Law 360

Law360 features Matthew A. Luber, Esq., Charles J. Kocher, Esq., Kelly E. Adler, Esq., & Jeffrey D. Ragone, Esq.,’s recent discrimination lawsuit against Progressive Pipeline Management LLC. Their clients, Mr. Flores, Mr. Baskerville, and Mr. Stanton alleged they were fired within days or even hours of complaining to their superiors about illegally low wages or their supervisor, Shane Lapresti’s racist abuse. Shane Lapresti allegedly made racist remarks about Black colleagues being incarcerated and instructed a worker struggling with mental health issues to kill himself.

 

McOmber McOmber & Luber attorneys Christian V. McOmber, Peter D. Valenzano, and Jeffery P. Rankel filed a Complaint and Demand for Trial by Jury (Complaint) on behalf of their client, Robert Wilson, against Ole Hansen & Sons, Inc. (OHS) and three employees alleging sexual harassment and retaliation in violation of the New Jersey Law Against Discrimination (“NJLAD”) and Conscientious Employee Protection Act (“CEPA”).  Before he was wrongfully terminated, Mr. Wilson was a Property Manager for OHS and fulfilled his duties in a diligent and responsible manner.  

The Complaint alleges that Mr. Wilson’s direct supervisor repeatedly made sexually explicit and misogynistic comments, including describing in detail how the supervisor believed Mr. Wilson and his co-workers of wanted to “f*ck” a female co-worker. When Mr. Wilson tried to stop the harassing and inappropriate behavior, the harassment intensified and OHS employees bombarded Mr. Wilson with further obscene sexual comments objectifying him and the female coworker.    

It is further alleged in the Complaint that employees of OHS acted in concert to retaliate against and intimidate Mr. Wilson for trying to stop the harassment. In fact, another OHS employee, who had a reputation for violent and temperamental outbursts, screamed profanities and made threats of violence against Mr. Wilson, leaving Mr. Wilson so fearful for his safety that he had to call the police and report the attempted assault. This toxic and retaliatory conduct was aimed at forcing Mr. Wilson to leave his employment by creating a working environment so unbearable that no reasonable employee could endure it.  

As set forth in the complaint, instead of assisting Mr. Wilson, the human resources department and certain employees of OHS ignored Mr. Wilson’s pleas for assistance, allowed the retaliation to persist, and then set Mr. Wilson up for failure by fabricating non-existent performance issues to create a basis for their wrongful termination. 

MML is seeking the reinstatement of Mr. Wilson’s employment with all benefits, back and front pay with benefits, compensatory, consequential, and punitive damages, attorneys’ fees and expenses, as well as any other relief available under the NJLAD. Additionally, Mr. Wilson seeks to require OHS to take appropriate corrective action to prevent retaliation and sexual harassment in its workplace including anti-discrimination, anti-harassment, and civility training.  

In reference to the matter, Mr. Rankel stated, “As alleged in Mr. Wilson’s Complaint, we are seeking redress for the incessant harassment and abuse Robert suffered at the hands of his employer and hoping to prevent other employees from facing such sexual harassment, intimidation, and retaliation in the future.  Unfortunately, Mr. Wilson was punished and wrongfully terminated for doing nothing more than asserting his basic civil right to work in an environment free from such sexual harassment and threatening acts of violence.” 

Partners R. Armen McOmber and Peter D. Valenzano and Associate Lauren M. Hill successfully argued before the New Jersey Superior Court, Appellate Division on behalf of Plaintiff Margaret Gathman, overturning the lower court’s dismissal of Plaintiff’s Complaint on Summary Judgment.

The Complaint alleges that Defendant Care One Management LLC (“Defendant Care One”), terminated Gathman after she blew the whistle on Defendant Care One’s unlawful failure to return overpayments made by Medicare, Medicaid, and other entities and individuals. In January 2020, the Defendants filed a motion for summary judgment. The Trial Court granted the Defendants’ Motion, determining that Gathman failed to establish a causal connection between her report about the refunds and her termination less than one week later.

Gathman appealed and the Appellate Division reversed. The Court determined that there were “genuine issues of material fact” which precluded summary judgment, and the Trial Court “should not have made credibility assessments of the proffered facts and applied those findings more favorably to defendants to find that Gathman did not establish a prima facie CEPA claim of retaliation.” Such issues of material fact included conflicts between the deposition testimony and a “sham affidavit” from Alberto Lugo, Defendant Care One’s former executive vice president, inconsistencies in the testimony of Defendant Care One Management, and the temporal proximity between Gathman’s report that she had returned $3 million in overpayments and her unlawful termination. Gathman’s case will be remanded to the Law Division, where it will be scheduled for trial.

“We are pleased that our client will get to see her day in court. It was certainly not lost on the Appellate Division that Alberto Lugo, executive vice president and general counsel of CareOne, literally denied knowing our client and the reason for her termination at his deposition, despite signing her termination letter, and then submitted a certification in support of summary judgment detailing the precise reason why she was terminated. Thankfully, the Appellate Division saw right through this ‘sham affidavit’ and acknowledged that issues of fact are best left to a jury.”  R. Armen McOmber, McOmber McOmber & Luber, P.C.

Partners Christian V. McOmber and Peter D. Valenzano represent Mitchel Alboum in age discrimination and retaliation claim filed against Merck KGaA in Monmouth County, New Jersey. The complaint alleges that Alboum, a sixty-one (61) year old man and a seasoned and accomplished employee of Merck for 40 years was subject to intolerably hostile work on the basis of his age. In 2018, Merck hired two considerably younger managers, and for the first time in his four-decade career, Alboum was faced with poor performance reviews, a baseless performance improvement plan (PIP), and a hostile work environment.  

Alboum’s younger managers, Anthony Trebino and Kevin Stanton, littered Alboum’s performance reviews with offensive ageist commentary, belittled him, and refused to provide meaningful constructive feedback or assistance. They likewise withheld bonuses and pay increases until Alboum completed the baseless PIP. When Alboum complained about the discrimination, both verbally and in writing, his complaints fell on deaf ears. As a result, Alboum was forced to participate in a discriminatory and retaliatory performance improvement plan as a means of forcing him out of his long-held employment with Merck, all because of his age.  

The lawsuit, which was filed in Monmouth County Superior Court, alleges violations of, among other things, the New Jersey Law Against Discrimination. Alboum seeks compensatory damages, punitive damages, and attorneys’ fees and costs. 

“This claim presents as a text-book claim of age discrimination. Rather than celebrate our client’s nearly forty years of dedicated service to the company, the Defendants have subjected him to an intolerably hostile work environment – all in an effort to force him from his job. As alleged, Defendants have deprived him of income, humiliated him with a baseless performance improvement plan, and targeted him with ageist comments.  We stand shoulder to shoulder with our client in standing up against this invidious discrimination.” Peter D. Valenzano, McOmber McOmber & Luber, P.C. 

Read the full story.

Case Update (October 28, 2021):

On October 27, 2021, Partner Charles J. Kocher obtained final approval from a federal court to the $3.15 million class action settlement to Tastykake drivers, which will provide substantial class relief to nearly 300 class members in PA, NJ, and MD to resolve claims that they were unlawfully misclassified as independent contractors and incurred unlawful deductions from their pay.

The court noted that “Class counsel are qualified and experienced advocates in class litigation, including employment litigation, and demonstrated their skills….”

“Apart from resolving this class action, the settlement might serve as a warning to companies who may be improperly classifying their workers as independent contractors to avoid the benefits of wage laws.” – Charles Kocher, Esq. 

Click here to read the Opinion.  In the words of the Honorable Joshua D. Wolson, “The Court must decide whether the Parties have baked a settlement agreement that is as tasty as a Tastykake. They have.”

 

Class Settlement Alert (April 14, 2021)

Partner Charles J. Kocher secured a $3.15 million class-action settlement for Tastykake drivers in Pennsylvania, New Jersey, and Maryland, as well as on behalf of opt-in plaintiffs under the FLSA, to resolve allegations of Tastykake’s violations of federal and state wage and hour laws. According to the operative Complaint, Tastykake allegedly misclassified its delivery drivers as “independent contractors,” depriving them of overtime and other benefits of being employees and also subjecting them to improper pay deductions. The U.S. District Court for the Eastern District of Pennsylvania has granted preliminary approval of the settlement. Click here to read the order. McOmber, McOmber & Luber, P.C. and Saltz Mongeluzzi & Bendesky, P.C. were appointed as interim Class Counsel.

“Apart from resolving this class action, the settlement might serve as a warning to companies who may be improperly classifying their workers as independent contractors to avoid the benefits of wage laws.” – Charles Kocher – as featured in Law360 on April 12, 2021. 

If you believe that you may be the victim of a wage and hour violation please contact our team today.