FORMER NYCOA CHIEF OK’D FIXING OF AGE DISCRIMINATION CASE WHERE KROLL AIDED UNION EMPLOYER IN “VETTING” OLDER WORKERS

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FORMER NYCOA CHIEF OK’D FIXING OF AGE DISCRIMINATION CASE WHERE KROLL AIDED UNION EMPLOYER IN “VETTING” OLDER WORKERS

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Manhattan, N.Y. June 5th, 2011: End Discrimination Now, as part of an ongoing review of jury verdicts reversed on appeal by the First Department as a “favor” for an employer, announced today that Judge Judith Kaye, the former Chief Judge of the highest appellate court in New York State (New York Court of Appeals, NYCOA), reviewed and sustained, along with Judges Carmen Cirpatrick, Rosenblatt, Graffeo and R.S. Smith, a decision by the “activist” First Department to reverse a major Age discrimination jury verdict by intentionally mis-stating the Record. In “Stephenson v. Hotel Employees” the Appellate Division panel of Judges Saxe, Andrias, Friedman, Williams, and Mazzarrelli reversed the Jury verdict, with only Mazzarrelli dissenting, by disregarding the employer’s (Local Union 100 (HEREIU), uncontroverted sworn admissions that they did not want to retain older workers (“there are too many old people”)and intended to fire the Plaintiffs, Stephenson aged 65 and Hodge aged 55, so they could bring in “new blood” and “hire two young workers…for the (price) of every older one”. Further, it was proven that the two Plaintiffs, one of which spoke “seven languages”, who acted as Business Agents for the Union, were considered “excellent employees”. The Jury rejected the “legitimate reason” cited by the Employer that allegations that the Plaintiffs were “bagmen” for the Mafia, based upon “evidence” from an anonymous “FBI Informant”, was justification for the terminations. The Union had retained Kroll Associates to investigate the allegations after a Federal Prosecutor had produced evidence that implicated the President of the Union and his family members. The Plaintiffs testified that they had no idea they were a target of a RICO investigation, nor did they believe that was the reason for their termination as they were repeatedly advised they would be “fired” for their “age” if they “do not quit”. The Record supported their case as neither Plaintiff, although eventually fired, was ever found guilty of any RICO charges. The employer never produced evidence that the discriminatory statements made by the Supervisors were not true. In fact, the unrebutted testimony proffered by the Union corroborated the Plaintiffs account that they were persistently hazed about their age and threatened with termination. These acts preceded the “RICO” investigation and continued after it was over. The Employer’s only defense or “legitimate reason” was that they did not fire all of the older workers and that they did fire three younger workers, the latter of which had been implicated in the corruption charges. The jury rightfully saw through this ruse and realized that the pattern of discrimination pre-dated the RICO investigation and ended with the employer carrying out the Age discrimination threat. “The Union clearly used the diversion of the RICO investigation to mask the unlawful motive,” END President Jordan stated. “Kroll is a corporate “intel” firm that does this kind of “Michael Clayton” work.” The allegations against the older men came from Kroll VP William Kish, who had been retained by the employer, and who “learned” of the allegations about Stephenson and Hodge being “bagmen” from an anonymous “FBI informant”.

The First Department majority, relying upon “multiple hearsay”, found that because the successor supervisor had not fired “some” of the older workers, the employer had rebutted the inference of discrimination. In fact, the Plaintiffs continued to be harassed openly about their age . Contrary to both the First Department’s and NYCOA’s opinions, the employer never met its burden to “articulate(ing) a legitimate, independent non discriminatory reason”. The allegations of misconduct were never proven, nor were the Plaintiffs even told about them at the time, yet they were fired anyway. The fact that younger workers were fired as a consequence of the RICO investigation in no way rebutted the prior evidence that the employer intended to fire the older workers. Justice Mazzarrelli in her dissent noted that the Majority had cited legal insufficiency of evidence” (JNOV) but produc(ed) an analysis that was “rife with discretionary balancing” … “Disagreement with weight of the evidence to be accorded particular testimony or evidence is not grounds for reversing the verdict”. After analyzing the evidence against the McDonnell Douglas standards, Mazzarrelli found that the evidence before the jury was sufficient. “It was within the Jury’s province to credit Hodge and Stephenson’s testimony that they were repeatedly confronted by Gerace about their age. Although Gerace was removed when the trusteeship was implemented, Stephenson also testified that this practice continued…The Jury also accepted the testimony that Sirabella had told him that he was being fired for his age”.
END President Kathryn Jordan had encountered an almost identical “sufficiency” device when her jury verdict was targeted by the activist First Department. The panel (Justices Lippman, Gonzales, Sullivan, Catterson, Friedman) ironically relied upon the flawed “Stephenson v.Hotel Employees”legal standard for the Kathryn Jordan v. Bates Advertising case in an obvious effort to reverse another hard fought jury verdict.

This proved to be fatal error. “They used a case that was “fixed” to justify “fixing” another case”, Jordan said. Given that the narrow provisions of Appellate Law preclude “second guessing” jury verdicts unless the jury acted “irrationally”, the Lippman panel realized that a rational jury could clearly find in her favor. To side step this legal obstacle, the Panel rendered impermissible credibility findings de novo, relied upon evidence from a “sealed filed”, and misrepresented the Record.(Evidence Tampering). When it came to the employer’s pretext, they simply assumed the employer’s testimony was “true” even though there was no documentary evidence to support the Post Hac testimony that “financial problems” were the “legitmate reason”. Jordan proved at trial that Bates was “aggressively hiring new non disabled planners” from outside the Agency during the alleged “financial crisis”. In fact, all of the pretexts were rebutted by Jordan with documentary evidence.

END has observed that Appellate judges appear to be particularly biased in favor of employers and frequently act outside their jurisdiction to manipulate jury verdicts to “help” them, hoping to cultivate favor. In the Lippman-Bates matter, the Panel unwisely speculated about the significance of various Post Hac “evidence” that was clearly inadmissible and rendered opinions in areas where they lacked expertise, including Discrimination Law. Their operating bias was clearly that employers are victims of “vexatious” disgruntled employees who can’t wait to be fired so they can spend 16 years in a courtroom, rather than employers circumventing discrimination law. EEOC stats prove the pervasiveness of discrimination as charges have risen every year for the last decade, with multiple complaints from Multiple Protected Class victims growing the fastest. Further, Labor Department stats prove Protected Class workers are still under hired, compensated and promoted compared to “white males”. Attorneys have long exploited the perception gap for profit.
. “If Corporate America wants to reduce discrimination litigation then Corporate America needs to stop discriminating”. Jordan said. “There are challenges to be faced with meeting EEO burdens in challenging times, but compromising ethical standards is not how “excellent companies” tackle these challenges. They don’t engage in protracted, pointless litigation on the backs of Taxpayers and Shareholders. They devise “win-win” solutions”.

Chief Judge Lippman and Kaye have both initiated vitriolic lawsuits in the past seeking “private sector compensation” for judges. Jordan believes her status as a $250K disabled executive woman was a lightning rod for the dispute. There also continues to be pervasive bias against discrimination litigants. “Discrimination plaintiffs are fighting to work”, Jordan said. “If employers recognized this early on, they could mitigate large damages awards that only grow with protracted litigation. It's the employers who are litigious. They are bankrolling these marathons".
“Converting jury verdicts into favors for grateful corporate violators has become big business for Judges”, Jordan said. “Judges who architect these conspiracies to obstruct justice are clearly acting outside both their discretion and jurisdiction. Any private actor who aided them has participated in an unlawful enterprise.

Justice Mazzarrelli’s decision on Stephenson to buck the Majority offers some hope that there are judges who abide by the Rule of Law. “She is a Pro Business judge, but she knows that her role is not to substitute herself for the jury no matter how tempting that might be”.

The First Department panel used Jordan’s case against Bates Advertising (WPP) to advance an onerous political agenda: to change the Laws on discrimination to heighten the victim’s burden of proof and to effectively enable employers to concoct any pretext or “legitimate reason” and be exculpated. “That’s not the law,” Jordan said. “It’s “real reason”. The Bates Panel also used the case to advance an insidious judicial succession plan whereby Judges Lippman, Gonzales, and Acosta would be advanced and Jordan’s complaint of misconduct “neutralized”. Judiciary law requires all judges to report, not suppress, misconduct claims. This failure by the Judiciary to enforce Federal and State Laws has encouraged corporations to take increasingly greater liberties. The Taxpayer has born those burdens with costs spi

More information can be found online at http://WWW.ENDDISCRIMINATIONNOW.COM (UNDER CONSTRUCTION)

Age Discrimination     Chief Judge Jonathan Lippman     JNOV     JUDGE JUDITH KAYE     Judge Mazzarreli     Obstruction of Justice     RULE OF LAW     STEPHENSON V. HOTEL EMPLOYEES