Third Circuit Clarifies Standard for Establishing Age Discrimination Claims

The Age Discrimination in Employment Act (“ADEA”) is a federal law that prohibits employment discrimination against employees over the age of 40.  One of the lingering questions under the law has been what happens when an employer adopts an employment policy that, while seemingly benefiting a group of employees over 40 years old, also simultaneously adversely affects other employees much older than 40.  For years, in these kinds of situations, federal appeals courts have held that there can never be such a thing as subgroup age discrimination under the ADEA, meaning that in the above example, the older subgroup of harmed employees could not claim age discrimination.  Recently, however, in Karlo v. Pittsburgh Glass Works, 2017 U.S. App. LEXIS 406 (3rd Cir. January 10, 2017), the federal Third Circuit Court of Appeals gave new life to this legal theory, and held that such a claim of age discrimination is now indeed cognizable under the ADEA in subgroup situations.

The legal question that the Third Circuit had to decide in Karlo was whether a subgroup disparate impact claim could be brought under the ADEA. Disparate impact is a way of proving discrimination where a facially neutral employment policy has an adverse impact on a class of employees protected under the discrimination laws. In Karlo, a group of employees over 50 years of age claimed that their layoff from respondent was improper age discrimination because a disproportionate number of employees over 50 years old were laid off while persons who were over 40 but under 50 years old were not. Relying upon past United States Supreme Court precedent holding that the ADEA prohibits all forms of age discrimination, not just age discrimination that happens to affect only persons who are over 40 years old age, the Third Circuit held in Karlo that disparate impact claims can be brought to prove age discrimination under the ADEA, even when the group that is benefited by the subject employer’s practice happens to be over 40 years old.

The Third Circuit’s decision has now created a “split” amongst how federal appeals courts have ruled on this issue. This means that the present decisional law on this issue is not uniform throughout the country. When this happens, the United States Supreme Court will often have to decide the issue to create the necessary uniformity on the standard to be applied by the federal courts. Therefore, until that eventually happens, employers must be more cognizant of how sometimes even a facially neutral employment policy that ostensibly makes no wrongful distinctions amongst employees may result in age discrimination because the policy harms older employees in a disproportionate way compared to other older employees. Because of this possibility, employers must not only make sure that their employment policies not expressly discriminate against older employees, but the impact of how such policies may apply and affect other older employees must also be evaluated so that such policies do not unintentionally discriminate against members of that protected class.

Because disparate impact claims are complicated and often difficult to recognize, employers are wise to seek sound advice from an experienced labor and employment lawyer whenever there is suspicion or concern that a neutral employment policy is having a harmful impact on a group of employees protected under federal or state anti- discrimination laws.

Plaintiff Unable to Meet Permanency Threshold of Tort Claims Act Despite Knee Surgery

By: Chris Carlson, Esq.

The New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:1-1 to 59:13-10, requires that a Plaintiff seeking to recover damages from a public entity must prove as a threshold requirement that he or she sustained a “permanent loss of body function.”  N.J.S.A. 59:9-2(d). The Appellate Division of the Superior Court of New Jersey on January 3, 2017 issued an opinion, not yet approved for publication, which addresses this requirement in the matter of Moore v. Frucci, 2017 N.J. Super. Unpub. LEXIS 1 (App. Div. Jan. 3, 2017).

The fact pattern is fairly unusual in that, on December 1, 2013, Plaintiff John Moore was standing on a Camden sidewalk observing police activity at a crime scene. Plaintiff alleged that Defendant Detective Christopher Frucci drove an unmarked Camden City Police vehicle onto the sidewalk, and the vehicle struck Plaintiff in the rear of the right leg, causing Plaintiff to lose his balance, but not fall to the ground. Defendant Frucci denied that the vehicle struck Plaintiff, but liability was not an issue raised in Defendants’ Motion for Summary Judgment.  Rather, Defendants claimed that Plaintiff failed to meet the threshold to recover under the TCA.

Plaintiff sought treatment at an emergency department approximately 40 minutes after the incident.  X-rays of the right lower extremity were essentially negative. Plaintiff was also noted to be ambulating without difficulty. However, four days later, on December 5, 2011, Plaintiff commenced a course of physical therapy and chiropractic treatment, alleging injuries to his knee and ankle, as well as severe lower back pain. He continued this treatment for approximately six months.

On February 1, 2012, Plaintiff underwent an MRI of the right knee. The MRI report noted no fracture or contusions, but a “chronic appearing partial tear of the proximal ACL” and “small joint effusion.”

Plaintiff also came under the care of a board certified orthopedic surgeon on February 29, 2012. This doctor indicated that Plaintiff had suffered “aggravation of chronic lumbosacral sprain and strain” and a “right knee contusion with high-grade partial versus full thickness tear of the ACL.” Plaintiff was recommended to continue chiropractic treatment and physical therapy, and was fitted for a knee brace.

After periodic follow-ups with the surgeon and Plaintiff’s claims of persistent tenderness in the right knee, arthroscopic surgery was performed on August 30, 2012. The operative report describes the procedure as “diagnostic arthroscopy of right knee, partial synovectomy medial joint, lateral joint, notch, and suprapatellar pouch, and chondroplasty of patella.”  Plaintiff thereafter attended several post-surgical follow-up visits with the surgeon, as part of what the surgeon described as continuing “aggressive therapy,” which included two injections of the knee with Depo-Medrol and the lidocaine.

The surgeon also ultimately provided a permanency evaluation in which he stated that Plaintiff “has had an insult to his anterior cruciate ligament. There was a partial tear. He did have posttraumatic changes with chondromalacia patella and synovitis of the right knee.” The doctor also opined that Plaintiff might require knee replacement surgery in the future.

In his deposition, Plaintiff, who was employed as a public adjuster, claimed that he had difficulty climbing onto roofs, and when climbing stairs he experienced a “little bit” of pain in the knee. Plaintiff also testified that, given his condition, he paid more attention to his activities due to his knee.  He also claimed that given the right knee soreness and swelling, he was required to ice the knee three to four times per week. He claimed the problems with his knee limited his ability to participate in other activities of daily living, including hunting, riding dirt bikes and a motorcycle which he owned, and caused him pain and difficulty when he remained in the same position for an extended period of time.

The trial court ruled that the proofs set forth above were insufficient to create a triable issue as to whether Plaintiff had met the threshold of the TCA.  Accordingly, Defendants’ Motion for Summary Judgment was granted.

On appeal, the Appellate Division set forth the specific language of N.J.S.A. 59:9-2(d), which indicates that:

“No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.  For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.”

Therefore, in circumstances where a Plaintiff has incurred in excess of $3,600.00 in medical expenses, the Appellate Division noted that “to recover pain-and-suffering damages against a public entity the plaintiff must also prove: (1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial.”  Toto v. Ensuar, 196 N.J. 134, 145 (2008).”  Further, Plaintiffs “may not recover under the TCA for mere subjective feelings of discomfort.  Brooks v. Odom, 150 N.J. 395, 403 (1997).”  In Brooks, although Plaintiff Brooks had ongoing pain and permanent restrictions of motion in the neck and back, her claims were still dismissed due to the fact that she could function in her employment and as a homemaker.  Id. at 406-407.  The Appellate Division also referenced the opinion in Ponte v. Overeem, 171 N.J. 46 (2002), in which even though Plaintiff in that matter sustained a knee injury which required surgery, the same still was determined not to meet the threshold.

Given all of the foregoing, in Moore the Appellate Division held that Plaintiff did not meet his burden of proof to establish the objective evidence that he had as a result of the incident sustained a permanent substantial injury to his knee. The Court relied heavily upon the fact that following the surgery, plaintiff remained “fully capable of performing in his employment and none of his avocational pursuits were significantly impaired. The discomfort he experienced while performing such activities was insufficient to meet the TCA threshold. Further, (the surgeon’s) suggestion of the possibility of future surgery was insufficient to establish a permanent loss of bodily function that was substantial.”

Thus, this recent Appellate Division opinion stands for the proposition that Plaintiff’s burden to meet the threshold of the TCA is a significant one, as even surgery may not be found sufficient to meet the same. This case shows that, even with objection evidence of a permanent injury, if a plaintiff is unable to show that the loss is substantial with respect to a limitation of his ability to work or his recreational or daily activities, it may be subject to dismissal based upon the TCA’s permanency defense.

Capehart Scatchard’s Howard Vogel Named A Top CFO

Capehart Scatchard is pleased to announce that CFO and Firm Administrator, Howard P. Vogel, CPA MBA was recently named a 2017 Top CFO by South Jersey Biz Magazine.

South Jersey Biz annually compiles the Top CFO list based on the contributions made by the individuals to the business world and the local community.  To view the January 2017 issue of the magazine, featuring Mr. Vogel, click HERE.

Mr. Vogel, a Marlboro resident, has been with the firm since 2015 and is a graduate of the City University of New York – Queens College.  He received his MBA from St John’s University in New York.  Mr. Vogel is a member of the New Jersey Association of Legal Administrators and New Jersey Society of Certified Public Accountants.

Shareholder Joins Capehart Scatchard’s School Law Department

Capehart Scatchard is pleased to announce that a new Shareholder, Cameron R. Morgan, Esq., has joined the School Law Department in its Mt. Laurel office.

A resident of Haddon Heights, New Jersey, Mr. Morgan focuses his practice in the areas of school law, special education, and labor and employment.  He has represented public school districts for many years in all aspects of their legal needs, handling a variety of matters ranging from school law matters such as teacher tenure/seniority issues, reductions-in-force, budget disputes, or student discipline, to collective negotiations with teachers’ unions, unfair labor practice charges, in-depth scope of negotiations issues, and other labor/employment matters, to special education disputes involving students with Autism Spectrum Disorder, Asperger’s Syndrome, dyslexia, behavioral issues, and myriad other special needs.  Cameron R. Morgan has a diverse range of litigation experience, handling cases on behalf of New Jersey school districts in a variety of courts and administrative forums.  He is a frequent speaker and lecturer on matters pertaining to school law, including topics on special education, labor negotiations, personnel and leave matters, student discipline issues, and harassment, intimidation, and bullying.

Mr. Morgan received his law degree from Rutgers University School of Law – Camden and bachelor’s degrees from the University of Richmond.  He began his legal career as a law clerk to the Hon. Joseph F. Lisa, P.J.A.D., a presiding judge of the Superior Court, Appellate Division.

Mr. Morgan is an Officer in the New Jersey Association of School Attorneys, the currently serving as a Trustee for the South-Central Region.  He is a member of the Burlington County Bar Association and New Jersey School Boards Association, and is admitted to practice in New Jersey, Pennsylvania, the U.S. District Court for the District of New Jersey, the Third Circuit Court of Appeals, and the United States Supreme Court.

Associate Attorney Joins Capehart Scatchard’s Workers’ Compensation Department

Capehart Scatchard is pleased to announce that Michael C. Rose, Esq. recently joined the Firm’s Workers’ Compensation Department in its Mt. Laurel office.

Mr. Rose, a Bordentown resident, represents insurance carriers and employers in the defense of workers’ compensation claims at all stages of litigation.

Mr. Rose received his law degree from Widener University School of Law and his B.A. degree in Political Science from La Salle University.  He is admitted to practice law in New Jersey and Pennsylvania.

Six Capehart Scatchard Associates Became New Shareholders And One Existing Shareholder Promoted

Capehart Scatchard is pleased to announce that six attorneys were admitted as new shareholders to the 140 year old law firm.  The new shareholders at Capehart Scatchard are:

Jessica M. Anderson – Litigation Department

Charles F. Holmgren – Litigation Department

Nicholas A. Dibble – Workers’ Compensation Department

Scott J. Endlein – Workers’ Compensation Department

Ashley T. Mollenthiel Fiore – Workers’ Compensation Department

Daniel P. Robinson – Workers’ Compensation Department

In addition, one existing Capehart Scatchard shareholder was elevated to a level just below full equity shareholder.  That shareholder is:

Ian G. Zolty – Workers’ Compensation Department