Bellco Credit Union to Face Jury Trial for Age Bias

Trial in EEOC Suit Will Go Forward on Nov. 16 After Company's Second Failed Attempt to Have Case Thrown Out of Court

DENVER – In a legal victory for the U.S. Equal Employment Opportunity Commission (EEOC), Bellco Credit Union, for the second time in two years, lost a court motion to dismiss the EEOC's lawsuit charging the company with firing a 61-year-old teller because of her age, the federal agency announced today.

Bellco tried to have the EEOC's lawsuit dismissed last year, however, in April 2008, U.S. District Court Judge Zita L. Weinshienk denied Bellco's motion and cleared the way for a jury trial set to begin on November 16, 2009. In August 2009, after the case had been reassigned to a different judge, Bellco tried again to have the suit thrown out, arguing that the U.S. Supreme Court's June 2009 decision in Gross v. FBL Financial Services, Inc., raised the evidentiary burden on plaintiffs in age discrimination cases. However, on October 5, U.S. District Court Judge Thomas J. McAvoy denied Bellco's renewed motion to dismiss the case, ruling that the U.S. Supreme Court's opinion in Gross "did not establish a heightened evidentiary burden."

According to the EEOC's lawsuit, EEOC v. Bellco Credit Union, 06-cv-01883 TJM-MEH, Frances Cruz was employed by Bellco as a teller for seven years, from 1996 until 2003. Cruz was fired in October 2003, allegedly based on performance deficiencies over the prior two-year period, during which time she was given Bellco's prestigious President's Club Award, and received two evaluations rating her performance as "Exceeds Standards." Additionally, Cruz received a raise just two months before her termination in October 2003, when she was 61.

The EEOC asserts that Cruz was treated less favorably than younger workers, and that a year earlier, Bellco management told former managers to get rid of Cruz and other older employees. Finally, the EEOC charged, Cruz was terminated because of her age in violation of the Age Discrimination in Employment Act (ADEA).

The ADEA prohibits employment discrimination based upon age, and protects employees who are 40 years of age and older. If the EEOC prevails at trial, Bellco could be liable to Cruz for wages she would have earned since October 2003 had she not been fired because of her age, as well as an additional amount equal to her back pay (called liquidated damages).

"The EEOC is very pleased with Judge McAvoy's decision and we look forward to giving Ms. Cruz her day in court," said Regional Attorney Mary Jo O'Neill of the EEOC's Phoenix District, whose jurisdiction includes Colorado. "The EEOC has seen an increase in charges of discrimination, including age discrimination, and employers are on notice that employees are not expendable merely because they happen to be older, even in these challenging economic times."

EEOC Trial Attorney Andrew Winston added, "We have confidence in our facts and in our case, and we look forward to getting in front of the jury and laying out for them what kind of employee Ms. Cruz really was and all of the circumstances leading to her termination."

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.