A New Jersey jury awarded a mid-level manager $51.4 million(!) on January 26, 2017, after a short four-day trial. New Jersey juries have awarded age discrimination plaintiffs multi-million dollar verdicts in the past – but $51 million is roughly five times any prior award. Press coverage on the verdict speculates that this may be the highest jury award ever, throughout the country, in a single-plaintiff age discrimination case. While the post-trial motions and appeals are yet to be filed, there are some initial takeaways from this case.

As with most age discrimination lawsuits, this case arose out of a reduction in force (RIF). Robert Braden had been employed by Lockheed Martin, and its predecessors, for 28 years when he was let go in July of 2012 as part of a company-wide RIF. Six months later, Mr. Braden filed a charge of age discrimination with the EEOC based on the fact that he was the oldest of 6 people in a company unit, and the only one fired from that unit. He alleged that he was selected for the layoff at age 66 while the two other employees holding his same title, both significantly younger (ages 42 and 38), were allowed to keep their jobs. He also alleged that the company had a practice of giving younger workers better reviews and raises to keep them at the company, while older workers were given lower ratings and raises since they “had nowhere else to go.” He subsequently withdrew his claim with the EEOC so he could sue Lockheed Martin, which he did in federal court in Camden, New Jersey in 2014.

Lockheed Martin vigorously defended the claims, citing to Mr. Braden’s record of below average performance and lack of work for his skill set as the legitimate, non-discriminatory reasons for his termination. However, the jury clearly did not believe Lockheed Martin’s witnesses, awarding Mr. Braden almost $50 million in punitive damages based on the jury’s determination that the company acted in reckless disregard for discrimination laws. Mr. Braden also received $520,000 for lost wages/benefits, and an additional $520,000 for emotional distress. The jury verdict also entitles Mr. Braden to file an application seeking to have Lockheed Martin pay his attorneys’ fees.

Why was this jury so outraged that it punished Lockheed Martin to the tune of $50 million dollars in punitive damages? Hard to tell. However, a review of some of the underlying facts do remind employers of the importance to “peel the onion” and test the decision-making process when implementing RIFs. This is critically important as the law is clear: if a jury determines that the employer’s proffered legitimate reasons for the decision to terminate are false, the jury can reasonably infer that the employer is lying to cover up discrimination.

For example, Mr. Braden was able to proceed to trial when his lawyers convinced the Court to deny Lockheed Martin’s summary judgment motion by highlighting that the decision-makers offered what appeared to be conflicting and contradictory reasons for the decision to select Mr. Braden for the RIF. While implementing RIFs can be a bit of a fire drill, this jury verdict provides the business reason to slow down, insure that the decision-making criteria is objective and as uniform as possible, and test the basis for the decision.

Finally, this must all be contemporaneously documented as memories will fade. It is worth noting that Lockheed Martin cited to the fact that it had a process, and procedures, in place to prevent age discrimination in the RIF, including an adverse impact analysis done by HR in conjunction with the company lawyers and EEO group. However, Lockheed Martin’s F.R.C.P. 30(b)(6) company witness testified that Mr. Braden did not go through the company’s standard RIF process. Companies also need to realize that juries will likely not appreciate the unique nature of how they operate their businesses, and will focus on facts that “make sense” to them. Mr. Braden emphasized that he held the exact same title as the two younger workers retained by the company – therefore, age must have been the difference in the decision to pick him and not them. Lockheed Martin did attempt to distinguish the younger employees as being the same in title/name only, citing to the fact that they held more responsible positions, and had different/more valuable skill sets than Mr. Braden. The jury clearly was not persuaded. Roles within companies are dynamic, but if job titles and descriptions remain static the distinction is often lost on a third party such as the EEOC, the DOL or a jury.

Mr. Braden also emphasized another issue that is common in RIF age discrimination cases, the allegation that Lockheed Martin added a new person into his position within a year of his termination, despite claiming that a lack of work was one of the reasons for his termination. He also cited to evidence of “stray remarks” as evidence of a practice of paying older employees less. In addition to the comment cited above, he also claimed that his supervisor told him that he was directed to give Mr. Braden a low evaluation because “This guy [Braden] has been here too long. We need to get rid of him.” Stray remarks can be discounted, but we trial lawyers would prefer not to have any such remarks to explain away to the jury. Regular and robust anti-harassment for managers is helpful to prevent such remarks from occurring in the first place – and to demonstrate that your company does not act in reckless disregard for discrimination laws if a rogue employee makes a senseless remark.

There is one positive aspect of Mr. Braden’s case for those of us that are employment defense “wonks.” Judge Renee Bumb determined that the “but-for” jury instruction causation standard used for ADEA claims should also be used for the state law age claim under New Jersey’s Law Against Discrimination (NJLAD). While unpublished, her well-reasoned opinion does provide a roadmap for the legal justification to reject the plaintiffs’ bar’s position that the NJLAD requires a lower standard of causation, namely that there is causation if the jury finds that age “played a role” or was a “motivating factor” in the decision to fire a plaintiff.

The case is Robert Braden v. Lockheed Martin Corporation, Civil Action No. 14-4215-RMB-JS (D.N.J. 2014).