New Jersey Employment Lawyers Blog

Employee Terminated for Testifying in Co-workers Discrimination Lawsuit May Proceed with Anti-Retaliation Lawsuit

May 8, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently reversed in part and affirmed in part a grant of summary judgment dismissing Plaintiff’s failure-to-accommodate under the New Jersey Law Against Discrimination and retaliation claims. The Court agreed with the prior determination that after Plaintiff had exhausted her Family and Medical Leave Act benefits and she could not provide a definite date of when she could return to work she was not entitled to an “indefinite leave of absence.” However, the Court disagreed with the prior determination that Plaintiff failed to establish a prima facie case of retaliation because there was only indirect evidence that Defendants had knowledge of her involvement in a co-worker’s discrimination lawsuit.

In Lozo-Weber v. State of New Jersey, the Plaintiff, Ms. Lozo-Weber, was employed by the Department of Human Services and worked as an occupational therapist at the New Lisbon Development Center from November 2003 through April 2009. Ms. Lozo-Weber, a Caucasian female, witnessed what she thought to be discriminatory actions being taken against her co-workers by direct supervisor Brian Kelly and Beth Cooper, who acted as a liaison between Kelly and the other workers. From August 2004 to the time Mrs. Lozo-Weber went on maternity leave and disability for lupus, she observed the firing and relocation of various staff members who were African American or Asian. In addition to her own belief that supervisors’ actions were racially motivated, Mrs. Lozo-Weber was told that she “needed to align herself with the right side” when she addressed her concerns about the relocation of certain minority employees.

After Mrs. Lozo-Weber returned from maternity leave, she acted as a witness in a co-worker’s lawsuit against the Department of Human Services, New Lisbon Development Center and supervisors Kelly and Cooper. She then began to receive negative comments about her performance when prior to her involvement as a witness; she had received consistently stellar performance evaluations. Despite the negative comments, Mrs. Lozo-Weber continued to receive positive performance evaluations until January 9, 2008. On that date, New Lisbon Development Center issued a preliminary notice of disciplinary action against Mrs. Lozo-Weber that charged her with neglect of duty, falsification and actual or attempted theft of State property. After a hearing, all the charges were dismissed and Mrs. Lozo-Weber was awarded back pay.

Non-Jewish Employee Subjected to Anti-Semitic Harassment May Proceed with Religious Discrimination Claim

April 23, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently reversed a trial court’s granting of summary judgment dismissing an employee’s claim under the New Jersey Law Against Discrimination when Defendants wrongly perceived the employee to be Jewish and directed daily Anti-Semitic comments at him. The court disagreed with the trial court’s determination that the employers’ perception that the employee was Jewish, when he in fact was not, did not provide grounds for a recognizable claim under of religious discrimination under the New Jersey Law Against Discrimination.

In Cowher v. Carson & Roberts Inc., the claimant, Mr. Myron Cowher, was employed with Carson & Roberts Inc. as a truck driver from April 2006 through May 2008. From January 2007 through May 2008, Mr. Cowher was subjected to Anti-Semitic statements that were made directly to him by his two supervisors on a daily basis and often in the presence of other coworkers. Although the employer initially denied making such statements, video recordings revealed Mr. Cowher’s supervisors made various Anti-Semitic statements to Mr. Cowher. For example, Mr. Cowher’s supervisors called him a “Jew bag” over 20 times, called him a “Jew bastard” and told him “Only a Jew would argue over his hours.”

Mr. Cowher’s supervisors stated that the comments were made not because they perceived Mr. Cowher to be Jewish but instead because he and his wife took a cut of a Superbowl pool they ran and thus “fit the stereotype of Jews being avaricious.” The employer claimed that these comments were nothing but “light hearted banter between co-workers.” Mr. Cowher did not agree that these comments were “light hearted banter” and complained to the supervisors and to the Facility Manager. The Facility Manager told Mr. Cowher to laugh it off and then after making another complaint, Mr. Cowher was told to ignore it and it would go away.

A Forced Resignation Is Not a Disqualification of New Jersey Unemployment Compensation Benefits

April 15, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently reversed a decision of the Appeal Tribunal and the Board of Review disqualifying a claimant from receiving unemployment compensation benefits when he was forced to resign from his job. The Court disagreed with the prior determination that such a forced resignation was a voluntary separation from employment and instead found that the statement “you must resign,” made to the claimant by his supervisor, was really no different than “you’re fired.” The Court found that the employer’s actions amounted to a compelled resignation, which would not constitute a voluntary separation from employment and disqualification from receiving New Jersey unemployment compensation.

In Talmage Lord v. Board of Review, New Jersey Department of Labor and Crossmark Inc., the claimant, Mr. Talmage Lord, was employed by Crossmark Inc. Mr. Lord’s job duties included reseting merchandise on Crossmark’s retail stores in New Jersey and Pennsylvania. Mr. Lord was required by his employer to use his own car to travel to each store and perform his work. On June 3, 2009, Mr. Lord’s car broke down on his way home and the car was towed to a garage. Mr. Lord immediately informed his supervisor and he was excused from coming to work the following day, Thursday, June 4, 2009. On Thursday, Mr. Lord was informed that his car’s transmission was broken and he could not afford the cost of the repair. After failed attempts to borrow the money or find alternative transportation, Mr. Lord called his supervisor on Friday to inform him of the situation. Mr. Lord’s supervisor told him he “had to resign” from his employment “effective immediately.”

In its decision to disqualify Mr. Lord from receiving New Jersey unemployment benefits, the Appeal Tribunal concluded that Mr. Lord left his job because he was unable to obtain transportation that was needed to perform his job. The Appeal Tribunal noted that in cases bordering between discharge and voluntarily leaving, the person who initiates the action, which eventually leads to the separation, is the one responsible for breaking the employment relationship. The Appeal Tribunal found that Mr. Lord’s personal car troubles and not the statement from his supervisor that “he must resign” was the reason for the ending of his employment. Based upon this interpretation of the facts, the Appeal Tribunal concluded Mr. Lord left work voluntarily without good cause attributable to his work and was therefore ineligible for unemployment compensation benefits.

QUITING WORK TO CARE FOR CHILDREN DISQUALIFIES CLAIMANT FROM RECEIVING NEW JERSEY UNEMPLOYMENT BENEFITS

March 30, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently affirmed a Board of Review decision disqualifying a claimant from receiving New Jersey unemployment benefits finding that the claimant voluntarily left her employment without good cause attributable to the work.

In the matter Damaris Medina v. Board of Review Department of Labor and the City of Camden, the claimant was denied New Jersey unemployment benefits as a result of quitting her job because her employer would not accommodate her request to change her work hours so she could drive her children to school and still get to work on time. Ms. Medina was employed in the position of a clerk from August 12, 2002 through March 3, 2010 with the City of Camden. For the approximately the first six years of her employment, Ms. Medina’s shift began at 8:30 a.m. In June, 2008, the City of Camden changed her start time to 9:00 a.m. In June, 2009, Ms. Medina requested that she return to a shift be changed to 9:00 a.m. because the earliest that she could drop her kids to school was 8:15 a.m. and this did not give her enough time to get to work at 8:30 a.m.

The City of Camden denied Ms. Medina’s request and began disciplining her for arriving at work a half-hour late each day. Eventually, Ms. Medina retained a New Jersey employment lawyer to represent her in the employment dispute. Ms. Medina’s attorney met with representatives of the City of Camden, which resulted in Ms. Medina and the City of Camden entering into a settlement agreement. The terms of settlement agreement included that Ms. Medina would be involuntarily separated from her employment effective March 3, 2010 and the City of Camden would not contest her unemployment benefits application and that the City of Camden would cooperate with her in connection with unemployment benefits application.

Employee Who Loses Job While In Jail Held Ineligible For New Jersey Unemployment Benefits

March 9, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently held that a claimant who was terminated because she was unable to work for a period of less than two weeks due to being incarcerated on criminal charges is not eligible to receive New Jersey unemployment benefits.

In the matter of Crystal Mandall v. Board of Review Department of Labor, NJ Team Dental Center, PA, the claimant was employed as a dental assistant with New Jersey Team Dental Center of Old Bridge, New Jersey, from November, 2007 until her termination in April, 2010. On April 20, 2010, Ms. Mandall was arrested on several criminal charges that caused her to become incarcerated until May 1, 2010.

While in jail, Ms. Mandall kept in touch with her employer and promised them that she would return to work as soon as she was released from jail. When she was released from jail on May 1, 2010, Ms. Mandall sent a text message to her employer advising them of her release and that she would return to work on the next work day. In response to the text message, NJ Team Dental Center advised Ms. Mandall that her position had been filled as a result of her being unable to come to work for almost two weeks.

CLAIMANT HELD INELIGIBLE FOR UNEMPLOYMENT BENEFITS FOR VOLUNTARILY QUITING BEFORE RECEIVING APPROVAL OF TRANSFER REQUEST

February 24, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently affirmed a Board of Review decision disqualifying a claimant from receiving New Jersey unemployment benefits for voluntarily quitting her job without good cause attributable to the work.

In the matter of Lydia Oladimeji v. Board of Review, New Jersey Department of Labor and ARC of Middlesex, the claimant, Ms. Oladimeji, was employed as a program specialist for the Association of Retarded Citizens (“ARC”) of Middlesex County. On January 8, 2010, Ms. Oladimeji requested a job transfer to a group home position so that she could attend nursing school during the day. After requesting the job transfer, Ms. Oladimeji testified that she did not receive any definitive response regarding whether the transfer had been denied or approved. Ms. Oladimeji further testified that she was told that to write a letter advising that she would no longer be available for work as of January 25, 2010 for personal reasons. ARC received the letter and accepted it as a letter of resignation. ARC testified that they advised Ms. Oladimeji that her request for a transfer would take time and that she would have to have an interview in order to be transferred to a new position. ARC disputed Ms. Oladimeji’s testimony that she was told by her employer to resign from her employment.

In its decision to disqualify Ms. Oladimeji from receiving New Jersey unemployment benefits, the Appeal Tribunal concluded that Ms. Oladimeji did not begin the process early enough for a job opening to occur and that the claimant could have preserved her job by delaying her enrollment into nursing school for a later session after a job transfer became available. The Appeal Tribunal noted that N.J.S.A. 43:21-5 disqualifies a claimant from receiving New Jersey unemployment benefits if he or she leaves work in order to further their education or prepare themselves for another type of work. Based upon their findings of fact and its application of New Jersey unemployment benefits law, the Appeal Tribunal held that Ms. Oladimeji left work voluntarily without good cause attributable to the work. The Board of Review upheld the Appeal Tribunal’s decision.

SUPERVISOR OF PUBLIC AGENCY CAN BE LIABLE AS AN EMPLOYER UNDER THE FMLA

February 14, 2012 | Smith Eibeler LLC

The United States Court of Appeals for the Third Circuit recently held that an individual supervisor may be liable for violating the Family and Medical Leave Act if he or she has sufficient control over the conditions and terms of employment of the employee claiming the FMLA violation. In the matter of Haybarger v. Lawrence County Adult Probation and Parole, County of Lawrence and William Mancino, the Third Circuit found that a supervisor is an “employer” under the FMLA despite the fact that the supervisor did not have the authority to terminate the employee.

In this case, the plaintiff, Debra Hayberger, worked as an office manager for the Lawrence County Adult Probation and Parole which is an agency of the Lawrence County Court of Common Pleas. Ms. Haybarger suffered from Type II diabetes, heart disease and kidney problems, which frequently required her to take medical leave from work. Ms. Haybarger’s supervisor, William Mancino often criticized Ms. Haybarger for taking the medical leave, including writing that she needed “[t]o improve her overall health and cut down on the days that she misses due to illness” in her annual performance evaluations.

In 2004, Mr. Mancino placed Ms. Haybarger on a six-month probationary period because of Ms. Haybarger’s conduct, work ethic, behavior, lack of leadership and supervisory skills. After the six months, Mr. Mancino stated that Ms. Haybarger’s employment did not improve and he made a recommendation to Judge Motto that Ms. Haybarger be terminated. Judge Motto agreed with Mr. Mancino’s recommendation and terminated Mr. Haybarger’s employment.

GOOD FAITH MISTAKE OF RECEIVING DOUBLE UNEMPLOYMENT BENEFITS IS NO DEFENSE

February 6, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently affirmed a decision of the Appeal Tribunal and the Board of Review denying a claimant from receiving New Jersey emergency unemployment compensation under the Emergency Unemployment Compensation Act of 2008, 26 U.S.C.A. 3304 because the claimant collected unemployment benefits from New York for the same time period. As a result, the claimant was ordered to refund a total of $15,300 in New Jersey unemployment benefit payments that she received for the period of time that she was also collecting New York unemployment benefits.

In the unpublished decision of Marasco v. Board of Review Department of Labor and AT&T Wireless, the claimant, Kimberly Ann Marasco, was employed in several different positions in New Jersey and New York from the period 2006 to 2008. The employment positions included working for Spherion Professional Services in New Jersey, AT&T in Morristown, New Jersey and Tact Medical Staffing in New York City. After being laid off from working at Tact Medical Staffing for approximately one month, Ms. Marasco filed for New Jersey unemployment benefits on February 1, 2009. After her New Jersey unemployment benefits had exhausted by in July, 2009, Ms. Marasco then applied and became eligible to receive emergency unemployment compensation under the Emergency Unemployment Compensation Act of 2008. Ms. Marasco exhausted the maximum emergency unemployment compensation she could receive in January 23, 2010, which totaled $15,300.

Thereafter, it was determined by the New Jersey Division of Unemployment and Disability Insurance that Ms. Marasco was entitled to receive regular unemployment benefits from the State of New York and informed the New York unemployment benefit authorities to back date the regular payments to July 20, 2009. As a result, Ms. Marasco collected benefits from New York for the same time period that she had also been collecting emergency unemployment compensation from New Jersey.

New Jersey Supreme Court Affirms Contingency Fee Enhancements for New Jersey Discrimination Lawyers

January 27, 2012 | Smith Eibeler LLC

The New Jersey Supreme Court has affirmed that the framework for evaluating attorneys’ fee awards made pursuant to state statutory fee-shifting provisions such as the New Jersey Law Against Discrimination that was first adopted in the case Rendine v. Pantzer, 141 N.J. 292 1995. The Court held that the Rendine decision permitting attorney fee enhancements remains valid and has not been altered by the United States Supreme Court’s decision in Perdue v. Kenny, 130 S. Ct. 1662 (2010). In Perdue, the United States Supreme Court confirmed that contingency fee enhancements are not permitted in federal fee-shifting cases. As a result of the Perdue decision, the New Jersey Supreme Court granted certification in the cases Walker v. Guiffre (A-72-10) (a consumer fraud case) and Humphries v. Powder Mill Shopping Plaza (A-100-10) and consolidated their decision of these cases into one opinion.

In Humphries, the plaintiff alleged that the defendant shopping center, Powder Mill Shopping Plaza, violated the accessibility requirements in the American with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189 and the New Jersey Law Against Discrimination (LAD)[LINK]. The plaintiff, Ms. Humphries, is handicapped as a result of suffering from a spinal cord injury in 1973. Ms. Humphries handicap requires her to use a motorized wheelchair and specialized van. In the Spring of 2005, Ms. Humphries was unable use her wheelchair in order to get into a restaurant at the Powder Mill Shopping Plaza because the ramp up to the sidewalk was too steep. Ms. Humphries was only able to gain access to the restaurant after her brother set up a portable ramp for her. Once inside the restaurant, Ms. Humphries complained to the owner regarding the unsafe ramp.

Thereafter, Ms. Humphries reached out to a New Jersey Discrimination Attorney named Ed Kopelson, who then wrote letters to the defendants regarding their non-compliance to ADA and New Jersey Law Against Discrimination applicable codes for accessibility for handicaps. After not being able to resolve the dispute, Ms. Humphries filed a lawsuit. Prior to trial, the parties stipulated that the defendants did not comply with applicable accessibility requirements of the ADA and New Jersey Law Against Discrimination, that defendants would pay Mr. Humphries $2,500 and that the amount of Plaintiff’s attorney fees’ would be decided by the trial court.

Asking Family and Friends About Jobs Is Not Enough To Be Actively Seeking Work To Receive New Jersey Unemployment Benefits

January 19, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently affirmed an Appeal Tribunal and Board of Review decision that the claimant was disqualified for unemployment benefits for failing to actively see work as required by N.J.S.A. 43:21-4(c)(1).

In affirming the decision of the Appeal Tribunal, the Appellate Division noted that New Jersey unemployment benefits law places the burden of proof on the claimant to establish that they have met the eligibility requirements to receive unemployment benefits. The Appellate Division stated that:

Generally, a claimant is eligible to receive benefits if he or she is able to work, and is available to work, and has demonstrated to be actively seeking work. To qualify for benefits, a claimant must make more than minimal efforts to find employment. A claimant must make a sincere effort to obtain employment either in his usual type of work or in such other suitable work as he may be able to do.