By Marjorie Johnson, J.D.
The Third Circuit found that five younger managers were similarly situated despite the employer’s assertion that none had overseen stores that had failing audit scores, and some had only been working a short time or had engaged in different misconduct.
Refusing to disturb a $258,926 jury verdict awarded to a 57-year-old store manager who sued under the New Jersey Law Against Discrimination (LAD) after he was terminated and replaced by a much younger employee, the Third Circuit found in an unpublished opinion that the district court properly admitted comparator evidence showing he was treated less favorably than five younger managers who had similar poor performance evaluations. The appeals court also rejected challenges to the jury’s award of damages, finding that the duty to mitigate did not require him to pursue a salesperson job, that his and his wife’s testimony supported the jury’s award for emotional distress damages, and that the employer failed to show it would have immediately terminated him had it known that he failed to disclose a criminal conviction on his job application (Andujar v. General Nutrition Corp., April 12, 2019, Hardiman, T., unpublished).
Low store performance. The employee had worked as a GNC store manager for about 13 years before he was terminated at age 57. He was evaluated annually through GNC’s performance evaluation process (PEP), which provided a maximum score of 500 and a passing score of 300. GNC also audited inventory and recordkeeping at each store through its critical point audits (CPAs). Though a passing CPA score was 90 percent, the employee’s store earned scores of 88 percent in 2010, 68 percent in 2011, 79 percent in 2012, and 88 percent in 2013.
In January 2014, he received a failing PEP score of 287 and was placed on a “Red Store Action Plan,” which gave him 30 days to make improvements. About a month later, he was terminated for failing to comply with the Action Plan and replaced by an individual in his 20s. Claiming he was treated less favorably than his peers, he brought this lawsuit asserting wrongful termination in violation of the LAD.
Won at trial. After GNC’s motion for summary judgment was denied, the case was tried before a jury, which awarded him $258,926 (including $123,926 in backpay, $60,000 in front pay, and $75,000 in emotional distress damages). The district court entered final judgment and denied GNC’s motion for judgment as a matter of law or for a new trial. This appeal followed.
Pretext was primary issue. Having been discharged at age 57 and replaced by an individual in his 20s, the employee had little difficulty establishing a prima facie case of age discrimination. Because of his substandard performance, however, GNC articulated a legitimate nondiscriminatory reason to fire him. Therefore, the trial turned on whether he could prove that GNC’s stated reason—poor performance—was pretextual.
Comparator evidence. Because employers can’t “excuse the shortcomings of younger workers while bringing down the hammer on older workers,” the employee emphasized at trial that while he was one of many store managers in his region with a failing PEP score, he was the only one placed on an Action Plan or fired within 30 days. Specifically, he pointed to five younger managers (ranging from 25 to 34 years of age), who had failing PEP scores lower than his but were not put on an Action Plan or fired. On appeal, GNC argued that the district court erred in submitting the comparator evidence to the jury since some of the managers had been working a short time, engaged in different misconduct, and none of them had failing CPAs.
The Third Circuit disagreed, emphasizing that comparators must be similarly situated, not identical. Here, the comparators were all managers (or assistant managers) in the same region as the employee who received failing PEP scores. Those similarities sufficed under New Jersey law for the jury to decide whether the plaintiff and the other store managers were similarly situated and, if so, whether GNC treated them differently because of age. Accordingly, the district court did not abuse its discretion when it submitted those questions to the jury.
No failure to mitigate. The court also rejected GNC’s assertion that the jury’s backpay award was excessive since the employee failed to make reasonable efforts to obtain comparable employment. Though GNC urged that he could have done so by returning as a salesperson, a plaintiff “need not go into another line of work, accept a demotion, or take a demeaning position” to mitigate damages. Therefore, the employee did not need to take a salesperson position at GNC which was not “substantially equivalent to the one he was denied.” He also presented evidence that he searched for jobs online and found work through a temporary agency.
Other damages proper. GNC’s challenge to the front-pay award also failed since the employee testified that he was dedicated to GNC and planned to stay there; described his job search and inability to find similar work; and presented evidence about his new job, which paid him less than he was making at GNC. The evidence also supported his award for emotional distress damages, which are recoverable under the LAD for embarrassment and humiliation. He testified that he was prescribed medication for his depression after his termination, and his wife also testified that he was withdrawn, anxious, and less affectionate. This testimony supported the jury’s award, which was not “so disproportionate to the injury as to shock the conscience.”
Finally, GNC failed to convince the court that the damages awards were excessive since the employee admittedly lied on his job application by failing to disclose a criminal conviction. Though it pointed to its company manual to show he would have been fired had it learned this information, which required discharge for the “falsification of any company required records,” it produced no evidence that a job application qualified as a “company required record.” There was also no testimony from any GNC representatives that he would have been immediately fired.
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