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Articles Posted in Age Discrimination

A recent decision by the Third Circuit Court of Appeals helps clarify who is a “similarly situated” employee in discrimination cases under the New Jersey Law Against Discrimination (“LAD”).  This is important since one way to prove discrimination is by showing the employer treated other similarly situated employees more favorably than the employee who is claiming he or she was the victim of discrimination.

Age discrimination at work.Santos Andujar worked for General Nutrition Corporation (“GNC”) as a store manager for 13 years. After failing the company’s Critical Point Audits four years in a row, he received a failing score through the company’s Performance Evaluation Process (“PEP”).  On the day Mr. Andujar received his failing PEP score, GNC placed him on a “Red Store Action Plan” which gave him days to improve his job performance. Approximately one month later, the company fired him for failing to meet the Action Plan.  GNC replaced Mr. Andujar, who was 57 years old, with someone in his twenties.  Mr. Andujar then filed a lawsuit alleging that GNC had engaged in age discrimination in violation of the LAD.

The case went to trial.  GNC argued that it fired Mr. Andujar because of his poor performance and not because of his age.  However, Mr. Andujar presented evidence that five other store managers between 25 and 34 years old had failing PEP score, but GNC did not put any of them on an Action Plan, let alone fire them.

Older worker pursues age discrimination lawsuitLast month, New Jersey’s Appellate Division reversed a trial court’s ruling that had dismissed an employee’s age and disability discrimination case.

Spencer Robinson worked for Armadillo Automation, Inc., also known as Onyx Valve Co., in its assembly department.  When Onyx hired Mr. Robinson, he was 60 years old.  According to Mr. Robinson, when he was hired he made it clear he had a lower back condition and needed a stool so he could sit during the workday.  Onyx provided him a stool.

Approximately six years later, Mr. Robinson experienced neck pain while he was working.  He claims he reported his injury to the company’s vice president, who refused to send him the doctor and indicated he did not believe it was a workplace injury.  Mr. Robinson further alleges the vice president told him he would not take him to the hospital unless he was “passed out on the floor or profusely bleeding.”

A recent age discrimination case from the United States District Court for the District of New Jersey is a helpful reminder that just because your employer has a good excuse for its decision to fire you, it does not necessarily mean the company did not violate the law.

Carol Natale began working for East Coast Salon Services, Inc., in November 2006. At the time she was 59 years old.   A little over five years later, the salon’s owner, Stan Klet, called the store. Ms. Natale answered the telephone by saying “East Coast Salon, how can I help you?” Ms. Klet claimed Ms. Natale violated company policy by failing to give her name when she answered the phone. He also claimed Ms. Natale challenged him when he told her she had violated this policy. In contrast, Ms. Natale says she told Mr. Klet that nobody ever told her to provide her name when she answers the telephone. She also claims she apologized to Mr. Klet during the call and that she did not argue with him.

Beauty Supply Discrimination LawsuitAfter checking with its Human Resources Department, the company fired Ms. Natale. It claims it fired her because she was insubordinate, argumentative and disrespectful during the call with Mr. Klet.

Age discrimination occurs frequently but often is subtle. You may be certain you were fired because of your age, but not have any direct proof or “smoking gun” evidence. Fortunately, that does not necessarily mean you cannot prove your claim.

Employees who want to prove they were fired because of their age frequently try to show their employers replaced them with someone significantly younger. However, as a recent case demonstrates, this is not difficult to do and is not necessarily required.

Marion Cohen worked for the University of Medicine & Dentistry of New Jersey (UMDNJ) as an associate professor of anatomy and cell biology and injury sciences pursuant to a series of one, two and three-year employment contracts. In late 2008 or early 2009 UMDNJ informed her it was not going to renew her contract, supposedly due to budget cuts. At the time, Ms. Cohen was 69 years old.

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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Last month, a federal judge in New Jersey allowed a group of employees to proceed with their class action age discrimination lawsuit even though they do not claim the company hired younger employees to replace them.

In Bratek v. TD Bank, NA, four customer service representatives, Edna Bratek, Diane Deluca, Lois Skoff, and David Steinberg, claim TD Bank fired them because of their age. They were each over 60 years old when TD Bank included them in a reduction in force. They sued, claiming the company targeted older employees, in violation of the New Jersey Law Against Discrimination.

TD Bank moved to dismiss the case, claiming the employees did not set forth facts which, if true, would prove age discrimination. In particular, they argued that the lawsuit does not even allege the Bank hired younger customer service representatives to replace the older employees it fired. The Court agreed that the employees did not claim the Bank had replaced them with younger employees, but it found they could proceed with their case on another theory. It recognized that an employee can set forth a claim of discrimination in a case involving a reduction-in-force by alleging the company retained one or more younger employees to perform his job. Thus, for example, an employee can claim the company gave his job duties to younger employees who it chose not to lay off.

Older employee faces age discrimination.jpgTD Bank also argued that even though the lawsuit named 18 customer service employees under 40 years old who the company retained after the reduction-in-force that was a small fraction of the customer service employees it retained, is statistically meaningless, and is not enough to support an inference of age discrimination. The company claimed this was particularly true since the lawsuit is a class action filed on behalf of hundreds (and potentially as many as a thousand) older customer service representatives who lost their jobs in the reduction-in-force.

The district judge rejected this argument. He recognized it would be extremely difficult for an employee filing a class action discrimination lawsuit to list the names and ages of a large percentage of the employees who the company retained. It also recognized that a lawsuit only needs to set forth facts that are compatible with discrimination to support an inference of discrimination. Accordingly, he concluded that providing the names and ages of several younger customer service representatives who the Bank retained was enough for the employees to proceed with their case.

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On March 29, 2012, the United States Equal Employment Opportunity issued new regulations regarding the Age Discrimination in Employment Act (ADEA). Specifically, the regulations relate to the “reasonable factors other than age” defense to disparate-impact claims. A disparate impact claim is when a company has a policy that appears to be neutral on its face, but in practice it disproportionately harms a legally protected group. A policy that has a disparate impacted based on age violates the ADEA unless it is based on reasonable factors other than age.

Under the new regulations, an employee who claims a company’s policy or practice has a disparate impact based on age is required to identify the specific policy he claims has a disparate impact on older workers. However, the employer has the burden to prove it has a reasonable basis for the policy other than age.

The regulations define “reasonable” to mean that an objectively reasonable employer would conclude the policy (1) is reasonably designed to meet a legitimate business purpose, and (2) was applied in a way that reasonably achieves that purpose. Some of the factors relevant to determining whether a factor on than age is reasonable include:Stressed_Mature_Business_Man.jpg

  1. The extent to which the policy is related to the employer’s stated business purpose;
  2. The degree to which the employer accurately defined and applied the policy, and provided guidance and training to the individuals who will apply it, in order to avoid age discrimination;
  3. The extent to which the employer limited the discretion of supervisors when they apply the policy;
  4. The degree to which the company evaluated the policy’s impact on older employees; and
  5. The extent to which the policy harms older workers in terms of the degree of harm and the number of employees who are harmed; and the degree to which the employer took steps to minimize the harm, compared to the cost of taking those steps

The regulations further clarify that the defense is only available in disparate impact case. It is not available in disparate treatment cases, meaning cases in which an employee claims his employer intentionally discriminated against him because of age.

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Late last month, a Federal Judge in the Southern District of New York ruled that a job candidate can continue with his age discrimination claim against a prospective employer based on a discriminatory hiring decision made by independent contractors who had the apparent authority to make hiring decisions on the employer’s behalf. Apparent authority is when a company’s actions lead someone else to incorrectly believe that he or she is an employee or agent of the company. This decision follows an earlier decision by the Second Circuit Court of Appeals in the same case, which recognized that Employers Can Be Held Liable for Discriminatory Hiring Decisions Made By Independent Contractors.

The case, Halpert v. Manhattan Apartments, Inc., involves Michael Halpert, who was applying for a position as a “shower” for Manhattan Apartments, Inc. He was interviewed by Robert Brooks, a salesperson who worked for Manhattan Apartments as an independent contractor. Mr. Brooks did not have the authority to hire employees on behalf of Manhattan Apartments.

During Mr. Halpert’s job interview, Mr. Brooks indicated that Mr. Halpert was “too old” for the job. Several days later, Manhattan Apartments’ receptionist said the company was not hiring Mr. Halpert because “we were looking for someone younger.” Mr. Brooks then repeated that Mr. Halpert was not qualified for the job because of his age.

Mr. Halpert sued Manhattan Apartments, claiming it failed to hire him because of his age in violation of the Age Discrimination in Employment Act (ADEA). After the Second Circuit ruled that an employer could potentially be held liable for the actions of an independent contractor, Manhattan Apartments filed a motion for summary judgment, arguing that Mr. Halpert was not its employee or agent, and there was not enough evidence to prove Mr. Brooks had the apparent authority to hire employees on its behalf.

However, the District Court disagreed. It found there was enough evidence for a jury to conclude that Manhattan Apartments had the apparent authority to hire Mr. Halpert. This evidence includes the fact that Manhattan Apartments allowed Mr. Brooks to use its offices, to answer his phones by saying “Manhattan Apartments, Inc.,” and to use business card that identify himself as a “Licensed Assc. Broker” for “Manhattan Apartments Inc.” It also included the fact that Manhattan Apartments’ receptionist explained the decision not to hire Mr. Halpert by saying that “we were looking for someone younger.” It therefore denied Manhattan Apartments’ motion for summary judgment to potentially give Mr. Brooks an opportunity to prove his case at a trial.

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Earlier this month, New Jersey’s Appellate Division reduced a punitive damages award in an age discrimination case in which the jury had awarded $10 million, to slightly less than $2.5 million. Punitive damages are awarded to punish a defendant when its actions are especially egregious.

The Evidence of Age Discrimination

Nicholas Saffos worked for Avaya, Inc. and its predecessors, AT&T and Lucent Technologies, for more than 20 years. In 2002, Avaya hired M. Foster Werner, Jr., as the head of Mr. Saffos’ department. Mr. Saffos quickly noticed that Mr. Werner was firing employees who were over 40 years old, and replacing them with younger workers. He also noticed that Mr. Werner was favoring the younger employees in his department.

In 2003, Mr. Werner suddenly began criticizing Mr. Saffos’ job performance and examining his work, even though he had received positive performance reviews in the past. In August 2003, Mr. Werner placed Mr. Saffos on a Performance Improvement Plan (“PIP”). Avaya fired him 30 days later. At the time, Mr. Saffos was 49 years old. Avaya hired a 33-year-old to replace him. Mr. Saffoshas other evidence of age discrimination, including the fact that the average age of an employee in the department decreased by 10 years during the first two years that Mr. Werner was in charge.

The Jury Award

After a trial, a jury found in Mr. Saffos’ favor and awarded him $250,000 for emotional distress, $325,500 for past lost wages (“back pay”), $167,500 for future lost wages (“front pay”), and $10 million on punitive damages. However, the trial judge reduced the punitive damages to a little over $3.7 million, which was five times the other damages the jury had awarded because he believed the jury’s award was unreasonably high. Both sides appealed.

The Appellate Court Reduced the Punitive Damages Award

On appeal, in Saffos v. Avaya Inc., the Appellate Division reduced the punitive damages even further. It stated that although courts are not required to limit punitive damages to 5 times the actual damages, the trial judge acted properly when he used that as a guideline to find the punitive damages award was disproportionate to the harm Mr. Saffos experienced and disproportionate to the damages he recovered.

However, it ruled that emotional distress damages often include a punitive element, and the $250,000 the jury awarded to Mr. Saffos for emotional distress already included a punitive element since Mr. Saffos did not suffer any physical harm as a result of the emotional distress, and he did not need any psychiatric treatment. As a result, it concluded that the emotional distress damages should not have be included when calculating the punitive damages as 5 times the jury’s award. The Appellate Division therefore reduced the punitive damages award to just under $2.5 million, which is 5 times the economic damages the jury awarded.

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The United States Equal Employment Opportunity Commission (EEOC) recently sued the Port Authority of NY & NJ, claiming the Port Authority violated the Equal Pay Act (“EPA”) by paying non-supervisory female lawyers less than their male counterparts. The EPA is a federal law that prohibits employers from considering gender as a basis for paying employees different wages for the same work. The lawsuit also alleges that the Port Authority violated the Age Discrimination in Employment Act (“ADEA”) by firing older attorneys and replacing them with younger attorneys. The ADEA is a federal law that prohibits age discrimination in employment.

According to the EEOC’s press release, the Port Authority paid male attorneys more than female attorneys for work requiring the same skill, effort and responsibility. The EEOC claims the gender pay disparity occurred regardless of the attorney’s job assignment, years of service, or date of admission to the bar.

The allegations stem from the Port Authority’s decision to fire two female attorneys over the age of 40 as part of a purported “reduction in force.” Earlier this year, the EEOC attempted to reach an amicable settlement with the Port Authority, but those efforts failed. It then filed the lawsuit in the United States District Court for the Southern District of New York.

As Louis Graziano, the attorney handling the case for the EEOC, stated:

Achieving a work force that embodies equal pay for equal work and eliminates sex-based pay discrimination has been the objective of federal law for nearly 50 years. This lawsuit makes it clear that the unfortunate reality – that at some workplaces women still earn less than men, even though they are performing the same work and have the same qualifications – continues to plague the workplace and will not be tolerated.

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