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Does Retirement really mean Discrimination?

Bucholz v. Victor Printing, Inc., 2012 WL 2522969 (D. N.J. 2012) is a case which analyzes the New Jersey Law Against Discrimination ("LAD"). Specifically, Bucholz, the Plaintiff accused his former employer of discrimination on the basis of age. The Defendant, a printing shop, filed a motion for summary judgment following the filing of the complaint, and preliminary discovery. 

The Plaintiff was hired in 1986 by the printing shop. When he was first hired in 1986, the Plaintiff served as a printing press operator. After 5 years, he was promoted to foreman. Eventually, technology made the Plaintiff's job more and more obsolete. Thus, when Defendant reached age 63, in 2006, the Defendants offered him a different job as a driver for the shop. In recognition of his long service, the Defendants paid Plaintiff a much higher wage than comparable jobs. Additionally, they underwent some rough financial times but chose to retain Plaintiff who was over 65 during the rough period.

In 2009, shortly before termination, Defendant started to receive numerous complaints concerning Plaintiff's driving. There were accusations the Plaintiff had lost his temper, hit parked cars, and driven in a generally unsafe manner. Finally, in October 2009, Plaintiff was terminated, and then replaced with a 22 year old driver. However, prior to being terminated, Defendants asked Plaintiff on several occasions what his plans were for retirement. Defendants alleged they asked questions of retirement because of a change the Plaintiff made to his benefit plan. The Plaintiff believed Defendants were motivated by age discrimination, and thus brought suit in December 2010.

In order to prove age discrimination under the LAD, a plaintiff must show his age played a role in the termination; and that it had a determinative role in the outcome of that process. The discrimination must be intentional to be actionable, but may be proven through either direct or circumstantial evidence. Plaintiff, in this case was asserting he possessed direct evidence, which is what the Court was reviewing in the motion for summary judgment. Plaintiff's alternative argument however, pushed for use of the burden-shifting circumstantial case as well.

The court defined direct evidence as evidence produced which if true, demonstrates hostility towards a Plaintiff's class, as well as a connection between the employment decision in a case and the hostility. In simple terms, Bucholz was required to show the Defendants were hostile towards older workers, and his termination was based on this hostility. The court did not find that the questions on retirement were enough direct evidence. Rather, the Court acknowledged that employers have an interest in knowing if their employees intend to leave a position via retirement. This required the court to determine if Plaintiff possessed enough evidence to reach the lower burden of prima facie.

Under circumstantial evidence discrimination, a Plaintiff must show membership in a protected class; his job performance met the employer's expectation; he was fired; and the employer sought someone to perform the same work after he left. The Court enunciated this standard then analyzed whether the Company had a nondiscriminatory reason for firing Plaintiff. As the last step in burden-shifting, the Court then stated a Plaintiff does receive the opportunity to show the reason stated by the employer is pretext, or a cover-up.

In this case, there was no dispute Plaintiff was protected by virtue of age, and that the company replaced him following termination. The crux of the case was whether Plaintiff was performing job to employer's expectations. The second prong of this method of production requires only review of Plaintiff's objective reasons. Thus, whether or not the Plaintiff's performance was shown to be negative based on reviews, the Court accepted he was performing to general expectations since he had been a driver for 4 years. The debate about performance according to the Court is best left for the pretextual and non-discriminatory reason stages. Thus, the Court then considered the non-discriminatory reason of Plaintiff's poor driving record, as enough for the company to meet its burden of production to shift the case back to Plaintiff.

Thus, the final step was the Plaintiff had to show the driving complaints were pretext, or code-words for the company to fire him based on age. On this piece of information, Plaintiff put forward evidence of a dispute that the lay-off was originally not going to happen. Rather, he went in to discuss the car accident and driving complaints, and that Defendant was reducing his workload. The Plaintiff also alleged the defendant stated if business picked up, he would be rehired for three days a week. The Court viewed a viable dispute because of the lack of documentation on the company's part in showing Plaintiff was laid off for driving transgressions. This was especially so, where a younger employee was hired, which meant the Plaintiff could meet the burden-shifting requirements.

The Court did do something interesting in holding the case over, and commented there was not a strong age discrimination suit. Plaintiff did enough to pass summary judgment, which in the eyes of the Court meant reaching a fairly low ceiling. As a result, the case went through, but the Court seemed to indicate it did not view the case as coming with a lot of merits. It is strange that a court would comment on a case's merits when conversation should have been limited to the issues at bar. This opinion thus created some ambiguity regarding whether the dispute existed, ultimately finding a weak underlying case, but a viable dispute. It is unknown what the final disposition of this case was, and whether any impact was created by the Judge's opinion. However, it does show a very straight-forward version of burden shifting, which is what should be taken away from this case.

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