Mark & Galusha, LLC are Employment Lawyers who represent clients unlawfully terminated based upon the pretense of a RIF

Maura Leahey filed suit against her previous employer, Singer Sewing Company, for violation under the New Jersey Family Leave Act, N.J.S.A. 34:11B-1 through 16 (FLA). Ms. Leahey claimed, within her Complaint, among other things, that Singer Sewing Company discriminated against her as a result of her sex, specifically, her ability to have children. Under N.J.S.A. 34:11B-1-16, "family leave" is defined as necessary due to (1) the birth of a child of the employee, (2) the placement of a child with the employee in connection with adoption of such child by the employee or (3) the serious health condition of a family member of the employee.

While the New Jersey Family Medical Leave Act does not apply to companies with less than 50 employees, Singer Sewing Company did have more than fifty employees therefore a determination regarding Singer's violation of same was justified.

Ms. Leahey began working for Singer Sewing Company in May 1988. At the time, she was employed as the Accounts Receivable Supervisor for the North American Sewing Products Division. Ms. Leahey's duties entitled credit and collections supervision and other accounting responsibilities typical with such a position. At the time of her maternity leave in January 1994, Ms. Leahey had become involved with developing the new programs for a system recently purchased by Singer. Ms. Leahey's anticipated return date was May 23, 1994. When left Singer under the NJFLA (N.J.S.A. 34:11B-1), her job responsibilities were taken over by Rosemary DeCarlo who had previously been responsible for smaller accounts.

Singer claims that during this time, the market suffered a downturn and they had to reduce their work force in order to alleviate the financial strain. Accordingly, in April 1994, a "reduction-in-force" took place. Ms. Leahey's position was consolidated with that of Ms. DeCarlo's. Singer then made a decision to have Ms. DeCarlo fill the capacity and terminated Ms. Leahey while she was out on family leave.

Although not specifically addressed in N.J.S.A. 34:11B-1, consolidation is often considered a reasonable and legitimate event which can lead to the termination of an employee utilizing their New Jersey Family Leave Act rights. However, in this matter, it was clear that Ms. Leahey was the only individual in her department who was able to bear children and therefore, it appeared that she was being discriminated against as a result of her gender. As a result of her termination, Ms. Leahey filed suit. Singer filed a Motion for Summary Judgment.

The Court took many matters and issues into consideration in making a decision in Ms. Leahey's case including the matter of Marzano v. Computer Science Corp., Inc., 91 F.3d 497 (3d Cir.1996), which set aside three points for a Plaintiff to establish in employment discrimination cases. First, a Plaintiff must prove that their employer took an adverse employment action against them. Second, an employee must show that the facts of the case are compatible with discrimination being the reason and third, that the employer is unable to provide an alternative nondiscriminatory reason for the action.

Ms. Leahey was able to prove that terminating her from her position while she was out on Family Leave Act was an adverse employment action. Ms. Leahey also showed that the facts of the case were consistent with those of employment discriminations matters. Finally, after using the "burden-shifting" guidelines provided in the matter of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Singer was unable to produce reasonable evidence supporting their defense. As such, Singer could not establish an alternative, nondiscriminatory reason for terminating Ms. Leahey.

Further, in considering the matter of whether Singer discriminated against Ms. Leahey, it became clear to the Court that as in the matter of U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, discrimination may not be a clear issue. For instance, Ms. Leahey filed suit claiming gender discrimination however, she was not the only female in her department. In order to successfully prove her case, she used the process of elimination to prove that her termination from Singer was motivated by discrimination and retaliation for her use of the Family Leave Act.

In addition, while considering other reasons for termination despite use of FLA (N.J.S.A. 34:11B-7), a "reduction in force" is often thought of as acceptable. The Court investigated and provided other appropriate reasons to terminate in association with reduction in force under the New Jersey Family Leave Act including anticipated economic savings (Tice v. Lampert Yards, Inc., 761 F.2d 1210 (7th Cir.1985)), the percentage of a company's workforce negatively affected by a reduction in force (Oxman v. WLS-TV, 846 F.2d 448, 457 (7th Cir.1988)), existence of documented criteria and procedures for implementation of reduction (Brito v. Zia Co., 478 F.2d 1200 (10th Cir.1973); Stendebach v. CPC International, Inc., 691 F.2d 735 (5th Cir.1982)), evidence of decisions to reduce force showing objective position-specific decisions (Christie v. Foremost Ins. Co., 785 F.2d 584 (7th Cir.1986), proof that selection was based off of performance appraisals and reviews (Duffy v. Wheeling Pittsburgh Steel Corp. 738 F.2d 1393 (3rd Cir.1984)) and whether the company considered economic alternatives that did not end in lay-offs (Jacobson v. Pitman-Moore, Inc., 582 F.Supp. 169 (D.Minn.1984); Gelof v. Papineau, 648 F.Supp. 912 (D.Del.1986)).

After taking all these issues into consideration, the Court decided that Singer's Motion for Summary Judgment would be denied as the Court found that Ms. Leahey had been discriminated against and that Singer violated the New Jersey Family Leave Act, N.J.S.A. 34:11B-1-16. Additionally, the Court found that Ms. Leahey was also protected under the New Jersey Law Against Discrimination or LAD N.J.S.A. 10:5-1 to -42.

In another New Jersey employment discrimination matter, Winfield B. Murray filed suit against the Newark Housing Authority after being terminated from his position as a provisional boiler operator. Mr. Murray claimed that he was the victim of age discrimination and that he was protected under the New Jersey Law Against Discrimination.

The LAD protects certain individuals from harassment and discrimination, particularly in the workplace. The protected categories include race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy such as in the Leahey matter), marital status, domestic partnership status, affectional or sexual orientation, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability.

Mr. Murray was 65 years of age when he was terminated and in accordance with the laws against discrimination in New Jersey, Mr. Murray had valid reason for the Court to consider whether the Newark Housing Authority terminated Mr. Murray as a result of his age. The LAD specifically states that it is unlawful for an employer, because of the age...of any individual...to discharge...unless justified by lawful considerations other than age. N.J.S.A. 10:5-12(a).

During the time of his termination, the State Department of Personnel conducted a certification test with the possibility of permanency for all those individuals who passed, receiving a rank of 31 or higher. There were 27 permanent positions available at the time of the test. Mr. Murray took this test and passed with a score of 90 yet when the State issued a ranking of those who passed the test, Mr. Murray was not included on the list.

In accordance with the Rules of Civil Service, the Newark Housing Authority was directed to fill the permanent positions with individuals whose name's appeared on the list. By doing so, the Newark Housing Authority was able to fill twenty-four of the twenty-seven positions available. They were further directed by the State to fill the remaining three positions with provisional employees. The Newark Housing Authority compiled a list of six provisional employees to be considered for the position. Mr. Murray's name was included on the list however, he was not chosen to fill a permanent position and was instead, terminated.

As the burden of proof initially lies with the Plaintiff, Mr. Murray needed to establish his case for age discrimination by using one of two legal theories (1) he was the victim of intention discrimination or disparate treatment or (2) that his layoff resulted from a non-discriminatory application which had a negative impact of members within his age group (Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Mr. Murray provided evidence to the Court indicating that he was the victim of intentional discrimination.

In accordance with the burden-shifting guidelines provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792, the Newark Housing Authority needed to prove that the selection criteria utilized during the hiring process was not discriminatory. The Newark Housing Authority, when questioned about their methods, claimed that the selection was completely random and not based off of any system at all. They claimed that it was not based on age, experience nor were the choices made alphabetically.

Mr. Murray was able to establish a prima facie case for disparate treatment as his age clearly placed him within a protected class and on the surface, it appeared that he was laid off as a result of his age. (Cf. Baxter v. AT & T Communications, 712 F.Supp. 1166, 1171 (D.N.J.1989). While the Newark Housing Authority was not in a position to persuade the Court that they did not specifically discriminate against Mr. Murray, they were still responsible for producing admissible evidence to the contrary. The Newark Housing Authority needed to demonstrate a reasonable purpose for terminating Mr. Murray.

As the Newark Housing Authority was unable to produce any valid evidence which supported their termination of Mr. Murray, the Court decided in favor of Mr. Murray, awarding him damages.

In another matter involving claims under the New Jersey Law Against Discrimination (NJLAD) after a reduction in force, Ms. Chu-Constable found herself laid-off from her administrative position at Broad U.S.A., Inc. Ms. Chu-Constable subsequently filed suit under the NJLAD, claiming gender discrimination, as she was laid-off at the same time as another female employee.

While the prima facie case was made, Broad was responsible for producing evidence which supported their downsizing and lay off of two females in the administrative department. Broad was able to produce sufficient evidence to the Court proving that the lay off of ten employees was justified and that the positions which were eliminated were considered non-essential and two of those positions just happened to be held by female employees.

In considering the outcome of the above cases, it is easy to understand why employment discrimination cases under the New Jersey Family Leave Act, N.J.S.A. 34:11B and the New Jersey Law Against Discrimination N.J.S.A. 10:5-1 must be properly evaluated by attorneys familiar with the legal system and the laws associated with these two laws of protection.

If you feel that you have suffered from discrimination or harassment at your workplace and would like the opportunity for a seasoned employment lawyer to review your matter, please call Mark & Galusha, LLC at (908) 626-1001 or 973-440-2311, or simply tell us your story by clicking the "contact us" page. Mark & Galusha, LLC, are employment attorneys working in Bernardsville, Green Brook and all other municipalities within Somerset County, New Jersey.