An age discrimination lawsuit brought by a group of four former Jewel Osco store managers against the Chicago area supermarket chain has been trimmed, after a federal judge granted the company’s request to shelve several of the ex-managers’ claims, including a key count alleging the company’s policies and practices favor younger managers at the expense of the more experienced.

On Nov. 30, U.S. District Judge Manish Shah turned aside a request from the plaintiffs to reconsider his order from earlier in the month dismissing their claim of disparate impact against Jewel.

In that earlier decision, Judge Shah ruled the store managers had not given the U.S. Equal Employment Opportunity Commission, the federal agency tasked with handling employment discrimination complaints, the opportunity to investigate any claims of disparate impact. The judge also chided the plaintiffs for failing to identify any specific policy practiced by Jewel demonstrating the company routinely discriminates against older managers.

“Plaintiffs state that they were unaware of whether the complained-of conduct resulted from a policy or not, or whether any other employees were affected,” the judge wrote in his Nov. 7 decision. “But they cite no authority to suggest that their lack of knowledge excuses their obligation to give the EEOC and the defendant an opportunity to explore resolution of such a claim.

“Each charge alleges intentional discrimination against each plaintiff in a variety of forms, but does not identify a policy or practice that could lead to a disparate-impact claim.”

The case landed in federal court in January 2017, when plaintiffs Timothy Cesario, Steve Cieslak, Gregory LaRocco and James Lee filed suit against Jewel and its corporate parent companies alleging the company violated federal age discrimination laws when it transferred the managers to different stores and then either fired them or moved them to long-term or short-term disability status, allegedly to replace them with younger managers.

According to that lawsuit, all four, who are about 60 years old, had worked for decades at Chicago area Jewel-Osco stores, managing either the Jewel grocery side or Osco pharmacy side of their respective stores.

In 2011, however, the company reorganized its stores’ management structures, giving each store one director over both the Jewel and Osco operations. At that time, all four men were transferred from their stores in Chicago and the suburbs to “underperforming” stores in other Chicago area communities.

The plaintiffs alleged the company then further hampered their work, at times leaving them with no assistant store managers or subjecting them to undue negative performance reviews or unjustified criticism, often over relatively small or cosmetic matters.

Despite the challenges, the plaintiffs alleged their stores’ performance improved under their watch, and the company declined their repeated requests to transfer, which the complaint alleged was customary for managers who otherwise would be terminated, particularly those with many years of employment with the company.

All four said they were eventually either terminated or placed on disability leave, and were replaced with younger managers. They also all filed discrimination complaints with the EEOC and received permission to sue the company.

In response, Jewel asked the court to dismiss much of the claims in the lawsuit, including the claim of “disparate impact,” which alleged the company’s treatment of these four managers was a result of company policies or practices that led to discriminatory employment decisions harming older managers, without explicitly spelling out a company goal of favoring younger managers.

The judge sided with Jewel on that point.

In a motion filed Nov. 15, the plaintiffs argued they should be allowed to continue with their disparate impact claims as presented, as those claims “are reasonably related to the allegations of the charges and grow out of such allegations.”

Here, the plaintiffs said, the judge too “narrowly construes” the legal standard laid out in legal precedent, essentially requiring the plaintiffs to explicitly identify the company’s policy or practice that led to the alleged discrimination. The plaintiffs asked the judge to allow them the chance to use the discovery process to “elicit further evidence (including statistical evidence) to develop their disparate impact theory.”

The judge, however, rejected that request, without comment in a brief order entered Nov. 30. In all, the judge dismissed nine of 25 counts in the complaint. The dismissal of all counts was without prejudice, meaning the plaintiffs have the chance to amend their lawsuit to address the shortfalls identified in the judge's decision. Judge Shah gave them until Feb. 6 to do so.

The plaintiffs are represented in the action by attorneys with the firm of Esposito & Staubus LLP, of Burr Ridge.

Jewel-Osco is defended by the firm of Littler Mendelson P.C., of Chicago.

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Littler Mendelson P.C. U.S. District Court for the Northern District of Illinois

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