Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Philip Berquist began his career working in the internal audit department of United Savings Bank. In 1992, Bank United acquired United Savings Bank, which retained Berquist as an employee. Berquist received several promotions during his tenure with United Savings Bank and Bank United. In 2000, Bank United merged with Washington Mutual. Washington Mutual asked Berquist to stay an additional nine months after the merger to help consolidate the risk rating grids used in the two credit review departments. Berquist accepted this offer. Following this nine-month period, Washington Mutual offered Berquist a permanent position. Berquist held the position of “Senior Credit Examiner, Loan Review Department, Corporate Credit Risk Management.” Berquist alleged that he was qualified for the new position, received “exceeds expectations” performance evaluations in 2001 and early 2002, and never received written or verbal notices criticizing his job performance. In September 2002, Washington Mutual hired Melissa Martinez to supervise the bank’s credit review function and in early 2003 promoted Martinez to chief credit review officer. Martinez served as the corporate manager of Berquist’s duties throughout the deterioration of his employment relationship with the bank. In November 2002, the bank decided to transfer Berquist’s then-current job functions from Houston to Seattle. In light of this business decision, Washington Mutual offered Berquist a different job in the credit review department. Washington Mutual contended that Berquist’s work tasks before November 2002 only involved operational and administrative duties. After this date, Berquist’s job duties required credit review skills. Martinez asked Berquist to work on the review and approval of unissued loan reports. Berquist accepted this job position and exclusively focused on “review and approval” work from early November 2002 to Feb. 6, 2003. In late 2002, the credit review department of the Houston office was staffed by Berquist, age 54, Ron Yancis, age 56, Donald Plaisance, age 39, and Karl Zatopek, age 41. Berquist and Yancis worked in the Commercial Banking Group (CBG) under the management of Robert Granfelt. Plaisance and Zatopek worked in the Specialty Finance Group (SFG) under the management of Cynthia Hart, and later under the immediate supervision of Scott Frazee. Frazee’s counterpart position in CBG remained vacant. Thus, Frazee acted as the administrative manager for both groups. During a December 2002 conference call, Berquist alleged that Martinez said, “Performance issues will be promptly and aggressively dealt with. We will build leaders internally and attract younger talent.” On Feb. 6, 2003, Martinez reported to Berquist that she was “very unhappy” with the Houston office’s production. Shortly thereafter, Martinez issued Berquist a performance improvement notice (PIN), criticizing Berquist’s allegedly negative attitude, poor communication skills and below standard work product. The PIN also alleged that Berquist’s “[t]echnical skills and proficiencies are”operational’ in nature and not commensurate with the job function, CCR [Corporate Credit Review] focus, or those required for a Credit Review Officer.” In response to the PIN, Berquist asked for specific examples, which he never received from Martinez. Berquist denied every allegation of poor work performance in a written response. Berquist conceded that his work experience before the merger was “strictly in an administrative and operational role,” and based on his understanding, Washington Mutual asked him to remain with the bank to “continue in [his] administrative and operational duties.” Further, Berquist added that: “I have never at any time represented to anyone that I have specific expertise in credit review since my responsibilities at both Bank United and [Washington Mutual] were solely of an administrative and operational nature.” On May 14, 2003, Martinez told Berquist that his skills and proficiencies were no longer needed in the credit review function. Martinez allowed Berquist 45 days to find a position in another department of Washington Mutual. Berquist asserted that he asked Martinez to downgrade his PIN so as to not prevent an internal transfer to another position, but she denied this request. On June 9, 2003, Washington Mutual offered Berquist a separation proposal, which he refused to accept. Following this offer, on June 26, 2003, Martinez conveyed to Berquist that he would be laid off in conjunction with a reorganization of the CBG. Washington Mutual contended that it decided for business reasons to eliminate the CBG function in Houston and transfer the group to Seattle or California, because the West Coast handled a greater portion of the CBG’s asset base. Based on this avowed business decision, Berquist did not receive 45 days to secure another position. Berquist filed suit against Washington Mutual alleging violation of the Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. ��621 et seq., and Washington Mutual moved for summary judgment. The district court granted Washington Mutual’s motion. The court concluded that Berquist failed to establish a prima facie case of wrongful termination based on age discrimination, because the record lacked evidence of Berquist’s qualifications for his position. Additionally, the court concluded that Berquist failed to establish a prima facie case of “reduction in force” based on unlawful age discrimination, because the record lacked evidence of Berquist being qualified for another position in the company. Berquist did not appeal the district court’s holding on his claim of reduction in force based on unlawful age discrimination; therefore, the 5th U.S. Circuit Court of Appeals addressed in its opinion only whether the district court properly granted summary judgment on his wrongful termination claim. HOLDING:Affirmed. To establish a prima facie case of age discrimination, the court stated, “a plaintiff must show that (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age.” Berquist, the court stated, fulfillsed the first and third elements of a prima facie case: he was terminated from his position and he was a member of the protected class at the time of discharge. The court first assessed whether Berquist was qualified for the position. According to Berquist, he met the objective criteria listed in a job posting for credit review officers and held the title of “credit examiner” for two years after the merger. Berquist contended that he performed the same job since 1994, which included the operational, audit, and administrative areas of credit review. The district court concluded that Berquist was not qualified for his position at Washington Mutual because “the fact that Berquist was given the position of Credit Review Officer in the first place [does not] constitute evidence that he was qualified. To hold otherwise would be to eliminate the qualification element in every case involving termination.” The court, however, deemed the district court’s conclusion erroneous and expressly foreclosed under the 5th Circuit’s 1988 decision Bienkowski v. American Airlines Inc. Bienkowski stated: “[A] plaintiff challenging his termination or demotion . . . can ordinarily establish a prima facie case of age discrimination by showing that he continued to possess the necessary qualifications for his job at the time of the adverse action.” Therefore, for the limited purposes of establishing a prima facie case, the court found that Berquist demonstrated that he was qualified for his position. Next, the court examined whether Berquist demonstrated that he was replaced by someone outside the protected class, replaced by someone younger or otherwise discharged because of his age. Berquist, the court noted, asserted that Martinez’s comments regarding the desire to “attract younger talent,” and her reference to Plaisance and Zatopek as the “younger” credit review officers, supported his claim of age discrimination. The court deemed Martinez’s comments “stray remarks” that did not constitute direct evidence of age discrimination. Berquist also contended that Washington Mutual’s decision to terminate him and Yancis, the two older Houston employees, while offering the younger Plaisance and Zatopek the option of transferring to the Dallas office further supported his claim of age discrimination. Washington Mutual contended that it based its disparate treatment of Berquist and the younger employees on differing job functions performed by the two sets of employees. The court noted evidence that Washington Mutual’s PIN highlighted Berquist’s self-acknowledged lack of experience with credit review. Washington Mutual documented this skill deficiency, yet at the same time attempted to retain Berquist in another position. When Berquist refused to look for another position, Washington Mutual offered Berquist a severance package identical to the amount offered at the time of the merger. Berquist then declined this offer. Berquist provided no evidence to diminish the veracity of Washington Mutual’s position or to show a causal connection between Washington Mutual’s adverse employment action and his age. To the contrary, Berquist readily admitted through inconsistent statements that he was not working in the SFG position at the time of his termination, he lacked the skills necessary to perform the work assigned to Plaisance and Zatopek, and he refused to cooperate with Martinez’s and Aydelotte’s attempts to accommodate his requests. Based on this evidence, the court found that a reasonable trier of fact could not determine that Washington Mutual otherwise discharged Berquist based on his age. Finally, the court assumed arguendo that had Berquist established a prima facie case of age discrimination, Berquist still failed to raise a genuine issue of material fact regarding the evidence presented to support Washington Mutual’s legitimate, nondiscriminatory reason for his termination: its major reorganization in the Corporate Credit Review department, which eliminated Berquist’s position. OPINION:Stewart, J.; Jones, C.J., and Jolly and Stewart, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.