Factors That Support a Winning Verdict in a Law Against Discrimination Claim

In November of 2019, a Bergen County, NJ jury returned a $6 million dollar verdict in favor of an African-American employee, Rebecca McCarthy, after the trial of her discrimination claim against her former employer, Care One nursing home.  Ms. McCarthy maintained that Care One terminated her due to her race, and the jury emphatically agreed. The breakdown of damages included more than $1.8 million in compensatory damages (or lost wages), $5,000 for mental/emotional distress, and a whopping $4.1 million in punitive damages against Care One. 

The size of the verdict garnered considerable media attention, both at the local and national level.  However, it’s important to note that, post-trial, employers may ask the judge for a reduction in damages by filing a “motion for remittitur”.  In ruling on these motions, judges have the discretion to cut jury awards, and often do.

That being said, the McCarthy v. Care One verdict amounted to an impressive win for a plaintiff suing under the New Jersey Law Against Discrimination (“LAD”).  As such, would-be plaintiffs considering filing their own LAD claim against an employer may be wondering what factors helped convince the jury to award such a large damages figure.  The following certainly helped:

The Plaintiff Was a High-Earner

Ms. McCarthy was fired from her position as Vice President of Clinical Leadership at Care One’s facility in Bound Brook.  In this role, she earned $190,000 per year – a high salary that certainly played a part in the award of $1.8 million for lost past and future pay.

The Plaintiff Had Just Been Promoted 

Ms. McCarthy maintained that, in June 2016, she informed Care One of her intent to take a job at another company.  In response, Care One convinced her to stay by promoting her to a Vice President role and paying her a retention bonus.  Ms. McCarthy presented evidence that, after becoming a VP, she then met Care One goals for improving customer service ratings and reducing reliance on outside nursing.

The jury very likely relied on the foregoing to discount Care One’s defense that it fired Ms. McCarthy for job performance.  Any reasonable juror would ask: If the plaintiff was so incompetent, why not let her give her notice and leave? Why ask her to stay and promote her instead?

The Plaintiff Was Fired Very Suddenly

A few months after Ms. McCarthy’s promotion, a new executive assumed management of the Care One facility.  Very shortly thereafter, this executive asked Ms. McCarthy to give up her Vice President position and return to a demoted “floor” role.  Ms. McCarthy alleged the executive told her: “I don’t want a black person walking around here in a suit as VP. I want you in scrubs, flats and a lab coat.”  When Ms. McCarthy did not assent, the executive fired her the very next day.

Care One denied that its executive made any such racially-charged comment, or that race played any motivation whatsoever in the termination.  Indeed, Care One pointed out that the executive in question had hired non-whites for all her direct reports, including two African-Americans.  Instead, Care One claimed that the executive requested Ms. McCarthy to step down, and ultimately terminated her, due to lackluster job performance.

Nonetheless, the timing of Ms. McCarthy’s termination likely convinced the jury otherwise.  Any juror who has spent time in the workforce realizes that employees are seldom fired so quickly by a new manager for alleged performance issues.  Instead, managers usually issue employees progressive discipline, or place them on performance improvement plans, to give them a chance to correct course.  The fact that the executive tried to demote Ms. McCarthy so soon after becoming her manager, then fired her immediately when she refused, was almost certainly a red flag.  And if Care One’s internal policies and procedures required progressive discipline before termination, then this evidence was even more damning.

The Plaintiff Was Replaced With a White Employee 

Care One replaced Ms. McCarthy with a Caucasian employee , which was also likely critical to the jury’s determination that race played a factor in her termination.

The Take-Away

Ms. McCarthy’s direct evidence of race discrimination was the “black person” comment she alleged the executive made to her in trying to induce her to accept a demotion.  However, there were no witnesses to this remark — it was truly a “she-said, she-said” situation.

A lack of witnesses is certainly a tough evidentiary challenge in an LAD claim.  However, this case shows that it’s a surmountable challenge when an employee:

  • Has a great recent track record;
  • Is nevertheless terminated suddenly for so-called “performance” reasons, without any prior progressive discipline; and
  • Is replaced by someone outside her protected class.

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