Age Discrimination for Baby Boomers at Rutgers

by Tom Wolpert on December 7, 2013

Age Discrimination at Princeton

The New York Times recently printed an article about four older employees at Princeton, all baby-boomers, being dismissed from their positions or suffering adverse employment actions, as a result of management changes in Princeton.  The four administrators were fired or demoted when a new Chief of Staff for the Universityy President was brought in.

Email to the NY Times

In response to the article, I wrote an email comment, along the following lines.  I am an attorney in Pennsylvania who handles employment law, both for employees and employers. As presented in a recent article, the facts of the Rutgers case are egregious examples of flagrant age discrimination. I cannot imagine any experienced attorney was advising Rutgers. No employer-client of mine would ever be given the green light on such conduct. What will a jury think, no matter how high the legal burden, about years and years of outstanding reviews for these employees, and then the next year having the reviews fall through the floor? Who would believe that? Finding experts to write a report that your current, older employees are underperforming is easy, for the same reason that finding an expert to write any other report is easy. If Rutgers had any sense, it would simply pay these people out until their expected retirement age (which isn’t always a simple calculation), and then either get better lawyers, or actually use the ones they have (probably the latter), whose litigation experience would suggest to them that, as general rule,  hired-gun expert reports often don’t meet a high standard of persuasion before neutral judges or juries.

As of writing this blog post, I got 78 ‘recommended’ clicks, by far a record for me, an inveterate commentator on NY Times articles.  I received one response to my email post by another commentator, which raised some of the practical difficulties inherent for plaintiffs in bringing such suits.  First, of course it costs money, lots of it, to bring any lawsuit, but in particular any lawsuit in federal court.  The requirements imposed by federal litigation are strict and generally unyielding – although federal judges complain about it – there is no way to avoid a lot of paperwork on a tight schedule. In New Jersey, a plaintiff has available New Jersey’s Law Against Discrimination (LAD) which permits the plaintiff to go directly into a courtroom.  In Pennsylvania, a plaintiff must allow either the Pennsylvania Human Relations Commission (PHRC) or the federal Equal Employment Opportunity Commission (EEOC) an opportunity to first conduct a field investigation.  But in either state, when a plaintiff has a strong case, there will be attorneys (including us) who will take the case on a contingency basis, meaning the plaintiff’s lawyer will obtain their fee from the settlement or a favorable judgment.

Employment litigation permits fee-shifting, which means that the plaintiff’s lawyers can collect their fee from the defendant, if the court awards the fee based on a favorable result for the plaintiff.  As a practical matter, though, good cases usually don’t see the inside of a courtroom (as my email commentator noted) because defendants settle the good cases.  The significance of a strong case for the plaintiff with good facts is that first, the case flies past all the motions which are filed by defendants to end the case early (such as as the federal 12(b)(1) or (6) motion, and the ubiquitous motion for summary judgment).  The bargaining leverage and negotiating strength of the plaintiff is directly proportional to the strength of the case if it were to be presented at trial.  Before any case goes into a federal courtroom (and federal judges frequently also complain that not enough cases are actually being tried), typically there are at least two serious passes at settling the case.  One attempt will be before a mediator – could be a privately hired mediator, could be a federal magistrate – and even if that fails to settle the case, often the trial judge will make a serious effort to settle the case immediately before trial.  The mediator, magistrate or trial judge will tell the defendant, in private, in the mediation session – look at these facts, you need to settle.   Since the lawyers on both sides are experienced, and since depositions have already been taken to nail down what the witnesses are going to say if they do get into a courtroom, in a strong case the mediator almost serves the function of a face-saving personage for the defendant’s lawyer.  The defendant’s lawyer doesn’t want to tell his or her own client – we have a bad case – all clients expect their lawyers to love their cases.  So the defendant’s lawyer can say something along the lines of : “I do love your case, and you are absolutely justified in everything you have done, but look at what this darned mediator is saying – there is some risk here.”   The mediator brings the bad news to the defendant.  Depending on how candid the defendant’s attorney was all along with his client, this should not be a shocking surprise. Good cases often settle for 2/3 to 1/2 of their courtroom verdict expected value on a plaintiff victory.  The plaintiff has to give up something to end the litigation immediately and obtain immediate funds – if the plaintiff wants 100% of everything, the defendant might as well try the case, there’s no downside.  So often, it’s the harder cases that go to trial, where the defendant has good defenses and as a result, has been putting up nominal numbers by way of settlement offers.

I once represented a client in a case which involved reverse gender discrimination (my client was male at a woman-run company) which settled immediately before the arbitration (before a woman arbitrator, who told the defendant in so many words they were going to lose) – not because the discrimination claim was overpowering, but there was also an employment contract.  Proving discrimination is never easy, it requires a kind of window into the interior motives of the defendant-employer, and mind-reading is hard to do, and harder to prove, even though good circumstantial evidence  may be available, as it appears to be available in the Princeton case.  It is much easier to win an employment contract case because contracts and contract performance are evaluated, not from the subjective viewpoint of the employer, but from the objective viewpoint of a neutral person reading the contract and placing reasonable inferences on the rights and obligations of the parties, based on the signed writing.

If you have an employment case in Pennsylvania or New Jersey, click on Wolpert Schreiber PC.  If you have a personal injury case in Pennsylvania, click here, on PA Injury Case. 

{ 0 comments… add one now }

Leave a Comment

Previous post:

Next post: