Category Archives: Age Discrimination

Blog arti­cles on: Age dis­crim­i­na­tion under either the fed­er­al Age Dis­crim­i­na­tion in Employ­ment Act of 1967 (29 USC 621) or the West Vir­ginia Human Rights Act of 1967 (W. Va. Code 5–11‑1). Here is a list of our blog arti­cles on this category:

Age Discrimination, Americans with Disabilities Act, Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964

EEOC has updated its poster that employers must display

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The Unit­ed States Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (“EEOC”) has updat­ed its poster that employ­ers are required to dis­play in their work­places. Here is the EEOC’s web site on its poster. Here is an inter­net (HTML) copy of the poster. Here is the PDF of the print­able poster for wall dis­play. The name of the poster is “Know Your Rights: Work­place Dis­crim­i­na­tion is Illegal”.

The poster does a good job of edu­cat­ing employ­ees and employ­ers on essen­tial aspects of the fed­er­al anti-dis­crim­i­na­tion laws. It cov­ers what employ­ees are pro­tect­ed, what employ­ers are cov­ered, the pro­tect­ed char­ac­ter­is­tics about which the laws pro­hib­it dis­crim­i­na­tion, the deci­sions and con­duct of the employ­ers that are pro­hib­it­ed, and how an employ­ee can file a charge with the EEOC. In light of new­er tech­nol­o­gy, the poster has a QR code so an employ­ee can user a phone to jump straight to the EEOC’s web site for fil­ing a charge.

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Age Discrimination, Constructive discharge, Hostile work environment, Result for Employee, Title VII of the Civil Rights Act of 1964

Fifth Circuit applies hostile work environment to age claims

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Courts have some­times ques­tioned whether hos­tile work envi­ron­ment claims apply to all “fla­vors” of dis­crim­i­na­tion. Hos­tile work envi­ron­ment claims most fre­quent­ly arise in claims of sex dis­crim­i­na­tion  and race dis­crim­i­na­tion claims under Title VII of the Civ­il Rights Act of 1964, but age dis­crim­i­na­tion claims under fed­er­al law arise under a dif­fer­ent statute, the Age Dis­crim­i­na­tion in Employ­ment Act of 1967.

The Fifth Cir­cuit direct­ly held recent­ly that hos­tile work envi­ron­ment claims are encom­passed by age dis­crim­i­na­tion claims under the ADEA in Dedi­ol v. Best Chevro­let, Inc., — F.3d — (5th Cir. Sep­tem­ber 12, 2011).

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Age Discrimination, Back and Front Pay Issues, Emotional Distress Damages, Evidence issues, Liquidated damages, Medical Industry Litigation, Result for Employee

Cleveland jury awards $900,000 against hospital in age discrimination case

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Ellen Simon, an attor­ney in Cleve­land who authors the excel­lent blog, Ellen Simon’s Employ­ee Rights Post, recent­ly tried an age dis­crim­i­na­tion claim for plain­tiff Glo­ria Parks (a phle­botomist) against Cleve­land’s Uni­ver­si­ty Hos­pi­tals Case Med­ical Cen­ter.

Ms. Parks had worked for the hos­pi­tal for 30 years when she was fired over a med­ical mis­take involv­ing her­self and anoth­er much younger employ­ee. The hos­pi­tal fired Ms. Parks, but not the much younger employee.

The jury returned a ver­dict in favor of the plain­tiff (Ms. Parks) for $450,000 for her eco­nom­ic loss and $450,000 for “oth­er com­pen­sato­ry dam­ages”, accord­ing to Ms. Simon’s blog arti­cle. Based on the lim­it­ed infor­ma­tion I have so far, it looks like the “oth­er com­pen­sato­ry dam­ages” was an award for emo­tion­al dis­tress, The jury did not award puni­tive dam­ages.

So the ver­dict totals $900,000, and Ms. Simon will file a request for attor­neys’ fees’ fees and expens­es. While it is not clear from the arti­cle so far, I sus­pect the case was assert­ed for age dis­crim­i­na­tion under Ohio’s Fair Employ­ment Prac­tices Act (and not the fed­er­al ADEA).

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Age Discrimination, Back and Front Pay Issues, Emotional Distress Damages, Jury verdicts, Punitive damages, Result for Employee, WV Human Rights Act

Charleston, WV Jury Awards $1.7m in Age Discrimination Case, 10–1‑09

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On Octo­ber 1, 2009, a jury in Charleston, Kanawha Coun­ty, West Vir­ginia returned a ver­dict in an age dis­crim­i­na­tion case, award­ing James Nagy a total of $1,750,450.

The Lawsuit

James Nagy filed suit in Charleston in March 2008 against West Vir­ginia Amer­i­can Water Com­pa­ny, alleg­ing that he was fired in March 2007 because of his age at 53, after 23 years of employment.

James Nagy was rep­re­sent­ed by Maria W. Hugh­es and Stephen Weber at Kay Cas­to & Chaney PLLC. West Vir­ginia Amer­i­can Water Com­pa­ny was rep­re­sent­ed by Mychal Schulz at Dins­more & Shohl LLC.

The case is pend­ing in Cir­cuit Court in Kanawha Coun­ty, West Vir­ginia, before Judge Jen­nifer Bai­ley-Walk­er.

The Verdict

That $1,750,450 ver­dict con­sist­ed of:

Award of Attorney’s Fees and Expenses

Under the West Vir­ginia Human Rights Act (which pro­hibits age and oth­er forms of dis­crim­i­na­tion in the work­place), Nagy’s coun­sel filed a motion addi­tion­al­ly request­ing attor­neys’ fees and expenses.

Judge Bai­ley-Walk­er award­ed the plain­tiff total attorney’s fees of $177,772.50, and $8,855.33 in expenses.

Appeal

The Defen­dant is in the process of appeal­ing.  The issue of attor­neys’ fees was resolved by Judge Bai­ley-Walk­er on June 8, 2010, so the appeal process is in its ear­ly stages as of the date of this arti­cle being updat­ed (July 31, 2010). As things devel­op in the appeal, I will update this article.

July 31, 2010

Age Discrimination, Federal Cases (but not US Supreme Court), Fourth Circuit, Pension issues, Summary Judgment

Fourth Circuit rules that pension contribution rules may be age biased

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The Fourth Cir­cuit Court of Appeals, in an unpub­lished opin­ion, addressed whether an employ­er’s pen­sion con­tri­bu­tion rules may con­sti­tute age dis­crim­i­na­tion under the Age Dis­crim­i­na­tion in Employ­ment Act of 1967, in Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion v. Bal­ti­more Coun­ty, 385 Fed. Appx. 322 (4th Cir. 2010). The unan­i­mous opin­ion was writ­ten by Judge Den­nis Shed, and was joined by Judge Roger Gre­go­ry and Arther L. Alar­con (Senior Judge on Ninth Cir­cuit, sit­ting by designation).

Age Discrimination, Attorney's Fees, Back and Front Pay Issues, Emotional Distress Damages, Jury verdicts, Punitive damages, Result for Employee, WV Human Rights Act

Jackson County jury awards $2.1 million in age case

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On March 17, 2010, a jury in Jack­son Coun­ty in West Vir­ginia award­ed Jerold John Rice Jr. rough­ly $2.1 mil­lion in an age dis­crim­i­na­tion case against The Burke-Par­sons-Bowl­by Cor­po­ra­tion, Stel­la-Jones US Hold­ings Cor­po­ra­tion, and Stel­la-Jones, Inc., tried in Judge Thomas C. Evans III’s court.

Mr. Rice was rep­re­sent­ed by Mark Atkin­son and Paul Framp­ton at Atkin­son & Polak, PLLC, and the defen­dants were rep­re­sent­ed by Roger Wolfe at Jack­son & Kel­ly PLLC in Charleston, and Kevin Hyde at Foley & Lard­ner, LLP in Jack­sonville, Flori­da.

Here is a quick run-down of what was award­ed in the case:

  • Back pay: $142,659 award­ed by jury.
  • Pre-judg­ment inter­est: $11,791.84 from date of ter­mi­na­tion through trial.
  • Front pay: $1,991,332.00 award­ed by jury (from rough­ly age 48 through retire­ment age at 67).
  • Emo­tion­al dis­tress: $0.
  • Puni­tive dam­ages: Jury did not answer ques­tion affir­ma­tive­ly which would have allowed award of puni­tive damages.
  • Total judg­ment based on jury’s ver­dict: $2,145,782.84, plus post-judg­ment inter­est on that amount at 7% per annum.
  • Attor­neys’ fees: $117,235 award­ed by judge (based on $450 an hour for Mark Atkin­son and $300 per hour for Paul Framp­ton).
  • Lit­i­ga­tion expens­es: $20,324.16 award­ed by judge.
  • Total award: $2,283,342.00 (based on jury ver­dict, pre-judg­ment inter­est, attor­neys’ fees and expens­es) plus post-judg­ment inter­est at 7% per annum.

The Rice case illus­trates the risk employ­ers face when they ter­mi­nate an old­er, good, long-stand­ing employ­ee, and replace him or her with a much younger per­son with lit­tle or no expe­ri­ence for the employer.

What Happened?

Mr. Rice at the time of his ter­mi­na­tion (in 2009) was age 47 and had worked for Burke-Par­sons-Bowl­by Cor­po­ra­tion for 24 years. When Mr. Rice was ter­mi­nat­ed he was the cor­po­rate controller.

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Age Discrimination, Arbitration, Labor Unions, Pending legislation, Result for Employer, US Supreme Court

Arbitration Agreements in Union Contacts are Enforceable; US Supreme Court in Penn Plaza v. Pyett

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4/1/09: The US Supreme Court ruled that “pre-dis­pute arbi­tra­tion agree­ments” in col­lec­tive bar­gain­ing agree­ments (union con­tracts) are enforce­able, in Penn Plaza PLLC v. Pyett, 129 S. Ct. 1456 (2009) (5–4 decision).

This was an age dis­crim­i­na­tion case under the Age Dis­crim­i­na­tion in Employ­ment Act of 1967 (ADEA). The plain­tiff was a mem­ber of a union, and the col­lec­tive bar­gain­ing agree­ment (union con­tract) required sub­mit­ting age dis­crim­i­na­tion claims to bind­ing arbi­tra­tion.

The US Supreme Court had pre­vi­ous­ly ruled, but not in a labor union set­ting, that arbi­tra­tion agree­ments for ADEA claims were enforce­able under the Fed­er­al Arbi­tra­tion Act, 9 U.S.C. § 1 et seq. (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26–33 (1991)). So the real issue in Penn Plaza was whether there would be a dif­fer­ent result because of the union con­tract set­ting and the Nation­al Labor Rela­tions Act.

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Age Discrimination, Result for Employee, Retaliation claims, US Supreme Court

Supreme Court “fills in the blank” to recognize retaliation claims for federal employees under ADEA; Gomez-Perez v. Potter, 2008

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USPS Logo 5–27-08: The US Supreme Court in Gomez-Perez v. Pot­ter, 128 S. Ct. 1931 (2008) ruled that the Age Dis­crim­i­na­tion in Employ­ment Act of 1967, 29 U.S.C. § 621 et seq., pro­hib­it­ed retal­i­a­tion against fed­er­al employ­ees who had com­plained about age dis­crim­i­na­tion, even though the fed­er­al employ­ee sec­tion of the ADEA did not express­ly pro­hib­it retal­i­a­tion. This was a 6–3 deci­sion. The major­i­ty opin­ion was writ­ten by Jus­tice Ali­to, in which Jus­tices Stevens, Kennedy, Souter, Gins­burg, and Brey­er joined. Jus­tices Roberts, Scalia, and Thomas dis­sent­ed, with dis­sent­ing opin­ions being writ­ten by Jus­tices Roberts and Thomas.

The Gap in the Federal Employee Section of the ADEA

This was the prob­lem under the ADEA: The ADEA’s main sec­tion, in pro­hibit­ing dis­crim­i­na­tion against employ­ees 40 and old­er, only deals with pri­vate indus­try employ­ees and state gov­ern­ment employ­ees. I will call this sec­tion of the ADEA, the “pri­vate and state employ­ee sections”.

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Age Discrimination, Evidence issues, Result for Employee, US Supreme Court

US Supreme Court broadens scope of permissible evidence for proving discrimination; Sprint/United Management v. Mendelsohn; 2/26/08

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US Supreme Court Feb­ru­ary 26, 2008: The Unit­ed States Supreme Court hand­ed down its opin­ion in Sprint/United Man­age­ment Co. v. Mendel­sohn, 128 S. Ct. 1140 (2008) (Find­Law site opin­ion). The issue in this fed­er­al age dis­crim­i­na­tion case (ADEA) was whether the plain­tiff could present evi­dence to the jury about oth­er alleged old­er dis­crim­i­na­tion vic­tims, where the deci­sion made to ter­mi­nate the oth­er indi­vid­u­als was not made by the same deci­sion-mak­er that ter­mi­nat­ed the plaintiff.

The employ­er (Sprint) con­tend­ed that evi­dence of oth­er alleged age dis­crim­i­na­tion vic­tims was not admis­si­ble where the deci­sion-mak­ers for those oth­er vic­tims were dif­fer­ent from the deci­sion-mak­ers who took action against the plaintiff.

The Supreme Court reject­ed the employ­er’s argu­ment and said that the evi­dence of oth­er vic­tims might be admis­si­ble, even if dif­fer­ent deci­sion-mak­ers were involved. The tri­al court should con­duct a “bal­anc­ing test” for admis­si­bil­i­ty of dis­crim­i­na­tion against oth­er employ­ees by dif­fer­ent super­vi­sors, where the rel­e­vance of the oth­er employ­ees’ sit­u­a­tion is bal­anced against unfair prej­u­dice to the employer.