Discrimination Claims By Attorney Remanded

The New Jersey Supreme Court remanded a case involving an employment discrimination claim brought by a former staff attorney against UBS PaineWebber,Inc.(“PW”). During a previous employment, the attorney had “experienced severe depression, and was terminated after being critized both for her work and for failing to keep up her personal appearance.” She had initially received positive performance evaluations and a management assignment at PW, but later received an evaluation that “criticized her judment, her temperment and her work habits.”

The attorney had sued on a claim of sexual discrimination based on two incidents involving her supervisor. At a wedding, she had introduced her boyfriend to her PW co-workers and the supervisor said: “Everyone at the table with a cock used to have [her] reporting to him.” She did not immediately complain but sought medical assistance, leading to a diagnosis of bipolar disorder. The second incident took place a few days after the attorney had misidentified the division where she worked at a legal department function. The supervisor loudly said in the office that he nearly “wet his pants” at the misidentification. The lawyer immediately complained to PW’s HR department.

The wrongful termination claim was based on a different series of events. She had expressed concern about an ethical conflict in her role as an investigator of customer complaints and had also sought a work schedule accomodation for her biploar condition. Shortly thereafter, she was terminated.

Following a lengthy trial, a jury ruled in favor of PW on the substantive claims. While the jury was deliberating on bifurcated claims of negligent destruction and fraudulent concealment of evidence, a settlement on those claims was reached that preserved her right to appellate review.

Here, the court held that the lawyer was entitled to the benefit of an adverse inference instruction on the spoilation of evidence claim, that the trial court had erred in determining that certain evidence could not be considered in relation to claim that the attorney had engaged in protected activity, that defense counsel made improper remarks in summation and that summary judgment was improperly granted to PW on a common law wrongful termination claim. The case was remanded for further proceedings. (Mike Frisch)