By: Francine Foner, Esq. and Ty Hyderally, Esq.

             The New Jersey District Court recently denied a national media company’s effort to throw out a claim of age discrimination by one of its former New Jersey employees. In Famulare v. Gannett Co., 2023 U.S. Dist. LEXIS 95942, 2023 WL 3764684 (D.N.J. June 1, 2023), Antoinette Judy Famulare worked for Defendant and its predecessors (collectively, “Gannett”) since 2004 as a sales executive selling digital and newspaper advertisements. On February 18, 2020, Gannet terminated Famulare, then age 63, and the oldest member of the sales team.

The District Court found that Famulare had provided sufficient evidence of pretext from which a jury could infer that her termination was due to her age. Therefore, the District Court denied the Company’s motion for summary judgment to dismiss Famulare’s claim of age discrimination under the New Jersey Law Against Discrimination (LAD).

In reaching its decision, the District Court observed that the first step in reviewing the motion was to determine whether Famulare had met her initial burden of establishing a prima face case of age discrimination. As the District Court explained, to establish a prima facie case of age discrimination, a plaintiff must show that: “‘(1) she belongs to a protected class; (2) she performed her job at a level that satisfied [her employer]’s legitimate expectations; (3) she was discharged; and (4) she was replaced by ‘a candidate sufficiently younger to permit an inference of age discrimination.’” citing  Young v. Hobart W. Grp., 385 N.J. Super. 448, 897 A.2d 1063, 1068 (N.J. App. Div. 2005) (quoting Bergen Commercial Bank v. Sisler, 723 A.2d 944, 956 (NJ 1999).  The District Court found that Famulare had satisfied each one of these elements, as: (1) at age 63, and the oldest member of her sales team, she was a member of the protected class; (2)  she presented evidence showing that she was “actually performing the job prior to the termination”; citing Zive v. Stanley Roberts, Inc., 182 N.J. 436, 867 A.2d 1133, 1143 (N.J. 2005); (3) she was discharged; and (4) deposition testimony confirmed “that her accounts were given to younger hires after her termination.” Famulare at *11.

Since Famulare established her prima facie case, the District Court observed that “‘the burden of production shifts to the defendant employer to articulate a legitimate, nondiscriminatory motive for its action.’” Id. at *9, citing Kremp v. Wachovia Bank, NA., 451 F. App’x 151, 155 (3d Cir. 2011) (citing Sisler, 723 A.2d at 954-55). ‘[I]f the defendant is able to articulate such a motive, the burden shifts back to the plaintiff to show that the articulated motive was a pretext for discrimination.’” Id. Gannett asserted that its purported legitimate, nondiscriminatory reason for terminating Famulare was that she “was not making quota in the fourth quarter of 2019, was on track to not make it in the first quarter of 2020 and she was not engaging in the sales prospecting activity that her boss, Defendant Jeramiah Martin, had been demanding of her for at least two years.” Famulare at *11. (emphasis in original).

However, the District Court held that Famulare had presented sufficient evidence for a reasonable jury to find that the Defendants’ articulated reason for her termination was a pretext for discrimination. First, Famulare presented persuasive evidence from which a reasonable jury could find that her supervisor had reassigned her at least 18 accounts from a former sales executive in order to negatively affect Famulare’s quota attainment percentage. Second, Famulare was not put on any performance improvement plan prior to her termination, and there was a genuine issue of material fact “regarding whether Gannett had a policy to provide performance improvement plans (“PIPs”) to its sales executives before their termination, and if so, the extent to which it was followed.” Id. at *15. Third, Defendant terminated Famulare on February 18, 2020, but based its termination in part on Famulare not reaching her February 2020 and first quarter of 2020 goals. The District Court found that “a reasonable factfinder could find that Famulare’s achievement of approximately 75% of her monthly quota halfway through [February 2020], along with her 53.20% achievement of her quarterly quota halfway through the quarter, contradicts part of Defendants’ asserted motive for her termination.” Id. at *17-18. Thus, the District Court denied Defendants’ motion for summary judgment based upon Famulare having presented sufficient evidence of pretext.

In addition, the District Court declined to dismiss Plaintiff’s claim for punitive damages. The District Court observed that to award punitive damages in an LAD discrimination case there must be “‘(1) actual participation in or willful indifference to the wrongful conduct on the part of upper management and (2) proof that the offending conduct is especially egregious.’” Id. at * 18, citing, Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 735 A.2d 548, 551 (N.J. 1999) (citations, alterations, and internal quotation marks omitted). The District Court then concluded that since such “highly fact-sensitive” questions are for a jury to resolve, it would deny Defendants’ motion to dismiss Famulare’s claim for punitive damages. Id. (citations omitted).

This decision is a win for New Jersey employees facing age discrimination in the workplace, and a welcome affirmation of the role of the jury in determining genuine issues of material fact, as well as whether to award punitive damages in a discrimination case under the LAD.

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