Discrimination

New Jersey Court Reverses Million Dollar Award in Disability Discrimination Case, Finding Jury Relied on Inadmissible Hearsay

January 7, 2013 | by Jonathan I. Nirenberg

Last month, New Jersey’s Appellate Division reversed a verdict of over one million dollars in a disability discrimination and retaliation case because the only evidence supporting the claim was inadmissible hearsay. Hearsay is basically when you try to prove something is true based on the fact that someone else said it was true outside of the courtroom. Hearsay generally is not admissible at a trial because it is considered untrustworthy. However, there are many exceptions to that rule.

The case was brought by Anthony Pace, who was a security guard for the Elizabeth Board of Education for more than 15 years. In 2003, Mr. Pace suffered a knee injury at work, and filed a worker’s compensation claim. In 2006, the Board decided not to renew Mr. Pace’s contract as part of a reduction-in-force. Mr. Pace then sued, claiming the Board’s decision to lay him off was both disability discrimination and an act of retaliation because he filed a workers’ compensation claim. A jury agreed with Mr. Pace and awarded him $147,630 for past lost wages, $427,370 for future lost wages, and $250,000 in punitive damages. He also was awarded $237,843 in attorney’s fees and $7,708.84 to reimburse him for his litigation costs, bringing his total judgment to more than a million dollars.

The primary evidence to support Mr. Pace’s claims were two witnesses who testified that a former member of the Board, Carol Cascio, told them the Board was trying to eliminate employees who had brought worker’s compensation claims against it during the reduction-in-force. Both of the witnesses indicated that Ms. Cascio made those statements after she had left the Board.

However, in Pace v. Elizabeth Board of Education, the Appellate Division ruled that this evidence was inadmissible hearsay. In doing so, the court rejected numerous exceptions to the hearsay rule. For example, it found an exception for statements made by the opposing party did not apply since Mr. Pace did not sue Ms. Cascio personally so she could not be an opposing party. Similarly, it found an exception for statements by agents, employees and representatives of an opposing party did not apply because Ms. Cascio was no longer an employee of the Board when she allegedly made the statements. It also rejected an exception for statements that are against the speaker’s interests because Ms. Cascio did not say anything that personally implicated herself in any wrongdoing. Likewise, it rejected other exceptions to the hearsay rule because there was no evidence the Board had authorized Ms. Cascio’s statement, and no evidence it adopted her statement as its own. Ultimately, having found the only evidence of discrimination and retaliation was inadmissible hearsay, the Appellate Division overturned the jury’s verdict.

Decision to Seek Outside Job Candidate Isn’t Legitimate Reason Not to Promote Employee

December 22, 2012 | by Jonathan I. Nirenberg

Last week I discussed Colicchio v. Merck & Co., Inc., a case involving an employee who claims her employer Justified Eliminating Her Job by Reducing Her Job Duties After Her Maternity Leave. The employee in that case, Kerri Colicchio, also claims her employer failed to promote her because of her gender and pregnancy, and retaliated against her for objecting to violations of the New Jersey Law Against Discrimination (LAD).

The judge allowed Ms. Colicchio to proceed with her claim that the company failed to promote her to the position of Vice President of Global OE. Ms. Colicchio testified that her supervisor told her she was not being considered for that position on an interim basis expressly because she was about to go out on a maternity leave. The judge found this was not “smoking gun” evidence since the comment involved the interim position, and Ms. Colicchio was suing Merck for failing to offer her the job on a permanent basis. However, he found the comment showed the company used Ms. Colicchio’s pregnancy as an important negative factor in making employment decisions about her. In other words, it was evidence of pregnancy discrimination.

The judge also found Merck’s justification for its decision not to promote Ms. Colicchio was not a legitimate, non-discriminatory reason. Specifically, Merck claims it decided to consider only external job candidates for the position. The judge called this explanation “barely more than no reason at all,” since the company did not indicate why it decided not to consider internal candidates. This is noteworthy, since it potentially means Merck does not have a valid defense to Ms. Colicchio’s claim that it failed to promote her because of her gender and pregnancy.

However, the court dismissed Ms. Colicchio’s retaliation claim. It explained that to be protected by the LAD, an objection has to either expressly or implicitly indicate that the company treated an employee differently based on a legally protected category. For example, an employee who objects to race, age, or gender discrimination would be legally protected from retaliation under the LAD. However, when Ms. Colicchio made her internal complaints, she only indicated she was being treated unfairly, without stating or implying she believe the unfair treatment was due to her gender or pregnancy. As a result, the Judge ruled that Ms. Colicchio does not have a valid retaliation claim.

Employee Claims Company Justified Eliminating Her Job by Reducing Her Job Duties After Her Maternity Leave

December 15, 2012 | by Jonathan I. Nirenberg

A New Jersey judge recently issued a noteworthy decision in a gender and pregnancy discrimination case, Colicchio v. Merck & Co., Inc. The fact scenario is fairly common. Kerri Colicchio worked for Merck & Co., Inc. for approximately a decade. She alleges the company passed her over for a promotion shortly before she was scheduled to go on a maternity leave. She also claims the company took away many of her job duties when she returned from that leave, and eventually used her reduced role as a justification to fire her as part of a “business reorganization.”

Merck asked the judge to dismiss her gender discrimination and pregnancy discrimination claims. It argued that since there was nearly a year between Ms. Colicchio’s maternity leave and the elimination of her position, she could not prove the company discriminated against her. The judge was not persuaded. He found Ms. Colicchio offered evidence that her supervisors made discriminatory statements right before her pregnancy leave, decided to fire her while she on that leave, and then carried out its decision by gradually taking away her job duties when she returned to work so it ultimately could justify eliminating her position.

Ms. Colicchio’s evidence of discrimination includes the fact that her boss told her she would have been promoted to the position of Interim Vice President of Global OE if she had not been scheduled to take a maternity leave. The judge recognized this was evidence the company was using her maternity leave as a negative factor in employment decisions. Ms. Colicchio also testified that her boss tried to discourage her from returning to work by telling her “babies need their mamas.” The court found this was further evidence of Merck’s discriminatory motive. The judge concluded that the evidence supports the conclusion that Merck removed Ms. Colicchio’s job duties as part of a plan to set her up to be fired.

The judge also allowed Ms. Colicchio to proceed to a trial on her claim that Merck interfered with her right to take a leave under the Family & Medical Leave Act (FMLA) and the New Jersey Family Leave Act (FLA). Specifically, he recognized that a jury could find the company denied her the right to return to her position, or an equivalent one, based on the evidence that Merck reduced her job duties after she returned from her maternity leave.

New Jersey Court Permits Age Discrimination Lawsuit Because Company Retained Younger Employees

December 9, 2012 | by Jonathan I. Nirenberg

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.

TD 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.

Third Circuit Recognizes EEOC’S Broad Power to Investigate Employment Discrimination Claims

October 13, 2012 | by Jonathan I. Nirenberg

The Third Circuit Court of Appeals recently ruled that the United States Equal Employment Opportunity Commission (EEOC) is entitled to subpoena a broad range of information during its investigations into possible violations of the Americans with Disabilities Act (ADA). The Third Circuit is a federal appellate court that handles cases that started in the District of New Jersey.

The appeal stems from an investigation the EEOC is conducting regarding Kroger grocery store’s alleged violation of the Americans with Disabilities Act (ADA). The ADA prohibits companies from using tests when hiring employees if they “screen out or tend to screen out” disabled job candidates, unless the tests are “‘job-related for the position in question” and “consistent with business necessity.” Kroger uses a Customer Service Assessment test that was written for it by another company, Kronos Incorporated, to screen its job applicants. Kroger decided not to hire a job applicant, Vicky Sandy, after she scored poorly on that test. Ms. Sandy is hearing and speech impaired.

During its investigation into Ms. Sandy’s disability discrimination claim, the EEOC sent a subpoena to Kronos seeking information about how the test impacts disabled job applicants. Kronos refused to respond to the subpoena. The EEOC then filed a motion to enforce the subpoena in federal district court. The district court eventually limited the information the EEOC was entitled to receive to information relating to the state in which Ms. Sandy applied and the job titles for which she applied during an 18 month period. In 2010, the Third Circuit reversed that decision, and removed those limitations. It then sent the case back to the district court to modify its order.

But the EEOC again disagreed with the order the district court issued, and appealed to the Third Circuit. This time, it objected to a limitation that it was only entitled to information from any research or studies about the test’s impact on disabled individuals that Kronos “relied upon in creating or implementing the test for Kroger.”

In Equal Employment Opportunity Commission v. Kronos, Inc., the Third Circuit again agreed with the EEOC. It explained that the EEOC is entitled to subpoena information during its investigations if it can show that (1) the investigation has a legitimate purpose; (2) the information requested is relevant to that purpose; (3) the EEOC does not already have the information it is requesting; (4) the EEOC has complied with its own administrative requirements; and (5) the information it requested is not unreasonably broad or burdensome. Applying that test, the court concluded that the EEOC was entitled to the information it was seeking whether or not Kronos specifically considered it with respect to the test it developed for Kroger. It therefore instructed the district court to remove that limitation from its order.

New Jersey Imposes New Requirements Under Equal Pay Act

October 5, 2012 | by Jonathan I. Nirenberg

Late last month, New Jersey amended its Equal Pay Act to require larger companies to tell employees they have the right to be free from sex discrimination with respect to their pay. The New Jersey Equal Pay Act prohibits discrimination based on sex regarding salary, benefits, and other compensation. Employees can recover double damages (called liquidated damages) plus attorney’s fees if they have been paid less due to their gender.

The new amendment to the Equal Pay Act requires companies with 50 or more employees to post a conspicuous notice to all of their workers, explaining their right not to experience gender inequality or bias in the terms and conditions of their employment, including compensation and benefits. The notice must specifically reference several laws that prohibit employment discrimination based on gender, the New Jersey Law Against Discrimination, Title VII of the Civil Rights Act of 1964, and the federal Equal Pay Act.

The amendment, which is scheduled to go into effect in November, also will require covered employers to provide all of their employees an individual notice explaining that pay discrimination based on sex violates both New Jersey and federal law. The New Jersey Department of Labor will be writing the notice. Once it is available, covered companies will have 30 days to provide a copy of the notice to all of their employees. Companies also will have to provide a copy of the notice (1) to all employees once per year, (2) to each new employee when they are hired, and (3) to any employee who requests it.

Companies will have the choice to send the notice by email, in print, as an attachment to the company’s employee handbook or manual, or by telling employees it is available on a company Internet or Intranet website. The notice will require employers to have employees sign and return the notice within 30 days to confirm they received, read, and understand it.

Court Allows Lawyer to Pursue Claim Against Port Authority Under New Jersey Law Against Discrimination

September 1, 2012 | by Jonathan I. Nirenberg

A federal judge in New Jersey recently ruled that employees can sue the Port Authority of NY & NJ under the New Jersey Law Against Discrimination (“LAD”). The decision is noteworthy because previous cases have ruled that the Port Authority cannot be sued under state employment laws. The LAD is an employment law that prohibits many different kinds of workplace discrimination, harassment and retaliation in New Jersey.

The case was filed by Donald Burke, a lawyer for Port Authority for 26 years. Mr. Burke claims the Port Authority retaliated against him after he (1) refused to lower the performance ratings of two older female employees, Shirley Spira and Dolores Ward, who claimed the Port Authority was underpaying them due to their age and gender, and (2) refused to raise the performance ratings of two of their male peers. He also alleges he objected when Ms. Spira and Ms. Ward were unfairly disciplined, and again when they were fired in a supposed reduction in force.

The retaliation Mr. Burke claims he experienced includes his boss disciplining him for supposedly not doing his job properly and accusing him of not being a “team member.” He also claims his boss threatened to fire him because he objected to the Port Authority’s decision to fire Ms. Spira and Ms. Ward. He further alleges the Port Authority effectively demoted him by eliminating his position as its top litigator, moved his office to an area filled with older lawyers that employees refer to as “death row,” and stopped providing him the resources he needed to do is job. Eventually, the Port Authority recommended firing Mr. Burke. Instead, he resigned. He claims the Port Authority constructively discharged him, meaning it forced him to resign by harassing him and retaliating against him. He eventually filed a lawsuit asserting numerous claims against the Port Authority, including a retaliation claim under the LAD.

The Port Authority is a bi-state agency that was jointly created by New York and New Jersey. The New Jersey Supreme Court has previously ruled that bi-state agencies only can be sued under a state law if (1) the law creating the Port Authority specifically allows it, or (2) the state law is “substantially similar” to a law it the other state. Other cases have ruled that since the LAD is not substantially similar to the New York Human Rights Law (NYHRL), the Port Authority cannot be sued under either the LAD or the HYHRL.

However, in Burke v. Port Authority of NY & NJ, the Court did not discuss whether the LAD and the NYHRL are substantially similar laws. Instead, it ruled that since the purpose of the LAD is to prevent discrimination, and there is nothing in it saying otherwise, the LAD must have been intended to cover the Port Authority. The Court also relied on a 1951 amendment to the law that created the Port Authority, which says that New York and New Jersey agree to allow the agency to be sued for “tortious acts” (meaning personal injuries and similar wrongful acts) in the same way as a private corporation. It therefore allowed Mr. Burke to proceed with his LAD claim.

Filing Questionnaire Can Be Enough to File Discrimination Claim With EEOC

August 27, 2012 | by Jonathan I. Nirenberg

On July 27, 2012, a federal judge in New Jersey ruled that submitting an intake questionnaire was enough for an employee to file a discrimination claim with the United States Equal Employment Opportunity Commission (EEOC). The case was filed by Theresa Walker-Robinson, a branch manager for JP Morgan Chase Bank in Lyndhurst, New Jersey. Ms. Walker-Robinson is African-American and 46 years old. She claims her District Manager, Christopher Zardavets, announced he was going to “change the face of the region,” and then began to visit bank branches whose mangers were African American women over 40 years old. Ms. Walker-Robinson complained about Mr. Zardavets’ conduct, but he allegedly continued to come to her branch and make discriminatory comments about her and unfairly criticized her job performance. JP Morgan fired Ms. Walker-Robinson less than a month after she complained to Mr. Zardavets’ boss about the harassment.

Ms. Walker-Robinson filled out and submitted two separate EEOC intake questionnaires. On the forms she claimed JP Morgan fired her because of her age, in violation of the Age Discrimination in Employment Act (ADEA). However, she never filled out or submitted the EEOC’s Charge of Discrimination form.

After the EEOC sent Ms. Walker-Robinson a “right to sue letter,” she filed a lawsuit including claims of age discrimination, race discrimination, gender discrimination, hostile work environment harassment, and retaliation. JP Morgan then asked the judge to dismiss her lawsuit because she did not submit the EEOC’s Charge of Discrimination form.

Under federal law, employees in New Jersey have to file a “charge” of discrimination with the EEOC within 300 days after being fired as a requirement to file a discrimination lawsuit under the ADEA, the Americans with Disabilities Act (ADA), or Title VII of the Civil Rights Act of 1964. However, none of those laws defines the term “charge,” or specifically require employees to use the EEOC’s Charge of Discrimination form.

In Walker-Robinson v. J.P. Morgan Chase Bank, N.A. (July 27, 2012), the judge ruled that Ms. Walker-Robinson’s EEOC questionnaire was a “charge of discrimination. She primarily relied on an EEOC regulation which says that a charge of discrimination must include:

Full name, address and phone number of the person making the charge;
Full name and address of the person (or company) the charge is against;
Facts supporting the discrimination claim, including relevant dates;
Number of employees working for the employer (if known); and
A statement whether the employee has brought a claim about the same discriminatory practice with any state agency.

The judge also relied on a United States Supreme Court case that says a charge of discrimination also has to ask the EEOC to take action to remedy the discrimination. The judge ruled that Ms. Walker-Robinson’s EEOC questionnaires met all of those requirements.

The judge also permitted Ms. Walker-Robinson to pursue her claims of gender discrimination, race discrimination, harassment, and retaliation. Even though Ms. Walker-Robinson did not mention those claims in her EEOC questionnaires, the judge found they were related to the same facts as her age discrimination claim, and the EEOC should have addressed those claims during its investigation. The judge therefore denied JP Morgan’s motion to dismiss Ms. Walker-Robinson’s case.

New Jersey Judge Allows Disability Discrimination Case to Proceed

August 14, 2012 | by Jonathan I. Nirenberg

Recently, a federal judge in the District of New Jersey allowed an employee to continue with his disability discrimination case, largely based on testimony that his boss told him he was “too sick” to do his job. The case, Estate of Fajge v. Dick Greenfield Dodge, Inc., was filed on behalf of Henry Fajge, a car salesman for Dick Greenfield Dodge.

The Facts of the Case

Before he started working for the dealership, Mr. Fajge had a history of mini-strokes (or transient ischemic attacks), coronary artery disease and hypertension, and had suffered a heart attack.
Three weeks after he started the job, he suffered another mini stroke. He was taken to the emergency room by ambulance, and remained in the hospital for five days before his doctor cleared him to return to work.

Within a week after he returned to work, the dealership had to call another ambulance for Mr. Fajge because he was not feeling well. After examining him, the paramedics concluded he was fine. According to Mr. Fajge, his boss called him at home the next day, and said he did not think he was strong or healthy enough to continue doing his job, and as a result they were going to have to “part company.” Although his boss denied making that statement, he admitted he called Mr. Fajge to ask him how he was doing. When his boss was asked at his deposition if he calls other employees at home when they are out sick, he answered “No. But most employees don’t like nearly drop over dead in front of me two times in a row in less than a month.”

Approximately two weeks later, the dealership fired Mr. Fajge. It claimed it did so because of his job performance. For example, his supervisors testified that he wasted a lot of time in his office instead of trying to sell cars, and he was often on the internet, including occasionally looking at pornography at work.

Mr. Fajge then filed a lawsuit in which he alleged the dealership fired him because he is disabled, in violation of the New Jersey Law Against Discrimination (LAD). Unfortunately, Mr. Fajge passed away while the case was pending. However, his estate decided to pursue his discrimination lawsuit on his behalf.

The Judge’s Ruling

Without deciding whether Mr. Fajge actually had a disability, the Judge found he was protected by the LAD because the dealership perceived him to be disabled. The LAD prohibits employers from discriminating against employees who they believe are disabled, whether or not they are actually disabled. The Judge also found there was enough evidence for a jury to find the dealership fired Mr. Fajge because it believed he was disabled. This includes Mr. Fajge’s testimony that his boss said he did not think he was strong enough to perform his job, and his boss’s testimony that Mr. Fajge twice nearly dropped dead in front of him. The Judge also relied on a company document that said it fired Mr. Fajge because of his “inability to work the hours required,” and inconsistencies in the dealership’s evidence about Mr. Fajge’s supposed poor performance. The Judge’s ruling paves the way for the case to go to trial, where a jury will decide whether the dealership fired Mr. Fajge because of an actual or perceived disability.

Court Upholds Employee’s Retaliatory Termination Claim Based on Supervisor’s Unfriendliness

July 16, 2012 | by Jonathan I. Nirenberg

In a noteworthy unpublished employment law decision, earlier this month New Jersey’s Appellate Division upheld a jury award to an employee on a retaliation claim where the primary evidence of retaliation was the fact that the employee’s supervisors were unfriendly to him after he complained about discrimination.

Anthony Onuoha, who is African American, worked for Roche Molecular Systems. In 2006, he complained to Roche’s management because he believed the company discriminated against him by giving him unfair performance reviews and raises. The company’s human resources department investigated his claim, but concluded that his performance reviews and salary were fair.

After Mr. Onuoha complained about discrimination, his supervisors became unfriendly toward him. For example, one supervisor stopped speaking to him. Mr. Onuoha also received an even worse performance review in 2007. Further, the company denied Mr. Onuoha’s request to take a two-week vacation after he took a 6-week medical leave, claiming there was too much work.

A few years later, in 2009, Roche chose to include Mr. Onuoha in a reduction-in-force and terminated his employment. He then sued, claiming the company discriminated against him because he is an African American, and fired him in retaliation for his complaint about race discrimination, in violation of the New Jersey Law Against Discrimination (LAD).

After a trial, a jury found that Roche had not discriminated against Mr. Onuoha based on his race. However, it found the company fired Mr. Onuoha in retaliation for the complaint he made about discrimination in 2006. He was awarded $512,000 in economic damages, $250,000 in emotional distress damages, plus $305,653.07 for his attorney’s fees and legal costs, for a total judgment of more than a million dollars.

On appeal, Roche argued it was improper for the jury to find Roche retaliated against Mr. Onuoha because of his complaint about discrimination since the jury found the company did not discriminate against him. In Onuoha v. Roche Molecular Systems, the Appellate Division rejected that argument since an employee does not have to win his discrimination claim to prove his employer fired him in retaliation for complaining about discrimination. Rather, an employee only has to prove he reasonably believed in his discrimination complaint, and the employer retaliated against him because he made the complaint.

The appellate court also found there was enough evidence of retaliation to support the jury’s verdict, despite the fact that there was a two year gap between his discrimination complaint and the company’s decision to fire Mr. Onuoha. It primarily focused on the evidence that Mr. Onuoha’s supervisors became unfriendly toward him after he complained about discrimination. The Court also relied on the fact that, although the company could have considered a broader group of employees for potential layoff, it insisted on firing someone from Mr. Onuoha’s group. Accordingly, the court affirmed the jury’s verdict in favor of Mr. Onuoha.