New Jersey Employment Lawyer Blog
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Earlier this month the New Jersey Appellate Division permitted an employee to continue with his sexual orientation discrimination claim against his former employer, finding there is enough evidence to support his claim.

Ronald Savoie, who happens to be gay, had a distinguished career as a teacher at The Lawrenceville School for more than two decades. He lived in a house owned by the school with his partner, Richard Bierman. In 2002, eight school buildings and grounds employees entered Mr. Savoie’s basement to repair a broken water main outside his house. In the basement, they saw some sort of sexual apparatus hanging from chains on the ceiling. Some of the employees also described seeing other items in the basement including a computer, a tripod without a camera, and videotapes.

A year later, when the school was replacing the condensing units and water heaters in the houses on Mr. Savoie’s street, several of the employees who had been in his basement the year before indicated they were uncomfortable returning to his house. When they described to their supervisor what they had seen in Mr. Savoie’s basement the year before, they listed additional items including a video camera, a television, a bed with mirrors, latex gloves, and diapers. Their boss repeated this information to the school’s Dean of Faculty, its Associate Head Master, and its Chief Financial Officer (CFO).

School Subject of Discrimination Lawsuit.jpgThe Dean then met with Mr. Savoie, gave him a pre-written resignation letter, and told him he would be fired unless he agreed to resign. According to Mr. Savoie, the Dean accused him of transmitting sexually explicit images over the Internet, and indicated he could not trust him with students as a result. Although Mr. Savoie signed the resignation letter, he attempted to rescind it the next day. The school rejected his attempt to withdraw his resignation.

Mr. Savoie then sued the school and several of its employees, claiming they fired him because of his sexual orientation, in violation of the New Jersey Law Against Discrimination (LAD). In response, the school claimed it asked Ms. Savoie to resign because it believed he was sending sexually explicit pictures of activities taking place in his basement over the Internet, in violation of the school’s standards of personal and professional behavior, which it claims jeopardized its reputation. The trial court eventually dismissed Mr. Savoie’s case, concluding that even if he did not actually send sexually explicit materials over the Internet, the school reasonably believed he had done so and legitimately fired him as a result.

However, in Savoie v. Lawrenceville School, the Appellate Division reversed. It ruled that although a jury could reach the same conclusion as the trial judge, it also could determine that the school would not have reacted the same way if Mr. Savoie was heterosexual. The appellate court relied on the fact that (1) the school relied on the secondhand information from the supervisor of the employees who were in Mr. Savoie’s basement instead of conducting a proper investigation; (2) Mr. Savoie disputes the school’s claim that he admitted sending sexually explicit images over the Internet; (3) the school’s Associate Head Master made a disparaging comment about Bierman’s lifestyle, thereby implicitly criticizing Mr. Savoie’s lifestyle; and (4) the school looked the other way when a high ranking administrator resumed an adulterous affair even after he had been warned the affair violated the school’s policy regarding personal and professional behavior and was grounds for termination. Accordingly, the Appellate Division sent Mr. Savoie’s case back to the trial court for a trial.

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Last month, the United States Supreme Court dismissed an overtime case filed by an employee, Laura Symczyk, against her former employer, Genesis Healthcare Corporation. Ms. Symczyk filed the case as a collective action on behalf of herself and other similarly situated employees who were not paid for all of the hours they worked. Specifically, she claims Genesis deducted 30 minutes of pay per day for a meal break, even when they worked during their break. She asserted the company’s policy violates the Fair Labor Standards Act of 1938 (“FLSA”). The FLSA is a federal law that set the federal minimum wage and guarantees overtime pay to non-exempt employees. The FLSA permits employees to sue on behalf of similarly situated employees in what is called a “collective action.”

Supreme Court ruling overtime case and collective action.jpgWhen Ms. Symczyk filed her lawsuit, Genesis made her a formal settlement offer, called an offer of judgment, in the amount of $7,500 plus all of her attorneys’ fees and costs. Ms. Symczyk admits the $7,500 would have full compensated her for all of her own damages. However, she did not respond to the offer because she wanted to continue with her case on behalf of her coworkers, and as a result never received the $7,500. But since the offer would have paid Ms. Symczyk everything she was seeking for herself in the lawsuit, and none of her coworkers had joined the case, the trial court no longer considered her to have a personal stake in the outcome of the case. In other words, it deemed her case to be moot.

On that basis, Genesis sought to have the case dismissed. In response, Ms. Symczyk argued the company was improperly trying to end the case before the collective-action portion of the case even could begin.

The District Court dismissed the case. It ruled the $7,500 offer of judgment fully satisfied Ms. Symczyk’s claim, and a collective action cannot proceed unless there is at least one person who has joined the case whose claim against the company is not moot. The Third Circuit Court of Appeals reversed, finding that even though Ms. Symczyk’s claim was moot, it was improper for the company to try to “pick off” the named plaintiff to defeat the collective action. Genesis appealed the ruling to the United States Supreme Court. However, Ms. Symczyk did not cross-appeal the Third Circuit’s finding that her personal claim was moot.

In its opinion in Genesis Healthcare Corp. v. Symczyk, the Supreme Court ruled that since Ms. Symczyk did not cross-appeal the finding that her case was moot, it was bound by that conclusion whether or not it is correct. It then ruled that since her case is moot, she cannot proceed with the collective action on behalf of her coworkers. However, since the Court did not indicate whether Ms. Symczyk’s case really was moot, and merely assumed it because she did not cross-appeal that ruling, it did not indicate whether the same tactic of offering full damages to each named plaintiff would work in future cases. As a result, it remains unclear whether employees who bring collective actions and are offered settlements that would satisfy their own claims have the right to reject the offer and continue to proceed with the collective action.

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A federal judge recently denied an employer’s attempt to dismiss an employee’s claim under New Jersey’s whistleblower law, the Conscientious Employee Protection Act (CEPA). The employee, Mary Stapleton, claims her former employer, DSW, Inc., fired her in violation of CEPA. Ms. Stapleton worked for DSW, a shoe store, in New Jersey. In March 2012, she called New Jersey’s Division of Child Protection and Permanency (DCPP) because she saw a female customer who appeared to be neglecting her twenty-two month old child. Among other things, the customer refused to change the child even though she smelled of feces, did nothing to stop the child from painting the store’s shelves with nail polish, did not even notice when Ms. Stapleton took the nail polish from the child, and did not react when the child pulled on several other customers’ clothes. When the child took items from the counter and threw them on the floor, the customer threatened to hit the child when they got home. Ms. Stapleton reported this to DCPP, and provided the customer’s name and address so the agency could identify the customer.

The next day, the store’s District Manager learned that Ms. Stapleton had reported the customer to DCPP. She required Ms. Stapleton to submit a written statement about the incident. A few days later, DSW fired Ms. Stapleton because she provided the customer’s private identifying information to DCPP, in violation of a company policy prohibiting employees from giving out a customer’s identifying information. Ms. Stapleton indicated she was trying to act in the best interests of the child, and that DSW’s policy prohibiting her from providing the customer’s information was not in the best interests of the child. Nonetheless, DSW did not change its decision to fire her.

Retaliation lawsuit against New Jersey shoe store.jpgMs. Stapleton eventually filed a lawsuit, claiming DSW fired her in retaliation for her refusal to follow a company policy she reasonably believed was incompatible with the best interests of the child, in violation of CEPA. DSW asked the judge to dismiss her case, arguing Ms. Stapleton did not engage in any whistleblowing activity that is protected under CEPA.

In Stapleton v. DSW, Inc., the United States District Court for the District of New Jersey denied DSW’s motion. The Court explained that the purpose of CEPA is to provide protection “to vulnerable employees who have the courage to speak out against or decline to participate in an employer’s actions that are contrary to public policy mandates.” Among its broad protections, CEPA makes it unlawful for an employer to retaliate against an employee who “objects to, or refuses to participate in” an employer’s activity which the employee “reasonably believes” violates the law, or a clear mandate of public policy relating to public health, safety, or welfare.

The Court agreed with DSW that Ms. Stapleton did not object to the company’s confidentiality policy until after she had been fired, and as a result could not prove retaliation on that basis. However, it found that if Ms. Stapelton’s allegations are true then the company fired her because she refused to comply with a policy she reasonably believed violated the law or a clear mandate of public policy regarding public health, safety, or welfare, since the policy prohibiting employees from giving out a customer’s private identifying information would have prevented her from taking an action she believed was necessary to protect the child’s health and safety. As a result, it found she has properly set forth a claim under CEPA and can proceed with her lawsuit.

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New York City recently amended its anti-discrimination law, the New York Human Rights Law (NYCHRL), to prohibit discrimination against individuals who are unemployed. The amendment to the NYCHRL prohibits discrimination with respect to both hiring and the terms and conditions of employment on the basis that the job applicant is unemployed. In other words, it makes it unlawful to refuse to hire an employee because he is unemployed, or to offer him a lower salary or employee benefits because he does not already have a job somewhere else.

Job Interview Discrimination Against Unemployed Candidate.jpgThere are several important exceptions in the amendment to the NYCHRL. For example, it is still permissible for employers to consider a job candidate’s unemployment status if there is a “substantial job-related reason” for doing so. It also permits employers to choose to hire only internal job candidates, even though doing so would eliminate unemployed job candidates from consideration. In addition, it does not apply to civil service employees, and is not intended to interfere with the rights of any employee under a collective bargaining agreement. Further, it makes it clear that employers can ask job candidates about the circumstances under which they left their previous jobs, and to consider those circumstances when deciding who to hire.

The amendment also prohibits employers and employment agencies from advertising that being employed is a job qualification or requirement. In this respect, the New York City law is similar to a law passed in New Jersey last year (see our previous article: New Jersey Makes it Illegal to Discriminate Against Unemployed Job Candidates). But unlike New Jersey’s law, the NYC law permits employees who have experienced discrimination because of their unemployment status to recover damages including lost past and future wages, emotional distress damages, attorneys’ fees, and potentially punitive damages.

Although Mayor Michael Bloomberg vetoed the law, the New York City Council overrode his veto and enacted it on March 13, 2013. It goes into effect on June 11, 2013.

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In both New York and New Jersey, employers are required to provide reasonable accommodations to disabled employees to allow them to remain employed. A reasonable accommodation is a change or modification to the way your job is performed that allows you to remain employed despite having a disability. However, employers are not required to provide accommodations that would eliminate an “essential function” of the job.

Last month, the Court of Appeals for the Second Circuit ruled that although arriving at work on time is an essential function of most jobs, it is not an essential function of every job. The case, McMillan v. City of New York, was filed by Rodney McMillan. Mr. McMillan has a severe disability, schizophrenia. The medication he takes to treat his condition often makes him drowsy and sluggish. As a result, he is often unable to arrive at work until after 10 am. Nonetheless, he successfully worked as a case manager for the City of New York for almost 25 years.

New York City Employment Law.jpgHowever, New York City eventually disciplined Mr. McMillan because of his repeated lateness. In response, he requested reasonable accommodations including shifting his work hours back an hour, and allowing him to work during his lunch hour to “bank” time to make up for days on which he arrived late. NYC denied his request and eventually suspended him for 30 days without pay. Mr. McMillan then filed a disability discrimination lawsuit claiming NYC suspended him because he is disabled, and failed to accommodate his disability, in violation of the Americans with Disabilities Act (ADA), the New York State Human Rights Law (NYHLR) and the New York City Human Rights Law (NYCHLR).

The District Court dismissed Mr. McMillan’s claim. It ruled that arriving at work on time was an essential function of Mr. McMillan’s job. Accordingly, it found NYC was not required to grant the accommodations he requested since they would have eliminated an essential function of his job.

But on appeal the Second Circuit reversed the District Court’s ruling. It explained that although courts should give significant deference to an employer’s determination about which job functions are essential, that is only one factor a court should consider. For example, other relevant factors can include the written job description for the position, how much time the employee spends performing the job function, and the experiences of other past and present employees who have held the same or similar jobs with the employer.

The Second Circuit ruled that although arriving on time is an essential function of most jobs, it is not necessarily an essential function of every job. More specifically, it found unique facts about Mr. McMillan’s job that make it less clear whether arriving on time was an essential function of his job. For example, his department has a flex-time policy that allows employees to arrive at work anytime between 9:00 and 10:00 a.m. without being considered late. In addition, NYC permitted Mr. McMillan to arrive after 10:00 a.m. when necessary for more than a decade. Accordingly, the Court ruled that it should be left to a jury to determine whether arriving on time was an essential function of Mr. McMillan’s job.

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Police Officer First Amendment Lawsuit.jpgLast week, I discussed Montone v. City of Jersey City, a case that ruled Police Sergeant Valerie Montone can proceed with her political affiliation case against the Jersey City Police Department. In the same opinion the Third Circuit ruled that eight other police sergeants can continue with their claim that Jersey City failed to promote them because it was discriminating against Montone.

The other eight Sergeants were on the same promotional list as Montone. None of them were promoted because Jersey City stopped promoting any sergeants to lieutenant, allegedly because Jersey City did not want to promote Montone. In other words, they claim they were collateral damage in Jersey City’s efforts to discriminate against Montone for exercising her First Amendment right to political affiliation.

The Third Circuit ruled that employees can sue for retaliation in violation of the First Amendment even if the retaliation was based on someone else exercising his or her First Amendment rights. It relied on a previous Third Circuit case which recognizes that indirect victims of gender discrimination can sue for discrimination under Title VII if they were treated worse for reasons that “trace back” to unlawful discrimination. In that case, male employees were permitted to pursue a gender discrimination claim in which they claimed their employer refused to hire them from a “priority list” because the company did not want to hire the women on the list. The Third Circuit also relied on a United States Supreme Court opinion recognizing an employee can bring a retaliation claim based on a coworker’s legally protected activity (in that case, retaliation against an employee’s fiancée because the employee filed a claim of gender discrimination with the Equal Employment Opportunity Commission) if the retaliatory action would dissuade a reasonable person from engaging in the protected activity. The Third Circuit explained that without this type of protection, municipal employees might not exercise their rights to express their political beliefs, or might change their political association to avoid retaliation.

Ultimately, the Third Circuit ruled that the eight sergeants can proceed with their civil rights case. It found there is a genuine dispute whether Jersey City failed to promote them because Montone exercised her right of political affiliation. For example, it found disputes regarding whether there really was a shortage of lieutenants in the police department, whether the Police Chief had the authority to make promotions, and why there were no promotions to lieutenant for three years. It therefore concluded that a jury must decide whether Jersey City retaliated against them.

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On March 8, 2013, the Third Circuit Court of Appeals ruled that Police Sergeant Valerie Montone can proceed with her civil rights case against the City of Jersey City, the Jersey City Police Department, Mayor Jerramiah Healy and retired Jersey City Police Chief Robert Troy. Montone claims she was passed her up for a promotion to lieutenant, in violation of her First Amendment right to political affiliation, because she supported Lou Manzo when he ran against Healy for mayor. She claims they decided not to promote any sergeants for three years so they would not have to promote her.

Employee Voting for Political Candidate.jpgThe First Amendment prohibits the state and local government from discriminating against employees based on which political candidates they support. As the Third Circuit explained, to prove this type of claim an employee has to prove (1) she worked for a public agency in a position that does not require political affiliation, (2) she engaged in conduct protected by the First Amendment, and (3) her employer took an adverse action against her, such as firing her, demoting her, or skipping her for a promotion, because of her constitutionally-protected conduct. Montone meets the first two requirements since her job as a sergeant for the Jersey City Police Department does not require any political affiliation, and her efforts supporting Manzo in the mayoral election is protected by the First Amendment. The primary issue on the appeal was whether there was enough evidence for a jury to find the defendants discriminated against her because she supported Mayor Healy’s opponent in the election.

The District Court dismissed Montone’s case, finding there was not enough evidence to prove discrimination. But in Montone v. City of Jersey City the Third Circuit disagreed. It found there was enough evidence for a jury to find discrimination in violation of the First Amendment, including the fact that:

  • Police Chief Troy made promotions to every other rank, but did not promote a single sergeant to lieutenant;
  • The number of lieutenants in the police department decreased from 56 to 30 over the three year period;
  • Jersey City had 66 authorized lieutenant positions, meaning it had 36 vacancies;
  • Mayor Healy and Chief Troy promoted their political supporters to other positions;
  • Jersey City has a history of political patronage including hiring employees who supported winning candidates;
  • Two other sergeants testified that Chief Troy told them they would not be promoted because they were below Montone on the promotion list and the mayor was not going to promote Montone;
  • The same two sergeants testified that Chief Troy indicated he did not have a problem with them because they did not come out against him during the election; and
  • Shortly after Chief Troy retired, he met with the new police chief before he decided not to promote Montone. Two days later, Jersey City promoted twelve other sergeants to lieutenant

In the same opinion, the Third Circuit ruled on a related case brought by eight other Jersey City police sergeants who were not promoted during the same three-year period. They claim they were the victims of Jersey City’s retaliation against Montone. I will discuss the fate of their case next week.

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The New Jersey Appellate Division recently ruled that an employer violated the Family & Medical Leave Act (FMLA) by requiring an employee to provide a new doctor’s note each time he took time off as part of an intermittent family leave. The FMLA permits a qualified employee to take time off to care for his immediate family member who has a serious health condition. When medically necessary, an employee can take an FMLA leave intermittently, meaning he can take hours or days off when necessary instead of taking the leave all at once.

Mother Taking Temperature Sick Child.jpgRalph West worked as a Corrections Officer for Burlington County. Officer West also was a member of the Policeman’s Benevolent Association (PBA) Local #249 Union. Under its collective bargaining agreement with the PBA, if the County suspects an employee of abusing sick leave it can require him to submit proof of illness. If an employee fails to submit proof within 7 days, the County can require the employee to forfeit his salary during the sick leave and/or discipline him.

Officer West’s son has sickle cell disease. As a result, he sometimes experiences serious health problems including strokes. On March 3, 2010, Officer West requested a family leave under the FMLA to care for his son. The County approved his leave as an intermittent FMLA leave from March 3, 2010 through December 31, 2010.

On May 2, 2010, Officer West’s son woke up jaundiced and in pain. Officer West took the day off to care for his son as part of his intermittent FMLA leave. The next day, his supervisor told him he had to submit proof his son was ill on May 2. Officer West was unable to submit a doctor’s note because he had not taken his son to the doctor, and the doctor was unwilling to write a note because he had not seen his son. As a result, the County docked Officer West’s pay for May 2 and told him he had to submit proof of illness each time he took time off as part of his intermittent family leave. Similarly, the County suspended Officer West for two days when he again called out sick to care for his son on August 15, 2010 without submitting a doctor’s note.

In Police Benevolent Association Local No. 249 v. County of Burlington, the Appellate Division ruled that the County’s policy requiring Officer West to submit a doctor’s note each time he took time off as part of his intermittent family leave violated the FMLA because it interfered with his rights under the FMLA. The Court found this was especially true since there was no evidence Officer West ever abused his intermittent family leave. In doing so, the Court distinguished another case that found a company did not violate the FMLA by requiring employees to call in each day they are out for a medical leave, since it is much easier to call than it is to submit a doctor’s note each time you need to take a day off under the FMLA. In other words, although an employer can impose requirements on employees who take FMLA leaves, those requirements violate the FMLA if they are onerous.

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A question that often comes up in sexual harassment cases is whether you can rely on harassment you learned about secondhand to help prove your case. For example, can you use the fact that one of your coworkers told you that someone else made sexually offensive comments about you to help prove you worked in a sexually hostile work environment?

Sexual Harassment - secondhand evidence.jpgTo prove a sexual harassment case, you need to show you experienced conduct because of your gender that was severe (bad) or pervasive (frequent) enough to make a reasonable woman believe the conditions of her employment were altered and her working environment was hostile or abusive. In determining whether your workplace was sufficiently hostile or abusive, a judge or jury is supposed to consider all of the circumstances, including how frequently the discriminatory conduct occurred, how severe it was, whether it was physically threatening or humiliating, and whether it unreasonably interfered with your job performance.

There are many cases that recognize an employee can rely on secondhand information in a sexual harassment case for certain purposes. For instance, you can rely on evidence that other women were harassed to help show the treatment you experienced was because of your gender, rather than motivated by something else. That is true even if you did not learn about the harassment the other women experienced until after you left your job.

But can you consider evidence of discriminatory conduct you learned about secondhand to prove your workplace was hostile? Most federal courts that have considered the issue have ruled that as long you were aware of the harassment when you were working for the company, you can use evidence of harassment you learned about from someone else to prove that your work environment was hostile. This includes the United States Courts of Appeals for the Second, Fourth, Sixth, and Seventh Circuits, as well as numerous District Court decisions including the District of New Jersey. As a result, for those of you in New York State, at least assuming your case is in federal court, evidence of harassment you learned about secondhand should be available to help prove your workplace was hostile.

However, there is language in a 2008 New Jersey Supreme Court opinion, Godfrey v. Princeton Theological Seminary, which says that when proving her work environment was hostile, a woman must rely on “evidence of bad conduct of which she has firsthand knowledge.” If interpreted literally, that could mean a plaintiff cannot rely on evidence of harassment she learned about secondhand, even if it actually contributed to make her work environment hostile. But in Godfrey, since the harassment occurred before the employees who brought the lawsuit started working for the employer, it was neither directed at nor witnessed by them. As a result, it is not surprising the court found the women could not rely on this evidence to prove their work environment was hostile.

Given New Jersey’s strong public policy in favor of prohibiting sexual harassment from the workplace, I doubt the New Jersey Supreme Court intended to rule that an employee can never rely on harassment she learned about second hand. Rather, evidence of harassment that you learned about secondhand should be relevant as long as it actually contributed to making your work environment hostile. Of course, that will not prevent employers from arguing that this type of evidence is inadmissible under Godfrey.

For more information about the Godfrey case, please read our previous article: New Jersey Supreme Court Clarifies Sexual Harassment Standard: Repeatedly Asking for Dates is Not Sexual Harassment.

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Last month, the Third Circuit Court of Appeals recognized that an employee does not need to have any evidence of discrimination before she can present her case to a jury. The Third Circuit is the federal court that handles appeals from New Jersey, Pennsylvania, Delaware and the Virgin Islands.

Unemployed after discrimination.jpgThe employee who brought the case, Mary Burton, worked for Teleflex Inc. as a Vice President of New Business Development. On June 3, 2008 she got into a disagreement with her supervisor, Edward Boarini. Mr. Boarini claims Ms. Burton resigned during the meeting. In contrast, Ms. Burton claims she mentioned the possibility of resigning, but did not actually resign. At the time, Ms. Burton was 68 years old.

According to Ms. Burton, she did not report to work the next two days because she was upset about the meeting. She then took a preplanned vacation. On the day she was scheduled to return to work, Teleflex sent her a letter indicating it was accepting her resignation.

After her lawyer unsuccessfully attempted to negotiate a severance package, Ms. Burton filed a lawsuit claiming the company’s decision to fire her was age discrimination in violation of the Age Discrimination in Employment Act (ADEA), and gender discrimination in violation of Title VII of the Civil Rights Act of 1964. But the District Court dismissed Ms. Burton’s case. It found she voluntarily resigned, and therefore could not pursue a wrongful termination claim. It also found that even if she did not intend to resign, there was no evidence the company fired her because of her age or gender, rather than because it believed she had resigned.

But on appeal, the Third Circuit reversed. It found that since there is a factual dispute whether Ms. Burton actually resigned, a jury needs to decide whose version of the events is true. It explained that a jury can conclude Ms. Burton was fired based on her testimony that she never said she was resigning, as well as the fact that she never tendered a resignation letter, never told anyone she was resigning, and the company merely took Mr. Boarini’s word that she had resigned without confirming it with her.

The Third Circuit further ruled that a jury can find Teleflex’s decision to fire Ms. Burton because of her age or gender even though there is no evidence of discrimination. It explained that one way an employee can prove her case is by pointing out “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s explanation for terminating her. In essence, it ruled that a jury can find Teleflex lied when it claimed it believed Ms. Burton had resigned, and can conclude the reason the company lied was to cover up age or gender discrimination. The Third Circuit’s opinion in Burton v. Teleflex Inc. is published, meaning it is a binding legal precedent.

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