Branch Rickey, former General Manager of the Brooklyn Dodgers and the man who gave Jackie Robinson his shot in the Big Leagues, once said that luck is the residue of design. (Actually, the phrase may come from the British poet John Milton. Since I’m fonder of baseball than of 17th century British poets, I’m going with Branch Rickey).

Even though I became a lawyer because I stunk at math and science, and had no chance of becoming a Jewish mother’s dream (aka a doctor), I typically explain Mr. Rickey’s phrase with the following chemistry reference: If you invest your energy, effort, and intellect into creating a new chemical compound, and succeed in that endeavor, luck is the residue left on the sides of the beaker when you pour it out.

Basically, if you do the right things you can create your own luck.

Such may have been the situation in Ferrara v. Sterling Inc, a/k/a Kay Jewelers in which the U.S. Court of Appeals for the Second Circuit recently affirmed the entry of summary judgment for Sterling on claims of age discrimination, harassment, and retaliation.

Old men and dinosaurs

Robert Ferrara was a District Manager for Sterling with responsibility for 14 Kay’s Jewelers stores. (Which, we all know, is where every kiss begins.)

From February 2014 through September 2015, Mr. Ferrara received numerous poor performance appraisals and counseling reports from his supervisor because his stores repeatedly failed to meet their goals.

In 2016, Mr. Ferrara’s supervisor retired and was replaced by Chris Gallo. According to Mr. Ferrara, during 2016 and 2017, Supervisor Gallo repeatedly referred to him as a “dinosaur” who had been “hatched,” called him “grandpa,” accused him of being “out of touch with millennials,” and suggested that he retire.

In September 2017, Mr. Ferrara told his supervisor to stop making ageist remarks. The very next day, the supervisor demoted him to Store Manager.

Oy. That’s not good timing.

Within a few days of his demotion, Mr. Ferrara complained to Human Resources that his supervisor had been subjecting him to age-based harassment and demoted him in retaliation for his complaints about that hostile environment.

HR investigated the complaints and found that they lacked merit. Mr. Ferrara was notified about the outcome of the investigation in January 2018.

Within a month of being told that his complaint lacked merit, Mr. Ferrara took a leave of absence for (wait for it) anxiety, depression, and post-traumatic stress. He remained on leave until April 2018.

After returning to work as a Store Manager, the company stayed the course and continued to document performance deficiencies by Mr. Ferrara similar to those noted in his 2014-2017 reviews.

In August 2018, Mr. Ferrara resigned. He then sued the company for discrimination, harassment, retaliation, and constructive discharge.

Company wins summary judgment on all claims

Last spring, a federal judge in upstate New York granted summary judgment to the company on all of Mr. Ferrara’s claims.

As for the dismissal of Mr. Ferrara’s hostile environment harassment claim predicated on his supervisor’s repeated references to him as being a “hatched dinosaur” who was “out of touch with millennials” and needed to retire, the judge found them to be “offhand, isolated comments that … were not so severe and pervasive that they constituted a hostile work environment.”

Wow. (Note to self: If you ever have a case in upstate New York, try to get it assigned to that judge.)

As for the dismissal of the retaliation claim predicated on Mr. Ferrara’s demotion the day after he complained about the harassment, the judge relied on Mr. Ferrara’s long history of negative reviews before Mr. Gallo became his supervisor. The judge also relied on evidence showing that a Vice President of Operations and a Human Resources Business Partner conducted an independent assessment of Mr. Ferrara’s performance before concurring with Mr. Gallo’s recommendation that Mr. Ferrara be demoted.

As for the dismissal of Mr. Ferrara’s constructive discharge claim, considering the findings recited above, the judge devoted a single short paragraph to concluding that Mr. Ferrara’s working conditions were not so intolerable that they justified his resignation.

(Although the standard can vary from jurisdiction to jurisdiction, a “constructive discharge” can generally be found if working conditions are deliberately made so intolerable that a reasonable person in the employee’s position would feel compelled to resign. If an employee resigns for this reason, the legal effect is the same as if the employee had been terminated involuntarily.)

Second Circuit agrees with the outcome

Mr. Ferrara appealed, and earlier this month, the Second Circuit issued a non-precedential, Summary Order affirming the dismissal of his claims.

The Second Circuit did not adopt the district court’s findings that the “hatched dinosaur” and “out of touch old man” comments were “offhand … isolated …  [and] non-pervasive.” Instead, the appeals court assumed that Mr. Ferrara had established a prima facie case of harassment. However, the court still affirmed the dismissal because (1) the company had a complaint procedure in place at the time of the alleged harassment; (2) the company investigated Mr. Ferrara’s September 2017 complaint of harassment and determined it had no merit; (3) after that complaint, Mr. Gallo no longer supervised Mr. Ferrara; and (4) Mr. Ferrara unreasonably failed to use the company’s complaint procedures for many months before making his September 2017 complaint.

As for the retaliatory demotion claim, the court assumed that Mr. Ferrara had established a prima facie claim of retaliation. But it affirmed the dismissal based on (1) Mr. Ferrara’s well-documented performance deficiencies in the years leading up to the demotion; and (2) the fact that a Vice President of Operations and a Human Resources Business Partner conducted an independent assessment of Mr. Ferrara’s demotion and reached their own conclusions that demotion was warranted.

Design, residue, and lessons learned

As for designs that may have created a residue of luck, two appear to have been crucial: A detailed reporting procedure for harassment that Mr. Ferrara failed to use, and the decision by two high ranking executives to conduct an independent assessment of the reasons for Mr. Ferrara’s demotion and thereby neutralize any taint that could be argued to exist based on his supervisor’s alleged ageist comments.

Those executives could just as easily have rubber-stamped the supervisor’s recommendation. Instead, they took the time to review Mr. Ferrara’s performance and confirm for themselves that it warranted demotion.

Being the cynic that I am, I believe that the following events are also likely to have been the lucky residue of design:

  • Shortly after the company notified Mr. Ferrara about the results of the investigation, he took a leave of absence.

  • When Mr. Ferrara returned from his leave, the company continued to address his deficiencies in a measured and deliberate manner, and Mr. Ferrara resigned. (Constructive discharge claims are typically easier for employers to defend than termination claims.)

The Second Circuit’s decision does not break any new ground or establish any important precedent. However, it provides a teachable moment regarding the importance of policies and not rubber-stamping supervisors’ recommendations.

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