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Age bias suit against Livermore national nuclear lab can go to trial

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The 130 plaintiffs who filed an age discrimination complaint against the national nuclear laboratory in Livermore, Calif., in connection with a May 2008 reduction in force can proceed to trial, according to a state court judge's ruling.

According to the 2009 complaint filed with the Alameda County Superior Court in Oakland in Elaine Andrews et al. v. Lawrence Livermore National Security L.L.C. et al., the limited liability company took over management of the Lawrence Livermore national laboratory, a government-owned, contractor-operated facility funded by the U.S. Department of Energy, in 2007.

At that time, the lab had a $1.6 billion budget and a staff of 6,800, according to the complaint. The company decided to reduce its operating expenses by laying off about 750 employees. Although layoff procedures are set forth in a personnel policy manual published by the company, says the complaint, “business units and layoff units were created in a way that (the company) could target older workers for layoff by circumventing” the manual's procedures.

“The personnel policy manual does not authorize grouping employees in this manner,” the complaint says. “In addition, (the company) excluded approximately 40% of the workforce from exposure to the possibility of layoff, claiming they had peculiar skills, knowledge and abilities. This exclusion protected younger workers, and led to the termination of older workers,” the complaint says. “The entire reduction is invalid, illegal and discriminatory.”

In his technical Oct. 12 ruling, which was made available Tuesday, Judge Robert B. Freedman considers and rules against the defendants on five separate issues related to the plaintiffs' disparate impact claim.

The five issues were:

• The court lacks jurisdiction over the plaintiffs' disparate impact age claims;

• The plaintiffs cannot establish a prima facie case because they have not identified a specific neutral employment practice, and cannot identify a neutral employment policy or practice;

• The plaintiffs cannot establish a prima facie case because there is no statistically significant evidence of disparate impact;

• The company's policies and practices were justified by business necessity; and

• The plaintiffs have not identified alternative practices that could have avoided any disparate impact.

Plaintiff attorney J. Gary Gwilliam of Gwilliam Ivary Chiosso Cavalli & Brewer P.C. said in a statement Wednesday that the plaintiffs' average age is 54 and that they had worked for the lab an average of 20 years.

“Our clients have waited a long time for this trial. We look forward to having a jury hear this case as soon as possible,” Mr. Gwilliam said. He said a Nov. 1 hearing is scheduled to set the trial date, which is expected to be held in December or January.

A Livermore spokesman in a statement, “The lab disagrees with the judge's conclusion. We are currently reviewing the details of the decision and considering various options.”