Eclectica: Mock Trial Mysteries: Employment Discrimination in the Spring of 2000: Witness Statements

JASON THOMAS

PLAINTIFF WITNESS

You are Jason Thomas, and you are suing your former employer Elcaro, Inc. on a claim of age discrimination. You are a former computer programmer, and you were hired in the fall of 1997 as a middle-level manager to bring a combination of experience, expertise and respectability to a startup with a new search engine. Your birthday is January 10, 1948 and you were 51 when you were fired on April 9, 1999.

Your basic take on this is that the company brought you in when they were just starting out and needed some credibility and strong experience, but once they started taking off and really making the money, you didn't fit in anymore with the company's hip new image, they didn't need you, and so they got rid of you. BG wanted everyone to admire her and look up to her, and when you didn't do that, she got bored of you and wanted you out.

Age discrimination suits, as in race and sex cases, require the plaintiff to establish a few things in order to win. Generally, you need to establish that you were qualified for the job, that your job performance was good enough to warrant not being fired, and that age played a part in your firing. Moreover, if the employer claims that he or she fired you for legitimate reasons, you have to show that the reason was a pretext for age bias. Probably the best way to do that is to show that BG was concerned about your age, and that she held you to a higher standard of performance or conduct than other people who were younger. For example, you did screw up in the V2.0 incident described below, but you also believe that you made up for it, and you've done fine since then, while younger employees have done even worse things and gotten away with it.

Keep all this in mind as you are questioned and deposed by counsel, and feel free to flesh out the story in ways that are consistent with the storyline and to contact me with any questions you might have. Also, remember that your memory of events may differ from the other witnesses', and that you can "remember" things better with counsel's help, as long as nothing becomes inconsistent with your basic recollections. Do not lie unless specifically directed to in this fact pattern.

Background

You graduated from CalTech in 1970 and then began working at JCN, the computer giant, in its suburban New York offices. You were downsized in 1993 in the latest wave of JCN's troubles, and you hopped around a little bit with short-term, low-paying consulting jobs for a few years as you tried to find something more stable (this was before the Internet really began taking off). Even when the Internet began to happen, you had a hard time finding some stuff due to coded references to your age, but you started looking more at New York and managed to find this job.

You have been married for 20 years, and have a 16-year-old son who is starting to think about college. Your wife didn't work for many years but has been doing a little bit of low-end public-relations work since you were downsized from JCN. Not enough to support the family, but it helps.

Getting Hired at Elcaro

You met Catherine Gordon through her older brother, Richard, who was an acquaintance of yours from JCN Inc., where you'd worked together for a few months back in 1991 developing some systems software. You ran into him at a bar, told him that you were looking for a fresh start in New York, and he told you his kid sister Catherine was starting a new Internet company and could really use some help. The company's main product/program was and is Elcaro itself, a new kind of intelligent search engine which learned from users' searches and subsequent links to fine-tune its own search process. Elcaro is Oracle backwards.

You called her up and set up an appointment a few days later. You came in, had some discussions with her. It wasn't much of an interview since she had already talked with her brother and clearly needed some good people fast. She said she needed someone with your experience, and was willing to pay you a starting salary of $120,000 for a middle-manager position overseeing a team of programmers, with hints that you would get a good share of options if this made it to a successful initial public offering (IPO). You knew that things in this industry didn't last forever, and that you were lucky to have some place not immediately dismiss you because you happened to be a few years older, so you decided to take it on the spot. You also felt some assurances that this would be a place which would succeed and where you could stay for a few years as you worked out exactly what you needed. This was September 1997 when you were interviewed and hired.

In this interview, you made a misstatement when you talked to Catherine Gordon as well as to other people as to why you left JCN. You told Catherine Gordon that you voluntarily left the company when you saw the troubles that company was going to go through and that you decided to get into consulting work on your own. However, you were indeed downsized. You've also let other people believe that you left on your own, thinking it's irrelevant information since it was so many years and jobs ago and because you didn't want people to feel sorry for you.

Company Life

Things went well at first. Gained confidence of your team's programmers such as Sandra Russell and Grant Heller, worked on your team's part of Version 1.0, which was released to success in February 1998. You even did some programming yourself like in the old days, and you had a good working relationship with Catherine Gordon. Elcaro's offices were on a gutted and refurbished floor of a converted cookie factory in Chelsea, on the 800 block of West 8th Street, over by 10th Avenue.

When you started at the company, there were four programming teams, each with 6 people, including a middle-manager like yourself. BG thought this would help ensure stability and continuity in the company, and hopefully loyalty to the company, or at least the individual cell. You were the oldest programming head, the others being 28, 32, and 42 (Mike Ward) but you didn't think much of it. It took some time, but you think you earned the respect of your programmers by putting in as many hours as you could, using a lot of your off-time to get up to speed, and doing as much programming as you could. EH had been a pain in the ass for a while, but you think you earned his respect (though you now realize you were just wrong).

One thing that slightly annoyed you was that there weren't that many other programmers at your level, either as basic programmers or as middle-managers, and that all the people over 40 were over in legal or sales. Mike Ward left the company in April 1998 to move to California with his family, and he was replaced by someone from within his team who was 27. That didn't bother you so much when there were only 20 people in the entire company, but it became more annoying as the firm got bigger, and nothing seemed to be changing.

You recommended two friends (both in their late 40s) to BG as potential hires, perhaps the next time she was ready to create another programming team, but she didn't offer either one a job. They didn't think much of it, saying that this happened all the time when they looked for high-tech jobs these days and that they were thinking of getting out of the business entirely. They even warned you that you should watch your back, and that you better not slip up at all or you'd be out of there. You defended your boss a little bit and said that she was just too busy to know what she was missing.

V2.0: Crisis Made Good

You were responsible for the programming team handling a large portion of Elcaro Version 2.0, which was originally supposed to be launched on November 2, 1998. However, the schedule was too ambitious and didn't include much room for ordinary glitches, which began accumulating, and the project fell behind schedule. Everyone started working extra hours, and the morale got somewhat bitter.

Finally, by November 9, you had the program ready to go, and the program debuted over the Internet. You were proud and happy, and you felt like the company had come a long way. However, that feeling turned quickly to disaster when the program began crashing on November 11, causing a public-relations nightmare. Jay Leno even made a joke about the program on the Tonight show, and David Letterman incorporated the program into a Top Ten list.

The next week was a blur, as you and the rest of the programming team worked around the clock to get the program back into shape, and you managed to turn around Version 2.1 by November 18, 1998. Two days of testing later, and the program went out to some success on November 20, 1998.

What happened with that incident? It was a combination of problems. The timetable was too accelerated and too rushed in order to attract another round of investors, and Sandra tried adding in a new feature without running it by everyone else first. That, combined with a feature Grant had been working on without you or Sandra knowing, led to an incompatibility which tanked the program. You had been aware of Grant's work, but not of Sandra's. Grant was the one who figured out the problem, and you think he had a loud confrontation with Sandra about it, one which apparently left her in tears when you walked in on it. But ultimately, you didn't care about who caused the problem, just how it got solved.

The bad publicity actually helped a little, because when the new version came out, you had a lot more people checking out the site and using the program, especially as word-of-mouth spread that V 2.1 was actually as good as V2.0 was supposed to be. Investors were coaxed back, and everything was fine. You turned the Jay Leno joke into your screensaver message scrolling across your screen, and you printed out and taped up the David Letterman Top Ten List and posted it in your cubicle, as reminders that the incident had happened, but that you all had survived it and could laugh about it.

On November 30, Catherine Gordon sent your team an expensive bottle of champagne after V2.1 came out and survived its first week without any complaint. "You all really earned your keep with 2.1. Thanks for saving the day."

You also feel that your work with Sandra went very well. She felt a bit like the sacrificial lamb for the crisis, and she thought about leaving. You took her out for lunch and got her to think about staying.

However, you felt that Grant saw this incident as just confirmation that you didn't know what you were doing and weren't to be respected. You had had some difficulties with him, and you thought that he thought you were too old for this line of work or to be telling you what to do, but you thought that the best thing to do was give him space and quietly earn his respect. He wasn't your son, after all, but that strategy seemed to be a good one to try for now.

Bulldog Magazine

Work seemed to get back to normal. You got the team on some less-intense work for a little while, talked with Catherine and your fellow team leaders about more manageable schedules, and tried keeping more on top of things with everyone. Everyone seemed to be willing to just forget about the whole disaster, and get on with the company's life. Your team began working on Version 4.0, which was scheduled for November 1999 (things were so busy that teams worked on new versions even before earlier ones were released; Version 3.0 was scheduled for April 1999).

Nonetheless, you felt uncomfortable as a result of a glowing article that appeared in Bulldog magazine, a popular glossy magazine covering Silicon Alley and new technology issues. The article came out on February 8, 1999 and went on about the company that had turned a public-relations disaster into a goldmine, and the brilliant executives and programmers there.

"The offices look full of vibrancy. Everyone there is up on the latest trends, using the lingo that will come to network television six months from now, and there's not a gray hair in sight these days. Catherine Gordon in particular exemplifies the combination of youthful ambition and professional expertise that exemplifies this company."

Gray hair? You have gray hair.

It also bothered you that the article featured a photo of Catherine Gordon and Grant, with a caption described as the "company head" with the "V2.1 savior." The article doesn't say so explicitly, but it implies that Grant was the one who saved the day, or at least that he was the first among equals on the team.

You had only heard that the article was even happening in passing, after the reporter had come through the company one day. You had not been interviewed.

Catherine Gordon sent a copy of the article out to everyone, with a memo attached: "Look at this great write-up we got!"

You talked to Catherine about the article the next time you saw her, at the impromptu celebration that night at Jobs'. You had only been at one of the happy hours before, instead wanting to spend more time outside of work. You congratulated her on the coverage, but then jokingly asked her about the gray hair line.

"What? That? That's nothing. It just means we get through all this without stressing about it," she said.

You thought that maybe she was right, but then you asked her about the photo, and why was it just her and Grant, and why the article didn't mention you.

"Whatever. That was nothing. They just wanted one of the programmers, and EH was around. Don't take this stuff so seriously, Jason."

You thought about it, but then joked that maybe she should ask for a correction about the gray hair, just so no one thinks that everyone at the company was so young.

She gave you a strange look, and laughed about it. You went along with it, but felt uncomfortable. You parted company and started talking to other people at the bar, and you left about 20 minutes later.

You never heard anything about any correction again, and you never saw any such one either.

Catherine Gordon Reviews the Company

On March 8, 1999, Catherine Gordon e-mailed the entire company that she'd be stopping by and talking to everyone a little bit as the company headed towards the IPO. She wanted to get a good sense of where everyone was at and how the company could get better, and she was thinking about how to get the company further along. You thought it was a nice gesture, though a little bit like the high lord milling with the common folk, and a little too much like some trite idea she'd gotten out of some article in Fast Company or Fortune.

She came by your office and sat and talked with you for about half an hour during the afternoon of March 20, 1999. It was a pleasant conversation, and you talked a little bit about what had happened with V2.0, and how the company had managed to survive that. She talked about "how lucky we were to have gotten out of that disaster," and how "we'd come this close to losing everything." You weren't so sure, thinking that the first version of the program had done well enough and built up enough of a following that the company would have survived even if V2.1 hadn't come out fast enough to get decent press as well.

She asked you about the programmers under your supervision. You told her that Sandra was doing great and was more under control, and that Grant was doing great as well. You also told her that you weren't doing as much programming now as you'd ordinarily like, but you were working a little bit on some side stuff in order to get fully up to speed.

All in all, it was okay as far as meetings with Catherine Gordon went. You got the impression that Grant didn't like you and that you were never going to be great friends with Catherine, but who cares? Your place was secure, right? Everything seemed to be going great.

Catherine Gordon Fires You

On Friday, April 9, 1999, you were fired. Catherine called you to her office, and she sat you down and talked about how the company was beginning to head towards its IPO and that everything needed to be perfect. The company couldn't risk another incident like the 2.0 disaster, and it didn't seem like you had enough control over your people, or that you didn't know enough to really keep an eye on them. You weren't even up on all the programming language changes and platforms available.

"What are you talking about?" you said.

"Look, I hate doing this too. You were a friend of my older brother's, and you were great, but we really need to get our house in order. I just don't think we can risk another disaster. We're going to give you a great severance package, and I'll see if I can find you something else, but this is my baby, and I can't risk anything happening to it."

It was a healthy severance package, though it wouldn't go far with your expenses. You got $80,000 with a year in medical benefits, although you were quite sure that if the IPO did happen, you would have been entitled to a lot more.

You went back to your office and started packing up your things. Sandra eventually tracked you down and started asking you what you'd found, since she assumed you were leaving voluntarily and had found something better. You told her you'd been fired and the reasons BG had given you, and that was when Sandra asked you if it had anything to do with the fact that you're older. It surprised you a little because it really wasn't something you thought about much, but now that she mentioned it, you did look back over the past year or so and start to see things in a different light. Especially Grant, since he had troubles working with you and now apparently was your replacement, something that Catherine hadn't told you and which you had to learn from Sandra.

Since Getting Fired

You filed your suit for age discrimination on June 2, 1999.

As your two friends once warned you and as you're now learning firsthand, you've had a hard time finding work since then, even the consulting work that once kept you going after JCN. The computer industry is notoriously bad about hiring older people. You go to interviews now and people say that you're overqualified, or are worried about the kinds of assurances you'll need. You don't even get that many interviews now. You had to sell your apartment at a bit of a loss, and you now live in a nice but cheaper place in New Jersey.

You've also had some doubts about the company. You know that there aren't many people over 40 at the company any more, and those that are are over in the sales or legal departments. You think you were singled out because you were older, and that you weren't hip enough to be a programmer, not when it looks like everyone's so young and "vibrant."

The company's IPO happened in December 1999 and did very well. The stock price began at $20, rocketed up to $100, and closed at $75. Catherine Gordon is reportedly worth about $8 million in paper, and some programmers such as Grant have done nicely as well. You are bitter and feel that you are entitled to some of that wealth.