, a discharged employee who seeks under McDonnell Douglas to establish a prima facie case, need not show that he was replaced by a younger, newly hired employee10; it is sufficient that the discharge occur in circumstances giving rise to an inference of age discrimination." Id. at 106. The prima facie standard applied in these types of cases is that the "plaintiff must show, through direct, statistical, or circumstantial evidence, ‘(1) that he was within the protected age group, (2) that he was qualified for the position, (3) that he was discharged, and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination.’ Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994) (quoting Spence v. Maryland Casualty Co., 995 F.2d 1147, 1155 (2d Cir. 1993))." Cronin v. Aetna Life, 46 F.3d 196, 204 (2d Cir. 1995).

    At least one other Commission hearing officer to address an age discrimination complaint in the context of a RIF ruled that the Williams rationale of the Fifth Circuit is more in line with the holdings in the Second Circuit cases and thus chose to employ the requirements of the Fifth Circuit. See, Commission on Human Rights and Opportunities ex rel. John Dobrzansky v. Edwards Company, CHRO #9310400, Ruben Acosta (Final Decision 1/12/00). I disagree with his approach and will be guided by the Second Circuit and use the more liberal set of elements of Montana and Cronin under which the Complainants must prove their prima facie case.

    Proving a prima facie case is a de minimis burden. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). In this matter, there is no dispute that the Complainants are both members of a protected class based on their age. At the time of their demotions on November 16, 1992, Complainant Alexsavich was 45 and Complainant Ferguson was 51 years of age; hence both were over the age of 40.11 Similarly, there is no disagreement that the Complainants were demoted from their salaried positions of Supervisor to those of hourly employees on the shop floor. The other two elements of the prima facie case are the source of the disputes between the parties.

    The Respondent contends that the Complainants fail to meet both the second element, that of being qualified, and the fourth element, that of occurring under circumstances giving rise to an inference of discrimination, of their prima facie case. The Respondent argues that to be qualified for hire to a position is quite different than being qualified to retain one’s position in the face of a threatened demotion. "Whether job performance was satisfactory depends on the employer’s criteria for the performance of the job – not the standards that may seem reasonable to the [factfinder]." Thornley v. Penton Pub., Inc., 104 F.3d 26, 29 (2d Cir. 1997). It argues that even though performance evaluations might have indicated that both Complainants were "Fully Competent" and hence meeting the company’s legitimate business expectations, when these same employees were stacked up against their peers (who rated "Very Good" or "Exceptional" on their performance evaluations) the Complainants were the least "qualified" to retain their jobs. The Complainants counter that they had no indication that their performance was in any way lacking and, in fact, had recently received positive feedback12 from the Respondent prior to their demotions.

    The Respondent cites two cases for the proposition of being qualified to retain one’s position, however, these are clearly distinguishable from the present case. In the first case, Hendricks v. National Cleaning Contractors, Inc., 1998 WL 26188 (S.D.N.Y.), the plaintiff, an African American woman supervisor, was fired and replaced by another African American woman, largely due to her excessive absenteeism and status as a poor role model for her subordinates. The Defendant employer argued that her excessive absenteeism was its legitimate, non-discriminatory reason for firing her, especially since she received multiple verbal and written warnings of her employer’s concerns and was given repeated opportunities to remedy the situation. Id. In the other case cited by the Respondent, Kenner v. Glasheen, 1997 WL 651477 (S.D.N.Y.), the plaintiff employee was fired at the end of her probationary period, during which no reason for termination needed to be given, although she was aware of the numerous incidents of her poor work behavior. Since, in the case at hand, neither Complainant was a probationary employee nor had any knowledge about the possible precarious status of his continued employment, and had, in fact, received positive feedback about his performance the very year of his demotion, I find that the Complainants were qualified to retain their positions.

    As for the fourth element of the prima facie case, or that of the demotion occurring under circumstances giving rise to an inference of discrimination, the Complainants argue that the Respondent played a "shell game" with its employees whereby the younger ones were shielded from the CAP by virtue of being recent promotees, hirees or in one of the Respondent’s internal training programs. The Respondent contends that it used a neutral evaluation tool, the PMRR and CAP, that paid no attention to age and objectively identified the weakest performers to select for demotion. In fact, they argue that older Supervisors were retained and younger employees were demoted.

    In his salary grievance proceedings, Complainant Ferguson received various explanations as to why he was selected for termination, including that he did not have a college degree, was not effective in the Q plus program, would not make a good "Team Leader" in the going-forward organization as well as his performance. I found the testimony of both Complainants to be sincere and believable. These men are clearly dedicated employees who take their work seriously and did not even take the remainder of the week of their demotions off, as suggested by their respective BUMs. Once again, since the burden is de minimis, I find that this element, too, was met, mainly due to the inconsistencies in the reasons given by the Complainants’ superiors at various levels of management.

    For the reasons above, I find that the Complainants have met their burden of proving a prima facie case.

    C.    Legitimate Business Reason

    Once a prima facie case is proven, the burden then shifts to the Respondent to articulate a legitimate, non-discriminatory business reason why the Complainants were demoted. This burden is one of production, not persuasion, and "can involve no credibility assessment." St. Mary’s Honor Center, supra, at 509. The Respondent met its burden by describing the poor economic climate for manufacturers of jet engines in the late 1980s and early 1990s. Due to the weak economic times and aerospace recession, the Respondent’s business experienced a severe downturn and required the reduction of its hourly and salary manufacturing workforce. "It is well established that a reduction in force [RIF] is a legitimate, non-discriminatory reason for terminating an employee." Cronin at 202. See also Parcinski v. Outlet Co., 673 F.2d 34 (2d Cir. 1982), cert. denied, 459 U.S. 1103 (1983). The Complainants do not challenge the fact that the RIF was necessary, and even if they had, I would not engage in that type of review because such a decision is better left to the Respondent’s business judgment. "’It is not the function of a fact-finder to second-guess business decisions or to question a corporation’s means to achieve a legitimate business goal.’" Cronin at 202, citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988).

    Furthermore, the Complainants do not dispute the Respondent’s legitimate non-discriminatory reason for demoting the Complainants. There was no evidence presented to question the poor economic times of the early 1990s, especially with respect to the manufacture of jet engines at the Respondent’s Southington plant. The Respondent determined that it needed to reduce its ranks of supervisory employees by one in each of the Business Units. The individual decisions were left up to the BUMs who were the direct supervisors of the employees subject to the demotion. The Complainants were notified by the plant manager in December of 1991 that contrary to the past practice of taking seniority into account when determining reductions under any "rack and stack" that the deciding factor would thereafter be performance.

    Regardless, the Complainants need not challenge the legitimacy of the RIF itself because "even during a legitimate reorganization or workforce reduction, an employer may not dismiss employees for unlawful discriminatory reasons." Maresco v. Evans Chemetics, Division of W.R. Grace & Co., 964 F.2d 106, 111 (2d Cir. 1992).

    In general, selection of employees for a RIF is permissible if the criteria used are not age-related. "Nonetheless, if the plaintiff has presented evidence that the discharge in fact resulted from discriminatory treatment occurring during the process of eliminating employees, the employer’s statistical data showing a nondiscriminatory overall impact, though perhaps relevant, are not as a matter of law dispositive." Cronin at 204. See also Pierce v. F.R. Tripler & Co., 955 F.2d 820, 825 (2d Cir. 1992). In the case at hand, however, I believe that the small numbers affected by the RIF do not lend themselves well to statistical analysis, and there was no expert testimony offered by a statistician as in other cases attempting to analyze data in this way. See, e.g., Smith v. Xerox Corp., 196 F.3d 358, 370 (2d Cir. 1999). I will therefore not engage in a statistics-based review in this disparate treatment case.

    The Respondent in this case used a sophisticated system of evaluation and comparative assessment to select the individuals for demotion based on their performance. Such a neutral evaluation tool, meant to divine the comparative performance of the universe of employees subject to demotion (in this case, the Salary Grade 92 and 93 Manufacturing Supervisors at the Southington plant) is permissible.

    The Respondent evaluated the Complainants’ performance using performance management reviews by weighting certain key components more heavily than others in compiling the L-1 lists. In Business Unit 1, Complainant Alexsavich received the lowest weighted ranking figure out of the Supervisors in his Business Unit. It was for this reason that he was selected for demotion. The Complainants point out that one Supervisor, Roger Polvinen, who was a member of Business Unit 1 at the time of the demotions was not included on the L-1 because he was transferred from another plant after the rack and stack had occurred in Southington. Sufficient testimony and evidence were presented, however, that had Polvinen been included on the L-1, he would have been ranked higher than Alexsavich.

    Similarly, although the L-1 for Business Unit 2 was not introduced into evidence, a review of the performance evaluations for the Supervisors in that Business Unit indicate that Complainant Ferguson was the worst performer as compared to his peers. This articulated reason is sufficient to shift the burden back to the Complainants for the final time.

    D.    Pretext

    After the Respondent articulates a legitimate, non-discriminatory reason, the burden shifts back to the Complainants, who retain "the ultimate burden of persuading the trier of fact that the [Respondent] intentionally discriminated against the [Complainants] . . . . " Burdine, 450 U.S. at 253. The Complainants must prove their burden by a preponderance of the evidence and show that "the employer’s proffered explanation is unworthy of credence." Id. at 256. A mere

    "rejection of the employer’s legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff’s proffered reason . . .is correct’. In other words, ‘[i]t is not enough to . . . disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.’ In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation."

    Reeves at *8. (Emphasis in original, internal citations omitted.)

    The Complainants contend that the neutral evaluation tool of the PMRR and CAP was, in fact, not applied in a neutral manner and that the selection of the Complainants based on their performance, as identified through this tool, was pretext for age discrimination. They argue that younger employees escaped the application of the PMRR and CAP by virtue of their participation in the Respondent’s training programs, or by being recently promoted or hired. Furthermore, the Complainants contend that the CAP, as outlined in the Respondent’s own personnel documents, was not followed, with the result of the selection of the Complainants for demotion. These arguments are unconvincing for the following reasons.

    The complex process of the PMRR and CAP began with the performance management reviews completed by each Complainant’s direct supervisor, in this context, his BUM. Certain key components of these evaluations were then multiplied by fractions thus obtaining a weighted numerical rating for each employee. The BUMs ranked the weighted ratings in order on a list called the L-1.

    After this phase of the process was completed, the BUMS met together with each other to compare their L-1 lists. The Personnel Director, Owen Daily, testified, quite credibly, that much lively debate ensued at this meeting where BUMs argued the relative strengths and weaknesses of individual Supervisors in order to create one long list combining all the separate L-2s. This combined L-2 list was the list from which the "L or Low", "M or Middle" or "T or Top" category was determined. Daily further testified about alleged rank-switching in the L-2 and L-3 meetings, and it was at this point where his credibility broke down. I believe he may be biased in his representations as to the circumstances of the decision-making because of his own personal situation.13 It may be in Daily’s best interest to go on record as stating that the management was systematically trying to rid itself of older employees.

    The Complainants do not contend that the Respondent created this complicated evaluation process to cover its true discriminatory intent, but rather argue that not every employee was subjected to the CAP. They state that the Respondent played a "shell game" whereby younger employees were sheltered from the process by virtue of their inclusion in one of two training programs or by being transferred into Business Units right after the performance management reviews on which the CAP was based was undertaken. These arguments are not convincing.

    Both the Complainants and the Respondent presented testimony concerning the two training programs, the CORE and the MED. The MED program was primarily designed to expose engineering employees (existing employees and those the Respondent was trying to recruit from colleges or universities) to manufacturing processes and the daily operations of different departments in rotating assignments. There was no testimony presented that anyone who was not an engineering employee or a student soon to be graduated in engineering was offered a place in the MED program. There was also no testimony concerning an age requirement for participation in the MED program. Granted, typical students in colleges and universities are in their late teens and twenties, but it is not unheard of for non-traditional students to be much older. There was no testimony concerning this topic, but it is irrelevant because neither Complainant Alexsavich nor Ferguson was an engineering employee or a recent graduate of an engineering program at a college or university. Therefore, they were not qualified to be in the MED program by virtue of these characteristics, not because of their age.

    The CORE program was a different internal training program which the Respondent designed to expose certain salaried employees to core assignments in its core businesses. Complainant Alexsavich became a salaried employee as of May of 1983. Complainant Ferguson became a salaried employee as of October of 1978. There is no evidence in the record as to the inception or creation date of the CORE training program. As salaried employees, both Complainants met the stated criteria for participation; however, neither Complainant testified that he was selected to participate in the CORE program, or that he applied to be a participant in any way. It is unclear from the record what other criteria were used to select members of the CORE program, but the Complainants did not allege in their complaints that they were discriminatorily denied entry into the Respondent’s training programs, so I need not address this topic in any more depth.

    I will, however, address the Complainants’ contention that the members of both training programs were shielded from the CAP and its ranking. There was a substantial amount of uncontroverted testimony that all members of training programs were rotated through many areas in the Respondent’s business enterprise, including the financial, quality, manufacturing and manufacturing engineering departments. These employees were rotated and temporarily assigned to different departments for periods of time up to six months. It is clear from the testimony of BUM McCauley that these trainees reported for evaluation for development purposes only (rather than for merit increases, etc.) to the BUMs in the areas in which they were temporarily assigned. The goal of these programs was to create well-rounded employees with exposure to the many facets of the Respondent’s business. At the end of their training, the participants were often hired into departments in which they had completed a rotation, but often at a Salary Grade level higher than that of Supervisor, such as the case of BUM McCauley.

    While it may be the case that many of the trainees were younger than the Complainants, the Complainants did not allege, nor prove, that they were discriminatorily denied entry into either of the Respondent’s training programs. Similarly, since the Complainants never asked to be considered for participation in the programs, it would be pure speculation whether they would have been accepted and further, if they had been accepted, how they would have been affected, if at all, by the RIF in 1992. For these reasons, the Complainants’ argument that the Respondent played a "shell game" by moving older and younger employees into precarious or protected positions based on their age in an effort to demote only the older employees is unfounded. This scenario does not, therefore, show discrimination based on age.

    Similarly, the Complainants failed to show that younger employees were hired or transferred into their Business Units close to the time of the impending downsizing as replacements ready to take over their Supervisor positions after the demotion. Furthermore, they showed no direct proof of discriminatory animus such as invidious remarks by management personnel. While this, in and of itself, is not dispositive, when coupled with the other lack of evidence it is important.14

    The Complainants presented no other credible evidence to prove illegal discrimination based on age. They have not proven or even suggested that the employer’s reason is not worthy of credence. While I may, as the factfinder, be allowed to infer the ultimate fact of discrimination from the falsity of the employer’s explanation under Reeves, supra, in this case, I do not.

    While the BUMs may have given different reasons to the Complainants for their demotion (performance, no college degree), in this case, actions speak louder than words. Complainants Alexsavich and Ferguson were the weakest performers in their Business Units at the time of the RIF and CAP and were therefore demoted. Many older, better performing Supervisors were not demoted in each Business Unit and the Complainants’ duties were redistributed to employees either older than or not significantly younger than the Complainants themselves.

    V.    Summary and Order

    The Complainants have failed to meet their ultimate burden of proving age discrimination because they did not prove that the Respondent’s legitimate, non-discriminatory reason of selection for the RIF based on performance was pretextual.

    For these reasons, the Complainants’ complaints must be DISMISSED.

    It is so ORDERED.

    Dated at Hartford, this _____ day of October, 2000.

    Lara L. Manzione
    Presiding Human Rights Referee

    C: Bruce Alexsavich
    Ronald Ferguson
    Richard E. Lacey, Esq.
    Alix Simonetti, Esq.
    Vivian Chow
    Sarah Moore Fass, Esq./Kenneth W. Gage, Esq.

    Footnotes:
    1The position of Supervisor is alternatively referred to as "Foreman"; for simplicity of reference, the term "Supervisor" shall be used throughout this decision.
    2 The Commission, in its brief, states that the Complainants were demoted to the hourly position of "Working Leader." It is unclear from the record if these terms are interchangeable, but once again, for simplicity of reference, the term "Lead Man" shall be used throughout this decision.
    3 The Commission’s Brief is replete with missing transcript and exhibit citations, quotations from cases without both the opening and closing quotation marks, reference to exhibits marked for identification only and an exorbitant number of typographical errors. Furthermore, many of its proposed findings of fact are unsupported in the record and thus the reliability of the entire document is called into question.
    4 Although the Complainants are represented by private counsel, who attended and participated in each day of public hearing, said attorney did not avail himself of the opportunity to file a post-hearing brief. While the attorney for the Commission represents the interests of the Commission and those of the State of Connecticut, its arguments supporting the position of the Complainants shall be applied to their case.
    5This position is alternatively referred to as "General Foreman"; for simplicity of reference, the term "Senior Supervisor" shall be used throughout the decision.
    6 See footnote 2. "Specialist" is another term used to refer to the "Lead Man" position.
    7 CORE is not an acronym.
    8 The transcript for the public hearing held on March 7, 2000 did not sequentially number the pages in accordance with the other dates of the public hearing, but rather starting numbering anew from page one. References to the transcript of the public hearing on this date include the "3/7/00" notation.
    9 The Supreme Court recently declined to answer the specific question of whether the McDonnell Douglas framework is "fully applicable" to assess claims brought under the ADEA, but since the parties involved in that case did not dispute the issue, the court assumed, arguendo, that the framework did, in fact, apply. Reeves v. Sanderson Plumbing Products, Inc., 2000 WL 743663, *5 (U.S.).
    10 The Complainants would not have been able to prove this element because the Complainants were not replaced by younger, newly hired employees, but rather their duties were distributed among remaining Supervisors in their respective Business Units.
    11 "[I]ndividuals who are at least 40 years of age," are protected by the ADEA. 29 U.S.C. § 631(a). The Connecticut statute does not specify an age at which the protected class begins or ends. General Statutes § 46a-60(a)(1).
    12 Complainant Alexsavich received an award on 2/20/92 for his work on reducing leadtimes in Unit 301. Complainant Ferguson received notice of a merit pay raise of around 5% to be effective 1/1/92.
    13 Owen Daily, personnel manager, was himself terminated by the Respondent and currently has a case pending against the Respondent alleging age discrimination.
    14 As the record reflects, I gave the Commission and Complainants a great deal of leeway in admitting evidence in this case, often over the repeated objections of the Respondent, because of the difficulty of proving a case such as this based on circumstantial evidence. While many of my evidentiary rulings caused the bifurcated hearing to extend to eleven days, and flooded the record with irrelevant information, the Complainants were still not able to prove their ultimate burden.





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