A former creative director is asking Detroit-based agency Doner to provide personnel and financial information in her attempt to prove that age discrimination was behind her firing in 2018.
Nearly a year ago, Susan Walsh filed an age discrimination lawsuit against Doner, prompted by her firing days ahead of her 60th birthday after 10 years with the agency. Walsh also alleges she was paid less and treated differently than male peers in comparable positions.
On Dec. 6, 2019, Walsh filed a motion to compel Doner to provide discovery information related to its hiring and firing practices. Additionally, the motion asks for financial information, which she argues will help determine if the agency has stated reasons for laying off her and other employees were valid and if the agency’s firing and hiring practices constituted a pattern of discriminating against older employees.
This week, the United States District Court for the Eastern District of Michigan Southern Division struck down the motion, days ahead of the end of the lawsuit’s discovery phase on Dec. 13.
“This wasn’t a substantive ruling; this was a procedural order by the judge asking us to try to resolve the dispute,” Shereef Akeel, who is representing Walsh in the case, told Adweek via phone.
According to the lawsuit, Walsh was told that she was among a group of employees who were let go as a round of layoffs at the MDC Partners agency targeting those who lacked “anticipated skills, knowledge and abilities needed by employees in the future.”
MDC Partners didn’t return a request for comment.
Doner disputed this characterization, stating at the time the complaint was filed that her firing, “was not due to any of the alleged reasons stated in her complaint” and was part of a more significant staffing reduction.
The complaint claims that following the arrival of Eric Weisberg as CCO in July 2016, Doner repeatedly and strategically utilized alleged workforce reductions as a way to “systematically rid the agency of older employees and replace them with younger ones.” Such quarterly practices did not constitute a real “reduction in force,” the complaint alleges, but instead were “implemented merely to conceal Doner’s practice of considering age as a factor when terminating an employee.”
Eric Weisberg and Doner did not return a request for comment.
In support of this characterization, Walsh and Akeel allege that Doner’s hiring of 11 new employees to its creative department in May 2017, which is attributed to new business momentum, included only employees under the age of 40, while many laid off under a subsequent “realignment” three months later were over the age of 40. Walsh, then 59, was fired on May 23, 2018.
The question of whether or not a pattern emerged
Akeel told Adweek that, to push the case forward, he was seeking specific data regarding “other employees who were fired in rounds of layoffs” and “who [were] hired” after Walsh’s dismissal in a procedure known as a motion to compel discovery requests.
Matthew Disbrow, the lead attorney defending Doner in the case, said in a statement via email to Adweek: “The dispute is a private matter regarding procedural discovery issues only. It will be addressed at the appropriate time through appropriate channels. We believe that Ms. Walsh’s motion is not properly before the court, [and] substantially mischaracterizes the facts of this case.”
Disbrow also accurately predicted that the motion would be struck down.
“Doner remains confident that the actual facts surrounding this case will establish that Ms. Walsh was fairly treated throughout her time at Doner. Ms. Walsh never experienced any discrimination, and there is no basis whatsoever for her lawsuit,” he added.
Akeel claims that Doner cited a “significant loss of revenue” around the time of Walsh’s dismissal as one reason for the staffing reductions. The Dec. 6 motion requested that the court compel the defendant to provide “documents pertaining to the various reductions in force implemented from 2015 to present” as well as “financial revenue from 2017 to present.”
“One of the ways to prove discrimination, circumstantially, is to demonstrate the reasons that they advanced do not hold water,” Akeel explained. “One of the reasons they gave is that the company had suffered a decline in revenue, so we’ve asked for the revenue information and now they’re saying that it’s not relevant. That’s why we had to file a motion to compel.”
“Another reason that we filed is that we discovered that Doner had gone through a wave of alleged reductions in force [and] several phases of laying off or firing employees. We wanted the data and the circumstances regarding the wave of terminations or layoffs to determine if there’s a pattern or not of targeting older workers,” he added.
Seeking more information
In the original deposition of Walsh, Akeel claims that Disbrow asked her to cite younger employees taking on similar responsibilities before or after her termination. Additionally, Walsh was asked for examples of male coworkers in similar roles who were paid more. According to Akeel, Doner should provide the information that either supports or refutes her claims.
In a letter to Disbrow, Akeel disputes Doner’s explanations for its staffing reductions, claiming the agency expanded its creative department substantially 11 months ahead of Walsh’s dismissal and hired three creative directors directly before and after her departure. It also disputes the claim that Doner has “eliminated” Walsh’s position.
“To us, that’s a red herring,” Akeel told Adweek. “After she was fired, who was given the assignments that Susan was working on? Something does not add up, and that’s why we’re seeking the information.”
Additional information in the motion included a Sept. 11, 2019, Beyond High Street podcast episode in which Doner CEO David DeMuth said he has had to make changes about the “type of talent that we recruit” since arriving at the agency around a decade ago. When asked if an embrace of technology changes the age of desired employees, since those in their 20s have a “desired skill set that some in their 30s, 40s, 50s just don’t have,” DeMuth replied, “Totally.”
DeMuth did not return a request for comment.
“It’s coming right from the guy up top. He is the one touting that there is a type of talent that he is looking for,” Akeel told Adweek. “Whatever you want to infer from that, it’s another piece of evidence in addition to what we cited earlier where Mr. Weisberg wanted digital natives. The evidence is accumulating, where it raises an eyebrow that age was a consideration.”
Objections from Doner
According to the motion to compel, Doner has objected to requests for revenue data and information related to the ages of those the agency hired and fired because such information is “irrelevant and overburdensome,” among other “boilerplate objections.”
Since the plaintiff has requested such information repeatedly since June 5, 2019, and the defendant has not complied, they moved to ask that the court compel Doner to provide it.
The information requested includes the names, ages and titles of each employee hired by Doner since 2015; the names and ages of all employees terminated since 2015; a list of workplace reductions since 2015 and specific reasons for each instance, identifying the individuals who initiated such workplace reductions and the criteria they used to determine which employees were eliminated. Additionally, the plaintiff is asking that Doner provide documents relevant to the agency’s financial status from 2017 to present.
“There are mechanisms in place to protect any confidential information,” Akeel told Adweek. “We have a protective order to protect any confidentiality concerns. There’s simply no reason why they’re holding on to this information.”
In the request, Akeel cites legal precedent for these requests, including Federal Rules of Civil Procedure, which permit discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense.”
With the motion stricken days ahead of the end of the discovery phase of the trial, the judge asked the two parties to attempt to resolve the matter with a case manager, Akeel explained to Adweek, adding that he and his client are in the process of trying to schedule an appointment with the case manager and the defense.
Should this fail to resolve the issue, “the next step would be to seek a date with the judge even if it is after discovery expiration,” Akeel explained, since the motion and Walsh’s requests for the information preceding the expiration of the discovery phase.
“We remain hopeful that we can resolve our dispute,” he said.