August 13, 2009

In Finn v. J.B. Hunt Transport Services, Inc., the District Court of New Jersey recently concluded that there was no evidence of age discrimination under the New Jersey Law Against Discrimination (NJLAD), despite allegations that the employee’s new supervisor “campaigned” to terminate the plaintiff-employee.

Plaintiff Thomas Finn had been employed by J.B. Hunt since 1992, with generally satisfactory reviews. After a promotion in 2003, plaintiff reported to a different supervisor and started to consistently receive unfavorable reviews indicating that his performance has been less than satisfactory and that immediate improvement was needed in multiple areas. Plaintiff received written reprimands, suspension, and notification that if plaintiff did not immediately improve there would be further disciplinary action which may include termination. After two years of poor reviews in the new position, plaintiff was demoted back to his prior position.

Even after the demotion, plaintiff continued to receive reviews showing that plaintiff’s performance needed improvement and that plaintiff had three separate instances where he did not follow company policy. Notwithstanding, plaintiff received a salary increase in 2005. Plaintiff was eventually terminated from his position with J.B. Hunt at the age of 62.

Plaintiff contended that the information contained in the performance reviews were fabricated, exaggerated, and failed to account for company short-comings. As well Plaintiff also argued that unlike younger employees he was left short-staffed for 3-6 months and that his job responsibilities were unreasonably increased.

The court concluded that plaintiff failed to demonstrate that defendant’s reasons for its action were mere pretext for discrimination. Although plaintiff claimed that he was given more responsibilities than his younger counter-parts and that his immediate supervisor campaigned to have him fired, plaintiff did not provide any evidence to substantiate these arguments. The court observed that evidence that plaintiff did as well as he could under the circumstances or that he had previously received positive evaluations are not enough to demonstrate a pretext of discrimination under NJLAD. Accordingly, plaintiff’s claim that he was discriminated against was denied.

Cherylee O. Judson is an associate of Hill Wallack LLP in the Princeton Office where she is a member of the Litigation Division and the Trial & Insurance Defense and Insurance Coverage Practice Groups. Ms. Judson focuses her practice in the defense and representation of insurance companies and their insureds in complex claims and litigation.