Category Archives: Age Discrimination

Blog articles on: Age discrimination under either the federal Age Discrimination in Employment Act of 1967 (29 USC 621) or the West Virginia Human Rights Act of 1967 (W. Va. Code 5-11-1). Here is a list of our blog articles on this category:

Fifth Circuit applies hostile work environment to age claims

Courts have sometimes questioned whether hostile work environment claims apply to all “flavors” of discrimination. Hostile work environment claims most frequently arise in claims of sex discrimination  and race discrimination claims under Title VII of the Civil Rights Act of 1964, but age discrimination claims under federal law arise under a different statute, the Age Discrimination in Employment Act of 1967.

The Fifth Circuit directly held recently that hostile work environment claims are encompassed by age discrimination claims under the ADEA in Dediol v. Best Chevrolet, Inc., — F.3d — (5th Cir. September 12, 2011).

Continue reading Fifth Circuit applies hostile work environment to age claims

Cleveland jury awards $900,000 against hospital in age discrimination case

Ellen Simon, an attorney in Cleveland who authors the excellent blog, Ellen Simon’s Employee Rights Post, recently tried an age discrimination claim for plaintiff Gloria Parks (a phlebotomist) against Cleveland’s University Hospitals Case Medical Center.

Ms. Parks had worked for the hospital for 30 years when she was fired over a medical mistake involving herself and another much younger employee. The hospital fired Ms. Parks, but not the much younger employee.

The jury returned a verdict in favor of the plaintiff (Ms. Parks) for $450,000 for her economic loss and $450,000 for “other compensatory damages”, according to Ms. Simon’s blog article. Based on the limited information I have so far, it looks like the “other compensatory damages” was an award for emotional distress, The jury did not award punitive damages.

So the verdict totals $900,000, and Ms. Simon will file a request for attorneys’ fees‘ fees and expenses. While it is not clear from the article so far, I suspect the case was asserted for age discrimination under Ohio’s Fair Employment Practices Act (and not the federal ADEA).

Continue reading Cleveland jury awards $900,000 against hospital in age discrimination case

Charleston, WV Jury Awards $1.7m in Age Discrimination Case, 10-1-09

On October 1, 2009, a jury in Charleston, Kanawha County, West Virginia returned a verdict in an age discrimination case, awarding James Nagy a total of $1,750,450.

The Lawsuit

James Nagy filed suit in Charleston in March 2008 against West Virginia American Water Company, alleging that he was fired in March 2007 because of his age at 53, after 23 years of employment.

James Nagy was represented by Maria W. Hughes and Stephen Weber at Kay Casto & Chaney PLLC. West Virginia American Water Company was represented by Mychal Schulz at Dinsmore & Shohl LLC.

The case is pending in Circuit Court in Kanawha County, West Virginia, before Judge Jennifer Bailey-Walker.

The Verdict

That $1,750,450 verdict consisted of:

  • $150,000 for humiliation,

Award of Attorney’s Fees and Expenses

Under the West Virginia Human Rights Act (which prohibits age and other forms of discrimination in the workplace), Nagy’s counsel filed a motion additionally requesting attorneys’ fees and expenses.

Judge Bailey-Walker awarded the plaintiff total attorney’s fees of $177,772.50, and $8,855.33 in expenses.


The Defendant is in the process of appealing.  The issue of attorneys’ fees was resolved by Judge Bailey-Walker on June 8, 2010, so the appeal process is in its early stages as of the date of this article being updated (July 31, 2010). As things develop in the appeal, I will update this article.

July 31, 2010

Fourth Circuit rules that pension contribution rules may be age biased

The Fourth Circuit Court of Appeals, in an unpublished opinion, addressed whether an employer’s pension contribution rules may constitute age discrimination under the Age Discrimination in Employment Act of 1967, in Equal Employment Opportunity Commission v. Baltimore County, –F.3d. — (4th Cir. 2010). The unanimous opinion was written by Judge Dennis Shed, and was joined by Judge Roger Gregory and Arther L. Alarcon (Senior Judge on Ninth Circuit, sitting by designation).

Jackson County jury awards $2.1 million in age case

On March 17, 2010, a jury in Jackson County in West Virginia awarded Jerold John Rice Jr. roughly $2.1 million in an age discrimination case against The Burke-Parsons-Bowlby Corporation, Stella-Jones US Holdings Corporation, and Stella-Jones, Inc., tried in Judge Thomas C. Evans III’s court.

Mr. Rice was represented by Mark Atkinson and Paul Frampton at Atkinson & Polak, PLLC, and the defendants were represented by Roger Wolfe at Jackson & Kelly PLLC in Charleston, and Kevin Hyde at Foley & Lardner, LLP in Jacksonville, Florida.

Here is a quick run-down of what was awarded in the case:

  • Back pay: $142,659 awarded by jury.
  • Pre-judgment interest: $11,791.84 from date of termination through trial.
  • Front pay: $1,991,332.00 awarded by jury (from roughly age 48 through retirement age at 67).
  • Emotional distress: $0.
  • Punitive damages: Jury did not answer question affirmatively which would have allowed award of punitive damages.
  • Total judgment based on jury’s verdict: $2,145,782.84, plus post-judgment interest on that amount at 7% per annum.
  • Attorneys’ fees: $117,235 awarded by judge (based on $450 an hour for Mark Atkinson and $300 per hour for Paul Frampton).
  • Litigation expenses: $20,324.16 awarded by judge.
  • Total award: $2,283,342.00 (based on jury verdict, pre-judgment interest, attorneys’ fees and expenses) plus post-judgment interest at 7% per annum.

The Rice case illustrates the risk employers face when they terminate an older, good, long-standing employee, and replace him or her with a much younger person with little or no experience for the employer.

What Happened?

Mr. Rice at the time of his termination (in 2009) was age 47 and had worked for Burke-Parsons-Bowlby Corporation for 24 years. When Mr. Rice was terminated he was the corporate controller.

Continue reading Jackson County jury awards $2.1 million in age case

Arbitration Agreements in Union Contacts are Enforceable; US Supreme Court in Penn Plaza v. Pyett

USSupremeCourtRightFountain 4/1/09: The US Supreme Court ruled that “pre-dispute arbitration agreements” in collective bargaining agreements (union contracts) are enforceable, in Penn Plaza PLLC v. Pyett, 129 S. Ct. 1456 (2009) (5-4 decision).

This was an age discrimination case under the Age Discrimination in Employment Act of 1967 (ADEA). The plaintiff was a member of a union, and the collective bargaining agreement (union contract) required submitting age discrimination claims to binding arbitration.

The US Supreme Court had previously ruled, but not in a labor union setting, that arbitration agreements for ADEA claims were enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-33 (1991)). So the real issue in Penn Plaza was whether there would be a different result because of the union contract setting and the National Labor Relations Act.

Continue reading Arbitration Agreements in Union Contacts are Enforceable; US Supreme Court in Penn Plaza v. Pyett

Supreme Court "fills in the blank" to recognize retaliation claims for federal employees under ADEA; Gomez-Perez v. Potter, 2008

USPS Logo 5-27-08: The US Supreme Court in Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008) ruled that the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., prohibited retaliation against federal employees who had complained about age discrimination, even though the federal employee section of the ADEA did not expressly prohibit retaliation. This was a 6-3 decision. The majority opinion was written by Justice Alito, in which Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer joined. Justices Roberts, Scalia, and Thomas dissented, with dissenting opinions being written by Justices Roberts and Thomas.

The Gap in the Federal Employee Section of the ADEA

This was the problem under the ADEA: The ADEA‘s main section, in prohibiting discrimination against employees 40 and older, only deals with private industry employees and state government employees. I will call this section of the ADEA, the “private and state employee sections”.

Continue reading Supreme Court “fills in the blank” to recognize retaliation claims for federal employees under ADEA; Gomez-Perez v. Potter, 2008

US Supreme Court broadens scope of permissible evidence for proving discrimination; Sprint/United Management v. Mendelsohn; 2/26/08

US Supreme Court February 26, 2008: The United States Supreme Court handed down its opinion in Sprint/United Management Co. v. Mendelsohn, 128 S. Ct. 1140 (2008) (FindLaw site opinion). The issue in this federal age discrimination case (ADEA) was whether the plaintiff could present evidence to the jury about other alleged older discrimination victims, where the decision made to terminate the other individuals was not made by the same decision-maker that terminated the plaintiff.

The employer (Sprint) contended that evidence of other alleged age discrimination victims was not admissible where the decision-makers for those other victims were different from the decision-makers who took action against the plaintiff.

The Supreme Court rejected the employer’s argument and said that the evidence of other victims might be admissible, even if different decision-makers were involved. The trial court should conduct a “balancing test” for admissibility of discrimination against other employees by different supervisors, where the relevance of the other employees’ situation is balanced against unfair prejudice to the employer.