Kelly v. Moser, Patterson & Sheridan, LLP, 2009 U.S. App. LEXIS 22352 (3d Cir. Oct. 9, 2009)

Absent evidence that age was a “but-for” factor in an employer’s decision to terminate an employee, the mere fact that age may have been a secondary consideration is insufficient to sustain a claim under the Age Discrimination in Employment Act (“ADEA”) as a matter of law.

Meacham v. Knolls Atomic Power Laboratory, 128 S.Ct. 2395 (2008)

The provisions setting forth the general prohibition of age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 623(a)-(c), (e), are subject to a separate provision, § 623(f), creating exemptions for employer practices “otherwise prohibited under subsections (a), (b), (c), or (e).” This provision sets forth two exemptions, for practices based on “bona fide occupational qualifications” (BFOQ) or on “reasonable factors other than age” (RFOA), stating: “It shall not be unlawful for an employer . . . to take any action otherwise prohibited under subsections (a), (b), (c), or (e) . . . where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age.” In Meacham v. Knolls Atomic Power Laboratory, the United States Supreme Court held that this RFOA exemption is an affirmative defense, and that an ADEA defendant seeking to avail itself of this exemption bears the burden of proof: it “must not only produce evidence raising the defense, but also persuade the factfinder of its merit.”

Sprint v. Mendelsohn, 128 S.Ct.1140 (Feb. 26, 2008)

In Sprint v. Mendelsohn, the U.S. Supreme Court held that, in an employment discrimination case, testimony of nonparties as to discrimination they incurred at the hands of supervisors may be admissible, even where those supervisors played no role in the adverse employment action implicated by the plaintiff’s lawsuit. Rejecting the notion of per se admissibility or per se inadmissibility, the Court instead stated that the admissibility of such evidence “is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” The Court further stated that this kind of fact-intensive, context-specific inquiry is best performed by trial court in the first instance.

Gomez-Perez v. Potter, 553 U.S. ___ (U.S. May 27, 2008).

In a 6-3 split decision, the United States Supreme Court held that the federal sector provision of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a(a), prohibits retaliation against a federal employee for complaining about age discrimination.

Michael v. Robert Wood Johnson University Hospital, 2008 N.J. Super. LEXIS 13 (NJ App. Div. Jan. 15, 2008).

A prevailing defendant may be awarded attorney’s fees in an action brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (the “LAD”), only if it can show that the losing plaintiff brought the claim in “bad faith.” N.J.S.A. 10:5-27.1. In Michael, the Appellate Division held that “bad faith,” in this somewhat unusual context, does not imply that the suit was initiated for a dishonest purpose, but rather equates to “a reckless disregard or purposeful obliviousness of the known facts.” Moreover, the Appellate Division instructed that, in determining what constitutes a “reasonable” award of attorney’s fees, the trial court should take into account the losing plaintiff’s ability to pay, as well as “the extent to which plaintiff pursued the matter because of her own views or . . . relied, either exclusively or partially, upon the advice of counsel.”

Pyett v. Penn Building Co., 2007 U.S. App. Lexis 18242 (2nd Cir., August 1, 2007).

The U.S. Court of Appeals for the Second Circuit has held that a clause in a collective bargaining agreement that would require a claimant to resolve a claim of age discrimination in arbitration rather than through the courts system is unenforceable.  In Peyett, the Court based its ruling on a previous decision, Rogers v. NYU, 220 F.3d 73 (2nd Cir.2000).  In the this decision, like Peyett, the Court recognized that, under a collective bargaining agreement, there are potential risks of conflict of interest between the union and the individual and that the interest of the individual may be subordinated to the collective interests of all employees in the bargaining unit.  Thus, the Court holds that an arbitration clause in a collective bargaining agreement does not reflect a worker’s voluntary waiver of his right to a federal forum for his claims.

Iyer v. Everson, et al., 2007 U.S. App. LEXIS 18512 (3d Cir., August 3, 2007).

Where employment discrimination plaintiffs are unable to provide direct evidence of discrimination, the employer has the burden of overcoming the accusations of discrimination it would not otherwise have.  In Iyer the United States Court of Appeals for the Third Circuit employed the well-established burden-shifting analysis under McDonnell Douglas v. Green (“McDonnell Douglas”), where the plaintiff could present nothing more than circumstantial evidence of illegal discrimination.

Folcher v. Appalachian Insulation Supply, Inc., 2007 U.S. Dist. LEXIS 37992 (E.D.Pa., May 24, 2007).

Isolated comments about retirement, without a suggestion that an employee’s value has diminished because of age, are not discriminatory.  An employer may make reasonable inquiries into an employee’s retirement plans, and suggesting retirement to an employee of retirement age who is not meeting expectations does not provide a reasonable basis for inferring age discrimination.  In Folcher, the District Court granted summary judgment in favor of an employer, its president, and a former employee, holding that Folcher, a salesman who alleged that he was fired due to his age and was replaced by a younger man, failed to come forward with sufficient evidence for a reasonable jury to find in his favor.