Whether it is a discussion about a possible raise, a question about possible retirement or the decision to hire an assistant if the business had documented the information that was exchanged within the meetings regarding Woythal and others it would have saved everyone time in determining whether a suit was feasible and if so based on what actions from the company. Documentation is possibly one of the most important if not the most important thing that a business can do to protect itself from liability. A paper trail allows proof and evidence of what was done and when without later having to rely on memory in a courtroom.

In addition everyone in the meeting should sign a copy of the documentation stating that they agree with its contents, or if they do not agree with the contents how they see the meeting and its outcome.

In this case three very important conversations took place that should have been documented and were not. The first was when Seirfert talked with Carico and told him about the concerns he had regarding Woythal. It should have been documented that he asked the OM to find out about the plans to retire that had been circulating the company.

The second conversation that should have been documented was when Carico asked Woythal about his future plans.

This would have protected the company from having to defend itself from Woyhtal's interpretation of the conversation.

The final conversation that should have been documented was the conversation in which Carico states that he told Woythal he needed to get interested in his job and the company again or find somewhere else to go.

This conversation was instrumental in the separation between Woythal and the company and it was very important to document the contents.

The issue involving Woythal's belief that he had been fired for age discrimination could have easily been addressed had conversations been documented along the way. It could have cleared up his misunderstanding and it could have provided protection for the company in the event of litigation.

One of the issues that this case seems to hinge on is the fact that the assistant engineer was hired without Woythal's input.

Woythal was informed that an assistant was going to be hired. According to testimony he was supportive and in favor of that decision. However, for reasons that were not clearly explained during the trial, the president and the operations manager made the decision not to include Woythal in the recruiting and hiring process. This is one area of the law suit that is confusing.

On the one hand the president and the operations manager told Woythal that he needed to get interested in the future of the company again and show interest in his department and his job, however, when the time came to hire an assistant for Woythal, who had voiced approval of the move, he was not given the opportunity to help find the candidate to fill the position.

The company could have helped to prevent the suit by not giving the appearance that it was trying to force Woythal out of his job so that they could give it to the younger, less expensive engineer.

Asking Woythal to sift through resumes and to interview the potential candidates so that he could choose the assistant he believed he could work well with would have been the proper way to handle the situation.

The way it was done gave the appearance that decisions were being made about his department and his future with the company without including him. This is often seen as a classic signal that someone may be let go in the near future.

Woythal sued for age discrimination believing that he was forced out by termination and that act caused him to lose income he would have made by continuing to work. If the plaintiffs in such cases can prove they were forced to retire due to their age they can win damages that are many times the income they would have received had they continued to work. In the case of Johnson...

St. Of Cal. Dept. Of Corr., #BC288518, L.A. Co. Super. (verdict 2005) Johnson was awarded $20 million dollars when he was forced into retirement based on the fact that he was older.
The final issue was the fact that the assistant who was hired without Woythal's input happened to be qualified enough to become the chief engineer one day after Woythal left the company.

This was again an issue that could have been avoided had Woythal been encouraged to take part in the recruitment and hiring of his own assistant.

DECISION

While many former employees in the nation have proven their case of age discrimination, this one failed to meet its burden. There are several elements of the events that occurred that prove Woythal was not let go because of age.

The most important factor was the fact that Siefert was initially concerned about Woythal's lack of enthusiasm for the company. He talked to Carico about this issue and asked him to address is with Woythal. They did have a conversation about his plans and upcoming projects. While Woythal does not believe the conversation centered on his apathy for the company's future, the fact that Seifert and Carico testified that Seifert came to Carico with his concerns indicate that there was a problem with Woythal's work standard and level of quality that had nothing to do with his age.

In addition, Woythal claims that he was pressured to retire but could only point to one or two conversations. Within those conversations all parties reported that they were general and curious by nature. Woythal was said to have been telling coworkers that he did plan to retire in short order. The fact that he was one of the founding investors made that rumor and his actions relevant to the company's future plans.

It was not unreasonable for Carico to ask Woythal what his plans for the future were.

The final aspect of the situation that show Woythal was not terminated for his age was the fact that he continued to work for an entire month before leaving and that he was encouraged to keep his keys to the building in case he changed his mind.

These are two elements that contradict his claim that he was fired and for age discrimination. The fact remains that his work production and quality began to suffer before he left the company. The president noticed his apathetic attitude and asked the operations manager to try and motivate Woythal.

The company didn't actually fire Woythal, however Woythal believed that it did. Even if that belief is why Woythal left at the end of December, the problem was never about his age, it was about his work performance.

Nowhere in the suit does it mention anyone discussing his age or how his age impacts the company. He was talked to because he began to slow down as he got closer to retiring as he told co-workers he was planning to do.

CONCLUSION

While Woythal failed to prove his case of age discrimination the case does bring to light several things that the company should have done to prevent liability. Documentation is a key element to any successful defense. Had the conversations about his work performance been documented the company would have had an easier time proving what the real issue was. In addition had Woythal been given some authority over who his assistant was to be he would have been less apt to feel left out of the loop when the change took place. It is important for businesses to protect themselves from the perception of wrongdoing even if that perception is mistaken. This can be done with careful documentation of key decisions and events, care not to make statements that can be construed as discriminatory, and seeking legal counsel any time there are doubts about an upcoming action or decision to be made.

References

Hogan v. Wasson-Hunt, 44 (2139) G.E.R.R. (BNA) 39 (16 Jud. Cir. Ct. Mo. 2005). [2006 FP Mar]

Johnson v. St. Of Cal. Dept. Of Corr., #BC288518, L.A. Co. Super. (verdict 2005).