Alan Schorr’s Employment Case of The Week ending February 15, 2013

Bikofsky v. Saint Barnabas Corp., Dkt. ESX-L-3176-10 (Law Div. – Essex County) (Unpublished)

The last two weeks I highlighted cases where the ineptitude and/or omissions of plaintiff’s counsel led to dismissal of the client’s case. This week I choose to highlight a case where the excellent and thorough advocacy of plaintiff’s counsel led to the denial of summary judgment. The case of Bikofsky v. Saint Barnabas Corp. presents many issues where cases are routinely thrown out on summary judgment. In this case, however, all of the proper arguments were made by counsel, and the result is a clear victory for the plaintiff for all of the right reasons.

Veronica Bikofsky is a licensed dentist who began working for the defendants in 1979. At the time of her termination she was in her seventies, but there does not appear to be any evidence of poor or diminishing performance. The defendants claim that they terminated Dr. Bikofsky because they were losing tens of millions of dollars per year and management was directed to make cuts. Dr. Bikofsky was one of many medical personnel terminated. The defendants filed a motion for summary judgment which was denied by the Trial Court in its entirety. This short opinion really contains every essential argument that should be made by plaintiffs at summary judgment.

First of all, the standard for summary judgment is defined by Greenberg v. Camden County Vocational and Technical Schools, 310 N.J. Super. 189, 199-200 (App. Div. 1998). Generally, when the Court cites this case, the plaintiff survives summary judgment, because it makes clear that a plaintiff does not have to prove her case at summary judgment, only to point out “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence’”. Plaintiff’s attorney also gets extra points from me for citing Greenberg, because I represented the plaintiff, Evy Greenberg, in that case.

Here, the defendants said they terminated the plaintiff as a cost cutting measure, but plaintiff produced evidence that the dental program was not completely eliminated, and in fact was expanded after plaintiff’s termination. Also, statements made by non-decision-makers were ageist in nature. Abrams v. Lightolier Inc., 50 F.3d 1204 (3d Cir. 1995). Finally, the defendants sought to dismiss one of the individual defendants, which plaintiff alleged had aided and abetted the defendant. Many courts dismiss aiding and abetting claims based upon a defendant’s claim that a person may not aid and abet his own discriminatory actions. There is case law that supports that position. But the more accurate position, and the one cited by Plaintiff’s counsel and the Court, is the standard set forth by the Supreme Court in Tarr v. Ciasulli, 181 N.J. 70, 84 (2004):

To hold an individual liable under an aiding and abetting theory under the LAD, a plaintiff must show that “(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation.”

Kudos to Andy Dwyer, who is one the most competent and successful plaintiff employment attorneys in New Jersey. And kudos to Judge Vena for getting it right. This is the way summary judgment should be presented, and the result speaks for itself.

Plaintiff’s counsel: Andrew Dwyer, Dwyer Law Firm, LLC.

Defendants’ counsel: Mark J. Blunda, Appruzzese, McDermott, Mastro & Murphy, P.C.

Trial Court Judge: Thomas R. Vena, J.S.C.