Ballantine’s Erronous Conjecture as to Future Events

With facts as bad as this, what choice did Ballantine Communication, Inc.have?

It tried to explain away an allegedly bogus and discriminatory reduction in force as an “erroneous conjecture as to future events.”

But the magistrate wasn’t having it, and rejected the Durango, CO-based corporation’s motion to dismiss an age discrimination lawsuit filed by Kimberly K. Hawks, 56, a two-year veteran newsroom assistant who had received positive evaluations and merit raises while working for Ballantine’s newspaper, The Cortez Journal.

Hawks was terminated in a “reduction-in-force”  while she was at home recovering from major surgery and then pressured to sign a release of claims in exchange for two weeks of severance pay and a month of COBRA medical insurance coverage.

Hawks states that she was ordered to attend a staff meeting on March 14, 2013, while she was recuperating during an approved leave under the Family and Medical Leave Act. At the time, Hawks said she was unable to stand without assistance and was taking multiple prescribed pain medications and muscle relaxants. When Hawks said she could not attend the meeting, she was required to participate in a telephone conference call with Publisher Suzy Meyer and then-CEO/Owner Richard Ballantine, who told her that her position was among several that were being eliminated because the company was experiencing financial difficulties.She said they assured her that her termination was not performance related.

Six days later, Ballantine HR Director Danielle Kirkpatrick drove to Hawks’ house and asked her to sign a release of claims and the separation agreement. Hawks, who was heavily medicated and wearing her pajamas, said having Kirkpatrick at her house constituted “heavy pressure” to sign the waiver and agreement. She also states she had no reason to disbelieve company officials..So she signed the document, agreeing to give up her right to sue for age discrimination.

On March 29, 2013, the day after Hawks’ official last day of work, Hawks said she pursued the classified ads in the “Help Wanted” section of the Ballantine-owned Durango Herald newspaper. She saw several ads for positions that had been eliminated in the reduction in force – including Hawks’ own position. Hawks alleges her duties and job title were assumed by a 25-year-old former co-worker. Furthermore, Hawks said Ballantine’s staffing levels actually increased significantly after the reduction in force.

A federal magistrate didn’t buy Ballentine’s argument that it’s actions did not constitute fraud because the reduction in force represented “unfulfilled predictions or erroneous conjecture as to future events.”

The magistrate writes: “The Court disagrees that the allegedly fraudulent statement here, i.e., that the staff reduction was based solely on the financial difficulties of the company, consists of an ‘unfulfilled prediction [] or erroneous conjecture[] …. Rather the alleged statement is clear about a present circumstance of the company which was provided as the reason for Plaintiff’s termination.”  The Court refused to dismiss Hawks lawsuit based upon the waiver she signed.

According to its website, Ballantine is a privately held company with approximately 200 employees that “operates across print, video, and digital platforms.”

The case is Hawks v. Ballantine, Civil Action No. 15-cv-01298-KLM (D. Colorado, October 23, 2015).

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