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Age discrimination: America's pastime

Oklahoma Employment Law Letter - August 2009

By Charles S. Plumb

The dog days of summer are a particularly difficult time to come up with article ideas for the Oklahoma Employment Law Letter. Then, I watch my beloved Detroit Tigers continue their drive toward the 2009 World Series and BOOM! a great story lands in my lap: "Umpire Sues Baseball League Over Age Discrimination."

Things turn ugly

Clark Davis worked as an umpire for the Atlantic League of Professional Baseball Clubs from 2001 until 2006. The Atlantic League uses a particularly aquatic theme, with teams such as the Bridgeport Bluefish, the Camden Riversharks, and the Southern Maryland Blue Crabs. Each season, umpires receive a new contract and are eligible to work during the Atlantic League playoffs.

The 2006 season didn't go well for Davis. While he was working as a crew chief during a home game for the Long Island Ducks, it began to rain. The Ducks' grounds crew decided without consulting Davis or his umpire crew to cover the field with a rain tarp and suspend the game.

Davis was angry the field had been tarped without his OK. He complained to the Ducks' general manager that the team's grounds crew had acted improperly. Later, when the rain stopped and Davis was making his way back onto the field to resume play, he ran into Frank Boulton, who was not only the owner of the Ducks, but also CEO of the Atlantic League. Davis complained to Boulton that the delay of game was caused by the Ducks' grounds crew tarping the field without authorization. Boulton and Davis exchanged words. Boulton considered Davis to be acting insubordinately, but Davis said the argument was "fleeting."

Davis was a poker aficionado. During the 2006 baseball season, he asked for and received permission from Atlantic League Executive Director Joe Klein to attend a high-profile poker tournament in Las Vegas. That fact becomes significant later in the story.

'You're out!'

At the end of the 2006 regular season, Mark Facto, the league's umpire supervisor, told Davis he wouldn't be umpiring during the playoffs. Davis claims Klein told him it was because he had been "doing it a lot of years, and we're going to give the younger guys a chance." Klein, however, denied making the statement. After the playoffs, Klein told Davis he wouldn't be offered an umpire contract for the 2007 season.

Appeal to first-base ump

Davis filed a lawsuit in federal court claiming the league violated the Age Discrimination in Employment Act when it denied him a 2007 contract and an opportunity to work in the 2006 playoffs because of his age. According to the league, there were a number of reasons he wasn't assigned to umpire in the playoffs or granted a 2007 contract, none of which related to his age. There was the altercation between Davis and the Atlantic League CEO during the rain-delayed game earlier in the season. Additionally, his umpiring performance had been unacceptable. Lastly, his decision to attend the poker tournament was ill-advised for an umpire and demonstrated poor judgment.

The Atlantic League doesn't conduct written performance reviews of its umpires. When it came to evaluations, Klein was the lone decisionmaker, offering sporadic oral evaluations to umpires based on his own observations and information received from teams, general managers, and managers. Although in court Klein criticized Davis' performance for previous seasons, Davis was selected to umpire the 2004 and 2005 playoffs. Facto testified that he recommended Davis to crew those games as a reward for good performance, and that at the time of his recommendation, Klein agreed.

Klein argued that every team in the league complained about Davis' work as an umpire, but the Atlantic League was forced to admit that nearly all of its umpires received complaints of some type, including the umps assigned to the 2006 playoffs.

The league's explanation that Davis wasn't assigned playoff games over a concern of future confrontations with the Ducks was similarly gutted. Even after Davis' run-in with the team's general manager, he umpired six more regular season games with the Ducks, during which there were no additional confrontations. Significantly, the Bridgeport Bluefish had complained about another umpire who was 28 years younger than Davis, but the league nonetheless assigned the younger umpire to playoff games involving the Bluefish.

Facto never disciplined Davis and didn't recommend to Klein that he be terminated. When Klein informed Davis he wasn't going to be assigned to the playoffs, he didn't mention that the earlier dispute with the Ducks' general manager had played a role in his decision.

Although the Atlantic League complained Davis' participation in the Las Vegas poker tournament demonstrated bad judgment for an umpire, the league's own executive director had approved his absence. Additionally, there was evidence that Facto gambled when the teams toured Atlantic City. For all those reasons, a jury will decide whether age played a role in the Atlantic League's decision not to assign Davis to the 2006 playoffs and not to renew his 2007 umpire contract. Davis v. Atlantic League of Professional Baseball Clubs, 106 FEP Cases 807 (D.N.J., 6/2/09).

Call at the plate

When you have a single person acting as a decisionmaker, you place that individual's credibility at issue if an employment decision is challenged later. The Atlantic League would have been better served if a consensus had been reached by Klein, Facto, and perhaps other team general managers about Davis' future employment. The problem was compounded because performance evaluations weren't discussed with employees and were never documented. And when it came to complaints by owners, the inconsistencies between how Davis was treated when compared to other umpires was also a problem.

Finally, when you terminate an employee, it always makes sense to explain the exact reasons for the decision. When Klein informed Davis that he wouldn't be working the 2006 playoffs or the 2007 regular season, he didn't explain the bases for those decisions. When that happens, a jury may second-guess the reasons for your decision.