IBM not cooperating with discovery, say attorneys in age-discrimination case
Big Blue contends it should not be forced to reveal more than law requires
IBM has been accused of trying to avoid its legal discovery obligations in Kinney v. IBM, one of many age discrimination lawsuits that have been brought against the IT titan in the past few years.
In a motion [PDF] to compel discovery filed on February 28, 2022, attorneys for the current plaintiffs – who claim [PDF] IBM fired them as part of a company-wide effort to get rid of older workers – accuse Big Blue of trying to avoid providing relevant documents by insisting that layoffs were relevant to specific corporate groups and weren't part of a company-wide scheme.
"To date, IBM has refused to provide the requested discovery in part by arguing it is overbroad and should be limited – once again – to smaller layoff sub-units," the attorneys from Wright & Greenhill, P.C., and Kaplan Law Firm wrote in their court filing.
IBM has refused to provide the requested discovery in part by arguing it is overbroad and should be limited – once again – to smaller layoff sub-units
That motion followed revelations arising two months ago from a different age discrimination case, Lohnn v. IBM [PDF], initially filed in July 2021 on behalf of former IBM employee Jorgen Lohnn, who took his own life after being laid off from the company.
The Lohnn complaint against IBM, brought by his widow, contends Lohnn's termination followed from "a years-long companywide discriminatory scheme implemented by IBM’s top management to build a younger workforce, by reducing its population of older workers in order to make room for the hiring of younger workers."
Such allegations came to public attention in 2018 following a joint report from ProPublica and Mother Jones that claimed IBM had undertaken a company-wide campaign to get rid of older workers. In 2020, the Equal Employment Opportunity Commission (EEOC) concluded "top-down messaging from IBM’s highest ranks directing managers to engage in an aggressive approach to significantly reduce the headcount of older workers to make room for Early Professional Hires."
Though the Lohnn case recently settled – a sign the discrimination claim had some merit – documents disclosed prior to the case's conclusion painted IBM in a particularly bad light. They describe how IBM aimed to "correct" its "seniority mix" by weeding out older workers it called "dinobabies" and called for efforts to change the company's "dated maternal workforce."
The publication of these documents proved sufficiently damaging that IBM's chief human resources Officer Nickle LaMoreaux published a lengthy defense of the company.
"Discrimination of any kind is entirely against our culture and who we are at IBM, and there was (and is) no systemic age discrimination at our company," said LaMoreaux in a public statement posted to the company's website.
'Gerrymandering' internal teams
The critical word here is systematic. LaMoreaux's wording allows for the possibility that isolated instances of age discrimination may have occurred – though the company has not acknowledged such incidents, it has nonetheless settled age discrimination claims without admitting guilt while requiring silence from those winning settlements. But LaMoreaux is emphatic that de-aging the workforce was never part of a grand corporate plan.
IBM's defensive legal strategy against age discrimination claims has relied on this divide and conquer approach. Legal limits on the scope of discovery requests have made it difficult to trace a specific termination up through the conveniently compartmentalized corporate structure to executive leadership.
But lately efforts to keep cases contained look strained. The company's response to news coverage of the Lohnn case led to its disclosure of company-wide age data about its workforce, something it stopped publishing for layoffs in 2014.
In Kinney v. IBM, attorneys for the plaintiffs argue in their motion to compel that IBM should not be allowed to limit discovery "to gerrymandered layoff sub-units" instead of providing broader data on its workforce. The attorneys asked for "names and ages of all IBM employees contemplated and selected for three specific layoffs – Concord, Maple, and Palm – that resulted in their respective terminations."
IBM can produce extensive employee age information when it suits its own purposes to counter unfavorable publicity but claims to be unable ... to produce it for legitimate litigation purposes
The lawyers noted that the demographic data the company produced in response to coverage of the Lohnn case shows "that IBM can immediately produce extensive employee age information when it suits its own purposes to counter unfavorable publicity but claims to be unable – or just unwilling – to produce it for legitimate litigation purposes."
IBM's opposition to that motion [PDF] offers a variety of reasons why its Resource Actions – layoffs – were properly carried-out decisions of isolated corporate units. And the company's legal team maintains the company has already gone above and beyond what's required to assist discovery.
'[A]llegations of a 'pattern' of discriminatory actions do not give plaintiffs carte blanche to demand company-wide discovery," the IBM brief declares.
Yet, the public disclosure of internal files calling for efforts to "fund an influx of [early professionals] to correct [the] seniority mix" undercut arguments that company layoffs were conducted without regard to employee age. These files and other charts were presented as evidence in Langley v. IBM, an age discrimination claim filed in 2018 that settled two years later. And they recently reappeared in an exhibit [PDF] in Rusis et al. v. IBM [PDF], a class action brought by a group of nine former IBM employees who claim they were fired. And the Kinney attorneys, some of whom were involved in the Langley case, know this only too well.
On Tuesday, the Kinney lawyers filed a reply [PDF] in support of their February motion to compel IBM to be more cooperative. They're seeking documents related to Maple, Concord, and Palm, which the plaintiffs say are Resource Actions – layoffs.
IBM however has resisted providing such documents on the basis that it used four-letter codes for its resource actions – GMST, HYCD, CGTZ, CDWP, CGMP, SYMP, and DCPL – and that Maple, Concord, and Palm "refer not to resource actions but to pools of restructuring funds."
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The Kinney legal team contends these four-letter groups "are not the real and relevant populations" and have cited IBM's own attorney-provided spreadsheets to show that the names within these groups are inconsistent. They urged the judge not to limit discovery to "IBM's fantasy world."
"IBM’s own executives and the discovery produced in this case accordingly demonstrates that the true RA populations were the companywide codenamed 'Projects,'" the reply filing this week says. "As demonstrated in the Motion to Compel – Maple, Concord and Palm were the RA’s that affected these Plaintiffs."
"IBM’s discriminatory scheme to fire older workers and replace them with younger workers both domestically and through off-shoring was controlled at by IBM’s CHQ and its HR department. To execute the plan, CHQ issued 'targets' to the various IBM Groups with HR and Finance driven parameters and restrictions designed to make it impossible for frontline managers not to fire their older workers and still comply with CHQ’s parameters. This is the definition of a cat’s paw discriminatory scheme – merely modernized for the 21st century."
IBM maintains this is all much ado about nothing and insists the law doesn't require it to indulge such extensive discovery.
"Even if IBM did conduct companywide resource actions (it did not, and does not), Plaintiffs still would not be entitled to companywide demographic data," the company said in its opposition brief.
It now falls to the judge hearing the case to decide whether to grant or deny the motion to compel IBM to be more forthcoming. ®