The We Deny Everything Insurance Company (WDE) handled a massive volume of claims each year in the corporate claims function, as well as in its four regional claims centers. Corporate claims were located in sunny California and the regional offices were located in Atlanta, Cleveland, Providence, and Las Vegas. Corporate claims were headed by the senior vice president of corporate claims (SVP). Reporting to the SVP were 2 managers of corporate claims (MCC-Life and MCC Homeowners/Residential) and a highly skilled corporate claims specialist (CCS).

Each regional office (4) was headed by a regional center manager (RCM). The RCM was responsible for both supervisors and claim specialists within the regional office. The RCM’s reported to the vice president of regional claims (VPRC). This is the structure before reorganization (I suggest you draw a chart for your own reference).

WDE decided to reorganize its claims function by eliminating the 4 regional offices (and the RCM position) and establishing numerous small field offices throughout the country. The other part of the reorganization involved creating 5 new CCS positions. The CCS position was to be redesigned and upgraded in terms of knowledge and skill requirements. It was planned to staff these new CCS positions through internal promotions from within the claims function.

The plaintiff in the case was Ron Whyme, a 53 year old RCM. Since his job was being eliminated, Ron was asked by the SVP to apply for one of the new CCS positions. The other RCM’s, all of whom were over the age of 40, were also asked to do so. Neither Ron nor the other RCM’s were promoted to the new CCS positions. Other candidates were also bypassed, and some of them were also over the age of 40. The promotions went to 5 claim specialists and supervisors from within the former regional offices, all of whom were under age 40. Two of the newly promoted employees had worked for, and actually reported to Ron, as the RCM.

Ron was not happy. Upon learning of his failure to be promoted, Ron wanted to determine why he was not promoted. What he learned led him to feel he has been discriminated against because of his age. Ron retained experienced and expensive legal counsel, Bruce Lincoln. Lincoln, a high-powered litigator, met informally with the SVP to try to determine what had happened in the promotion process and why his client Ron had not been promoted. Lincoln was told that there were a large number of candidates who were better qualified than Ron and that Ron lacked adequate technical and communication skills for the new job of CCS. The SVP refused to reconsider Ron for the job and said that the decisions were “final”. Ron, through his attorney Lincoln, then filed a suit in federal district court, claiming a violation of the Age Discrimination in Employment Act (1967). Lincoln then subpoenaed numerous WDE documents and files including the personnel files of all applicants for the CCS positions.

Based on discussions with Ron and the subpoenaed documents, the following information emerged about the promotion process actually used by WDE. The SVP and the 2 MCC’s conducted the total process. They received no input from the VPRC or the HR department. There was no formal written job description for the new CCS position, nor was there a formal internal job posting as required by company policy. The SVP and the MCC’s developed their own list of employees that they thought might be interested in the job, including Ron, and then met to consider the list of candidates. At that meeting, the personnel files and previous performance appraisals of the candidates were not reviewed or consulted. After deciding on the 5 candidates who would be offered the promotion (all 5 accepted), the SVP and the MCC’s did browse the personnel files and appraisals of only these 5 employees to check for any disconfirming information about the employees. None was found.

Inspection of the files by Lincoln revealed no written comments suggesting age bias in past performance appraisals for any of the candidates, including Ron. Also, there was no indication that Ron lacked technical and communication skills. All of Ron’s previous appraisal ratings were above average, and there was no evidence that Ron’s performance had declined recently. An interview with the VPRC (Ron’s boss) revealed that he had not been consulted at all during the promotion process. Ron’s boss could not believe that Ron had not been promoted and in fact said that he was “shocked beyond belief”. In his opinion, there was “absolutely no question” that Ron was qualified in all respects for the CCS job.

Based on the facts above you must respond to Part A and Part B below:

Part A: Prepare an analysis that presents a convincing disparate treatment claim that Ron has been intentionally discriminated against on the basis of his age. Do not address the claim as a disparate impact one. (Hint: Look at the elements for a prima facie case of discrimination in Week 2)

Part B: Prepare a rebuttal, from the viewpoint of WDE, to the disparate treatment claim.