New Jersey Employment Lawyer Blog

New Jersey Judiciary Faces Retaliation Lawsuit

September 26, 2011 | by Jonathan I. Nirenberg

Last week, I discussed the case of Thomas Bowers, an IT Professional who won his appeal of his race discrimination case against the New Jersey Judiciary. That case, Bowers v. New Jersey Judiciary, Superior Court of New Jersey, Monmouth Vicinage, also discusses Mr. Bowers’ retaliation claim.

Mr. Bowers filed an internal Equal Employment Opportunity (“EEO”) complaint with his employer, the New Jersey Judiciary. He claimed his new supervisor, Troy Fitzpactrick, was harassing him because of his race. For example, he indicated that Mr. Fitzpatrick gave him assignments with unrealistic deadlines.

According to Mr. Bowers, the day after Mr. Bowers was interviewed about his EEO complaint, Mr. Fitzpatrick called him into his office and asked him about his complaint and work assignments. That meeting eventually became heated, and Mr. Fitzpatrick made threatening statements. Three days later, Mr. Bowers filed a second EEO complaint about Mr. Fitzpatrick’s behavior during that meeting.

Mr. Bowers then went on a medical leave due to anxiety and stress caused by the harassment and discrimination he had been experiencing at work. During the first month of Mr. Bowers’ medical leave, several Judiciary employees and a sheriff’s officer came to Mr. Bowers’ home to take back his laptop, supposedly because they were investigating a security breach. However, there is evidence that the Judiciary had little or no reason to suspect that Mr. Bowers was involved in that security breach.

Approximately three months later, the Judiciary terminated Mr. Bowers’ employment, claiming he “abandoned” his job. However, at that point Mr. Bowers still had not been cleared to return from his medical leave.

The trial court dismissed Mr. Bowers’ retaliation claim, concluding that the lower-level job duties he was assigned were part of his job description, his argument with Fitzpatrick and the confiscation of his laptop were not legally actionable, and his termination was not retaliatory. But New Jersey’s Appellate Division found these conclusions were reasonable, but that it was possible that a jury would instead find that some or all of the Judiciary’s actions toward Mr. Bowers were retaliatory. It therefore sent Mr. Bowers’ case back to the trial court, to give him an opportunity to try to prove his retaliation claim.

The Appellate Division’s decision also addressed Mr. Bowers’ claim that the Judiciary failed to provide a reasonable accommodation for his disability, Anxiety Disorder. I will discuss that aspect of his case in my next article.

IT Professional Given Second Chance in Race Discrimination Case Against New Jersey Judiciary

September 20, 2011 | by Jonathan I. Nirenberg

On August 29, 2011, in Bowers v. New Jersey Judiciary, Superior Court of New Jersey, Monmouth Vicinage, New Jersey’s Appellate Division reversed a trial court’s decision dismissing Thomas Bower’s lawsuit against his former employer, the New Jersey Judiciary. Thomas Bowers, an African-American, worked for the New Jersey Judiciary as an Information Technology Analyst. He claimed the Judiciary failed to promote him to Acting IT Manager and subjected him to a hostile work environment because of his race. Mr. Bowers was the only African-American in Monmouth County’s IT Division. In fact, there were no other African-American IT managers in the entire New Jersey Judiciary, and only one other racial minority, an Asian Indian.

Beginning in July 2005, Mr. Bowers’ supervisor took an extended medical leave. Shortly after, the Judiciary asked Mr. Bowers to take over the duties of IT Manager. This decision was subsequently recommended by Monmouth County’s Assignment Judge. Mr. Bowers performed the duties of the IT supervisor for approximately 8 months.

But when the Judiciary sought to formally appoint him as its Acting IT Manager, the Assistant Director of Technical Services and Operations, Jonathon Massey, gave a very negative opinion of Mr. Bowers, including claiming he “doesn’t understand simple technical things,” he “is lazy and stands around and watches others do the work,” and that another supervisor described him as a “cocky, arrogant, lazy, weasel, creep” who “does what he wants, doesn’t tell the truth” and has a “chip on his shoulder.” Not surprisingly, Mr. Bowers was not formally named the Acting IT Manager. However, informally he continued to perform the responsibilities of the IT Manager until April 2006, when the Judiciary named Troy Fitzpatrick its new permanent IT Manager.

After Mr. Fitzpatrick became the IT Manager, he gave Mr. Bowers assignments that were normally given to lower level and less senior IT employees, like answering Help Desk calls and creating a Help Desk manual. Mr. Fitzpatrick told Mr. Bowers that he could not assign work to anyone else, and also told him he could not leave his desk for any reason unless he found someone else to cover the Help Desk. Mr. Fitzpatrick also sought information from other employees about Mr. Bowers’ work ethic, and was always short and curt when he spoke to Mr. Bowers, as if he did not want to speak to him. In comparison, Mr. Fitzpatrick treated a newly hired white male employee much better than Mr. Bowers, such as giving him less work and not limiting his ability to leave his desk.

The trial court dismissed Mr. Bowers’ race discrimination and harassment claims because he was not subject to racial epithets and there was no direct evidence of race discrimination, he did not have enough evidence to prove either of those claims. But the Appellate Division disagreed. It explained that “discrimination rarely rears its ugly head directly. Rather, it typically manifests itself in subtle ways.” In particular, it found that a jury could find that Mr. Massey’s extremely negative recommendation was false and discriminatory. It noted that Mr. Massey admitted he knew very little about Mr. Bowers. Instead, it ruled that only a jury can decide whether the Judiciary’s decision not to make Mr. Bowers its Acting IT Manager was discriminatory.
Next week, I will discuss Mr. Bowers’ retaliation claim. In a subsequent article, I will discuss his claim that the judiciary failed to accommodate his disability.

Third Circuit Rules Employer Can Be Liable if Supervisor’s Discrimination Influenced Disciplinary Hearing

August 26, 2011 | by Jonathan I. Nirenberg

Under the “cat’s paw” theory, a company can be held liable for discrimination based on the discriminatory intent of an employee who influenced an employment decision, even if the person who actually made the decision did not discriminate. Last month, the United States Court of Appeals for the Third Court Circuit applied the cat’s paw theory and ruled a decision to fire an employee was retaliatory even though it was made by a disciplinary review board that did not intend to retaliate against the employee since the review process began as a result of retaliation. The Third Circuit is the federal appellate court that handles appeals from New Jersey. As I discussed in previous articles, earlier this year the United States Supreme Court adopted the “cat’s paw” theory in federal cases, and the New Jersey Appellate Division adopted the cat’s paw theory in November 2008.

In McKenna v. City of Philadelphia, three police officers sued the Philadelphia Police Department for retaliating against them because they objected to the fact that the Department was discriminating against African-American police officers. One of those Officers, Raymond Carnation, claimed he was assigned to work alone in dangerous neighborhoods in the rain and cold in retaliation for his objections to the race discrimination, and that Police Captain William Colarulo threatened to make his life “a living nightmare” if he filed a complaint with the United States Equal Employment Opportunity Commission (“EEOC”). Eventually, the Department brought disciplinary charges of insubordination against Officer Carnation, supposedly based on verbal altercation with Captain Colarulo. The disciplinary charges were referred to the Police Board of Inquiry (“PBI”), a board that investigates disciplinary charges against members of the Police Department and recommends the appropriate discipline.

The PBI found Officer Carnation guilty of the charges against him, and recommended that the City should fire him. The Police Commissioner agreed with that recommendation, and the City fired Officer Carnation.

After a trial in the civil lawsuit, a jury found in favor of all three of the police officers, including Officer Carnation, concluding the City had retaliated against them in violation of Title VII of the Civil Rights Act of 1964. Specifically, the jury found that Officer Carnation’s objections to race discrimination was a factor that motivated the Department’s decision to fire him.

One of the primary issues on the appeal to the Third Circuit was whether the City could be held liable for retaliating against Officer Carnation even though the decision to fire him was made by the PBI and the Police Commissioner, neither of which had any intention of retaliating against him. The Court explained that an employer can be held liable for retaliation if there is a direct and substantial relation between the retaliatory action and the harm it caused the employee, as long as the link is not “too remote or indirect.” Based on the facts, it concluded that it was reasonable for the jury to conclude that Captain Colarulo’s retaliatory intent had a direct and substantial relation to Officer Carnation being fired, since his actions led to the PBI’s investigation. As a result, it upheld the jury’s verdict in favor of Officer Carnation.

New York Judge Dismisses Pregnancy Discrimination Class Action Against Bloomberg L.P.

August 18, 2011 | by Jonathan I. Nirenberg

Yesterday, a federal Judge in Manhattan dismissed a class action claim from a gender and pregnancy discrimination lawsuit that the United States Equal Employment Opportunity Commission had filed against Bloomberg L.P. In the case, the EEOC alleged that Bloomberg had engaged in a pattern and practice of discrimination against pregnant employees and female employees upon their return from maternity leaves. Judge Loretta A. Preska, the Chief Justice of the United States District Court for the Southern District of New York, dismissed the class action claim because she found the EEOC had not presented enough evidence to prove a pattern and practice of gender or pregnancy discrimination.

A pattern and practice case is when a group of employees claim a company has a broad practice or systemic pattern of unlawful discrimination. In this instance, the EEOC filed the lawsuit on behalf of female employees who claimed Bloomberg had demoted them, lowered their salaries, reduced the number of employees reporting to them, took away some of their job responsibilities, excluded them from meetings, and/or otherwise subjected them to stereotypes about female caregivers. In addition to the three plaintiffs named in the original lawsuit, 78 other women had joined the case, for a total of 81 class members.

Pregnancy Discrimination 2.jpg In her 64-page opinion in EEOC v. Bloomberg L.P., Judge Preska explained that ordinarily employees have to prove a pattern and practice of discrimination with a combination of statistical and anecdotal evidence of discrimination, to show the discrimination was part of a company-wide pattern or practice. She indicated that it is unusual that anecdotal evidence alone can prove a pattern or practice of discrimination, especially at a large company like Bloomberg, which employs more than 10,000 employees.

However, the EEOC apparently did not have any statistical evidence to support its claim. It also did not have any direct evidence of discrimination, or any evidence of an explicitly discriminatory policy. Instead, it tried to rely only on anecdotal evidence of discrimination. This evidence included the fact that nearly every one of the class members claimed that Bloomberg had decreased her compensation, job responsibilities and/or number of direct reports, either after she became pregnant or after she returned from her maternity leave.

In contrast, Bloomberg had at least two expert witnesses who concluded that there was no pattern or practice of discrimination at the company. Specifically, one of Bloomberg’s expert witnesses, Dr. Michael Ward, used statistics to conclude that class members actually received higher average compensation than non-class members. He also found no significant differences between the raises class members received versus non-class members. Another expert for Bloomberg, Dr. John Johnson, concluded that the class members actually received nearly better raises after maternity leaves than employees who took time off for other reasons.

Ultimately, the Court concluded that while there might be some individual cases of pregnancy and gender discrimination at Bloomberg, the EEOC did not have enough evidence to prove a pattern or practice of discrimination. Accordingly, Judge Preska dismissed the class action from the case. However, the EEOC has indicated that it intends to continue to pursue the individual claims on behalf of the named plaintiffs.

Employees: Beware of How You Request Time Off For a Disability

August 3, 2011 | by Jonathan I. Nirenberg

Recently, the United States Court of Appeals for the Third Circuit decided a case with an important lesson for employees requesting time off due to a disability, and the employment law attorneys who represent them. Specifically, in Prigge v. Sears Holding Corp., the Third Circuit dismissed an employee’s disability discrimination case on the basis that the employee was fired for failing to provide all of information his employer requested about his medical absences, and lied to the company about his disability. The Third Circuit is the federal court that handles appeals from the District of New Jersey.

John Prigge worked for Sears Holding Corp., as a store coach, from April 2007 through February 2008. Mr. Prigge was diagnosed with bipolar disorder. He began feeling ill in December 2007, and took at least two days off from work and had to leave work early on several other occasions. However, he lied to his supervisors by claiming he needed the time off for radiation treatment due to a recurrence of his prostate cancer.

Mr. Prigge was subsequently hospitalized for a week in late January 2008 because his depression had gotten worse and he was having suicidal thoughts. When he was released from the hospital, he contacted his supervisor and told him he had been absent because he suffers from bipolar disorder and had been at a mental health hospital. Mr. Prigge’s boss told him he could not return to work until he submitted doctor’s notes from both the hospital and the physician who had treated his prostate cancer. The next day, Mr. Prigge admitted to his boss that he had not actually undergone prostate cancer treatment in December 2007 or January 2008. Third Circuit Court of Appeals.jpg

Court Finds it Can Be Reasonable to Complain About Sexual Harassment Only to Harasser

July 29, 2011 | by Jonathan I. Nirenberg

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from harassing and otherwise discriminating against employees based on their race, national origin, color, religion, and sex. Under Title VII, when a supervisor harasses an employee, the company often has a defense if it can prove (1) it used reasonable care to prevent and promptly correct harassment, such as by having an anti-harassment policy, and (2) the employee unreasonably failed to take advantage of an opportunity to stop the harassment, such as by not objecting to it under the company’s anti-harassment policy. This defense is often referred to as the Faragher/Ellerth defense, based on the names of the two United States Supreme Court cases that created it.

But would it be reasonable for an employee to complain to the harasser, and nobody else? According to Second Circuit Court of Appeals, the federal appellate court which handles appeals from New York, whether that is reasonable depends on the circumstances of the case.

Specifically, in Gorzynski v. JetBlue Airways Corp., crewmember Diane Gorzynski claims her former employer, JetBlue Airways Corporation, subjected her to sexual harassment. She says her supervisor, James Celeste, sexually harassed her by making massaging gestures with his hands; saying he wanted to massage breasts; indicating he wanted to suck on a particular woman’s breasts; telling a crewmember that his wife was going to a “sex toy” party; asking another female crewmember if she had “gotten enough loving” over the weekend; announcing that Ms. Gorzynski had been a table dancer in the past; announcing that another female crewmember was a former pin-up girl; grabbing Ms. Gorzynski and other female crewmembers around the waist; attempting to tickle Ms. Gorzynski and other female crewmembers; looking at women as if he were mentally undressing them; and frequently making inappropriate sexual comments and gestures at work. The Second Circuit recognized that Mr. Celeste’s behavior could have created a sexually hostile work environment for Ms. Gorzynski.

Supreme Court Finds Retaliation Against Employee’s Fiancee Violates Federal Anti-Discrimination Law

July 20, 2011 | by Jonathan I. Nirenberg

Earlier this year, the United States Supreme Court ruled that an employee can pursue a retaliation claim under Title VII of the Civil Rights Act of 1964 based on being fired because his fiancée objected to discrimination by the same employer. Title VII is a federal law that prohibits employment discrimination based on gender, race, color, and national origin. It also prohibits employers from retaliating against employees who object to discrimination that violates Title VII.

Eric Thompson and his fiancée, Miriam Regalado, both worked for North American Stainless, LP (NAS). Ms. Reglado filed a claim of sex discrimination against NAS with the Equal Employment Opportunity Commission (EEOC). NAS fired Mr. Thompson three weeks after it learned that Ms. Reglado had filed her discrimination claim. Mr. Thompson eventually sued NAS, alleging it retaliated against him by firing him because his fiancée had filed a discrimination claim against it.

The District Court dismissed Mr. Thompson’s case, ruling that Title VII does not permit third party retaliation claims. That decision was affirmed on appeal. But in Thompson v. North American Stainless, LP, the United States Supreme Court disagreed, and instead ruled that Mr. Thompson has a valid retaliation claim under Title VII because “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”

The Supreme Court decided not to set a bright line rule on what type of personal relationship is enough to claim that a company retaliated against am employee based on someone else’s legally protected activity. It noted that a close family member will almost always meet the standard, but left open whether retaliation against an employee’s girlfriend, boyfriend, close friend, or trusted co-worker would be protected.

The United States Supreme Court’s decision in Thompson is similar to the New Jersey Supreme Court’s 1995 ruling in Craig v. Suburban Cablevision. Craig holds that the anti-retaliation provision of the New Jersey Law Against Discrimination prohibits an employer from retaliating against an employee’s close friends and relatives who work for the same company, since otherwise employers could discourage employees from complaining about discrimination by threatening, intimidating, or otherwise harming their friends or family.

New York Employees Can Prove Overtime Claim Even if They Falsely Recorded Working No Overtime

July 12, 2011 | by Jonathan I. Nirenberg

The United States Court of Appeals for the Second Circuit Court recently ruled that an employee who follows his supervisor’s instruction to falsely report that he did not work any overtime hours still can pursue an overtime claim. It reversed a decision from the Western District of New York, which had dismissed the claim because it did not believe the employee could prove how many hours of overtime he had worked.

Greg Kuebel was a Retail Specialist for Black & Decker (U.S.) Inc. He filed class action lawsuit against Black & Decker, claiming the company’s overtime pay practices violate the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). Specifically, Mr. Kuebel claims Black & Decker violated the law by failing to pay him for the overtime hours he worked but did not record on his timesheet — in other words, his “off-the-clock” overtime hours.

Black & Decker’s official policy required Retail Specialists to accurately record their hours on timesheets that they submit to their managers. There was no official Black & Decker policy which prohibited Retail Specialists from working, recording, or being paid for overtime. However, Black & Decker expected its Retail Specialists to finish their work in a 40-hour work week.

Mr. Kuebel alleges it was impossible to finish all of his work in 40 hours per week, and as a result often worked overtime. However, he did not list any overtime on his timesheets, and therefore was not paid for his overtime hours. Mr. Kuebel explained that he falsified his timesheets because his supervisors instructed him not to record more than 40 hours of work per week because the company could not afford overtime. Mr. Kuebel testified that to the best of his memory he worked more than 40 hours almost every week, and averaged between 1 to 5 hours of overtime per week. After Mr. Kuebel told his supervisor that he had been falsifying his timesheets, Black & Decker fired him for poor performance, dishonesty, and falsification of company records.

In Kuebel v. Black & Decker Inc., the Court explained that to prove an overtime case under the FLSA, an employee has to prove he was not properly paid for working more than 40 hours in a work week, and his employer either actually knew it or should have known about it under the circumstances. To prove the amount of overtime pay to which he is entitled, an employee needs enough evidence to show the amount and extent of the overtime he worked. However, he does not have to prove the amount of overtime he worked with definiteness, and can prove his overtime hours through an inference. Accordingly, the Court ruled that when a company’s time records are inaccurate or inadequate, the solution is not to penalize the employee by denying him any legal recovery.

To summarize, an employee can win an overtime case if (1) he proves he actually worked overtime and was not properly paid for it, and (2) he has enough evidence to show how much overtime he worked through a reasonable inference. An employee can meet this burden through estimates based on his own recollection. This can be true even when the employee admittedly falsified his own timesheets, at least where the employee’s falsification was based on an instruction from a manager or supervisor. That is because it is the employer’s duty to maintain accurate time records for its employees, and employers cannot delegate that duty to their employee. Once an employer knows or has reason to know an employee is working overtime, it cannot deny compensation simply because the employee failed to properly record or claim his overtime hours.

Supreme Court Rejects Gender Discrimination Class Action Against Wal-Mart

July 1, 2011 | by Jonathan I. Nirenberg

On June 20, 2011, in a closely watched employment law case, the United States Supreme Court ruled that a group of approximately one-and-a-half-million female employees of Wal-Mart could not bring a class action gender discrimination lawsuit against the company. Specifically, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court found the women’s claims were not similar enough to each other to proceed as a class action. It reached that conclusion because the alleged discriminatory decisions were made by hundreds of different managers throughout the country, and were not based on a uniform corporate policy.

Three women, Betty Dukes, Christine Kwapnoski, and Edith Arana filed the lawsuit. They alleged that Wal-Mart gave its local store managers broad discretion to make salary and promotional decisions, the managers used that discretion to discriminate against women, and the company knew about the discrimination but did nothing to stop it. The women claim this is discrimination on the basis of their sex, in violation of Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employment discrimination due to gender, race, color, and religion.

Class actions are cases in which one or more individuals bring a case on behalf of a much larger group. To bring a class action, the plaintiffs must prove:

The class is so large that it is impractical for each plaintiff to sue individually;
There are questions of law and fact common to the whole group;
The claims of the plaintiffs who filed the lawsuit (the class representatives) are typical of the claims of the rest of the group; and
The class representatives will fairly and adequately protect the interests of the whole group.

In the Walmart case, the Supreme Court held that the plaintiffs could not meet the first two requirements because they did not have any evidence that Wal-Mart had a company-wide policy or practice of discriminating against women. The Court found it is not enough to show the company gave broad discretion to its managers, and many or most of those managers abused their discretion by discriminating. Rather, it concluded that since the members of the potential class had been impacted by millions of separate employment decisions made by thousands of different supervisors, it would be impossible to decide all of their claims in a single case. As a result, it ruled that the case cannot proceed as a class action. Instead, it sent it back to the trial court so Ms. Dukes, Ms. Kwapnoski, and Ms. Arana each can try to prove her individual gender discrimination case against Wal-Mart.

New Jersey Employees Can Enforce Employer’s Promise of Reinstatement After Maternity Leave

June 22, 2011 | by Jonathan I. Nirenberg

In an important employment law decision, on June 8, 2011, New Jersey’s Appellate Division ruled that an employee can enforce her employer’s promise that she would have a job when she returned from her maternity leave. The Court reached that conclusion even though the company, Telcordia Technologies, Inc., included a clear disclaimer in both its Code of Business Ethics and the employee’s job application which stated that she is an employee-at-will who can be fired “at any time, with or without grounds, just cause or reason and without giving prior notice.”

In Lapidoth v. Telcordia Technologies, Inc., employee Sara Lapidoth asked her employer for a six-month maternity leave from her position as a manager on a product called ARIS, for the birth of her tenth child. The letter Telcordia sent her granting her leave also guaranteed that the company would reinstate her to the same job or a comparable one if she returned to work within 12 months. Ms. Lapidoth later asked Telcordia to extend her leave by 6 months, for a total of a one-year maternity leave. Telcordia granted her request through another letter that promised to reinstate her at the end of her leave.

However, before Ms. Lapidoth was ready to return from her maternity leave, Telcordia decided to eliminate one of its two ARIS manager positions. The company decided to lay off Ms. Lapidoth because the only other ARIS manager had slightly better performance ratings. Since the company did not have any appropriate job openings, it fired Ms. Lapidoth.

The Appellate Division ruled that Ms. Lapidoth’s maternity leave was not protected by the Family and Medical Leave Act (FMLA) or the New Jersey Family Leave Act (NJFLA) because she took off more than 12 weeks. Both the FMLA and the NJFLA require employers to give qualified employees up to 12 weeks off for the birth of a child.

However, the Court ruled that the letters Telcordia sent to Ms. Lapidoth could be enforceable employment contracts that guaranteed her a job when she was ready to return from her maternity leave. It found that, even though the company’s Code of Business Ethics and Ms. Lapidoth’s employment application said she was an employee-at-will, and indicated that nothing else could create any contractual rights between her and the company, the letters granting her maternity leave seemed to contradict those statements. The Court also stated that, although the letters said the company did not have to reinstate Ms. Lapidoth if it had to eliminate her job, that was not necessarily a defense because the company decided it had to eliminate one of two ARIS manager positions, but not necessarily Ms. Lapidoth’s position. The Court also noted that Telcordia reinstated Ms. Lapidoth after each of her nine previous maternity leaves. Based on the circumstances, the Appellate Division concluded that a jury could find the letters guaranteeing Ms. Ladipodth a job at the end of her maternity leave created an enforceable employment contract.