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Age Bias Case Heads to Trial, Highlights Challenges in Reorganization

A court opinion two weeks ago denying summary judgment, and letting the case proceed to trial, provides a helpful list of “red flags” that should signal to any employer that it might want to step back from terminating a long-serving worker.

In Rysak v. Ferro Corp., pending in federal court in Philadelphia, Judge Timothy Savage set forth the ugly details for all to see. The plaintiff, Patricia Rysak, age 66, was terminated as part of a restructuring of the workforce after Ferro Corp. acquired her former employer, Electro-Science Laboratories. Sounds typical enough, but the facts alleged reveal many reasons why Ferro might be engaging aggressively in settlement talks before heading to trial:

Red Flag 1. Rysak had worked for the company and its predecessors for 43 years, rising into a management position where she was well-respected and valued. When someone gives their life and career to their company, it better have a rock-solid case for termination.

Red Flag 2. Ferro retained a manager who was 20 years younger to take over Rysak’s duties in a consolidated job, transferring the younger manager from California to King of Prussia, where Ferro had worked. It is somewhat unusual to transfer an employee to a new location to displace an incumbent, performing manager who is already there.

Red Flag 3. When Rysak’s supervisor learned she was to be terminated, he requested that the company create a position for her because he valued her knowledge and experience, but she was not offered any such position. A difference of opinion on a termination by company management should have caused the company to “stop, look and listen” before proceeding.

Red Flag 4. The year before termination, Ferro had offered Rysak and other workers over age 55 a “voluntary early retirement program,” known as a VERP by us nerdy employment lawyers. While such plans are lawful under the federal Age Discrimination in Employment Act, they can be used as evidence of a desire by an employer to get rid of older employees, which is exactly what Rysak will argue at trial, no doubt. And the evidence showed that three other older employees offered the VERP were later terminated by the company, too.

Red Flag 5. Criticisms of her performance, another reason for termination, were undermined by her performance reviews and her supervisor, who praised her and noted, for example, that an area in which she had challenges (learning a new SAP software tool) was “an area that most managers in KoP (King of Prussia) need to continue to work on.”

Red Flag 6. In the reorganization, the company created a new supervisor position, which Rysak’s Human Resources manager admitted Rysak would have been qualified for, but it was not offered to her. Ferro witnesses failed to explain why not.

For tips on best practices in terminations and reductions in force, which could have avoided the above litigation, see my “Ready, Aim, Fire!” article posted separately.

Enough said. Both sides are represented by capable counsel and these court opinions generally reveal only a slice of the evidence. That said, I predict settlement.

Michael Homans is an employment lawyer and litigator based in Philadelphia and Wayne, Pennsylvania. He can be reached at or (215) 419-7477.

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