Former TD Bank employees can continue with their putative class action alleging that a reduction in work force disproportionately affected older workers in violation of New Jersey law.
U.S. District Judge Robert Kugler refused to dismiss the complaint in Bratek v. TD Bank, 11-cv-3049, finding the plaintiffs had stated a prima facie case by identifying 18 under-40 employees who were retained while many over 40 allegedly were shown the door.
“It would pose a substantial hurdle indeed if a class action plaintiff, in order to survive a motion to dismiss in an age discrimination case … needed to provide detailed [personal] information about every one of his or her similarly-situated co-workers,” Kugler wrote on Monday.
The four lead plaintiffs — three women and one man, ranging in age from 61 to 68 — worked as customer service representatives in a TD Bank call center, with tenures ranging from six years to 12 years. They were just a few of the several hundred customer service employees dismissed companywide in 2009 and 2010.
They say the layoffs were motivated by a desire to reduce the overall age of the customer service work force, or at least had a disparate impact on older employees. A disproportionate number of workers over 40 felt the ax, they said.
Not all positions were refilled, though some were, and the average age of the replacements, as well as the employees retained, was significantly lower, they claimed.
The suit, raising claims under the New Jersey Law Against Discrimination, was filed in Camden County Superior Court in April 2011. TD Bank had the case removed to federal court based on diversity jurisdiction and moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted.
Kugler obliged last February, dismissing without prejudice based on the plaintiffs’ failure to establish all the elements for the wrongful termination and reduction-in-force theories of age discrimination.
In March, the plaintiffs amended and refiled the complaint, which now includes allegations that the plaintiffs were performing to TD Bank’s “reasonable expectation,” and that TD Bank continued to hire customer service reps after the layoffs.
The plaintiffs provided the names and ages of 18 people under 40 whom the company kept during the layoffs.
TD Bank again urged dismissal under Rule 12(b)(6), contending that the reduction-in-force claim remained defective. Though the amended complaint included the 18 names, that’s a statistically small number compared to the putative class — between several hundred and as many as 1,000 — and amounts to just 3 percent of the remaining work force, TD Bank argued.
On Monday, Kugler, sitting in Camden, denied the motion as to the reduction-in-force claim. TD Bank “offers no case law acknowledging the legal significance of this argument, and the court is not inclined to create any at this juncture,” he said.
Requiring the plaintiffs to provide personal information for each TD Bank employee “would not be in keeping with the admonishment by the New Jersey Supreme Court that a plaintiff’s obligation to properly plead the elements of a prima facie case of employment discrimination should impose only a ‘rather modest’ burden to demonstrate that the ‘plaintiff’s factual scenario is compatible with discriminatory intent,’” Kugler wrote, citing language from the state Supreme Court’s decision in Henry v. New Jersey Dept. of Human Serv., 9 A.3d 882 (N.J. 2010).
The 18 names provided “will suffice for the present purposes” of establishing that TD Bank retained an employee or employees “significantly younger” than the plaintiffs, a necessary element of a reduction-in-force claim, the judge added.
Kugler did dismiss the wrongful termination claim because the plaintiffs, in the amended complaint, again failed to establish that they were replaced. They “still do not allege which individuals replaced them, nor do they allege the age of these replacements (if in fact they were replaced at all),” he wrote.
TD Bank, with corporate offices in Cherry Hill and Portland, Maine, is represented by Kathleen McLeod Caminiti of Fisher & Phillips’ Murray Hill office, according to electronic court documents on PACER. She did not return a call.
Neither did Dan Silverman of Costello & Mains in Mount Laurel, who represents the plaintiffs.