HR Management & Compliance

Did Supervisor Stop Giving Evaluations, Raises Due to Age Bias?

What Happened

In 1985, “Phyllis” was hired to work at a hotel in Dorchester, Massachusetts—initially known as a Howard Johnson Hotel, then as South Bay Hotel, and, starting in 1997, as a Holiday Inn Express operated by Jiten Hotel Management, Inc.

As the executive housekeeper of the Holiday Inn Express, Phyllis oversaw the housekeeping staff in a managerial role. She reported to the hotel’s general manager.

She and her boss worked well together until 2003, when their relationship began to deteriorate. The general manager became “mean” and “arrogant,” and he started embarrassing Phyllis in front of her co-workers, including screaming at her for what seemed to her to be insignificant reasons, and unfairly scrutinizing her work.

Phyllis identified her age as a factor in the change in the general manager’s behavior toward her. He apparently commented on this several times. He said she looked like an “old pumpkin,” an “old hankie,” and “old shoes.” He also told her that her new hairstyle made her look younger and, when she hired an employee in her 50s, he said Phyllis was “going to convert this hotel into a nursing home.”

In 2004 and 2005, the general manager commented to Phyllis that she was “getting old” and asked her when she planned to retire. The general manager also referred to another employee as “old man.”

In 2004, the general manager stopped giving Phyllis annual evaluations and raises, even though company policy required an annual evaluation for every employee. She asked him whether she would receive a raise and was told not to worry and that he would get to it eventually. However, she never received the raise.

The following year, Phyllis asked the general manager again about a raise, and he allegedly told her that she was “making too much money” and that she should be “grateful” that she had a job.

After reporting the general manager’s behavior to Jiten’s corporate headquarters, Phyllis met with the general manager and Jiten’s vice president. However, no disciplinary action was taken against the general manager. The vice president sent Phyllis flowers a few days later.

In September 2005, the general manager left to manage another one of Jiten’s hotel properties, but he maintained a presence at the Holiday Inn Express. Phyllis said that his age-related comments caused other employees to discriminate against her, even after he left. Other employees called Phyllis “the old woman” and “an old lady,” and she heard the hotel’s sales manager say in June 2006 that the company wanted to fire Phyllis because she was “too old,” and the hotel did not want to give her a raise.

The general manager’s brother replaced him at the Holiday Inn Express. In April 2006, Phyllis wrote a letter to the brother, asking for an evaluation, a 2006 raise, and an explanation for her lack of evaluations and raises for the 2 previous years. He did not respond, and she did not receive an evaluation or a raise in 2006.

In August 2006, the company terminated Phyllis’ employment. She filed a complaint with the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination. Then, she filed an age discrimination suit under the federal Age Discrimination in Employment Act and the Massachusetts antidiscrimination statute, alleging a hostile work environment and disparate treatment.

A jury rendered a verdict in favor of Phyllis on her state discrimination claim and awarded her $7,650 in compensatory damages. Jiten filed a motion to alter or set aside the judgment and/or to certify a question of state law to the Massachusetts Supreme Judicial Court regarding whether a particular jury instruction was proper. The district court denied the motion. Jiten challenged the district court’s jury instructions and its denial of the motion by appealing to the U.S. Court of Appeals for the 1st Circuit, which covers Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.

What the Court Said

The appeals court affirmed, saying the district court did not err when it issued instructions to the jury and did not abuse its discretion in declining to certify a question to the Supreme Judicial Court.

The appeals court did not decide whether, as Jiten alleged, the district court erred when it failed to instruct the jury about a 300-day statute of limitations under state law. However, even if the court did err, the appeals court said Jiten did not show that the error was prejudicial. Since Phyllis was denied a raise in May 2006, the court said the jury reasonably could have viewed that as a discriminatory act that fell within the statute of limitations.

Diaz v. Jiten Hotel Management, Inc. (Nos. 11-1505, 11-1575) (U.S. Court of Appeals, 1st Cir., 2/7/12)

In Brief

When training managers and supervisors on age discrimination, be sure to include an overview of what is prohibited under federal and state law and how comments about an employee’s “old age” can lead to morale—and legal—problems.

Managers and supervisors should also be educated on company policy regarding annual evaluations, as well as the need to conduct such evaluations in an unbiased manner.

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