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Richard Buchholz v. Victor Printing

June 29, 2012

RICHARD BUCHHOLZ, PLAINTIFF,
v.
VICTOR PRINTING, INC., AND LEONARD VICTOR DEFENDANTS.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

Plaintiff filed a complaint alleging that defendants discriminated against him on the basis of age in violation of the New Jersey Law Against Discrimination. Before the Court is defendants' motion for summary judgment. For the reasons set forth below, defendant's motion will be denied.*fn1

I. BACKGROUND

Plaintiff, Richard Buchholz, began working for defendants in June 1986. His employment ended on October 16, 2009. Defendant Victor Printing, Inc. ("Victor Printing") is a small, family-run printing shop in Cherry Hill, New Jersey founded in 1972. Defendant Leonard Victor is the owner and president of Victor Printing.

Plaintiff was hired to work as a pressman, operating the AB Dick, a two-color press or duplicator. In 1991, he became a small press foreman. Over the years, Victor Printing acquired more sophisticated multi-colored press machines and began phasing out work on the AB Dick two-color press. Although other operators chose to be trained on the more sophisticated equipment, plaintiff chose not to. Eventually, there was less work on the AB Dick machine and plaintiff's hours were reduced in 2006 to three days a week. Defendants then offered plaintiff a job as a full-time driver which plaintiff accepted. Plaintiff was 63 years old at that time.

As an accommodation to plaintiff, defendants did not reduce plaintiff's rate of pay when he became a driver which remained at $17.50 per hour. This rate of pay was higher than plaintiff's second job as a driver for TD Bank at $11.00 per hour. The van that plaintiff drove for defendants displayed the Victor Printing name and phone number. In late 2008, Victor Printing's sales declined 25 to 30 percent. As a result, in December 2008 and January 2009, Victor Printing laid off eight employees. Plaintiff, who was 65 years old at the time, was not laid off.

In the four or five month period before he was terminated, defendants received complaints about plaintiff's driving. The first involved plaintiff getting out of the van to confront a driver who had his son in the car. Plaintiff states the driver wanted to get in front of him at a stop light. The driver called Victor Printing to complain. Victor, who took the call, described the driver as "irate" and "very upset." Plaintiff admits to getting out of the car to see if the van was hit and confronting the driver as to his driving. Victor warned plaintiff that he was driving a "billboard" for Victor Printing.

The second instance occurred when plaintiff, while attempting to exit the Turnpike, pulled in front of a tractor trailer. The driver of the tractor trailer called to complain that plaintiff cut him off so that he had to lock his brakes and almost caused an accident. Plaintiff was directed by defendants to call the driver and apologize, which he did.

Defendants also had discussions with plaintiff about his appearance. Plaintiff admits that he cut his uniform shirt around the collar and in front of the shirt, but that he stopped wearing cut shirts after it was brought to his attention.*fn2 Plaintiff also states that defendants did not maintain a formal discipline policy and only issued verbal warnings to employees.

Within weeks of plaintiff's termination, defendants received a complaint from a customer that plaintiff had acted inappropriately by complaining to the customer about Victor Printing. Plaintiff states that he told the customer that the boxes were heavy and that Victor Printing did not send someone to help him. Defendants, however, did not inform plaintiff of the call.

On October 15, 2009, the day before plaintiff was let go, plaintiff hit a parked truck belonging to a large client of defendants', Edmunds Direct Mail ("Edmunds"), while on a delivery. Plaintiff states that he heard a noise while backing in, got out to look and saw that a mirror on the truck had moved but observed no other damage. The accident damaged the Edmunds truck and left scratches on the defendants' van. Plaintiff did not report the accident to either Edmunds or the defendants.

The following day, plaintiff returned to Edmunds for a delivery and was confronted by one of Edmunds's employees about the damage to the truck. Plaintiff had hit one of the truck's mirrors breaking an amber lens. Although plaintiff knew he was required to report an accident or damage to equipment, plaintiff maintains that he did not report it because he did not believe there was any damage done. Defendants learned about the accident after an Edmunds employee had called and notified them. Defendants state that Edmunds was upset that no one from Victor Printing had called to discuss the accident.*fn3

On October 16, 2009, plaintiff was confronted about the incident involving the Edmunds truck and admitted that he failed to report the accident with the Edmunds truck. What else happened in the meeting appears to be in dispute. Plaintiff maintains that Victor told him that he was being laid off because there was not enough work for him to do and that if work increased, he could come back for three days a week and work at a lower rate of pay. Defendants maintain that plaintiff was fired because of his poor driving and that plaintiff was described as "laid off" as an accommodation so that plaintiff could inform other employers he was laid off and could collect unemployment compensation.

After the October 16th meeting, three of defendants' current employees took over the duties of driver until a replacement could be hired. In April 2010, defendants hired a replacement driver who was 22 years old.

Plaintiff argues that defendants discriminated against him on the basis of age. He states that in the weeks before he was laid-off, he was asked by Victor on two separate occasions about his retirement plans - once approximately two weeks before he was laid-off, and once on October 8, 2009, approximately one week before he was laid-off. Defendants state that the inquiries regarding plaintiff's retirement were in response to certain events. Specifically, in September 2009, plaintiff switched his medical coverage under the Victor Printing medical plan to the TD Bank medical plan. On October 8, 2009, plaintiff completed a 401(k) withdrawal request to withdraw 100 percent of his account. Around this time, defendants also learned that plaintiff would begin collecting social security in October 2009.

On December 10, 2010, plaintiff filed a complaint alleging that defendants violated the New Jersey Law Against Discrimination. Defendants now move for summary ...


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