Tag Archives: Retaliation

Pennsylvania Employee with 31-year Tenure Terminated by New Supervisor Has Viable Age, Sex & Retaliation Claims

When a long-term employee with a good performance record is terminated after a new supervisor makes ageist and sexist comments about the employee and the employee complains about the comments is then terminated, an employee has viable causes of action for age discrimination, sex discrimination and retaliation.

In Konsavage v. Mondelez Global LLC (M.D.Pa. no. 15-cv-1115) (February 3, 2017) (Conaboy, J.), the Plaintiff employee was employed for 31 years and consistently received positive performance appraisals until she began reporting to a new supervisor, the Director of Customer Service Operations. Shortly thereafter, management made ageist comments such as referring to the employee’s work area and older employees as “dead wood”; and comments like you should step aside and let the younger people shine, you’ve pretty much done everything you can do here; you have no potential at your age; you lack learning ability; and you lack agility. Evidence also included derogatory remarks about female employees and regular staff meetings that were described as “a frat house,” with the passing around pictures of women, and exist remarks and sexist stories. These actions caused the employee to complain to management and human resources.

In Konsavage, the employee was the Manager of Critical Inventory, a salary grade 12 position; shortly after her complaint, she was advised that her job was being downgraded from a salary level 12 manager to a salary level 10 team lead and her annual compensation was being reduced by over $9,000 per year. The employer advised her that the reduction was due to a company salary review, however, there was no evidence that any other employee suffered any economic loss in relation to such compensation reviews. After the salary downgrade the employee’s supervisor received a letter reflecting concerns about the employee’s performance as a manager from a subordinate, claiming that the employer requested that her team give her good rating review on an employee survey and criticizing her for micromanaging, being inflexible and being out of touch with the company’s values. The employer then conducted an investigation and terminated the employee.

The court denied the employer’s motion for summary judgment and ordered that the case should proceed to trial as a reasonable factfinder could conclude that employer’s termination of the employee’s employment was due to her age or sex, and that the demotion and termination could be found to be retaliation for engaging in protected activity (reporting discrimination at the workplace).

The federal age discrimination law (ADEA) and the Pennsylvania age discrimination law (PHRA) prohibit employers from taking adverse action against an employee who is at least 40 years old because of an employee’s age. In stances where there is no direct evidence of discrimination, a prima facie of age discrimination is established by showing that the employee was forty years of age or older; the employer took an adverse employment action against the employee (i.e. termination of employment or demotion); the employee was qualified for the job; and the employee was replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. Direct evidence of discrimination alleviates the need to establish a prima facie case. Once an employer satisfies the burden of offering evidence that supports a legitimate, nondiscriminatory reason for the adverse action, the burden shifts back to the employee to offer evidence from which a factfinder could reasonably either (1) disbelieve the employer’s reason; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action. To meet this burden the employee must demonstrate weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s reason that a reasonable factfinder could rationally find the reason to be unworthy of belief.

In Konsavage, the court concluded that the employee raised questions and came forward with evidence which would allow a reasonable factfinder to conclude that the employer’s proffered reasons for demotion and discharge were pretextual, including the employee’s 31 year tenure with numerous promotions and positive reviews prior to a change in her supervisor; numerous disparaging remarks from the employee’s supervisor about her age, his disdain for working with older women, and derogatory statements about females in general. The court concluded that such comments made by a decision maker would be indications that age and/or gender played a role in the decision to demote the employee and/or terminate her employment.

The court also found sufficient evidence of retaliation. An employee asserting a retaliation claim establishes a prima facie case by showing (1) that the employee engaged in protected employee activity; (2) the employee suffered from an adverse action after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action. To demonstrate a link between protected activity and an employer’s adverse action, an employee may rely on the temporal proximity (i.e. the amount of time between the protected activity and the adverse action) if it is unusually suggestive. In the absence of a such a close temporal proximity, courts consider the circumstances as a whole, including any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action.

In Konsavage, the court found that the employer’s argument that the employee’s retaliation claim fails for lack of temporal proximity was unavailing for several reasons including the close timing between the employee’s complaint and the downgrade of her job resulting in a reduced salary (as little as one month) and certain inconsistencies in the reasons for termination.

Andrew Abramson and Abramson Employment Law represent employees who are terminated and are the victims of age discrimination, sex discrimination and retaliation. For more information see our website at http://www.job-discrimination.com.

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Female Pennsylvania Manufacturing Employee’s Sexual Harassment, Retaliation & Sex Discrimination Claims Proceed to Trial

Female employees who work in male dominated manufacturing production environments may confront unique issues at the workplace. In Vollmar v. SPS Technologies, LLC E. D. Pa. no. 15-cv-2087 (December 2, 2016, Pratter J.), the court denied a motion for summary judgment, ruling that a female Pennsylvania employee can proceed to trial with her sex discrimination, retaliation, and sexual harassment claims against her current employer. The employee, who has worked for her employer for 27 years in a manufacturing plant where men comprise over 90% of the workforce, alleged that she was repeatedly exposed to sexual harassment at the workplace where there were ever-present sexual overtones of materials.

In Vollmar, the employee’s evidence included sexually oriented material at the workplace including a sign on a refrigerator that included phrases such as “My sexual preference is . . . often” and “I am not a bitch. I’ve just been in a very, very bad mood . . . for the past 30 years”; photographs of women, one with the word “PIG” written across it; a small box containing four small plastic or candy breasts, where the lid read “Bet you can’t eat just one”; and a Penthouse pornographic magazine. The employee also alleged that coworkers and managers regularly directed sexist comments toward her, including calling her a “bitch” several times a week; she had been told that “It’s just like a woman to do that”; she was regularly told that she did not know what she was talking about because she was a woman; and evidence that a coworker had a habit of staring at her during work hours.

Ironically, the female employee was being investigating by Human Resources for a code of conduct violation regarding a relationship with a male coworker. At that time, she complained about the untoward comments made to her and disparate treatment. The employee testified that
that Human Resources representatives acknowledged that bringing the toy breasts or a pornographic magazine into the workplace would violate SPS’s Sexual Harassment policies. Following the investigation, the female employee received a written warning for a violation of the Code and returned to work after a 10-day suspension and the male coworker was terminated.

To establish what the law terms a prima facie case of a sexually hostile work environment, an employee must show: (1) the employee suffered intentional discrimination because of sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the employee; (4) the discrimination would detrimentally affect a reasonable person in that position; and (5) the existence of respondent superior (employer) liability.

To determine whether an environment is sufficiently hostile or abusive, courts look to a number of factors, including the frequency of the discriminatory conduct; its severity; whether the conduct at issue is physically threatening or humiliating, or a mere offensive utterance; and whether the conduct unreasonably interferes with an employee’s work performance. Workplace conduct may be severe, pervasive, or both, as a single incident of severe harassment in the workplace may contaminate the work place to such a high degree that it will be considered hostile. Where the harassment is not severe, a collection of incidents of harassment must occur either in concert or with regularity. The use of derogatory and insulting terms relating to women at the and the posting of pornographic pictures in common areas and in personal work spaces may serve as evidence of a hostile environment.

In Vollmar, the court found that considering the frequency and variety of the types of gender-based and sexual language, material, and conduct a jury could determine that the harassment was severe or pervasive.

It is important to keep in mind that even where there is sexual harassment, in some instances the employer is not automatically liable for the conduct. Employer liability may depend on whether the sexual harasser is the employee’s coworker or a manager / supervisor. Unlike nonsupervisory harassment, employers can be liable for harassment by supervisors with authority even if the employer did not have notice of the harassment. In circumstances where the sexual harassment is not by a manager or supervisor, an employee must show that management level employees had actual or constructive knowledge of the sexual harassment and the employer failed to take prompt and appropriate remedial action such as failing to train, discipline or terminate employment upon receiving notice of the sexual harassment.

The foundation of a retaliation claim is that the employee reported conduct that is protected by the law and the employer took action against the employee for reporting the conduct. In evaluating retaliation claims in Pennsylvania, federal courts apply the McDonnell Douglas three-part burden-shifting framework which requires that an employee must first establish a prima facie case, showing that the employee engaged in protected activity; the employer took an adverse employment action against the employee; and there was a causal connection between the employee’s participation in the protected activity and the adverse employment action. Once the employee meets this burden, the employer must offer a legitimate, non-discriminatory reason for the adverse employment action. Then the employee must show pretext by pointing to some evidence from which a jury could reasonably either disbelieve the employer’s articulated legitimate reason; or believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

To make out a prima facie case of retaliation, a plaintiff must also show evidence that establishes a causal link between the protected activity and the adverse action. In Vollmar the employee argued that the record established a causal link between the adverse action and her complaint as the employee complained about certain conduct, as well as other sexual harassment, as late as seven days before she was suspended. The court held that the written warning constitutes an adverse action and that a reasonable jury could find that such action constitutes retaliation.

Andrew Abramson of Employment Law represent Pennsylvania employees who have been subjected to sexual harassment and retaliation by their employers. For more information on sexual harassment and retaliation see http://www.job-discrimination.com/sexual-harassment.html.

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$2.5 Million Employment Discrimination- Race and Retaliation Verdict Affirmed

In most employment discrimination cases there are two common measures of damages sustained by an employee, economic damages, such as lost salary, wages, bonuses and benefits following the termination of employment, and compensatory damages, which compensate an employee for emotional distress damages. Economic damages are far easier to quantify. As a recent New Jersey Supreme Court case illustrates, when there are facts which support employees suffering substantial emotional distress in an employment discrimination case, courts will permit a jury to award significant emotional distress damages.

In Cuevas v. Wentworth Group, (no.-30-14, 075077) (N. J. Super A. D. September 19, 2016), in a race discrimination and retaliation case, a unanimous Supreme Court of New Jersey affirmed a jury award of $2.5 million to two Hispanics brothers, including $800,000 in emotional distress damages to one employee and $600,000 to the other employee. The employees were employed as a regional vice president and portfolio manager at a property management company. The employees presented evidence that they were routinely subject to racially disparaging and humiliating remarks by the employer’s executives, including the executive vice president of operations. The employees alleged that, they routinely faced biting remarks that invoked racially demeaning stereotypes. Many of the degrading remarks occurred at senior executive meetings attended by an in-house lawyer, other executives, and regional vice presidents. The employees filed a lawsuit under the New Jersey Law Against Discrimination (LAD) alleging race discrimination, retaliation and a racially hostile work environment.

The evidence at the trial included the employees being referred to as Chihuahuas, Latin lovers, and the “Rico Suave brothers.” At a meeting when music was played, an employee interjected, “Do you think we could get a little Mariachi or salsa music in the background”- “something a little more to Ramon’s (one of the brothers) taste?” At a conference to discuss entertainment, an employee said that Ramon should look through his Rolodex because he might know “a salsa band, a Mariachi band that can perform.” Although Ramon attempted to deflect the hurtful comments, he was embarrassed, particularly when they were made in the presence of employees that he supervised. On one occasion, an executive stated that if he did not pick up the check, “Ramon can join his father [in the back] and you guys can wash dishes.” On another occasion when one of the employees came to the office explaining that he had to fix a flat tire, an employee suggested that if a “Puerto Rican” were observed with a crowbar kneeling by a car, he might be mistaken as “trying to steal the car or the hubcaps.” Two former property managers for the employer also testified that n executive made comments that they would be safe in bad neighborhoods when accompanied by Ramon because “he’s one of them” and because he was “Spanish.” The employer’s director of human resources also referred to the brothers as “Latin lovers.”

Just prior to being terminated one of the brothers told the employer’s in-house lawyer, “I really would like it if those comments at these executive meetings could stop” and he described the repetitive offensive remarks as “silly,” “childish,” and “degrading.” The lawyer replied that he should “calm down” and that the remarks were “good natured ribbing,” not “that big a deal,” and should not be taken “so seriously.” Four days later, one of the brothers was fired after he had just been given a performance-based raise of $10,000 four weeks earlier and shortly thereafter, the other brother was terminated. While the employer contended that employees were terminated for poor work performance, the employer could not produce any documents to substantiate a claim that the employer had received client complaints

In Cuevas, the New Jersey Supreme Court rejected the employer’s argument that in an employment discrimination case, only nominal damages may be awarded to compensate an employee for emotional distress when there is no independent corroborative proof or a showing of resulting physical or psychological symptoms. Instead, the Court held that a plaintiff employee may recover damages for emotional distress and mental anguish arising out of embarrassment, humiliation, and other intangible injuries without medical proof, as courts must give due regard to the opportunity of the jury to pass upon the credibility of the witnesses. Thus, the New Jersey Supreme Court found that due to the special harm that can be caused by willful discrimination in the workplace, compensatory damages for emotional distress, including humiliation and indignity, are remedies that require a far less stringent standard of proof than that required for a tort-based emotional distress cause of action.

The Court noted that the employees were entitled to recover all natural consequences of the employer’s wrongful conduct, including emotional distress and mental anguish damages arising out of embarrassment, humiliation, and other intangible injuries as the mental anguish and humiliation were sustained over a long period, and was not fleeting or insubstantial. While the Court noted that the jury awards for emotional distress damages of $800,000 and $600,000 to the employees “are probably on the high end, they were not so wide of the mark that they shock the judicial conscience.”

For more information about race discrimination and retaliation see, http://www.job-discrimination.com/race-discrimination.html, http://www.job-discrimination.com/retaliation.html

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Employee Terminated After Requesting Extended Leave Has Retaliation, Pregnancy, Sex & Disability Discrimination Claims

Employees who experience complications during pregnancy that require leave from work prior to the birth of a child may confront a situation where the employee has exhausted her right to Family and Medical Leave (FMLA), which is limited to 12 weeks furring any rolling 52-week period before the employee is medically cleared to return to work following the birth of a child. Depending on the facts, there may still be protection for employees who are terminated prior to their return to work under the Pregnancy Discrimination Act which is part of Title VII and the Pennsylvania Human Relations Act which forbid sex discrimination, and the Americans with Disabilities Act (ADA), as these laws may protect an employee’s right to be granted extended leave from work.

In Oliver v. Scranton Materials, Inc., M. D. Pa. no. 14-cv-00549 (June 14, 2016. Mariani, J.), the Court denied the employer’s motion for summary judgment and allowed the case to proceed to trial in a situation where the employee was notified following a period of maternity/disability leave that she would be permanently laid off. The employee alleged that she was discriminated on the basis of gender, pregnancy, and disability and that she suffered retaliation at the workplace. In Oliver, the employee claimed that she was subjected to a hostile and discriminatory work environment on the basis of sex and pregnancy, the employer retaliated against her by cutting her out of meetings, complaining of her need for pregnancy related leave, and asking her to accept a salary reduction due to her pregnancy and need for leave; retaliated against her based on her disability (complications with her pregnancy); and failed to accommodate her need for disability leave arising from the complications of pregnancy; and refused to allow her to return to work.

In Oliver, the employee worked in a sales capacity for the employer, a company that produced and sold decorative landscape stone and building stone for wholesale delivery. The employee became pregnant with triplets and experienced complications that required her to begin working half-days. Shortly thereafter, the employee began having problems with a part owner of the company who was her supervisor, who at one point said, “you’re not going to be able to work with those three f-ing babies at home.” The employee continued to receive her full salary for working half days until she went out on maternity disability leave. Six days after the employee had the triplets, her FMLA expired as she had used FMLA leave prior to the birth of her children as a consequence of her ability to work only half-days. The employee intended to return to work 8 weeks after the birth of her children but then requested an additional four weeks leave due to complications related to her pregnancy and associated surgery. Two days after her request, the employee was advised that her employment would be terminated. According to the employer, the employee was terminated in anticipation of the finalization of the sale of its business as well as the overall lack of business during the winter months, however, the employee disputed that there was a sale of the business and claimed the evidence showed that the business continued and did not cease operations.

Title VII provides that it shall be an unlawful employment practice for an employer… to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s… sex which includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. To establish a prima facie case of pregnancy discrimination, an employee must establish that: (1) the employer knew of her pregnancy; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) there is a causal nexus between her pregnancy and the adverse employment action. Once the employee presents sufficient evidence to establish a prima facie case, the burden shifts to the employer to articulate some “legitimate, nondiscriminatory reason” for the adverse employment action. Then the burden shifts back to the employee to set forth facts tending to show that the employers proffered legitimate non-discriminatory reason was merely a pretext for discrimination by pointing to some evidence from which a fact-finder could reasonably (1) disbelieve the employer’s articulated reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

In Oliver, the court found that the employee established a prima facie case because the supervisor made repeated comments to her concerning her pregnancy, prior to her pregnancy after the need to reduce her workload to half days and that the employer’s negative statements constitute sufficient evidence of discriminatory animus sufficient to established prima facie case of pregnancy discrimination. The court also found that the employer offered a legitimate nondiscriminatory reason, the sale of the business, however, the Court found that there was sufficient evidence of pretext by showing that according to the Pennsylvania Secretary of State’s Website, the employer did not in fact cease operations through a sale of the company’s business, rather, the employer merely changed its name and it continued to operate at the same location with the same telephone and fax numbers and website; and that there were jobs that the employee could have performed. The court also held that the conduct at issue could be found to be sufficiently severe and pervasive to constitute a hostile work environment relying on statements regarding the employee’s inability to work with three small babies at home and by looking at the totality of the circumstances.

Under the ADA, an employer may not discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. To state a prima facie claim of disability discrimination under the ADA, a plaintiff must establish that she: (1) has a disability, (2) is a qualified individual, and (3) has suffered an adverse employment action because of that disability. The ADA also provides for a retaliation action as an employer cannot discriminate against any individual because such individual has opposed any act or practice made unlawful by the ADA and it shall be unlawful to coerce, intimidate, threaten, or interfere with an individual in the exercise or enjoyment… of any right granted or protected” by the ADA. To establish a prima facie case of ADA retaliation… a plaintiff must show that: (1) she undertook some protected activity, (2) that she suffered an adverse employment action, and (3) that there exists a causal connection between the two.

In Oliver, the Court found that, drawing all reasonable inferences in the light most favorable to the employee, a jury could conclude that the employee was disabled within the meaning of the ADA due to complications related to her pregnancy and that there was sufficient evidence from which a rationale factfinder could conclude that there was a causal connection between Plaintiff’s disability and her termination.

For more information on pregnancy discrimination, the Americans with Disabilities Act, the Pennsylvania Human Relations Act, Disability Discrimination, and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126517.html, http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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Terminated Employee Eligible for FMLA Leave Wins $200,166 Judgment Against Employer

When an employer terminates an employee shortly after an employee requests a leave from work due to a medical condition, several possible causes of action may exist. One of those causes of action is under the Family and Medical Leave Act (FMLA), which entitles qualifying employees to take reasonable leave for medical reasons and upon return to work within a 12-week period, the employee must be to be restored to the same or similar job at the same pay. Causes of action available to an employee under the FMLA may arise under two different theories as employers are prohibited from: (1) interfering with an employee’s exercise of the right to take reasonable leave for medical reasons; and (2) discriminating or retaliating against an employee who exercises this right. FMLA interference claims concern the denial of a benefit or protection afforded by the FMLA, whereas FMLA retaliation claims pertain to whether an employer used an employee’s FMLA leave as a negative factor in its decision to terminate employment.

In Poff v. Prime Care Medical, Inc. (M. D. Pa. no. 13-cv-03066) (June 14, 2016) (Schwab, M. J.), the Court found in favor of the employee, a licensed practical nurse on her claim that her former employer, violated the FMLA by terminating her employment after she requested medical leave for a serious health condition. The employee claimed that the employer violated the FMLA in two ways: (1) by failing to notify her of her FMLA eligibility and (2) by terminating her because of absences from work due to her serious health condition. In Poff, the employee advised her supervisor, that she was ill and had to leave work and the supervisor called the on-call administrator, to inform him that the employee had left work early and on the same day the employee sent an email requesting FMLA forms. The court found that the request for FMLA forms coupled with the fact that the employee left early after informing the charge nurse that she was ill, was sufficient to place the employer on notice that the FMLA may apply and thereafter there was evidence that the employee had forwarded the FMLA certification form before her termination. The Court found that the employee left work early due to a serious health condition, that she provided the employer with adequate notice of her need to take FMLA leave on the same date and that the employer violated the FMLA by terminating her employment. The Court also found that the employer did not meet its burden of showing that it acted in good faith and that it had reasonable grounds for terminating the employee despite her request for FMLA leave.

In order to prevail in a FMLA interference claim, an employee must establish: (1) the employee was an eligible employee under the FMLA; (2) the employer was subject to the FMLA’s requirements; (3) the employee was entitled to FMLA leave; (4) the employee provided notice to the employer of the intention to take FMLA leave; and (5) the employee was denied benefits to which the employee was entitled under the FMLA. While an employee seeking FMLA leave must state a qualifying reason for the needed leave, the employee does not need to expressly assert FMLA rights or even mention the FMLA or ask for FMLA forms. Where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer is required to inquire further to ascertain whether the employee’s leave is potentially FMLA-qualifying.

An employer who violates the FMLA is liable to the employee for damages equal any wages, salary, employment benefits, or other compensation denied or lost by reason of the FMLA violation, interest and an additional amount as liquidated damages, except that if an employer proves to the satisfaction of the court that the act or omission was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a the court may, in the discretion of the court, reduce the amount of the liability. In addition, the employee mat be awarded equitable relief such employment, reinstatement, and promotion.

In Poff, the court denied the Defendant employer’s motion to amend the Court’s findings following a nonjury trial and entered a judgment totaling $200.166 which included out of pocket wage related damages, liquidated damages and interest in the amount of $103,606 plus attorneys’ fees and costs in the amount of $96,599.

For more information on the Family and Medical Leave Act (FMLA) and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126523.html.

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$922,060 Jury Verdict for Age Discrimination Retaliation Claim

When employers take adverse action against employees who have filed good faith age discrimination claims with the Equal Employment Opportunity Commission(EEOC) and/or the Pennsylvania Human Relations Commission(PHRC) employers can be subject to a separate claim of retaliation even when a good faith age discrimination claim is found to lack merit. In Karlo v. Pittsburgh Glass Works, LLC (W. D. Pa. no. 2:10-cv-1283), the employee filed a retaliation claim under the Age Discrimination in Employment Act (“ADEA”). The employee, a 58-year-old engineering specialist and production line supervisor, worked for the employer and its predecessor company for more than three decades. The employee was one of about 100 workers terminated as part of a company-wide workforce reduction. Thereafter, the employee and six other former employees filed Charges of age discrimination with the Equal Employment Opportunity Commission, claiming that they had excellent performance records and younger, less experienced employees were retained instead.

Ironically, after the initial termination of employment, the employee in Karlo, was rehired through a subcontractor to work as a shift maintenance supervisor for the same employer with whom he had been previously directly employed. The employee contended that after the employer became aware that he had filed a charge of discrimination with the EEOC, the employer encouraged him to withdraw his EEOC charge, and that when he refused to do so, the employee’s contract employment position was terminated and he was denied a new permanent employment position. The employee contended that the termination of his contract and not being hired for a permanent position was retaliation against him in violation of the ADEA for having filed and maintained a charge of discrimination with the EEOC. In Karlo, the jury found the motive was retaliation and that it was a willful violation of the ADEA, awarding the employee $362,052.00 in back pay and $560,008.00 in front pay for a total of $922,060.00. On May 18,2016,the Court denied Defendant’s Post Trial Motions upholding the jury’s verdict. (The employer recently filed an appeal to the U. S. Court of Appeals for the Third Circuit).

The ADEA prohibits an employer from taking any adverse action against an employee who files a charge of age discrimination. As such, the ADEA protects those who participate in certain age discrimination proceedings and those who oppose discrimination made unlawful by the ADEA. As in most discrimination and retaliation cases, where there may be an absence of direct evidence of retaliation, retaliation claims under the ADEA proceed under the McDonnell Douglas framework where a plaintiff asserting a retaliation claim first must establish a prima facie case. Under the ADEA, a prima facie case of retaliation for asserting age discrimination requires an employee to show that (1) the employee was engaged in a protected activity; (2) the employer took an adverse employment action after or contemporaneous with the employee’s protected activity; and (3) a causal link exists between the employee’s protected activity and the adverse employment action taken by an employee.

If the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the employer to present a legitimate, non-retaliatory reason for having taken the adverse action and the employer makes that showing, the burden of production returns to the plaintiff to establish that the proffered justification for the adverse action is pretextual and the Plaintiff must establish that his protected activity was a ‘but-for’ cause of the adverse employment action. To make a showing of pretext, the plaintiff employee must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a . . . determinative cause of the employer’s action. In so doing, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.

In Karlo, the court denied the employer’s post-trial motions noting that the case turned on the credibility of the witnesses and based on the verdict, the jury evidently disbelieved the employer’s witnesses and found the Plaintiff employee credible, drawing several inferences in his favor: including that a manager encouraged the employee to withdraw his EEOC charge and that after he refused to withdraw his EEOC charge and the employer terminated his contract employment position and denied him a permanent employment position. The court noted that in other words, the jury apparently found a causal connection between the end of the employee’s contract employment, the decision thereafter to not hire him as a permanent employee and his EEOC charge.

The Court also rejected the employer’s argument that a five-month gap between the filing of the EEOC charge and the adverse employment action (the termination of the contract and not hiring for the permanent position), is not close enough to support a causal connection, as the jury was entitled to find a causal connection based on more than just timing. Even assuming that the filing of the EEOC charge constitutes the only form of protected activity, the law also provides that in the absence of such a close temporal proximity, the circumstances as a whole, including any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action, could be sufficient.

The court also rejected arguments that the jury’s finding of wilfulness was not supported by the record. wilfulness is significant because the ADEA provides double damages when the employer’s discriminatory conduct is willful. The issue of whether an ADEA violation is willful depends not on any additional proof adduced by a plaintiff in excess of the evidence required to sustain an ADEA claim but whether the facts of the case meet the legal definition of wilfulness, i.e., did the employer know or show a reckless disregard for the fact that its conduct was prohibited by the ADEA.

Abramson Employment Law represents employees in age discrimination and retaliation claims. For more information on age discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126515.html.

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Employers are Prohibited from Imposing Religious Beliefs on Employees

An employer violates state and federal law when the employer attempts to impose its own religious beliefs on an employee and then takes action against an employee who objects to efforts to impose the employer’s religion into the workplace. A court was confronted with this situation in Mathis v. Christian Heating and Air Conditioning, Inc. (E. D. Pa. no 13-cv- 3740)(January 26, 2016)(Dubois, J.), where the employee was a heating and air conditioning installation mechanic employed by a HVAC company. The owner, president, and general manager of the employer, a “born again” Christian, testified that he named the company, Christian Heating & Air Conditioning because it was “dedicated to the Lord.” Employees drive red trucks with a dove logo, which symbolizes the Holy Spirit and the owner testified that as a born again Christian he has a duty to spread the word of God and encourage others to convert to Christianity. All employees at the workplace are required to wear an I.D. badge that displays their name and a photograph on the front, and a portion of Christian HVAC’s mission statement on the back which reads: “This Company is not only a business, it is a ministry. It is set on standards that are higher than man’s own. Our goal is to run this company in a way most pleasing to the Lord. Treating employees and customers as we would want to be treated along with running a business as if we are all part of one big family is our plan.”

In Mathis, the employee, an atheist who does not have any religious beliefs, filed claims for unlawful termination, retaliation, and denial of a reasonable accommodation under Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act (PHRA), alleging that his employment was terminated on the basis of religious discrimination and in retaliation for the exercise of his religious beliefs as an atheist. Specifically, the employee alleged he was fired for covering the employer’s religious mission statement on the back of his employee I.D. badge. When the owner often told the employee that he should attend church; the employee would respond that he did not appreciate you talking to me like this. I don’t appreciate you trying to push your religion. The employee spoke to other employees and his immediate supervisor about what he considered to be religious harassment. The employee placed a piece of tape over the back of his I.D. badge in order to cover up the mission statement because, as an atheist, he did not agree with what he perceived to be its religious message. The employee advised other employees and possibly his supervisor that he had covered the mission statement because he did not agree with it and felt that employees should not have to wear a religious statement because of somebody else’s religion.

When the owner of the business discovered that the employee had covered the mission statement on the back of the badge he said, “You’re going to wear it or you’re done.” In response, the employee again told the owner that he disagreed with him trying to push his religion on him. Eventually, the owner said that by refusing to wear the badge as required by company policy, the employee “quit” but the employee was ordered to leave the workplace and was driven home by another employee.

Religious discrimination claims are subject to Title VII and the PHRA which provide that it is an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s religion. The term religion includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. In Mathis, the employee asserted claims under three theories: (1) he was terminated due to his religious beliefs, (2) he was denied a reasonable religious accommodation, and (3) he was terminated in retaliation for requesting a reasonable religious accommodation.

To establish a prima facie failure to accommodate religion claim, an employee must show: (1) he holds a sincere religious belief that conflicts with a job requirement; (2) he informed the employer of the conflict; and (3) he was disciplined for failing to comply with the conflicting requirement. The burden then shifts to the employer to show either (1) it made a good-faith effort to reasonably accommodate the religious belief, or (2) such an accommodation would work an undue hardship upon the employer and its business. The court found that the employee presented sufficient evidence for a reasonable jury to conclude that the employee informed the employer of his religious-based objection to wearing the I.D. badge with the employer’s defendant’s mission statement on the reverse side and that a reasonable fact finder could infer that the employer failed to accommodate the employee because of the employee’s atheism. The Court also found that a reasonable trier of fact could infer that the employer terminated the employee’s employment with the motive of avoiding accommodation. The court also rejected the employer’s argument that the accommodation sought, removal of the religious message, would require the suppression of free speech and the free exercise of religion.

Religious retaliation claims require a showing of (1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action. In Mathis, the court held that a jury could conclude that the employee had a reasonable belief that the activities he opposed, recommendations that he attend church and the employer’s requirement that he display its religious mission statement on his I.D. badge, could be unlawful and the employer understood that the employee had a religious-based objection, which would support a finding that the employee opposed a specific employment practice on religious grounds and engaged in protected activity.

In Mathis, the court also rejected the employer’s claim that accommodating the employee would substantially burden the employer’s sincerely held religious beliefs in violation of the Religious Freedom Restoration Act (RFRA) which provides: Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person if it (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The Court found that RFRA was not an affirmative defense because the lawsuit was filed by an individual, and not the government and the RFRA only applies to lawsuits filed by the government.

For more information on religious discrimination at the workplace and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2130159.html

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Filed under Employment Law, Religious Discrimination, Retaliation