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Recent Appellate Court Decisions Show That Plaintiffs Suing Federal Government Employers Do Not Have to Work as Hard to Prove Age Discrimination

(AUGUST 5, 2020) - A pair of recent appellate decisions makes clear that the burden of proof for establishing a claim for age discrimination against a federal government entity is somewhat lower than the more stringent standard which applies to state and local governments, as well as private employers. Decisions by the U.S.
Supreme Court and the 1st Circuit Court of Appeals establish that a plaintiff seeking recovery under the Age Discrimination in Employment Act (ADEA) need only prove that age was merely one of the factors considered in connection with an adverse employment action by an employer in the “federal sector,” while a plaintiff asserting a claim against any other government entity or private employer must go further, and prove that age was the “but-for cause” of the employer’s decision.

In Babb v. Wilkie, 140 S.Ct. 1168 (2020), the 53-year-old plaintiff worked as a clinical pharmacist at a U.S. Department of Veteran Affairs Medical Center. Babb claimed that over a two-year period, the VA took away a designation which made her eligible for a promotion, denied her training opportunities, passed her over for other positions, and reduced her holiday pay. Babb filed suit under the federal provision of the ADEA against the VA claiming, among other things, she was subject to age discrimination.

The Supreme Court granted certiorari to resolve a split among the appellate courts in the various federal circuits regarding the proper interpretation of the ADEA’s federal sector provision, which provides that personnel decisions made by federal government entities must be made “free from any discrimination based on age.” Following a thorough analysis of the syntax of the statutory language, the Court determined that Babb need only show that age was merely a factor in the employment decisions in order to establish liability. The Court recognized, however, that the statutory language applicable to other entities was different, and that a plaintiff filing suit against a private employer or state and local governments would need to show that age was the but-for cause of the employer’s decision.

Less than six weeks after the Supreme Court’s ruling, the First Circuit Court of Appeals affirmed the but-for causation standard for private entities. In Zabala-De Jesus v. Sanofi-Aventis Puerto Rico, Inc., 959 F.3d 423 (1st Cir. 2020), the plaintiff filed suit against his former employer alleging that when two positions in his company were consolidated into one, he was terminated in favor of the younger employee. However, the employer was able to show that before Zabala-De Jesus was terminated, it had conducted an extensive examination of the two employees in consideration for the new role. Unfortunately for the plaintiff, his performance reviews and experience with the company did not stack up to the other, younger candidate. The 1st Circuit held that in light of the thoughtful consideration of the candidates’ qualifications, the employer had shown a “legitimate, non-discriminatory reason” for the decision, and the plaintiff could not meet his burden to show that the employer’s rationale was merely a pretext for discrimination, and that his age was the true reason for the adverse action.

While the First Circuit decision in Zabala-De Jesus does not mention the Supreme Court’s decision in Babb, it supports the conclusion that the “but-for” standard of causation continues to apply outside the context of the federal sector provision in the ADEA. Nevertheless, any employer hoping to steer clear of a discrimination claim would be wise to avoid any consideration of an employee’s age in making employment decisions. - (Melick & Porter)


Multiple Gallagher Sharp Attorneys Selected for 2021 Best Lawyers®

(AUGUST 27, 2020) - The Best Lawyers in America is one of the world’s most trusted resources for fair and honest reviews and ratings for attorneys in various practices. The organization uses a Purely Peer Review™ process to select annual members who exemplify outstanding legal services and the utmost commitment to professional ethics.

It is with much excitement that Gallagher Sharp – a member of Themis Advocates Group – can announce that several of its attorneys have been selected as 2021 Best Lawyers® members by The Best Lawyers in America.

Gallagher Sharp attorneys who have earned this high honor include:

  • Attorney Joseph W. Pappalardo
  • Attorney Monica A. Sansalone
  • Attorney Richard C.O. Rezie
  • Attorney Thomas E. Dover
  • Attorney Timothy P. Roth
  • Attorney Timothy T. Brick

From all of us with Themis Advocates Group, we want to congratulate these six attorneys for this great achievement. We look forward to watching your careers continue to thrive in the coming years and far beyond.

More About the 2021 Best Lawyers® Members

Attorney Tim Brick: 2021 marks a first-year selection for Attorney Tim Brick, who is selected as a Best Lawyers® member in the area of Legal Malpractice Law – Defendants. Tim is a Managing Partner of Gallagher Sharp, where he is an instrumental member of the firm's Professional Liability and Business and Employment Practice Groups. Across his 30+ years of experience, Attorney Brick has participated in more than 25 jury trials. When not working on a difficult defense case, Tim is often scheduled to lecture on legal ethics and malpractice.

Attorney Tim Roth: 2021 is also the first year that Attorney Tim Roth has been named a Best Lawyers® member. His selection involves his work as a transportation law attorney. Attorney Roth is also a Partner of Gallagher Sharp, who heads the law firm’s Transportation Group. He has built his career and reputation on successfully defending trucking companies from various lawsuits with a focus on those involving truck accidents and liability. Outside of the law firm, Attorney Tim Roth spends time as part of the Faculty and Executive Council of the CLM Claims College School of Transportation or instructing legal professionals as part of the Trucking Industry Defense Association (TIDA) Skills Course.

Attorney Joe Pappalardo: Back in 2015, Attorney Joe Pappalardo was first selected as a Best Lawyers® member for Transportation Law. He has been selected as Cleveland's Best Lawyers Transportation Law Lawyer of the Year for 2021, an honor that is only rivaled by his previous titles won in 2016 and 2018.

Attorney Monica Sansalone: This is the second year in a row that Attorney Monica Sansalone has been selected as a Best Lawyers® member in the area of Ethics and Professional Responsibility Law, having first been honored in the 2020 Edition.

Attorney Tom Dover: Tom is a longstanding Best Lawyers® member, having first earned this title in 2003 for his work on railroad law, mass torts, class actions, and personal injury claims, all with a focus on representing defendants. In 2012 and 2017, he was named as Cleveland's Best Lawyers Mass Tort Litigation/Class Actions-Defendants Lawyer of the Year. In 2014, he was also given the title of Cleveland's Best Lawyers Personal Injury Litigation-Defendants Lawyer of the Year.

Attorney Rich Rezie: Best Lawyers® first recognized Attorney Rezie in the area of Insurance Law back in 2018.

More About Gallagher Sharp

Individuals and corporations alike in Ohio and Michigan know they can depend on Gallagher Sharp for keen defense representation, even for cases that must go to trial. There are no cases too complex or high stakes for the firm, which keeps its focus on general litigation, business and employment law disputes, insurance claim defense, transportation law, mass tort defense, and more. With the firm first opening its doors in 1912, it is one of the few in the region that can boast having more than a century’s worth of experience.

To learn more about Best Lawyers®, you can click here and visit the organization’s official website. T


Baumann, Gant & Keeley Defend Product Defect Wrongful Death Claim

(SEPTEMBER 8, 2020) - Baumann, Gant & Keeley, P.A. in Jacksonville, Florida – a law firm that is part of Themis Advocates Group – recently defended two businesses from a wrongful death and product liability lawsuit. The plaintiff blamed the defendants for a sewer pipe explosion that killed her son. The attorneys of Baumann, Gant & Keeley, P.A. were able to secure a motion for summary judgment on all three counts of negligence brought forth by the plaintiff, effectively ending the case in favor of the defense.

Details of the Sewer Pipe Fatal Accident Case

The plaintiff’s son (decedent) was repairing a sewer pipe manufactured by Vanderlans & Sons, Inc. (Vanderlans) and rented out by Sunbelt Rentals, Inc. (Sunbelt) when it exploded. The resulting blast threw debris that struck the decedent, resulting in injuries severe enough to cause his death. The plaintiff blamed Vanderlans and Sunbelt for the accident and attempted to sue for compensation.

The sewer pipe was installed to block water flow into the plumbing system. It appears that an excess of pressure due to the blocked water flow caused the pipe and its plug to fail and explode, but the exact details are unknown due to a lack of expert investigation into the matter. Although just because a product fails does not mean it did so due to negligence or in a way that warrants a lawsuit.

When the Evidence Does Not Add Up

To disprove the plaintiff’s claim, the attorneys of Baumann, Gant & Keeley, P.A. turned to Florida’s definitions of product liability. Under this definition, a product is defective if there is a design, manufacturing, or marketing warning that causes the product to become dangerous when used as intended. The plaintiff failed to make an argument as to which of the three ways the sewer pipe and its pipe plug were defective; she merely argued that the pipe was defective in some undescribed way.

Furthermore, the plaintiff did not hire an expert plumber or engineer to investigate the failed pipe. Without an expert’s testimony, crucial technicalities that could show how the pipe failed and why it failed were entirely absent in the claim. Effectively, the plaintiff’s argument would have to be based on speculation and a general haze of product liability, which is not enough to warrant a ruling in their favor.

Interestingly, the plaintiff tried to revive their argument by pointing to Cassisi v. Maytag, a case that established that a products liability action could succeed if it can be proven that the product was defective “at the time of the injury and at the time it was within [the] control of the supplier.” However, Cassisi requires the preservation of the evidence and involves products that require little “user interference,” like a washing machine that can be operated with the click of a button. The court found that the plaintiff did not preserve the evidence properly and that the pipe plug manufactured by Vanderlans required significant user interference or interaction, such as the decedent attempted to install it themselves with technical knowledge and various plumbing tools.

Sunbelt was also excused of any liability through the motion of summary judgment. The plaintiff’s claimed that the pipe plug they rented to the decedent was stored incorrectly, causing it to deteriorate to the point that it would be prone to a catastrophic failure. Again, the court found that there was no evidence to suggest this claim as true, mainly due to a complete lack of expert testimony.

The court ruled in favor of the defendants on August 30, 2020, and recorded its final judgment.


Baumann, Gant & Keeley, P.A. Wins Big for Defendant Taxicab Company

L: Attorney Brendan Keeley, Baumann, Gant & Keeley, P.A.
R: Attorney Fred White, Baumann, Gant & Keeley, P.A.

(SEPTEMBER 16, 2020) - A final judgment was recently issued by the Circuit Court of the Fourth Judicial Circuit in Duval County, Florida, and in favor of the defendants, who were represented by Attorney Brendan Keeley and Attorney Fred White of Baumann, Gant & Keeley, P.A., part of Themis Advocates Group. Attorneys Keeley and White successfully defended Gladson Francois and Checker Yellow Cab of Jacksonville against a complaint from two plaintiffs in a highly contested auto collision trial. For privacy and confidentiality, many of the case details must remain omitted.

However, we can report that the court’s final judgment in favor of the defendants included an award worth $117,665.48 for reasonable attorneys’ fees and other costs. The award includes an interest rate of 6.03% per year as well. Many courts often hesitate to award fair and sizeable fees and costs to the defendant, so we believe this case result is one worth celebrating.

From all of us at Themis Advocates Group, we want to congratulate Attorneys Keeley and White of Baumann, Gant & Keeley, P.A. Thanks to your efforts and steadfast representation in front of a tenacious opposition, justice has been secured for your client, and the already-great reputation of your firm continues to grow even more.

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