GNC vitamin nutrition store. Photo: Wikimedia Commons

A federal appeals court has denied vitamin and nutritional supplement retailer GNC’s request to throw out a nearly $260,000 verdict against it in an age discrimination lawsuit.

The U.S. Court of Appeals for the Third Circuit upheld the award in favor of former GNC store manager Santos Andujar, who claimed the company fired him based on his age.

According to Third Circuit Judge Thomas Hardiman’s opinion, Andujar was an employee at GNC for 13 years until his firing at age 57. GNC claimed he was dismissed because of earning nonpassing scores on his latest performance evaluation and failing to comply with a 30-day improvement plan.

Andujar subsequently sued and a jury found in favor of him. GNC asked the court for a new trial but was denied.

Hardiman said Andujar had no problem establishing an initial case, a 57-year-old being fired by a man in his 20s. But he noted that GNC offered a valid argument for firing Andujar—poor job performance. So the question became whether the given reason for firing Andujar was pretextual, Hardiman said.

Andujar argued at trial that several younger managers received lower scores than he did and were not fired. GNC claimed on appeal that it was a mistake for the judge to allow that evidence to be heard by the jury.

“Noting that some of the managers had been working a short time, engaged in different misconduct, and none of them had failing [scores], the court ‘mistakenly submitted the comparator evidence to the jury,’” Hardiman said. “We disagree.”

Hardiman said that such comparisons must be similar, but not identical.

The similarities were enough “for the jury to decide whether Andujar and the other store managers were similarly situated and, if so, whether GNC treated them differently because of age,” Hardiman said.

GNC also argued that it is entitled to a new trial because of the trial judge’s perceived one-sided jury instruction in response to Andujar’s criminal history.

According to Hardiman, GNC argued that the “curative statement to the jury—about the veracity of defense counsel’s claim that Andujar was a ‘felon’ in closing arguments—prejudiced GNC by belittling its counsel and ‘eviscerat[ing] one of the key defense positions on the relative credibility of the parties.’ GNC argues that rather than clarifying ‘not all crimes are felonies, the court’s instruction completely disregarded the admission of guilt by Andujar, and … painted defense counsel as a liar.’”

Hardiman said, “GNC misconstrues the court’s curative instruction. After GNC’s counsel called Andujar a ‘felon,’ the court instructed the jury there was ‘absolutely no evidence in the record to support that fact’ and that it ‘was a misstatement.’ The court told the jury to disregard the statement, which was only proper since it was untrue. This curative statement does not rise to the level of ‘confus[ing] or mislead[ing] the jury, or becom[ing] so one-sided as to assume an advocate’s position.’”

Lastly, GNC objected to the amount of money awarded to Andujar, including back pay, front pay and compensation for emotional distress. However, Hardiman said that the evidence was sufficient to support the jury’s verdict.

Andujar’s lawyer, Richard Pescatore, said he was happy for Santos.

“Age discrimination is sometimes subtle in nature and at times difficult to prove,” Pescatore said in an email. “Employers in general do not routinely make discriminatory comments out loud and often advance a pretext to support their unlawful conduct.”

GNC’s lawyer, Daniel McCarthy of Rogut McCarthy, did not respond to a request for comment.