Wednesday, December 22, 2010

JP Morgan Chase prevails in age discrimination case

Catherine Hogan worked at J.P. Morgan Chase Bank. She was let go under the disability leave policy. She sues for age discrimination. She loses in the district court, and the Court of Appeals affirms, ending the case.

The case is Hogan v. J.P. Morgan, a summary order decided on November 30. The Second Circuit (Walker, Raggi and Hall) provides the background:

under Chase’s disability leave policy, an employee who remains on disability leave longer than twelve weeks but less than twenty-six weeks forfeits her job protection rights and can reclaim her old position only if it has not been filled. If the position has been filled, the employee is “eligible to conduct [her] own 60-day internal job search.” Failure to secure another position within the relevant time period, however, results in termination.

This seems a harsh policy, but Hogan did not challenge its legality. The Court of Appeals assumes the policy is legal and says it's a legitimate reason to terminate Hogan. She cannot win the case because there is no evidence that anyone younger than she were hired for the positions she did not obtain in looking for other work in the company, and human resources did not deny her any opportunities within the company for ageist reasons. The disability-leave policy, in other words, was not pretext for age discrimination.

The court drops a footnote referencing the "cat's paw" theory of liability. This is when someone up the chain of command harbors discriminatory intent, affecting the final decision, even if the final decisionmaker is not biased. The Court of Appeals notes that some Circuits have explicitly addressed "cat's paw" and that that the Supreme Court has never taken up the issue. Actually, the Supremes heard oral argument on "cat's paw" a few weeks ago. The Second Circuit says:

we have no occasion to consider the applicability of that theory to the facts of this case. It was not explicitly argued, nor were facts developed to demonstrate a link between evidence of Dennis Chuang’s age-based discriminatory animus and Hogan’s post-illness interview schedule set-up by Nancy Panetta.

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