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An upstate appellate panel has upheld an age discrimination claim against General Electric Co., but found it hard to believe that the stress of getting laid off caused a heavy-smoking plaintiff with high cholesterol and coronary artery disease to suffer a heart attack. In Bemis v. New York State Division of Human Rights/General Electric v. New York State Division of Human Rights, 97677A, the Appellate Division, 3rd Department, affirmed the finding of discrimination and imposition of a $15,000 penalty on GE. In a unanimous opinion by Justice Robert S. Rose, the panel found no basis for overturning the findings of the human rights commissioner. The dispute involves Earl Bemis, an engineer who claimed he was laid off in 1993 because of his age. He was 60 at the time, and he subsequently retired. Bemis, records show, was the oldest engineer in his unit of 24 engineers and was told that his job was being eliminated because the project he was working on was being transferred to South Carolina. However, at the same time, several younger engineers with the same job title and educational qualifications were assigned to Bemis’ unit. The Human Rights Division acknowledged that GE had offered a facially legitimate reason for the layoff, but it also found the reason pretextual. It noted that Bemis was not offered other work within his unit, as had occurred in 1991 when another of his projects was shifted out-of-state. That, combined with the fact that several engineers under the age of 40 were brought in at the same time Bemis was put out, convinced the court that discrimination had occurred. “GE’s failure to provide any documentation substantiating its claim that the younger engineers were better qualified and, unlike petitioner, would not require on-the-job training, supports the Commissioner’s finding that GE’s witnesses were not credible … ” Rose wrote. “ We also think it is revealing that GE failed to use its established layoff procedure, which employs a matrix rating system to analyze its employees’ relative worth in deciding how to make needed staff reductions.” But the court was unpersuaded that a heart attack suffered by Bemis was caused by the stress of the layoff. Bemis had cited the stress and the heart attack to explain his failure to seek employment and thus mitigate his damages. “The records indicate that petitioner’s heavy smoking, high cholesterol and coronary artery disease caused his heart attack,” Rose wrote. “[W]e also conclude that, in light of the testimony regarding the mental anguish and humiliation that petitioner suffered during the period between the notice of layoff and his retirement, the award of $15,000 was appropriate for GE’s wrongdoing.” Justices Thomas E. Mercure, Karen K. Peters, Anthony J. Carpinello and Anthony T. Kane joined the opinion. John E. Higgins of Nixon Peabody in Albany defended General Electric. John B. Ducharme of Berger, Ducharme & Harp in Clifton Park represented Bemis.

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