Employer claimed worker resistant to modernization
Mass Lawyers Weekly — January 11, 2018
A Norfolk Superior Court jury last month handed more than $1.2 million to a 65-year-old Plainville mechanic who claimed age discrimination was behind his termination from the garage where he worked for nearly three decades.
The defendants, Charles River Automotive and the company’s general manager, Mark Gentile, contended that the plaintiff’s firing was due to insubordination and poor performance. More specifically, at trial the defendants attempted to show that the plaintiff was actively resistant to the modernization of the garage’s operations brought about by a recent change in ownership.
But plaintiff’s attorney Mathew J. Fogelman said the defendants’ assertions didn’t hold up at trial given his client’s spotless work record.
“The evidence of poor performance and insubordination just wasn’t there,” Fogelman said. “It wasn’t substantiated, it wasn’t documented.”
The defendants were represented by Jennifer L. Markowski. In an emailed statement, the Boston attorney said age bias was not a factor in the plaintiff’s firing.
Verdict Report
Action: Age discrimination in violation of G.L.c. 151B, section4
Injuries alleged: Lost wages, lost benefits, emotional distress
Case name: Beresford v. Charles River Automotive, LLC, et al.
Court/case no.: Norfolk Superior Court, No. 2015-01182
Judge: Gregg J. Pasquale
Amount: $1.2 million
Date: Dec. 21, 2017
Attorneys: Matthew J. Fogelman and Danielle J. Lederman, of Fogelman & Fogelman, Newton (for the plaintiff); Jennifer L. Markowski and Courtney Shea Winters, of Peabody & Arnold, Boston (defense)
“[T]here were legitimate performance-based reasons for Mr. Beresford’s termination,” Markowski wrote. “Other than the fact Mr. Beresford was 61 when he was terminated, there was virtually no evidence connecting his age to his termination and nothing to support a finding of age discrimination.”
Rebecca Pontikes, a Boston employment attorney who was not involved in the case but is filing an affidavit in support of Fogelman’s forthcoming fee petition, described Beresford as a significant employment discrimination verdict.
“It’s not that common for an individual to get a seven-figure amount as a verdict,” Pontikes said. “And statistically, it’s very hard for plaintiffs in employment cases to win at all.”
End of the line
Springfield attorney Jeffrey S. Morneau, who represents employees in discrimination cases, called Beresford a “good case” from the plaintiff’s perspective.
“You had a long history of employment with one employer, [with the employee] doing the same work with essentially no performance issues whatsoever,” Morneau said. “A new company comes in and in short order you have an older worker who’s fired. You’ve got a prima facie case.”
Perhaps even more important, Morneau said, the circumstances of the plaintiff’s firing included elements of basic unfairness.
“When you have somebody with 27 years with a company, you have people sitting on a jury thinking, ‘What if that’s me? Twenty-seven years dedicated to a company just gone,’” Morneau said.
But Pontikes said little about the fact pattern struck her as unusually favoring the plaintiff.
“Nothing popped out at me as being particularly egregious, even though what happened to this guy was terrible,” she said.
According to court records, in July 1988, the plaintiff began working as a mechanic at a garage in Norwood owned by YCN Transportation, a family business. After a short time the plaintiff became the service manager and head mechanic. The garage underwent several changes in ownership during the latter periods of the plaintiff’s employment.
In August 2013, the company was sold to Marcou Transportation. With the purchase, the garage began operating as part of Charles River Automotive, a Marcou affiliate that performs maintenance and repair services for vehicles operated by various Marcou entities.
While the plaintiff remained head mechanic at the Norwood garage, he reported to CRA’s general manager, defendant Mark Gentile, who was in his early 50s during the period relevant to the lawsuit. Gentile worked at another location managing all the company’s garages, visiting the Norwood garage only periodically.
CRA used a vehicle maintenance software called “Dossier” to manage its repair services more efficiently. The defendants asserted that the plaintiff balked upon being told by Gentile that Dossier would be installed in the Norwood garage, claiming the old paper record-keeping system was more reliable. The defendants alleged that the plaintiff stated, “I don’t do computers,” and indicated he didn’t intend to learn how to use them.
According to Fogelman, at trial the plaintiff denied making those statements.
While the plaintiff allegedly never mastered Dossier, evidence at trial showed it did not affect garage operations because the plaintiff and Gentile mutually agreed to assign a non-mechanic employee to do most computer tasks, Fogelman said.
The defendants would later claim that, under the plaintiff’s supervision, the Norwood garage was disorganized, plagued by poor record-keeping, and “an absolute disaster” — claims the plaintiff contested at trial.
In July 2014, the plaintiff and his former longtime boss at the garage requested a meeting with Gentile. According to the defendants, the plaintiff insisted on the meeting with Gentile to “set him straight” as to who ran the Norwood garage.
Before the meeting, Gentile allegedly consulted with company managers to obtain the green light to terminate the plaintiff based on his alleged poor performance and insubordination.
According to the plaintiff, Gentile “abruptly” informed him at the meeting that he was being terminated for poor performance and because he refused to “embrace” the Dossier system.
Markowski stated in her email that the makeup of the workforce before and after the firing belied the plaintiff’s claims of age discrimination. Of the six technicians working in the Norwood garage at the time of the plaintiff’s termination, all but one was older than 40, she said, adding that one technician who continues to be employed at the garage is 12 years older than the plaintiff, while a second is only three years younger.
“Moreover, the manager that terminated him was only eight years younger,” Markowski wrote. “Mr. Beresford was never replaced, and the garage continued to operate with the same technicians that worked with him when he was terminated.”
Voir dire advantage
According to Fogelman, both sides benefited from counsel being allowed to conduct panel voir dire. The panel discussion touched on pertinent issues such as progressive discipline, the documentation of discipline in an employee’s record, and the assimilation of new software into workplace operations, he said.
“There were some jurors who felt that someone with such a long tenure would at least be entitled to have a supervisor come to them and point out they’re not happy with X, Y and Z, and they need to ‘get on board’ with the way the new company operates,” Fogelman said.
During the voir dire process, Fogelman said he detected a couple of prospective jurors who indicated they were not comfortable with the preponderance-of-the-evidence standard governing the plaintiff’s claims.
“They thought the plaintiff should try to prove his case by a higher percentage than just the 51 percent tip-of-the scales,” he said.
Though not involved in the case, Westborough employment litigator Richard C. Van Nostrand said as a defense lawyer he is alert to jurors who, because of their own life experiences or those of someone they know, come into a case with a bias against employers.
“Particularly in discrimination cases, voir dire is an opportunity to really get at some underlying biases that might not be as front and center,” he said.
Pontikes said one of the objects of voir dire in any employment discrimination case is to understand the prospective juror’s experiences in the workplace.
“If they have worked with an older workforce or a more diverse workforce, that’s going to inform how they are going to view the facts that are presented to them,” she said.
