Demotion of EVP after 10+ years, Is it legal?

What is the name of your state? CaliforniaFacts:

Male employee 53
14+ years with company
Seniority in current position as Regional Manager, EVP – 10 years
Diagnosed with Diabetes approx 2 yrs ago
Father died 18 mos. ago
Mother had stroke 6 mos. ago
Started Therapy for “Panic Attack and Fear of Flying” 1 mo. ago
Hasn’t flown since 9/11, prior to 9/11 flew 2x a week for job

Billion-dollar company – Corp. chain of command as follows:
CEO, COO/Divisional Mgr., Regional Mgr.

Since 9/11, he has been driving to operations. Operations are anywhere from 2 hours to as far as 10 hours drive time.

First week in August, COO discussed (his immediate supervisor) driving issue and the need for him to fly. He stated he has been suffering with some issues, “panic attacks,” and “fear of flying” - said he would get some help with issue. COO stated all RM’s territories were going to be re-structured soon, and this might help with flying issue. COO said he would get back with him in a couple of weeks. Clearly, at this meeting he was part of the re-structure as a Regional Mgr.

Following week, he started therapy for issues.

Last week, 1 month after following initial meeting, COO met with him and asked him to leave Corporate and take a one of two positions as a Profit Center Mgr. One profit center in Tucson the other profit center is Hawaii. (w/offices on multiple Islands) Not exactly, an operation you would offer someone with a flying issue! He asked the COO why? COO gave vague reasons...pulled out a letter from one of his profit centers regarding his Mgmt style, written over 18 months ago. (This was first time letter was brought to his attention) – he asked why? COO said at the time they told the person deal with it, he’s your boss and that’s it. – never said anything about it to him at the time) He then asked COO what the real reason was...COO gave another vague issue from a problem he had with another Mgr. over 2 yrs. ago in another profit center. All old events, and he was never “talked to” regarding how he handled these issues at the time. Again, he asked him what’s the real reason...COO said they have felt since father died his attention hasn’t been with the job...has seemed disconnected. Another vague issue. He asked what if I start flying tomorrow. COO said he didn’t know...

Bottom line...He has never had anyone discuss or bring to his attention any negative issues regarding his job performance, before last week. Quite the contrary! 12/2001 at end of year presentation with CEO and COO he was told...Great job! This year at first quarter and mid year presentations to CEO and COO, again, great reviews. Told - outstanding job! Numbers for his region are as good if not better than other regions.

COO did say they Demotion would not affect his base salary. However, it will reduce his yearly income (due to bonus structure) by approx, 200k. Not to mention his Executive benefit plan. Health Insurance, Life Insurance, stock options, etc. will be greatly reduced or eliminated. Not to mention at age 55 he could retire with current benefit plan. Along with other benefits, the Executive Health, Dental, and Optical is basically a no cost, no questions asked, company pays everything no matter what in full. Regardless if it’s cosmetic, elective or whatever. This is for him and family. With his recent health issues, the current health and life insurance is irreplaceable. Not to mention, someone who worked their way to the top without college degree! Now is put out...at his age. 500k a year jobs aren’t easy to find.

He is the only Regional Manager with this benefit plan, as all others are fairly new to company (within last 5 yrs.) and Executive benefits are no longer a part of the package for a Regional Mgr. position. Not to mention his base salary is much higher, due to his years in position.

Needless to say, he was shocked. He didn’t expect this at all. In his 30+ yr career, he has never been asked to take a demotion. He was blindsided and doesn’t understand why. All the reasons stated have been vague other than the flying issue. Obviously, it is irrelevant at this point. Are they trying to eliminate his ability to retire with Executive pkg. in 2 years? Do they sense weakness due to his need for therapy to overcome fear of flying? CEO doesn’t like “week” men.

Any rate, how can a man with a great history with company be treated this way just because he admitted he had a problem and was dealing with the problem. It’s like they are punishing him for admitting he had a problem – not allowing him the opportunity to fix it. Just get out.

Meeting last week ended with no resolution, just they would get back to him next week. He doesn’t know what to do? Take demotion and go on...Fly and force them to keep him in his present position. It’s obvious a month ago he was part of re-structure, now he’s not. Forcing them to keep him in corp. structure would make his work and personal life miserable. Corp. Exec.’s are required to live in the somewhat small city the corporate office is located.

Sorry for the long history...just wanted to provide as much info as possible. Any ideas or direction would be greatly appreciated.

“Million-Dollar company to Billion-Dollar company with no loyalty to the people that helped get it there!

Girlfriend of EVP

After wading through all the extraneous information, I think I finally have the bottom line here. As a regional manager, his job duties require him to fly. Obviously driving isn't doing the job, or the COO would not have felt the need to mention it. Rather than firing him outright, WHICH WOULD BE LEGAL, they have chosen instead to demote him into another position. He has been offered a choice of two, one of which would still require flying; the other of which would not. Do I have it right?

If so, I have to tell you that I have read this post several time, both here and on the other board where it is posted, and I cannot find anything illegal going on here. A company may reassign employees into the position that best meets their requirements. NOTHING in the law forbids a company from demoting an employee unless they are doing so for a reason forbidden by law; age, race, gender etc.

It is true that one of the reasons forbidden is disability. However, I very strongly doubt that a fear of flying is going to qualify as a disability as defined by statute. To qualify under the ADA, a disability must strictly limit a major life function; examples, breathing, walking, talking. It's unlikely, in my opinion, that flying is going to qualify as a major life function.

He is, of course, welcome to check with the EEOC as to the definition of a disability and/or talk with a lawyer. But unless you have left out some facts (!) I will be very surprised if this turns out to be illegal.

And just to throw in my two cents, even if fear of flying qualified as a disabilty (highly doubtful), the employee would STILL have to be able to perform the essential functions of the job.

In this instance and due to the type of position and how the company is structured, expecting the manager to be able to get on an airplane and fly to the locations the job requires certainly fits the bill as an "essential function." If there is a fair amount of travel and/or the locations are far flung, it simply is not reasonable for the company to allow the employee to drive thereby loosing many, many hours of productive time. If you had to go Japan (for example), you really can't expect the employer to allow you to take a 2+ week voyage getting there and back.

Though the flying issue is most likely the cause of demotion, what are the ages of the other executives? You mention that this person is two years from retirement and wonder if that could be the reason for the company's actions. Even if it isn't, the former EVP could make a prima facie (at face value) case of age discrimination IF the other execs are younger. If they are all in their 50's, the likelihood isn't so great. Looking at the information with a critical eye, I'm not certain if this would fly (no pun intended), but it does seem to be the only hope. Best of luck.

But if none of the other exec's have a problem with flying and it's part of their jobs, then it doesn't matter if the rest of the senior management team are all 25 years old. Age discrimination appears to be a complete stretch UNLESS a similarly situated but under 40 employee has refused to fly and management has allowed that.

From rereading the post, he was never told that the flying issue was the reason for the demotion. He was counseled on the issue and demoted the next week. The COO never stated "You won't fly; thus, you are demoted."

That still doesn't make age discrimination any less of a stretch.

I believe I stated such in my first post.

So you did. Aren't you clever.

The poster provided reams of information that was totally irrelevant. Don't you imagine she would have said so if there was ANY reason to assume age discrimination?

I wouldn't assume she would provide such information if she weren't versed in age discrimination. She posed different questions with various "irrelevant" information--I suppose that is because she is familiar with the situation, but not with laws that potentially apply.

Your response is a tad crass. Simply because I see a situation differently should not be a threat to you. You're quite knowledgable. Disagreement isn't personal--don't take it that way.

Stacy, believe me, I do not see you as any kind of a threat. Quite the contrary. What I do see is you twisting things until you get an option for the posters. In this case, there was absolutely no indication that age discrimination was in any way a factor. It is the reverse of helpful for you to create an option for them that does not exist.

Cathie, I didn't say you saw me personally as a threat rather statements contrary to your opinion.

Let's agree to disagree on this issue as I don't believe that I twisted the post. You do. So be it. In case of future disagreements, please maintain civility in reponses--I would appreciate it. I post my opinion for the poster, not to be chastised by you. Please, take a deep breath and move on!

And I do not believe that I said anything uncivil. Compare what I said with some of IAAL's responses, and then come back and tell me I was rude! However, I will agree to drop the issue if you will.

IAAL didn't respond to my post. You did. You are the only one who knows if you intended to be rude with "aren't you clever."

In my estimation, it's dropped.

Thanks for all the insight. I provided as much info as I could so you could give me the best insight. At this point, I understand the lack of age discrimination. What I want to know is how a company can do this? In the past, other people have been given the opportunity to resolve a negative issue. Example...Employee had drinking problem, company discussed issue w/emp and emp was given "X number of days to resolve issue or else. (rehab, etc.) Is it legal for company to allow certain emp time to overcome obstacle (fix what is broke) and not allow another empoloyee same option. In other words..."job requires flying...you have 30, 60 or 90 days to overcome your issue and fly. If at end of time period you haven't overcome issue, we will have to do "X". In various other situations, other employees were given the opportunity to fix what was wrong. This isn't the case here. Is it legal for this to happen? It seems to me...maybe flying isn't the real issue and they aren't coming forth with what real issue is? Remember, every evaluation for performance all were great...nothing negative was every discussed. Mid year and end of year reviews would be venues to discuss negative performance issues. None were discussed. Can you see why this is confusing? Mix messages from upper management...at mid year review it's a closed door session with employee and top Executives of company. Again every session over the last 2 years have been positive.

Hasn't the company set a procedure when they provided other employees a time frame to overcome issues...regardless if it is flying or drinking? Either way it's something that effects their ability to perform their job. Obviously this employee can fly, he did so prior to 9/11 several times a week. To rip his job out from under him without the option of correcting issue seems illegal. Maybe I'm wrong...again, maybe this is just an excuse and they don't want to provide real issue? Doesn't he have the right to know real issue if it's not flying?
Thanks for your insight?