After spending 11 years at a Novartis unit in Puerto Rico that makes the Ex-Lax laxative and other over-the-counter products, Hernán Acevedo-Parrilla was fired. And earlier this week, a federal appeals court overturned a lower court ruling and decided that sufficient evidence exists to suggest to a jury that he lost his job due to age discrimination.
Acevedo was hired in 1996 as a maintenance and engineering manager in the Humacao, Puerto Rico, plant and regularly received positive performance reviews. But in 2003, a new site leader, who was responsible for operations, asked the human resources director to determine "inclinations” of employees “who had reached retirement age” and “what their wishes were regarding retirement." The HR director testified this was part of a "new recruitment plan," court documents state.
After the new site leader arrived, the Ex-Lax unit hired about 140 employees, including 114 who were younger than 40 years old. During the same period, of the 17 employees fired, 15 were older than 40, according to court documents. And "not long after (the new) site leader (arrived), Acevedo began to experience performance problems at the company,” the ruling noted. In February 2007, he was fired without prior notice, effective immediately. He was 56 years old at the time.
Then what happened? The Novartis unit hired a 34-year-old woman to replace him. She “was not reprimanded or disciplined for incidents that Acevedo contends were similar" to problems that occurred during his tenure. What kind of incidents? For instance, in 2007, after his replacement took charge of the maintenance and engineering department, an internal audit revealed persistent violations of standard operating procedures and good manufacturing practices.
"These included departmental failures to follow procedures involving the purified water system, complete cleaning and sanitation adequately, and execute pest control procedures with the required frequency," the ruling states. "A July 2007 unplanned deviation report also indicated that an increase in mold and yeast counts (were) detected in the packaging area due to improper area cleaning and sanitation." A 2008 report found various instances in which pests, such as insects, a lizard, and rats entered the plant.
Two years ago, a federal district court dismissed the case. But in its ruling, the appeals court wrote that "Ex-Lax's theory of the case is that Acevedo's termination was a lawful business decision, unrelated to his age, that was based on Acevedo's failure to comply with the company's established quality controls standards and, hence, with its legitimate job expectations."
But “there was sufficient evidence presented on summary judgment from which a jury could draw the permissible inference that Ex-Lax's claimed reasons for terminating Acevedo were pretextual and that the decision was the result of discriminatory animus," the appeals court wrote.
"We are particularly moved to this conclusion by inconsistencies between Ex-Lax's stated reasons for dismissal and Acevedo's performance record at the company, the lack of credibility that may be ascribed by a jury to certain... justifications for dismissal and, most importantly, the fact that in response to arguably similar conduct by Acevedo's younger replacement, Ex-Lax took no disciplinary action" (here is the ruling).
We asked Novartis for comment and will update you accordingly. [UPDATE: A Novartis spokeswoman writes us to say that the drugmaker "doesn't comment on HR-related matters concerning associates."]