Former IBM Employee Wins Age Discrimination Suit

February 3, 2014
Former IBM Employee Wins Age
Discrimination Suit
Plaintiff to collect up to $4 million after being ‘benched’ by company
By CHRISTIAN NOLAN
J
ames Castelluccio v. International
Business Machines Corp.: A Stamford man who claims that IBM dismissed him after 41 years because of his
age stands to collect between $3.5 million and $4 million following a federal
court trial.
The drawn-out battle between what
the plaintiff ’s lawyer called “David
and Goliath” had been in the courts
since 2009. Of particular note was a
pretrial motion concerning an internal investigation by IBM that drew
the attention of employment lawyers
nationwide. A federal judge, who
ruled the investigative report inadmissible as trial evidence, said the
probe was too one-sided and needed
to be more neutral, perhaps done by
an independent third party.
The IBM internal investigator said he
would have ceased the age discrimination probe had the employee signed a
severance agreement. The judge said
IBM should have been interested in uncovering the truth regardless of whether the employee, James Castelluccio,
had taken the severance package or
pursued his lawsuit.
“I’m certainly going to advise my
clients that [internal] investigations
have to be careful, they have to be
thorough and they should be com-
Darien attorney Mark Carta said James
Castelluccio’s new supervisor made
repeated suggestions that the 60-year-old
executive should consider retirement.
pleted even if the underlying dispute
is settled,” said Jonathan Orleans of
Pullman & Comley, who was not involved in this case. “You want to establish a record of unearthing problems within your workplace.”
Castelluccio began working for IBM in
1968 as a computer analyst and earned numerous promotions over four decades.
By 2005, he was named vice president
of public sector delivery for IBM’s Integrated Technology Division. His per-
Margaret Triolo, Co - Trial Counsel
formance reviews were always positive,
according to his lawyer, Mark Carta of
Carta, McAlister & Moore in Darien.
Castelluccio, a Stamford resident,
worked at IBM’s Somers, N.Y., location
in Westchester County. His career went
smoothly until his supervisor retired
in 2007 and Joanne Collins-Smee became the new general manager for IT
delivery services for IBM locations in
the United States, Canada and parts of
Latin America.
A few weeks before Castelluccio’s 60th
birthday, Collins-Smee, in her very first
meeting with Castelluccio, asked him his
February 3, 2014
age and if he was interested in retiring.
He said he had no interest.
The next day, Collins-Smee sent an
email to human resources saying she
wanted to replace Castelluccio and that
things were not going well between the
two, and that Castelluccio would agree
with that point. Castelluccio never knew
of the email until the discovery phase of
the subsequent lawsuit, Carta said.
Carta said Collins-Smee mentioned
possible retirement to Castelluccio on
two more occasions. Carta said his client thought the first mention might
have been a simple lapse in protocol, but
Castelluccio became concerned after she
brought it up twice more. After the third
mention, Castelluccio reported the conversation, and IBM launched an internal
investigation.
At that point, Collins-Smee had already moved Castelluccio into another
position, one in which the previous
employee had quit because, Carta said,
the workload required working seven
days a week, sometimes 24 hours a
day. The job required Castelluccio to
oversee the delivery of all oursourcing
services provided in WellPoint.
Collins-Smee also wanted Castelluccio to continue with some of his
previous vice president tasks.
“It was clearly a move calculated to
have him quit because it was an impossible task,” said Carta. “But he did
not quit. He tried to manage through
the situation.”
Carta said Collins-Smee eventually
moved Castelluccio out of that difficult
job and tried a new approach, which
consisted of “benching” him. In other
words, Castelluccio would go to work
but had no actual tasks.
“It was a difficult time to be put out
to pasture like that,” said Carta. “When
you’re used to working, sometimes seven
days a week, being isolated in an office
with nothing to do is not a happy position to be in.”
Benching was reportedly an accepted
practice at IBM. A witness later testified
about IBM’s protocols regarding benching, saying that Collins-Smee was supposed to assist Castellucio by informing
him of job openings for upper management positions. But according to Carta,
she did not do so.
“We put in a lot of evidence about
other younger employees that she promoted during the time period he was on
the bench,” said Carta. “There was no evidence she had him considered for literally
hundreds of positions” for which he may
have been qualified.
IBM let Castelluccio go in 2008 after the six-month benching. Castelluccio then hired Carta and filed a human
rights action in New York under a process similar to that used in Connecticut
by the Commission on Human Rights
and Opportunities.
“Typically, you have to go there to exhaust your administrative remedies,” said
Carta, who added that most complainants
abandon the state process after a mandated 120-day waiting period and then bring
a federal lawsuit. The potential damage
awards are greater in U.S. court.
So in 2009, Carta filed an age discrimination complaint against IBM
in U.S. District Court in Connecticut.
Both federal and New York state age
discrimination claims were included
in the complaint. The latter allowed for
emotional distress damages whereas
the federal complaint does not.
IBM was represented by Zachary Fasman of Paul Hastings in New York City.
He was assisted by Todd Duffield and an
in-house counsel for IBM. Fasman did
not return calls seeking comment.
The defense strategy was simple. They
claimed Castelluccio was no longer performing up to par and so he was benched.
At that point, his boss could keep him
only so long while he tried to find another job within the company and then he
had to be let go.
IBM presented 10 witnesses at the twoweek trial that took place in late January
before U.S. Magistrate Judge Thomas P.
Smith. Carta called four witnesses, as
well as Collins-Smee, who was also a defense witness.
The jury deliberated for about a day
and then returned a verdict in favor of
Castelluccio.
Carta said the case “really turned” on
the credibility of Collins-Smee.
“I think the jurors drew the proper
inference from the facts we presented,
including repeated references to his age
and retirement, as well as the fact that she
treated him differently than other, younger employees,” Carta said.
The jury awarded $1.3 million in lost
wages and benefits, which was reduced
by $300,000 because Castelluccio had
been drawing pension payments. That
left damages at just about $1 million
even. Because the jury concluded the
discrimination was “willful,” Carta
said, that amount was doubled.
Further, the jury awarded another
$500,000 for emotional distress under
the New York age discrimination law.
Castelluccio also will be entitled to attorney fees and costs, prejudgment
interest, and an additional sum to account for the tax ramifications of receiving the large sum all at once.
“In the end, the judgment will be
between $3.5 million and 4 million,”
said Carta.
An IBM spokesman said the company
plans to appeal.
“IBM thanks the jury for its service,
but we strongly disagree with the verdict,”
said spokesman Doug Shelton. “We believe IBM treated Mr. Castelluccio fairly
and did not violate the law in any way.”■
Reprinted with permission from the February 3, 2014 edition of CONNECTICUT LAW TRIBUNE © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
For information, contact 877-257-3382 or [email protected]. # 301-02-14-07

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