On April 12, the U.S. Court of Appeals for the Third Circuit affirmed a jury verdict awarding a 57-year-old former employee upwards of $258,000 in an age discrimination suit against specialty health and wellness retailer, GNC. Santos Andujar, after being fired from his position as a GNC store manager, sued the company in New Jersey state court alleging wrongful termination in violation of the New Jersey Law Against Discrimination (LAD). GNC then removed the case to federal court in the District of New Jersey where its subsequent motion for summary judgment was denied. The case was then tried before a jury. The jury found that GNC’s claim that it terminated Andujar on the basis of poor performance was pretext for age discrimination. GNC challenged the verdict on appeal arguing that the “comparator” evidence offered by Andujar was insufficient to prove that GNC had discriminated against Andujar on the basis of his age. Writing for the court, Judge Thomas Hardiman rejected GNC’s argument and emphasized that companies cannot hold older employees to more stringent standards of performance than it would its younger employees.

Santos Andujar began working for GNC in 1999. In 2001, Andujar was promoted and held the position of store manager until his termination in February 2014 at the age of 57. During his employment, Andujar was evaluated annually for his performance through the use of two assessments: the critical point audit (CPA) and the performance evaluation process (PEP). A passing CPA score is 90 percent and a passing PEP score is 300 out of a possible 500 points. From 2010 to 2013, Andujar’s CPA score ranged from 68 to 88 percent. On Jan. 23, 2014, Andujar received a failing PEP score of 287. That same day, GNC placed Andujar on an “action plan” which required him to make performance improvements within 30 days. One month later, Andujar was fired for failing to comply with the action plan. GNC then replaced him with a man in his 20s.