A Lincoln man who accused his employer of firing him because of his origin and age could be awarded nearly $175,000 in lost wages and damages.

In December 2016, Raul Alvarez filed a complaint with the Lincoln Commission on Human Rights, alleging his California-based employer, SBM Site Services, failed to promote him, suspended him and then fired him because he was a 65-year-old Mexican-American.

He was hired in October 2014 to serve on a 20-person SBM custodial crew contracted to clean and maintain the Novartis plant just east of Lincoln, according to commission documents.

Alvarez, a custodial supervisor, was experienced, with more than a decade of facility maintenance, according to the documents. He was educated, with an associate’s degree as an industrial electrician and a bachelor’s in business management.

And he was bilingual; roughly half of SBM’s custodial staff spoke only Spanish.

By April 2015, he was promoted to area night supervisor, but he was passed up for a promotion to site supervisor two months later. Instead, the job went to a 33-year-old Caucasian who did not speak Spanish, had an associate’s degree in marketing and had no experience in facilities management.

Then Alvarez was suspended without pay in November 2015, although he was not issued a written progressive discipline report beforehand, as was company policy, according to commission documents. And there was no record he’d been warned — verbally or in writing — before he was suspended.

The written suspension stated, in part: “His direct reports do not feel comfortable working with him. The customer has also made mention of these issues as well.”

On the back of his suspension, Alvarez wrote: “I would only like to say that I have always done the job to the best of my abilities. This site has been mismanaged since I arrived. I also feel I have been discriminated against due to my age and being Hispanic. …”

SBM’s own stories differed, according to documents. The site supervisor told a commission investigator that a human resource officer from his company gave permission to suspend Alvarez; she told the investigator she didn’t.

The same HR officer said she instructed the supervisor in November 2015 to reinstate Alvarez, but instead Alvarez was fired the next month.

A representative for SBM Site Services could not be reached for comment Friday.

The Human Rights Commission, appointed by the mayor to investigate discrimination in housing, employment and public accommodations, fielded 67 complaints in 2016.

But none made it as far as Alvarez’s, said Jeff Kirkpatrick, the city attorney and the commission’s interim director.

Generally, its staff investigates and makes a recommendation to the commissioners — yes, this is likely a case of discrimination, or no, it isn’t. Commissioners vote, and the majority of complaints are either dismissed or withdrawn at this point.

Those that advance are often worked out through mediation and compromise, Kirkpatrick said. In Alvarez’s case, mediation failed twice.

When that happens, the commission hires a hearing officer — in this case, Lincoln employment attorney Kathleen Neary — to examine evidence, conduct a hearing and make a final recommendation.

Neary listened to a day-and-a-half of testimony in May. Late last month, she released her findings of fact, concluding SBM failed to promote Alvarez, unfairly disciplined him and fired him based on his national origin and partly due to his age.

In her findings, she wrote that Alvarez’s case met four prongs of a discrimination claim: He belonged to a protected class; he was meeting his employer’s expectations; he suffered an adverse employment action; and he was treated differently than someone outside his protected class.

For the fourth element, she pointed out the man who got the site supervisor job had been accused of cursing and yelling at employees but his conduct was never investigated. Nor did he get in trouble for not following policy before suspending Alvarez, and for firing him despite an HR officer telling him to give Alvarez his job back.

She also wrote that when Alvarez had expressed interest in the site supervisor’s job, his boss at the time told him “you’re just too old for the job,” and “what if you leave next year?”

In their defense, SBM officials said the $900,000 Novartis contract was one of their biggest, and they needed the best staff to make sure it was renewed. They didn’t promote Alvarez because he wasn’t the most qualified applicant. Further, they said Alvarez’s performance was substandard and he was abusive to employees.

Neary recommended the company pay him $98,472 in lost wages and $75,000 for emotional distress, and that it pay the city a civil penalty of $15,000 for violating laws prohibiting age and origin discrimination.

The commission will vote on the recommendation July 26. If it finds against SBM, the company can appeal the decision in district court.

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Reach the writer at 402-473-7254 or psalter@journalstar.com.

On Twitter @LJSPeterSalter.



Peter Salter is a reporter.

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