The US District Court recently denied a local university’s motions to strike and dismiss parts of a former employee’s claim alleging that the employer retaliated against him after he raised claims of wage violations and age discrimination.

The court denied a motion to strike the part of the employee’s claim that included statements made between the parties during settlement negotiations, ruling that it did not violate a rule of civil procedure protecting information uncovered during such negotiations. The employer’s motion to dismiss counts of retaliation was also denied, with the court ruling that the employee’s complaint laid out facts sufficient to support the claim.

The employee worked in an administrative role at the university for approximately fourteen years. In February of 2022, he was terminated after being informed that his position was eliminated due to a lack of work. At the time of his termination, the employee believed there was sufficient work, and was aware of several open positions in his department for which he was qualified. The employee had no record of misconduct during his employment.

The employer had not fully paid the employee his earned wages at the time of his termination, leading the employee to file a complaint with the attorney general’s office and the local district court. He also contacted the university and made a demand for payment.

Less than a month after his termination, the employee saw a job posted by the employer that was similar to his previous position. The employee contacted the employer and alleged that his termination was due to age discrimination. The employee’s age was not disclosed in the court’s opinion, but presumably, he was over the age of 40. The employee inquired about the posting and was told that he was not suited for the position.

The employee then entered settlement negotiations with the employer on both the wage and the discrimination claims. Negotiations ended when the employee refused to sign an agreement that specified that the employee “shall not be entitled to any employment with [the employer] now or at any time in the future, and he will not apply for employment with [the employer] at any time in the future.”

The employer then paid all outstanding wages, and the employee withdrew his complaint of wage violations. However, he proceeded to file a claim of retaliation with the Massachusetts Commission Against Discrimination (MCAD) for the employer’s failure to rehire him. The claim was later withdrawn from the MCAD and filed in state court.

In early 2023, the employee was notified by a former colleague that the university was going to post a position for which he was qualified. He soon discovered that the employer filled the position without posting it, contrary to its longstanding practice of posting every open position. The employee considered this to be another ‘adverse employment action’ in retaliation for filing his initial claims and he added it to the MCAD claim.

The current stage of the lawsuit, which was removed to federal court by the defendant’s employer, dealt with two motions: 1) to strike counts in the complaint that included communications from their settlement negotiations, and 2) to dismiss the retaliation claims.

The court found that the statements included in the complaint were not a violation of the rules of civil procedure as the settlement negotiations addressed only the discrimination and wage claims, and not the employer’s alleged retaliation in its failure to rehire the employee. The statements would be inadmissible to substantiate the discrimination and wage claims but are relevant to the independent claims of retaliation.

Next, the court rejected the employer’s motion to dismiss the retaliation claims, based primarily on the fact that the employee had not actually applied for the positions. The court affirmed that both state and federal law recognize that failure to rehire can constitute an adverse employment action. While some federal courts will refuse to find retaliation where an application is not made, the First Circuit has indicated that the facts of a particular case might not require an application.

Massachusetts courts have found that an adverse employment decision has been made when a person with hiring authority indicates to an individual that they will not be hired. Therefore, the dismissal of the retaliation claim was denied.

While this case has not reached a resolution, this interim ruling warns employers when conducting a layoff. Here, the employee was told that his termination was caused by insufficient work, yet it proceeded to hire others into similar roles. Before laying off an employee, an employer must be certain that they will not need to hire a replacement in the near future. And the employer should remain open to rehiring recently laid-off individuals when positions for which they qualify become available.

AIM members with questions about layoffs or any human resource matter may call the AIM Helpline at 800-470-6277.