James Toll, a partner at Sills Cummis & Gross fired after 16 years at age 52, failed to make out an age-discrimination claim against the Newark firm, a state appeals court held on Tuesday.
“None of the reasons for plaintiff’s termination suggest any age animus,” the Appellate Division held in Toll v. Sill Cummis & Gross, A-6092-10, affirming summary judgment and a directed no-cause verdict on a retaliation claim.
The court also upheld the motion judge’s order that Toll, now a solo in Livingston, hand over to his old firm more than $92,000 he received as a referral fee from a wrongful death case.
Toll, a partner at Sills Cummis since 1990, was fired in September 2006.
Earlier that year, the firm’s executive committee decided to cut the number of partners, and set up a three-member committee to identify potential targets.
Toll and six other partners — three in their 60s, two in their 50s and one 44 years old — were considered for termination or reduction.
The committee graded the targets in six categories: client skills, future of his or her practice area, legal skills, marketing, judgment and standing in the bar.
For client skills, the committee gave Toll a grade of “C, mixed at best.” The judges said one member of the committee claimed he received that grade because the firm lost a substantial client based on the client’s impression of inadequate representation.
In the category of future of practice, Toll received an “F-” because the firm was looking to get out of two of his primary practice areas – personal injury defense other than products liability and personal injury cases on behalf of plaintiffs.
The ruling says Toll received a “below average” ranking for legal skills because he was not sought out by other partners to do legal work. As for marketing, he received an “F” because the firm was not looking to attract clients in his areas of expertise. Toll received a “D-” in the standing in the bar category, and no ranking in the judgment category.
Ultimately, in September 2006, three partners were immediately terminated, two were demoted and one was retained. On Sept. 28 of that year, the firm told Toll that the firm would no longer be handling cases in his primary areas of expertise and that he should start looking for another job. His bonus was reduced, but his base salary remained the same.
Toll’s attorney, Bruce McMoran, wrote a letter to the firm in December 2006 saying Toll was being discriminated against because of his age, but Sills Cummis eventually fired Toll in September 2007.
Superior Court Judge Sebastian Lombardi dismissed the allegation that Sills Cummis violated the Law Against Discrimination, even though Toll had established a prima facie case by showing that he was a member of a protected class, he was qualified for the job, he was fired and he was replaced by younger employees.
Toll also claimed he was the victim of retaliation, alleging that he was fired because of the letter written by his attorney. That claim went to trial, but Superior Court Judge Francine Schott ordered a directed no-cause verdict after both sides closed.
In his appeal, Toll argued that the firm’s stated reasons for firing him should be considered “unworthy of credence” because his performance was satisfactory, the grading chart was created to “justify” his termination, he was not weak in products liability defense work and the firm retained younger attorneys to do his work.
Judges Clarkson Fisher Jr., Carmen Alvarez and Jerome St. John disagreed.
“Plaintiff has not established that defendant’s non-discriminatory reasons for his termination were ‘unworthy of credence’ because he does not dispute the primary reasons for his termination,” they said.
There is no argument that Sills Cummis moved away from Toll’s areas of expertise, and the judges pointed out that a client in a products liability case, which made up about half of his billable hours in fiscal 2005-06, was displeased with his work.
The appeals court agreed that there also was no evidence of retaliation, noting that more than nine months passed between the letter alleging age discrimination and Toll’s termination.
Return of Referral Fee Ordered
In 2004, Toll was representing a client in a wrongful death action when the firm told him to find another attorney because the firm no longer wanted to participate. Toll found another attorney, who agreed to pay the firm a referral fee if there was a recovery. In 2008, well after Toll had been fired, the new attorney sent Toll a check for $92,497.65, representing the finder’s fee.
Sills Cummis learned of Toll’s receipt of the funds in October 2009, according to the ruling, but Toll denied a demand that he turn the money over. Sills Cummis then filed a counterclaim for conversion, which Lombardi granted. The appeals court said that was the correct decision.
“Plaintiff was the agent of defendant acting within the scope of his employment when the agreement to pay the fee to defendant was reached,” the appeals court said. “We agree with the motion judge, the fee belongs to defendant.”
Toll, a certified civil trial attorney, started at Sills Cummis in 1985 and became a partner in 1990. He spent 15 years in the firm’s Atlantic City branch, handling casino clients, and transferred to the Newark office in 1999.
The lawsuit says he was an equity partner but also suggests he had no role in firm management.
The suit says his compensation of $345,489 in the fiscal year ending Sept. 30, 2005, was listed as “K-1 Compensation,” referring to the Internal Revenue Service form on which partnership distributions are listed. His K-1 compensation for the 2006 fiscal year was $327,069, the suit says.
At the same time, though, Toll never played a role in firm management and never served on any committees that run the firm, the suit says.
The lawsuit seeks to portray Toll as a stellar and experienced attorney and a good soldier for Sills Cummis by moving from Atlantic City to Newark in 1999.
Besides litigating a variety of cases worth millions of dollars for both plaintiffs and defendants, Toll lectured for continuing legal education organizations, wrote for the American Bar Association’s litigation section trial evidence committee and testified before Congress on civil procedure rules, the suit says.
It says he received a bonus every year he worked at the firm and that he met or exceeded minimum billable-hour requirements every year except 1997, when he suffered a heart attack while preparing for a trial.
Although McMoran, of Manasquan’s McMoran, O’Connor & Bramley, says he is “very, very disappointed in the ruling,” neither he nor Toll would comment further. Sills Cummis’ attorney, Carmine Iannaccone, of the Newark office of Epstein Becker Green, also declines to comment.