3rd Circuit Nixes Lawyer's $14M Age Suit Despite 'Younger & Cheaper' Note
Even though his employment file at Moser Patterson & Sheridan contained a note “older & better paid/younger & cheaper,” attorney John Kelly’s age discrimination suit against the New Jersey law firm was properly dismissed on summary judgment, a federal appeals court has ruled.
Kelly was 52 when he was fired in late 2004, a little over a year after he began working as a patent lawyer there at an annual salary of $180,000. He argued that a jury should be allowed to decide, based on the note, whether the firm’s claimed reasons for letting him go were a pretext for age discrimination, reports the New Jersey Law Journal.
But “given the many problems Kelly created for the law firm over the prior year, including the loss it sustained as a result of his work product, no reasonable jury could conclude age played a determinative role in his termination,” the 3rd U.S. Circuit Court of Appeals said in a written opinion.
The appellate panel also said that the note in the file, standing alone, was not sufficient evidence to establish pretext under the U.S. Supreme Court’s decision earlier this year in Gross v. FBL Fin. Serv., 129 S. Ct. 2343.
The firm’s personnel manager testified that she wrote the “younger & cheaper” note because then-partner Ray Moser told Kelly he was being fired and Kelly, in response, made the comment himself, as Moser subsequently told her. Kelly, however, says he never made the comment, the New Jersey legal publication recounts.
Among the allegations made by the firm, which is now known as Patterson & Sheridan, in its defense of the case were that Kelly had difficulty getting along with his secretary, spent office time and used firm resources on his own divorce case, was 200 hours short of his annual billable hours quota and had performed work that wasn’t satisfactory to a major client, the nVidia computer company, requiring a $73,000 writedown of its bill.
Kelly, who filed the case pro se, sought $2 million in lost wages, another $2 million for “pain, suffering and humiliation” and $10 million in punitive damages. He says he is surprised that he lost on summary judgment and he intends to ask for a rehearing on a panel finding that the Supreme Court decision in the Gross case preempted his state-law age discrimination claim.
Attorney William Healey of Mandelbaum Salsburg Gold Lazris and DiScenza represented the Patterson firm. He tells the New Jersey Law Journal that the law firm didn’t settle Kelly’s case because he refused to budge on his $14 million damages demand.
Kelly, who is now 57 and living in Ohio, says he is “destitute, not working, on welfare and collecting food stamps,” the article states. Although he had at one point started a new career as a truck driver, 65 percent of what he made was being garnished to pay a $300,000 child-support debt.
