New York/New Jersey Employment Team Secures Summary Judgment Win in COVID-19-Based Reduction in Force Discrimination Case

New York, N.Y./Newark, N.J. (May 16, 2023) – New York/Newark Partner and Chair of Lewis Brisbois’ Labor & Employment Practice Elior D. Shiloh, with New York Associate Colby Berman, recently secured a rare summary judgment win in New Jersey state court under the Law Against Discrimination (LAD) – one of the broadest and most comprehensive anti-discrimination laws in the country.

Underlying Facts & Plaintiff’s Claims

In this gender discrimination and retaliation matter, Lewis Brisbois represented a petroleum services company, its branch manager, and its senior vice president. The plaintiff in the case was a woman who worked on the company’s operations team until she was terminated in September 2020 as part of a national reduction in force (RIF) that was based, in large part, on COVID-19’s negative effects on the petroleum industry. When the company’s salary cuts, hour reductions, and furloughs in the summer of 2020 proved insufficient to overcome its sustained losses as a result of COVID-19, the plaintiff’s position was eliminated, and she, along with 63 co-workers, was terminated.

The plaintiff subsequently filed suit in New Jersey Superior Court, Middlesex County, alleging that the employer terminated her based on gender discrimination. She also contended that Lewis Brisbois’ clients retaliated against her for her alleged complaints about petroleum field inspectors stealing time. In addition, the plaintiff claimed that two executives were liable for aiding and abetting discrimination under the LAD.

Lewis Brisbois’ Summary Judgment Motion & Court’s Decision

Lewis Brisbois’ summary judgment motion demonstrated that the plaintiff was included in the RIF as part of a legitimate business decision precipitated by business losses leading up to, and then exacerbated by, COVID-19. We also argued that there was no inference of discrimination because the decisionmakers as to the RIF were unaware of who would be affected, and more than 80% of the company’s terminated employees were male. We also detailed that the plaintiff was not replaced by males upon termination and that the two men hired during the same period were not valid comparators because they were hired for revenue-generating positions. Finally, we argued that the plaintiff did not engage in a protected activity by reporting timekeeping discrepancies as part of her regular duties, as these alleged complaints did not concern discrimination. In the plaintiff’s opposition brief, she failed to address COVID-19 and also failed to explain how the legitimate business reason for her termination was pretextual.

The court agreed that there were no questions of fact surrounding the legitimacy of the company’s RIF, and that the plaintiff did not engage in a protected activity such that her retaliation claim failed. Notably, the court pointed out that “plaintiff completely ignoring the pandemic in her 36-page papers is like writing a paper on the 1930’s and never mentioning the Great Depression.” As such, the court granted summary judgment in favor of Lewis Brisbois’ clients.

Mr. Shiloh was recently appointed chair of Lewis Brisbois’ Labor & Employment Practice. He focuses his practice on handling single-party and class employment disputes as well as non-compete, trade secret, and breach of contract matters. Mr. Shiloh has extensive courtroom experience in federal and state venues, including serving as first chair during trials and arguing complex motions. He maintains a diverse client base, representing businesses in litigation and regularly providing guidance on an array of complicated and high-risk matters.

Ms. Berman is a member of Lewis Brisbois’ Labor & Employment Practice. She represents employers in state and federal courts as well as before agencies including the EEOC and State Division of Human Rights. Ms. Berman’s corporate and nonprofit clients span an array of industries such as retail, hospitality, construction, education, healthcare, food services, security services, and restaurants.

For more information on this case, contact Mr. Shiloh directly. Visit our Labor & Employment Practice page to learn more about our capabilities in these areas.