Supermarket chain Jewel-Osco has prevailed against claims it discriminated against a group of older store managers, who accused the retailer of setting them up to be replaced by younger workers.
On March 2, U.S. District Judge Manish S. Shah ruled in favor of the Itasca-based Jewel, granting summary judgment in a legal dispute that dates back to 2017.
“… Despite their sweeping accusations, they (the plaintiffs) each fail to present enough evidence of Jewel’s discriminatory or retaliatory animus or adverse actions sufficient to support claims of discrimination or retaliation,” Judge Shah wrote in his opinion.
Jennifer Schilling | Littler Mendelson
Plaintiffs Timothy Cesario, Steve Cieslak, Gregory LaRocco, James Lee, Edward Esboldt, Frank Anderson and Lester Nelson, filed suit in Chicago federal court against Jewel-Osco and its corporate parent companies, including New Albertson’s Inc. The complaint accused the supermarket chain of violating federal age discrimination law in deciding to transfer the men to different stores and then either fire them or move them into long-term or short-term disability status to replace them with younger managers.
According to the complaint, all the managers, each around 60 years old, had worked for decades at Chicago area Jewel-Osco stores, attaining the rank of store directors for either the Jewel grocery side of the store, or the Osco pharmacy.
However, the complaint alleged, in 2011, Jewel-Osco revised its store management structure, consolidating the dual store director positions to just one manager overseeing operations on both sides at each location.
The complaint accused Jewel-Osco of transferring the plaintiffs from their stores to the posts of store directors at different Jewel-Osco stores that were either underperforming or were challenged in other ways, such as facing stiff competition from other newly opened supermarkets nearby.
The plaintiffs alleged their stores consistently performed well and earnings increased, but they still received alleged undue negative performance reviews and were subjected to unjustified criticism. Cesario, for instance, alleged his supervisors repeatedly visited his stores for inspections and once “reprimanded (him) for apple cores not being in perfect alignment.”
The plaintiffs asserted their supervisors repeatedly refused their requests for transfers to other stores, while repeatedly transferring other younger managers.
LaRocco and Lee were ultimately fired, while Cesario and Cieslak were on disability leave at the time the complaint was filed.
All four alleged they were replaced by younger managers.
The plaintiffs are represented in the case by attorneys Nicholas F. Esposito and Bradley K. Staubus, and others with the firm of Esposito & Staubus LLP, of Burr Ridge.
After years of proceedings in the case, however, Judge Shah said the plaintiffs never presented enough evidence to allow their claims to go to trial.
The judge said the plaintiffs particularly failed to show they were treated any differently by the company than they would have been if they had been younger.
In discussing details of each plaintiff’s particular case, the judge noted none of the plaintiffs presented evidence concerning the treatment of younger managers, to show the company treated those under 40 any differently than those older.
And the judge noted some of the plaintiffs either resigned or were fired for non-age related reasons, such as company investigations of their work or “the hours, stress” and family needs.
Judge Shah said the case fails to meet the “but-for standard” of the federal age discrimination law – meaning, that but for the age discrimination, the plaintiffs would still hold their positions.
Judge Shah also chided the plaintiffs’ attorneys for various violations of a federal court rule concerning the presentation of facts in evidence.
“When a lawyer drops the ball on the rule, the client suffers because the increased burden on the court detracts from the credibility and reliability of the lawyer’s entire presentation,” Judge Shah wrote in a footnote on the decision.
However, the judge said Jewel-Osco did not prevail in the case on a technicality.
The reader might think that plaintiffs lost this case because of their lawyers. Their failure to comply with Local Rule 56.1—at times in a manner suggesting a lack of candor—and their attempt to interject a theory of age discrimination through post-discovery affidavits certainly did the clients no favors,” the judge wrote in his opinion. “But the court has nevertheless scoured and dug into the record searching for a timely, preserved and potentially viable claim on the part of any one of the plaintiffs.
“The evidence just isn’t there.”
Jewel-Osco was represented in the case by attorneys Jennifer Schilling, Michael A. Wilder and Lavanga B. Wijekoon, of Littler Mendelson P.C., of Chicago.