Worker Replaced by Software Cannot Claim Age Discrimination

Posted 10-18-2011

When he was 49, Thomas Gortemoller was hired by a furniture manufacturer and importer as its manager of imports. He was responsible for conducting research to determine what new products to produce, creating specifications, working with designers, selecting designs, developing and merchandising products, traveling overseas to look at products, and going to trade shows and industry events to evaluate the competition. During his ten years with the company, he was promoted to vice president. But then, nine months after he received a performance evaluation saying he consistently exceeded expectations, the 59-year-old Mr. Gortemoller was fired without notice, but with $100,000 in severance pay. The only reason he was given is that one of the product lines was “old”.

As you might expect, Mr. Gortemoller hired an attorney and sued the furniture company for age discrimination. He claimed that he had been replaced by Todd Evans, the vice president of sales, who was in his mid-30s. But the federal courts dismissed Mr. Gortemoller’s case without a trial, finding that almost all of his former job duties had been taken over by a Web-based program called Design Net, and not by Mr. Evans. The program enabled the sales department to keep up with sales, the competition’s products and with the customers’ desires. Salespeople sent this information-suite categories, design styles, finish and price points-to the designers via Design Net who then used this information to design new products. In turn, the designers posted their designs for comments from company marketing, sales, and manufacturing personnel, as well as customers. Designers used the comments and feedback obtained through Design Net to modify the product throughout development and production. The only one of Mr. Gortemoller’s job duties that Mr. Evans performed was overseas travel to look at products, but Mr. Evans, who was also a ten-year employee, had been doing that both before and after Mr. Gortemoller was fired.

The appeals court recognized the importance of technology-driven changes at work when it found that the company replaced its top-down process, in which Mr. Gortemoller was an intermediary between salespeople, customers, and designers, with a decentralized process in which the three parties communicated with each other directly. The new streamlined system allowed salespeople, customers, and designers to make decisions together about what and how products were made. As a result, no one was performing the vast majority of Mr. Gortemoller’s old job, which was eliminated as unnecessary. Gortemoller v. International Furniture Marketing, Inc., (11th Cir., 2011)

What this means to you:

Although the employer eventually prevailed after four years of litigation, was this trip to the courthouse really necessary? Had top management been candid and forthcoming with Mr. Gortemoller about its decision to change its fundamental business processes, perhaps he would have simply accepted his $100,000 in severance pay and walked away. Undoubtedly, he would have still been unhappy about his firing, but at least he would have understood why, without having to hire an attorney and start a federal lawsuit.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:37+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.