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Proximity of Firing to Surgery Makes Viable Claim for Ex-Cablevision Employee, Appeals Court Rules

Discrimination - Credit: chris2766/Shutterstock.com
Discrimination - Credit: chris2766/Shutterstock.com

Credit: chris2766/Shutterstock.com

A former Cablevision employee's discrimination suit can move forward because she sufficiently alleged that her firing resulted from "hostility toward her medical condition," a New Jersey appeals court ruled.

The Appellate Division's ruling allows plaintiff Ada Caballero to pursue age discrimination and aiding and abetting claims, as well as a claim for punitive damages, on remand.

Caballero contends she was terminated at age 50 shortly after gallbladder surgery, and replaced by someone half her age.

After surgery, "it may be that plaintiff was cleared to return to work and did not claim the surgery affected her in any way," the court said.

"But plaintiff was terminated so soon after surgery; that suggested—at least at this stage—that Cablevision's true reason for the termination was its hostility toward plaintiff's medical condition, as amplified by its discontent with prior medical leaves," the court added.

Caballero alleges the company’s stated reason for the firing, that she failed to notify human resources of her divorce in order to remove her ex-husband from company health benefits, was a pretext.

The discrimination suit was dismissed in Hudson County Superior Court, but the panel in the April 25 decision determined that there was enough to support claims of violations of the state Law Against Discrimination.

“For either legitimate or pre-textual reasons, we reverse the summary judgment entered in Cablevision's favor and remand for a trial,” Judges Clarkson Fisher and Karen L. Suter, who heard the case on April 9, said in the per curiam decision. “Because we conclude that the judge erred in granting summary judgment on the age and disability LAD claims, we reverse.”

Defendants in the case are Cablevision Systems Corp.; Earnest R. Pastor, individually and as human resources manager at Cablevision; and Stephany Dalton, individually and as human resource manager at Cablevision.

Jay Chatarpaul of the Chatarpaul Law Firm in Englewood Cliffs represented Caballero.

“We are obviously pleased with the court’s decision, which agreed with our position that the motion court usurped the role of the jury and decided significant material facts in favor of the defendant (non-moving party), and thus, in contravention of fundamental principles of summary judgment,” Chatarpaul said in an email on Thursday.

August Heckman III, of Morgan, Lewis & Bockius’ Princeton office, is representing the defendants, along with the firm’s Sean Lynch and Rudolph Burshnic II. Heckman said his team had no comment on the decision.

Caballero alleged, among other things, that Cablevision violated the LAD by terminating her, at age 50 after 15 years of employment, because of a disability, perceived or otherwise. She had just undergone gallbladder surgery for which she was on medical leave, according to the decision.

“In an LAD action based on a claim that employment action was unlawfully based on age, a plaintiff must establish: membership in that protected class; qualifications for or adequate performance of the position held; an adverse employment decision; and replacement by a person not in the protected class," the Appellate Division noted. “When these elements are adequately demonstrated, the burden of production shifts to the employer to come forward and 'articulate a legitimate, nondiscriminatory reason' for its actions." The burden then shifts back to the plaintiff to show the employer's articulated reason "was merely a pretext for discrimination and not the true reason for the employment decision."

“We conclude that plaintiff clearly presented sufficient evidence of a prima facie age discrimination case,” the judges wrote.

Noted in the court opinion was the claim that, shortly before Cablevision terminated Caballero, the company gave her a "strong performance" evaluation. And, after being fired, she allegedly was replaced by a person nearly half her age.

Cablevision asserted Caballero was terminated because she failed to reveal her divorce in order to surreptitiously retain health insurance benefits for her ex-husband, according to the court.

That reason met the burden of articulating a legitimate nondiscriminatory reason for her termination, but Caballero in turn provided evidence that she informed Cablevision of her divorce shortly after its occurrence at the end of July 2013, and that she sent a copy of the divorce judgment to an HR representative at Cablevision in October 2013, the panel said.

She also then provided a copy of her new driver's license, and documents revealing she had applied for a new Social Security card and changed her name, according to the court.

In 2015, Caballero also filled out a requested form of dependent eligibility as part of a companywide audit by an outside firm that again acknowledged her divorce, the court said.

Caballero believed she had acted in good faith after following company procedures, and that she had done all that was necessary to remove her ex-husband from the company’s health insurance plan, she contends.

The judges said Cablevision acknowledged that Caballero provided a copy of her divorce judgment shortly after its entry.

“When the parties' factual presentations are closely examined, the recognition that there exists a genuine factual dispute about the reason given for termination is inescapable,” the panel wrote. “The record, when viewed in plaintiff's favor, reveals a genuine dispute about whether she attempted to defraud Cablevision by failing to take steps to remove her ex-husband from the company's health insurance plan, or whether the evidence could support a fact-finder's determination that this reason was a pretext for an age-based termination.”

In her certification, Caballero recounted how, while on medical leave for the gallbladder operation, she received a telephone call from an HR representative asking whether she had removed her ex-husband from the company’s health insurance plan, the court noted. She said she advised HR that she did that "back in 2013" and again in 2015 as part of a companywide audit.

The judges said Caballero appeared to give "an entirely truthful answer."

“Cablevision may ultimately persuade a fact-finder that plaintiff should have done more and that, as a result, it had a legitimate reason to terminate her employment,” the court said. “But, on this record, it was not entitled to have these matters summarily decided in its favor.

“We fail to see how it could be said that these representations leave no doubt that Cablevision had articulated a legitimate reason for termination,” the panel added.

The court noted that the LAD affords broad latitude in its interpretation of what it means to be physically disabled.

“Because she was terminated shortly after gallbladder surgery, plaintiff argues she has a viable LAD claim based upon a real or perceived disability. The parties dispute whether her condition, which she acknowledged required no accommodation, rises to the level of what the LAD was designed to protect. The LAD broadly defines what it means to be disabled,” wrote the judges. “The LAD is not limited to encompassing only severe or immutable disabilities; it is 'significantly broader,'" the court added, citing the New Jersey Supreme Court's 2002 decision in Viscik v. Fowler Equip.

The court noted Cablevision's alleged "discontent with prior medical leaves." Cablevision had documented seven medical leaves of absences by Caballero between 2005 and 2013, for which she was not disciplined or terminated.

"One might wonder why Cablevision would then have considered 'discipline' or 'termination' when, according to its own statement, plaintiff requested those leaves and those requests were 'granted,'" the court said. "At this stage, plaintiff was entitled to the court's view of this allegation as suggesting Cablevision's animus against her for medical circumstances at the time of termination as illuminated by past similar circumstances."

Cablevision was acquired by Altice in 2016.