A federal judge from the Eastern District of Missouri has granted in part and denied in part a motion for summary judgment filed by the Los Angeles Rams Partnership, which was sued by a former employee for discrimination and retaliation.
While siding with the Rams on the sexual discrimination and retaliation claims, the court let stand the plaintiff’s claim of age discrimination.
The plaintiff in the case was Lory Fabian, who was employed by the Rams from 1995 to 2011. She held several jobs during her tenure with the team, including coaching secretary, executive assistant to public relations director, and alumni relations coordinator.
Fabian alleged that after Rams owner Georgia Frontiere died in 2008, the Rams started to push out its older employees. Rams’ management often described “changing the culture” of the organization by bringing in “young inexpensive grinders,” who could handle the long hours of NFL employment, according to the plaintiff. She also alleged that they said that they would “like to get rid of all the middle aged women” working for the organization.
On or about April 2009, Fabian was moved out of public relations/media and into the newly created position of alumni coordinator. Her responsibilities included, but were not limited to, coordinating the Rams’ relationships with alumni, setting up personal events with Rams’ alumni, and managing all other alumni related activities or tasks. The plaintiff reported to Rams Vice President of Corporate Communication Molly Higgins and Rams Executive Vice President Kevin Demhoff. Fabian characterized “this move as setting her up for failure. She was not given a budget or cell phone allowance, and did not have an office in which to meet with Rams alumni.” She further claimed she was “intentionally excluded from staff meetings and from Rams events and activities — all in an effort to systematically shut her out and force her to quit her job.”
Fabian alleged Demoff told her that “no one in the building liked her” and that she was “too old for her job.” In September 2010, some of her job duties and responsibilities were reassigned to a 24-year-old.
In addition, she claimed she was subjected to sexual harassment and discrimination by Bob Reif, the Rams executive vice president/marketing and sales/chief marketing officer. The plaintiff alleged, “Reif made inappropriate comments and jokes and touched her in an unwelcome and intimidating manner by massaging her shoulders, pressing the front of his body up against her backside, and putting his arms around her.” She claimed she reported Reif’s conduct to Rams management. However, no corrective action was taken. Fabian claimed that the Rams did not have a human resources department to address such complaints.
On May 20, 2011, Demoff reportedly informed the plaintiff that her employment agreement would not be renewed, and that her services were no longer required. He allegedly informed Fabian that the alumni program was not working and that the position of alumni coordinator was going to be eliminated.
On or about July 15, 2011, Fabian filed a dual charge of discrimination with the Missouri Human Rights Commission and the Equal Employment Opportunities Commission (EEOC). On or about March 22, 2012, she was mailed her right-to-sue notice pursuant to Title VII. On June 20, 2012, she filed this action alleging age discrimination in violation of the ADEA, 29 U.S.C. § 623(a)(1) & (2) (Count I), sexual discrimination, harassment and hostile work environment (Count II) and retaliation (Count III) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C, §§ 2000e, et seq., and battery (Count IV).
Tackling the ADEA claim first, the court noted that it would use the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Madel v. FCI Marketing, Inc., 116 F.3d 1247, 1251 (8th Cir. 1997) (citing Holley v. Sanyo Mfg. Inc., 771 F.2d 1161, 1164 (8th Cir.1985)).
“Under the McDonnell Douglas analysis, the plaintiff has the initial burden of establishing a prima facie case by showing she was within the protected age group, met applicable job qualifications, was discharged, and that her position was filled by a younger individual,” wrote the court, citing McDonnell Douglas, 411 U.S. at 802. “If the plaintiff makes a prima facie showing, thus raising an inference of discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the plaintiff’s discharge. Id. If the defendant meets this burden, the plaintiff must prove that the defendant’s reason is merely a pretext for discrimination.” Id. at 804.
Key to this claim was the fact that prior to Demoff’s tenure as COO, the Rams “have no documented complaints regarding her job performance or conduct. She contends the Rams failed to follow their own policies regarding performance reviews, and that she received only two reviews during her tenure, both conducted after she was in the position of alumni relations coordinator and after she sought an employment agreement to protect her job.”
Fabian also cited “a pattern of age discrimination,” noting “affidavits from former employees over the age of 40 who were replaced with younger employees to ‘change the culture’ of the organization.”
The Rams countered that the plaintiff’s witness affidavits fail to “set out facts that would be admissible in evidence” under Rule 56 and should be disregarded by the court, if not stricken.
“The ultimate issue on a motion for summary judgment in an ADEA case is ‘whether the evidence is sufficient to create a genuine issue of fact as to whether the employer intentionally discriminated against the plaintiff because of the plaintiff’s age.’ Madel, 116 F.3d at 1251-52. Despite the defendant’s argument that the plaintiff was not performing at a level that met expectations, the evidence, viewed in a light most favorable to the plaintiff, establishes at least a factual issue as to her prima facie case. In particular, Demhoff testified that in her first year as alumni coordinator, Fabian managed to have an alumni presence at every game, which he described as ‘the bare minimum of success’ for the program.”
The court continued: “In sum, the plaintiff has satisfied her burden of presenting sufficient evidence to create a genuine issue of material fact as to whether the Rams intentionally discriminated against her because of her age. The plaintiff has created a fact issue as to whether the Rams’ proffered reasons are pretextual, and Demhoff’s age-based comments, together with a pattern of preference for younger employees, create a reasonable inference that age was a determinative factor in the decision not to renew the plaintiff’s employment agreement. Thus, the defendants’ motion for summary judgment on Count I will be denied.”
As for the claims for sexual discrimination, retaliation or battery, the court found that the plaintiff has abandoned these claims. “Even if the plaintiff’s claims were not abandoned, however, they would fail on the merits,” wrote the court.
Lory Fabian v. The St. Louis Rams Partnership, et al.; E.D. Mo.; No. 4:12-CV-1112-JAR, 2014 U.S. Dist. LEXIS 7031; 121 Fair Empl. Prac. Cas. (BNA) 640; 1/21/14
Attorneys of Record: (for plaintiff) Edward C. Kruse, EDWARD C. KRUSE, ATTORNEY AT LAW, LLC, St. Louis, MO. (for defendants: Bradley A. Winters, Michael D. Hart, Sr., Lead Attorneys, Sher Corwin LLC, St. Louis, MO; Todd A. Davis, Lead Attorney, Pro Hac Vice, The St. Louis Rams, LLC, Los Angeles, CA.
