Another one.
https://www.bizjournals.com/austin/news/2020/09/29/ibm-hit-with-another-age-discrimination-lawsuit.html
By: Mike Cronin
Sep 29, 2020, 8:21am CDT
A Sept. 18 lawsuit filed in the U.S. District Court for the Western District of Texas alleges that the “highest executives” of New York-headquartered International Business Machines Corp. “created and attempted to conceal a multi-faceted ‘fire-and-hire’ scheme with the ultimate goal of making IBM’s workforce younger.”
Austin law firm Wright & Greenhill PC filed the suit on behalf of 15 former IBM employees, two of whom the lawsuit states were based in the Texas capital, where IBM employs thousands. The complaint demands a trial by jury.
“There is no question,” the suit states, that IBM executives used “artificial intelligence to surreptitiously target older workers for termination.”
In an email, IBM spokesman Douglas Shelton said: “IBM's employment actions have always been based on skills, not age. This is borne out by a federal court's recent conclusion that nearly identical allegations to those here do not make ‘even a minimal showing’ of a policy or plan of age discrimination.”
Shelton referenced the March 10 decision by federal Southern District of New York Judge Valerie Caproni, in which she ruled against a group of plaintiffs who had sued IBM for age discrimination.
The Sept. 18 complaint against IBM (NYSE: IBM) comes weeks after an Aug. 31 letter from the U.S. Equal Employment Opportunity Commission that said the agency found “top-down messaging from [IBM’s] highest ranks” had directed “managers to engage in an aggressive approach to significantly reduce the headcount of older workers to make room for” younger employees between 2013 and 2018.
The EEOC decision adds a new dynamic to several age-discrimination lawsuits going on around the country against IBM. Boston-based lawyer Shannon Liss-Riordan of Lichten & Liss-Riordan PC, who is pursuing a class action lawsuit against IBM, said hundreds of former employees have contacted her since the ruling, WRAL TechWire reported Sept. 22.
The Age Discrimination in Employment Act of 1967 prohibits “age discrimination in employment,” meaning it is illegal to not hire or to fire someone or to discriminate against them on pay or other terms of employment because of their age, according to the EEOC’s website. But proving such claims can be tricky.
Complaints about age discrimination have dogged IBM for years. ProPublica and Mother Jones in 2018 reported that IBM had “flouted or outflanked U.S. laws and regulations intended to protect later-career workers from age discrimination.” They reported that year that during the prior five years, IBM had eliminated more than 20,000 American employees ages 40 and over, about 60% of the company's estimated total U.S. job cuts during those years.
Why in Austin?
Austin was also the location of a high-profile age-discrimination lawsuit filed against IBM in 2018 by Jonathan Langley, a former salesman in Austin for the company. That case was dismissed in April in a joint stipulation, suggesting the two parties settled out of court. Wright & Greenhill also represented Langley in that case.
The Sept. 18 complaint alleges that Langley’s case exposed IBM’s plot.
According to the fresh lawsuit, “IBM’s executives designed rolling layoffs that disproportionately targeted and terminated older workers. The scheme also involved giving older workers baseless negative performance reviews to justify their subsequent terminations. IBM simultaneously hired young college-aged employees en masse to replace the laid off older employees — often creating different job titles and shifting divisional structures to provide cover for the discriminatory acts. To ensure the success of its efforts, IBM explicitly excluded younger employees, or ‘Early Professional Hires,’ from the rolling layoffs. The scheme — which prematurely ended the careers of thousands of veteran IBM employees — was designed to function in a shrouded, compartmentalized manner to evade detection.”
During Langley’s case, the Texan Western District court “ordered IBM to produce high-level planning documents and correspondence from its most senior executives," including CEO Ginni Rometty, Chief Financial Officer James Kavanaugh and Chief Human Resources Officer Diane Gherson, the new suit states.
Arvind Krishna became IBM CEO in April. Rometty, whom CNBC reported in April would "remain as executive chairman through the end of 2020," had been chairwoman, president and CEO of the company since 2012.
IBM’s current legal woes were foreshadowed in a 2005 Austin Business Journal story, which reported that a ruling that year by the Eighth Circuit Court of Appeals in St. Louis “may pave the way for thousands of former IBM Corp. employees to sue the company for age discrimination.” That court ruled that “IBM's standard form waiver of employment” was invalid due to unclear language. The muddled wording did not “comply with requirements of the Older Workers Benefits Protection Act,” enacted in 1990.
The two Austin-based former IBM employees listed in the Sept. 18 complaint are Rosa Davidson and Titon Hoque.
Davidson was notified on June 6, 2019, that “IBM was terminating her employment as part of a Resource Action,” according to the suit. Her last day was Sept. 4, 2019, when she was 57, after working at the company for 28 years. “IBM terminated her employment before her retirement benefits vested,” the complaint states.
In 2018, she “received a 17.5% raise to reward her for the fantastic work product she continued to produce as an IBM employee,” the lawsuit states. “During her last performance review, she received either ‘achieves’ or ‘exceeds’ on all areas of evaluation.”
Hoque, the complaint states, “is in the unique position of being both a victim of the scheme and one of the managers who was indirectly tasked with carrying it out.” His responsibilities included "selecting employees for layoffs based on criteria given to him from IBM human resources."
After Hoque “expressed his concerns regarding IBM’s layoff criteria and procedures to his own manager,” noting that they were subjective and not based on skillset evaluation or any other discernible metric, he was laid off, according to the suit. The complaint does not list his age. Hoque’s last day was July 19, 2018.
IBM employs about 6,000 in Austin. It is the Texas capital’s seventh-largest private employer, according to ABJ’s July list. The company’s primary Central Texas office is located at 11500 Burnet Road.