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Man Wins Age-Bias Lawsuit

Firm held liable in firing of worker whose performance was misrepresented

Nov 3, 2004 | Boston Globe

In age-discrimination lawsuits, the ignorance of top executives about what subordinates are doing or not doing is no longer an adequate defense.

A federal court awarded $827,000 to a former Boston branch manager at Hertz Equipment Rental Corp. John Cariglia was 62 and had restored the money-losing branch to profitability when top executives fired him for poor performance involving equipment maintenance.

But US District Court in Boston ruled last week that his immediate supervisor, James Heard, who made discriminatory remarks about Cariglia's age, did not provide an accurate picture of Cariglia's performance to his own superiors. The executives then fired Cariglia based on incomplete information.

The court found Heard "was motivated by invidious discriminatory intent" in misinforming the executives. Judge Reginald Lindsay wrote in his Oct. 28 decision that the firm was "liable as to the plaintiff's claim of age discrimination."

Cariglia was Hertz Equipment's oldest branch manager, according to his lawsuit. He was reassigned to Boston when the office was suffering a string of losses, court documents said. Under him, the branch posted profits in 1993, 1994, and 1995. In 1995, profits hit $2.3 million. A man in his 30s replaced Cariglia, according to court documents.

Hertz Equipment's top executives said they fired Cariglia because he failed to have crane equipment painted, work that was being expensed by the company. The court said Cariglia's direct supervisor, Heard, did not tell the executives, including Daniel Kaplan, president at the time, and Gerald Plescia, a former vice president who is currently president, the reasons they weren't painted: They were rented out to customers, and Heard and Cariglia agreed the painting could wait.

Heard "knowingly induced" Hertz Equipment to fire Cariglia, Lindsay said.

The decision was significant because it effectively held Hertz liable for what top executives did not know, said attorneys who reviewed the decision, strengthening the tenet employers are responsible for what takes place in the workplace.

The decision "focuses on the tainted process, rather than isolating the inquiry as to whether or not the decision maker" top Hertz executives "harbored a discriminatory animus," said an attorney in Boston.

Marc Greenbaum, a Suffolk University School of Law professor, said the federal court ruling mirrors laws recently established in sexual harassment law, when a dismissal is the issue.

"If senior executives could hide behind claims of ignorance, even if well founded, it would severely undercut the enforcement of the discrimination laws," Greenbaum said. The ruling places the onus on executives "to monitor the conduct of their lower-level supervisors."

Hertz Equipment Rental has not decided whether to appeal, said spokesman Richard Broome, who maintains the dismissal was based on work performance. "Key points in the record were either ignored over overlooked, and those omissions provide the basis for a possible appeal," he said.

The case has been appealed once. Last week's decision came after a federal Appeals Court told Lindsay to review his prior decision, which had favored Hertz.

After 16 years at Hertz, Cariglia said in an interview that he was older than his peers "older than their fathers" and felt confident in his experience. But he said his supervisor, Heard, often commented on his age to co-workers.

Cariglia was awarded $657,026 for lost income and $170,000 for emotional distress. His attorney, said this was commensurate with his client's compensation, which the court said exceeded $80,000 for salary and bonus combined. When interest is added, the total award will be about $1.6 million, he said.

In federal courts, "you don't see hits like that," Holtz said. Employers "can no longer stick their head in the sand."

Norma Cariglia said her husband was "in a state of shock" after being fired. During nearly nine years his case churned through the legal system, John Cariglia thought many times that he could not win his case, though he never lost his determination to pursue it.

When one is successful, there are "people trying to knock you off your chair," Cariglia said. The results of his lawsuit, he said "came out well."

"They picked the wrong person" to fire, said Cariglia, who lost his Hertz pension and has another job selling cars. "I said to my wife, 'I'll go down with everything before I let them beat me.' "

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