Thread regarding IBM layoffs

IBM must produce documents said to show company scheme to lay off older workers

IBM must produce documents said to show company scheme to lay off older workers

By Marjorie Johnson, J.D.

The company argued that discovery should be limited to the RIF group that included the employee, but he claimed that the RIF group was a fictional entity created to assemble IBM workers in such a way as to make the layoffs appear less obviously age-based.

In an age discrimination lawsuit brought by a long-time employee who was discharged as part of a reduction in force, IBM was ordered to produce documents which the employee sought to demonstrate a companywide scheme to lower the age of its workforce, despite the company’s contention that it need only produce documents relating to the employee’s RIF group. Granting in part the employee’s motion to compel, a federal court in Texas rejected “yet another argument that discovery should be cabined based on an arbitrary boundary IBM created,” and found the company’s insistence that it need only produce documents related to the employee’s RIF group “highly suspect.” However, the employee was denied his request to depose three top executives (Langley v. International Business Machines Corp., September 20, 2019, Austin, A.).

Subjective criteria. The 24-year IBM employee was terminated from his position in the Hybrid Cloud Group (HCG) in 2017 as part of a reduction in force (RIF). His lawsuit alleged that he was laid off because of IBM’s decision to focus on hiring younger workers and to lay off older workers through a number of RIFs. He claimed that IBM applied subjective RIF criteria to screen out older workers and that he was terminated as a result of these decisions.

Motion to compel. At issue was the employee’s motion to compel discovery of executive-level communications and documents which he claimed showed a companywide scheme to lower the age of the workforce. IBM refused to produce documents unless they related specifically to him and the RIF group to which he had been assigned, which it identified as “CLDR” resource action. The employee claimed that CLDR was a fictional entity created to group workers in a way that made the layoffs appear less obviously age-based. Thus, he argued that the document discovery should not be limited the way IBM contended.

He also sought permission to take apex-level depositions of the current and former CFOs and the CEO.

Prior discovery orders admonished IBM. This was the third time the court had been forced to address the proper scope of discovery, it noted. Because IBM took the initial position that the employee was only entitled to discovery that pertained to his four-person team, the court granted his initial motion to compel and tried to identify how broad discovery should be. Admitting that its “understanding of IBM’s structure is rudimentary at this stage of the case, and is based primarily on the information provided by IBM’s counsel at the hearing,” the court held that discovery at the level of the HCG was “reasonably likely to lead to the discovery of admissible evidence.”

While the court also limited discovery at that time to the “resource action” of which his termination was a part, the court added “an important caveat” that the fact that IBM had “chopped itself into bits and pieces for organizational purposes” did not mean that discovery would remain “similarly organized” since the scope of discovery is not “constrained by artificial borders created within a corporation.” Thus, while the court used IBM’s structure at that point as a “rough proxy” for what it viewed to be an appropriate limit on IBM’s search for responsive documents, “the parties should not take this as an absolute prohibition on requesting discovery of items that might be outside of the Hybrid Cloud Group.” And after IBM filed a motion for clarification, the court admonished IBM a second time.

Frustrated court. Thus, it was with “a great deal of frustration” that the court entertained yet another argument that discovery should be “cabined based on an arbitrary boundary IBM created.” As noted in its initial attempt to define the scope of discovery, the court required that IBM produce documents from HCG related to the “resource action” of which the employee’s termination “was a part.” At that time, there had been no dispute about what the relevant “resource action” was and the court wrongly assumed that there could be no dispute about that, because at that time the court understood that the RIF had been companywide. As it turned out, “nothing is this straightforward with IBM.”

Highly suspect. HCG was created shortly before the layoffs that impacted the employee and it appeared that the workers grouped in CLDR were only those who had been in a then-defunct group that were considered for the layoff (including the plaintiff), and did not include others in HCG who were potentially within the scope of the layoffs. The employee also noted that the CLDR group did not align with other IBM employee lists that purported to identify employees from the same groups that allegedly comprised the CLDR. This all made IBM’s insistence that it need only produce documents related to the CLDR resource action “highly suspect.”

Entitled to production. Thus, the court rejected IBM’s contention that the production of documents should be limited to those relating to the CLDR layoff, noting that the company had many opportunities to provide a reasonable means by which to define the “universe of relevance” for this case and failed each time.

The court also rejected IBM’s argument that document production from its executives was not warranted. Numerous public statements by the CEO could be read to suggest that IBM needed to replace older workers with Millenials, combined with other public statements suggesting that in the past five years IBM had replaced half of its 350,000-person workforce with young employees, was more than enough to meet this burden.

Can’t depose top execs. However, the court denied the employee’s bid to compel the apex depositions of the three executives. Not only did it not yet appear that any of the three had “unique” information relevant to his claims, it also appeared that he could obtain the same information these witnesses may have from other sources.

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Post ID: @OP+11s6VWvz

4 replies (most recent on top)

Hope the guy does well with his lawsuit, because what IBM does eventually all other companies do. All companies now cull older workers regularly because of how IBM does it.

Post ID: @7buf+11s6VWvz

I found my IBM job (same title, same location, same work load) and applied for it. I told the hiring manager I would take the job at the lower pay. I never received a reply. IBM sent out a memo to employees this year stating they only value millennial thinking. I had a manager 10 years ago that stated he was directed not to hire anyone over 30.

Post ID: @6saz+11s6VWvz

Why would these documents still exist? The take-away from the Enron debacle for many evildoing corporations was to create document retention policies that are essentially “shred early and shred often”

Post ID: @3rwu+11s6VWvz

Post ID: @1rtz+11s6VWvz

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