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IBM researcher suing for age discrimination blames CEO Arvind Krishna for his ousting

Attorney for aggrieved scientist urges judge to let the evidence be presented

Analysis IBM has consistently denied that its layoffs over the past few years have targeted older workers.

However, according to an age discrimination lawsuit filed on behalf of former IBM research scientist Eugen Schenfeld, all the employees terminated in the company's Research Division in 2018 were over 40 and most were over 50.

The leader of IBM research at the time was Arvind Krishna, who became CEO in April, 2020. And the plaintiff argues Krishna was directly involved in the decision to fire him, which IBM has disputed in court documents.

"We know from the discovery ordered in this case that all employees in the Research Division terminated in 2018 were over the age of 40, and the vast majority were over 50" a recent court filing alleges. "In fact, all the employees terminated from Arvind Krishna's division for the three years we have data [2016, 2017, and 2018] were over 40."

These details have surfaced in a brief [PDF] by Schenfeld's attorney Steven Cahn from New Jersey-based law firm Cahn & Parra. The brief was filed last month in opposition to IBM's motion for summary judgement to dismiss the case, Schenfeld v. IBM, from New Jersey Superior Court.

The case was initially filed in November, 2018 and is scheduled for trial in February, 2022. IBM believes it should be dismissed for lack of evidence while Schenfeld's attorney is urging the judge to let the case continue.

The brief argues Schenfeld, who spent twenty years developing cloud and data center technology at IBM and is listed as the inventor or co-inventor of almost 100 patents, was the victim of "Project Concord," the 2018 iteration of a series of annual layoffs at IBM that targeted older workers.

IBM's name for a 2017 workforce reduction (a Resource Action in Big Blue speak) in its UK Infrastructure Services Delivery division is said to have been called Project Baccarat, and a parallel headcount reduction has been referred to as Project Ruby.

The initial complaint [PDF] claims Schenfeld "was among numerous employees selected for defendant IBM's reduction in force as a result of intentional and deliberate decisions to begin heavily recruiting and hiring younger employees while at the same time systematically phasing out and/or terminating older employees."

Allegations of age discrimination have dogged IBM since a 2018 report by ProPublica and Mother Jones said the IT giant had made a concerted effort to purge older employees. The US Equal Employment Opportunity Commission (EEOC) published findings in 2020 that came to a similar conclusion.

Long-standing problem

While there have been numerous age discrimination lawsuits filed against IBM in the wake of the ProPublica/Mother Jones revelations, few have been resolved. Some have been dismissed, others appear to have been quietly settled, or are ongoing.

What's notable about the Schenfeld case is that Cahn, his attorney, has deposed both Krishna and John Kelly, IBM SVP of Cognitive Solutions and IBM Research. And summaries of some of the executives' responses have been included in Cahn's brief to support the motion to let the case move forward to trial.

"A significant amount of discovery in this case has been marked as confidential, and, therefore, cannot be discussed in this brief to the extent necessary for a proper review of the facts of this case," the brief explains.

We do not believe all the proceedings in this case should take place behind closed doors

"We're filing this brief in opposition of the defense motion for summary judgement publicly without some detailed discussion of these documents because this is a matter of public interest, and we do not believe all the proceedings in this case should take place behind closed doors."

IBM's defense in this case, as it has been in others, is that Schenfeld was terminated for legitimate business reasons, rather than unlawful, discriminatory reasons. The company details its rationale in a brief in support of its motion for summary judgement.

"Plaintiffs’ briefing has falsely described Arvind Krishna’s involvement in this matter," a spokesperson for Big Blue told The Register. "As head of a business unit at that time, Arvind was aware of individuals who may be separated from the company but did not make any selections. Plaintiff’s mistruths do not change the facts."

The IBM filing [PDF] argues Schenfeld "alienated many colleagues whose support he needed with disparaging and hostile remarks" and failed to apply for other internal positions – a point Cahn disputes by noting that IBM had Schenfeld on a no-hire list.

Claimed personal attacks

The plaintiff's brief chides IBM for making a legally irrelevant personal attack on Schenfeld and insists there's ample evidence to support the age discrimination charges, based on executive depositions and company email obtained through discovery. It further suggests IBM has been deliberately uncooperative in an effort to keep its chief executive out of the case.

"The plaintiff contends that the decision to terminate his employment was made by Arvind Krishna, and that various witnesses are covering up Krishna's involvement due to the fact that Krishna is now Chief Executive Officer of IBM," the brief says.

IBM fought to prevent Krishna from being deposed, and the law generally protects CEOs from having to testify just because of their position. In a hearing in June, the presiding judge acknowledged that but denied IBM a protective order to keep Krishna from being deposed. Judge Alberto Rivas said, "...the court believes that there is some information that Mr Krishna may have that is unique and particular to the Resource Action and to the selection of Mr Schenfeld for inclusion in this Action."

Tying Krishna to this long-alleged systematic age discrimination would make its more difficult for IBM to distance itself from its past five or so profit-starved, employee-shedding years.

IBM appeared to have the possibility of a fresh start with the departure of key executives like CEO Ginny Rometty and Chief Human Resources Officer Diane Gherson, with new corporate leadership, and with the recent Kyndryl spinoff. But if Schenfeld's case heads to trial, IBM's new regime may have to deal with the consequences of old business decisions.

Whether the case will be allowed to proceed, and to offer evidence of the cover-up allegations, depends upon the court rejecting IBM's motion for summary judgement and, if that happens, upon IBM allowing the case to proceed to trial rather than settling. A decision is expected in early December. ®

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