Caught in an aging case
Saturday, May 29, 2010 7:00 AM
You have a granddaughter who was born on the Fourth of July, so you know at least one birthday is going to be lit with fireworks.
You acquire the 1962 Thunderbird of your teenage dreams and you know you're going to take an occasional spin out of the quiet cul-de-sac where you have spent a good part of your adult life.
You hunker down to work at night at home because you can't leave it all at the office, and you can look across the desk at a pencil sketch of the woman who was your junior prom date 45 years ago - the woman you married right out of high school.
Welcome to the life of Jack Gross. It was a life of simple pleasures built from scratch. Then it got complicated, with his name attached to a U.S. Supreme Court ruling that observers say has set back efforts to prove age discrimination, while others say the court simply reaffirmed existing law.
The case has placed two prominent Greater Des Moines law firms and an independent employment and civil rights lawyer in the national spotlight. Gross is standing right along with them, testifying before congressional committees, speaking to panels of experts on the issue and writing articles about his plight and that of other workers who believe they have been cast aside at work because of their age.
Gross has been a dusk-to-dawn kind of worker since his childhood in southwest Iowa. He is not prone to take on social causes. His great-uncle was the late H.R. Gross, a Republican who served 20 years in the U.S. House of Representatives and was known variously as the "watchdog of the treasury" or the "useful pest."
Jack Gross would not describe himself as a pest, just someone with a sense of right and wrong and a determination to "stand up to bullies," as he said in testimony before the U.S. House Judiciary Committee.
Gross would rather be back at his desk at FBL Financial Group Inc. Instead, he retired on Dec. 1, 2009, giving in to the stress connected to repeated court appearances and the sense of isolation he felt after calling the company to task and taking it to court for what he believes was a demotion tied directly to his age and not to his work performance.
In November, Gross will make his second trip to U.S. District Court in Des Moines in the last five years in an effort to prove that FBL demoted him because of his age, in violation of the federal Age Discrimination in Employment Act and the Iowa Civil Rights Act.
After a five-day trial in 2005, a jury agreed that FBL did in fact knock him down from vice president to claims administrator because of his age. At the time of the demotion in 2003, he was 54 and had worked for the company for 16 years, and that was his second stint with the West Des Moines insurance and financial services giant.
Though the jury found that Gross was a victim of age discrimination, it did not rule that the discrimination was intentional.
Gross said FBL demoted everyone in his division who held the title of supervisor and above. He said he could think of no reason other than his age for why he was demoted.
His title and responsibilities, but not his salary of more than $100,000 a year, changed after Farm Bureau Insurance Co. of Nebraska and Farm Bureau Mutual Insurance Co. Inc. in Kansas merged with Farm Bureau Insurance Co., which has its headquarters in West Des Moines.
FBL said in court that because of the corporate restructuring that resulted, some employees were laid off, some were demoted or promoted, some accepted early retirement packages and others had no change in title or salary.
For his part, Gross believed that most if not all of the workers demoted were older than 50.
Gross said that after agonizing with his wife over challenging the demotion, he decided that "at some point, you've got to say, 'This isn't right.'"
He contacted lawyer Beth Townsend, who operates a small firm in West Des Moines that specializes in employment discrimination and harassment cases. According to the firm's website, it has two employees - an office assistant and Townsend.
Townsend teamed up with Babich, Goldman, Cashatt & Renzo P.C., a nine-person firm with four lawyers making up an employment law department. Not a huge firm, but it had the resources to pursue a case that most parties thought was fairly clear cut. The lawyers agreed to work on a contingency basis. They have yet to be paid.
FBL was represented by Nyemaster, Goode, West, Hansell & O'Brien P.C., the state's largest law firm. It also has a four-person employment law division.
The attorneys on both sides thought they had an easy win. It turned out the case took them for the first time to the U.S. Supreme Court.
Though Gross won in trial court, FBL appealed to the 8th Circuit Court of Appeals, which determined that the jury instructions were improper.
Frank Harty, who leads Nyemaster's employment law department, said the decision to appeal was based in part on a post-trial interview with jurors. He wondered why if the jury found that Gross was a victim of age discrimination, it did not also determine that the discrimination was intentional, in which case it could have awarded double damages. As it stood, the jury awarded Gross slightly more than $40,000 in back pay, but did not award damages for emotional distress.
Harty said he defended the case the same as other age discrimination cases, arguing that federal age discrimination law does not put the burden on employers to prove that they do not discriminate. A 20-year-old Supreme Court ruling had muddied the law and pretty much placed that burden on employers, he said.
Attorney Michael Carroll took the opposite view in arguing on behalf of Gross. If plaintiffs prove that age was a motivating factor, either through circumstantial or direct evidence, then they win the case. It's that simple.
"We had proven that age was a motivating factor in the demotion," Carroll said.
The 8th Circuit tightened the rules, Carroll said, by essentially saying that the judge's instructions to the jury would have been appropriate only if Gross had provided direct evidence of discrimination. In Gross' case, there were no memos, conversations, e-mails or other "smoking gun" evidence that said he was being demoted because of his age.
Instead, U.S. District Magistrate Judge Thomas Shields issued instructions based on a mixed-motive case of age discrimination, in which age is not the only reason for a demotion or termination.
Carroll said one of the "huge legal conundrums" results from the question of just what constitutes direct evidence.
For his part, Harty said he believes federal law provides for a finding of age discrimination based on circumstantial or direct evidence. However, he also believes that age needs to be the determining factor in a demotion or dismissal.
To this point, Gross had won at trial and FBL has won on appeal.
Gross' attorneys appealed to the Supreme Court on the narrow question of whether Judge Shields' instructions to the jury were appropriate.
That question resulted in an $11,000 printing bill that Gross paid out of pocket. The briefs had to be specially prepared and printed by one of only a handful of printers in the country that process the materials for the high court.
"The briefs are beautiful. They're in an array of colors and they are bound," Carroll said.
Nonetheless, Gross found it an expensive extravagance, especially given that the justices strayed from the question before them to make a broad ruling.
In June 2009, the Supreme Court ruled that the burden of proof in age discrimination cases rests solely with plaintiffs, who, it determined, also must show that age was the "but for" reason for the employment action. In other words, for Gross to prove that FBL demoted him because of his age, his age had to be the only motivating factor.
In effect, the Supreme Court had ruled that Judge Shields' jury instructions were wrong and that the 8th Circuit's ruling was wrong. The case was ordered sent back to Des Moines for a trial scheduled for November.
Gross and his lawyers say that Supreme Court went out of its way to make what amounts to a ruling against older workers.
When asked whether he felt as though he had won, Harty said that FBL would be tied to a case that cleared the confusion from age discrimination cases.
In addition, as with lawyers on both sides of the Gross case, he got a once-in-a-lifetime opportunity to argue a case before the highest court in the country. That is a big win.
"For an Iowa lawyer, that's a once-in-a-career occurrence," Harty said.
Like Carroll, he was surprised that the case worked its way to the Supreme Court.
Both sides believe they have the law on their side.
These days, Gross worries whether he can get a fair trial five years after the first. He also has been an advocate for a change in federal age discrimination law.
He will testify before a U.S. Senate committee on June 10, then speak to employment law attorneys.
Unfortunately, he won't have to rush back to work.