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Star settles age-discrimination suit with ex-columnist

J.K. Wall
March 2, 2012
Keywords
Indianapolis Star, Law, Lawsuits, Legal Issues, Media & Marketing, Newspapers, Publishing, Workplace Issues
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Former Indianapolis Star columnist Susan Guyett has settled her age-discrimination lawsuit with the newspaper, according to her attorney.

Kathleen DeLaney confirmed the settlement Friday morning but would not disclose the terms or timing of the agreement. A settlement hearing had been scheduled for Wednesday at the federal courthouse in Indianapolis. And the case was set to go to trial in April.

Guyett, 63, sued the Star and its owner, Virginia-based Gannett Co., in April 2010, alleging that her age led to her dismissal in December 2008.

Guyett wrote the “Talk of Our Town” column. She charged in her suit that the content and concept of the column remained the same after her dismissal, when it was assigned to Cathy Kightlinger, who is 42.

The Star filed a motion to dismiss the suit, which Judge Richard L. Young denied in late December.

Craig Borowski, an attorney representing the Star, did not return a phone call seeking comment Friday morning.
 

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  • Star-Guyett
    jwbalderdashMarch 3, 2012 2:46 PM
    To the question will you read this in the Star as in if it had been another local firm: Well, heck fellas--think in terms of good grey NYTimes "All The News That's Fit to Print"---or in case of Gannett-Star "All The News That FITs--We Print!"--so don't hold your breath.... Plus, think beyond the merits of this case or the dozens of skilled, well-informed Star Staffers who knew the community now out to pasture--that's why you read such ludicrous errors --no institutional memory,no skilled beyond years great copy desk--no grasp of how today's news is anchored in yesterday's local events and structure. Have your d aily copy delivered to the waste basket and cut out the middleman and hurrah for MickeyMaurer for reporting more than business news---(PS:Origin of that last word said to be made up of NorthEastWestSouth--that's what a local newspaper iss upposed to cover.
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  • Reason for freelance
    GMarch 3, 2012 12:14 PM
    Check your dictionary. Except? Accept.
    Reply to CommentFlag Comment
  • re
    HerringCassieMarch 3, 2012 12:21 AM
    freelance writer
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    • selling out just for the money is a loss not a win when one excepts hush money
      Michael HalpertMarch 3, 2012 12:11 AM
      selling out just for the money is a loss not a win when one excepts hush money while the problem still grows & out of control threw out the world because the problem is not just in the USA .
      now you got your money & you keep your mouth shout with no turns of agreement revealed to be a paid forward to others facing the same problems so you also sold yourself out as being a reporter for the public intrust & the public having the right to know same as freedom of the press unless paid to burry the story for self serve payoff while betraying the public trust in freedom of the press.
      this is why we still remain the de vided states of America & just remember that if Paul revere strayed silent we would all be speaking British .
      what is missing here is everyone cry's my rights your rights but forgets collective rights because if we don't have collective rights then you & i don't have any rights the same as if we all don't pay forward don't expect to get paid back just expect to get paid off to sellout .
      just remember if we all pay forward then we all automatically will be paid back & if we all protect our collective rights then we will have the gift of human rights .

      Michael Halpert
      Docket No. 07-4074-cv. - HALPERT v. MANHATTAN APARTMENTS ...
      caselaw.findlaw.com/us-2nd-circuit/1113347.html

      Sep 10, 2009 ... Michael HALPERT, Plaintiff-Appellant, v. MANHATTAN APARTMENTS, INC., Defendant-Appellee. Docket No. 07-4074-cv. Argued: Aug


      HALPERT v. MANHATTAN APARTMENTS INC


      Michael HALPERT, Plaintiff-Appellant, v. MANHATTAN APARTMENTS, INC., Defendant-Appellee.


      Docket No. 07-4074-cv.

      Argued: Aug. 4, 2009. -- September 10, 2009
      Before CALABRESI, PARKER, and RAGGI, Circuit Judges.


      Michael Halpert, pro se, New York, N.Y.Louis R. Satriale, Jr. (Joseph E. Gehring, Jr., of counsel), Gehring, Tatman & Satriale, LLC, New York, N.Y.

      Plaintiff-Appellant Michael Halpert, pro se, appeals from the judgment of the United States District Court for the Southern District of New York (Jones, J.), granting summary judgment to Defendant-Appellee Manhattan Apartments, Inc. (“MAI”) on Halpert's claim under the Age Discrimination in Employment Act (“ADEA”). We assume the parties' familiarity with the facts, procedural history, and issues on appeal.

      A district court's grant of summary judgment is reviewed de novo, construing the evidence in the light most favorable to the non-moving party. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).

      I.

      The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). Relying on our decision in Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 509 (2d Cir.1994), the District Court stated that the ADEA “does not apply to independent contractors.” ROA doc 31 at 4. The District Court determined on the basis of undisputed facts that Robert Brooks, who interviewed Halpert and allegedly told Halpert that he was “too old” for a position showing rental apartments, was an independent contractor and not an employee of MAI. The Court also found that Halpert had failed to present facts creating a material dispute as to whether Brooks had apparent authority to interview Halpert on behalf of MAI. As a result, the District Court concluded that MAI was not an employer under the definition of the ADEA, and that MAI was entitled to a judgment as a matter of law.

      Robinson does not, in fact, resolve this case. In Robinson, the district court concluded that there was no genuine issue of material fact suggesting that Robinson was an employee of the federal agency or the federal individual defendants that he had named in his suit. Accordingly, we affirmed the district court's grant of summary judgment as to Robinson's ADEA claims against those defendants, explaining that “[t]he ADEA prohibits employers from discriminating on the basis of age against their employees ” and therefore does not cover claims brought by independent contractors. Robinson, 21 F.3d at 509 (emphasis in original). Here, by contrast, the controversy is not whether MAI was liable for discrimination against an independent contractor. Rather, the issue is whether-assuming for the moment that Brooks interviewed Halpert for a position with MAI or that MAI led Halpert to believe that he was applying for a position with them, rather than Brooks-an employer (MAI) can potentially be held liable for discrimination by an independent contractor (Brooks) who acts for the employer. The answer to this question is yes.

      By its terms, employer liability under the ADEA is direct: an employer may not “fail or refuse to hire ․ any individual ․ because of such individual's age.” 29 U.S.C. § 623(a)(1). That prohibition applies regardless of whether an employer uses its employees to interview applicants for open positions, or whether it uses intermediaries, such as independent contractors, to fill that role. As the Seventh Circuit has explained in the context of Title VII, when liability for discrimination is direct rather than derivative, “it makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.” Dunn v. Wash. County Hosp., 429 F.3d 689, 691 (7th Cir.2005). If a company gives an individual authority to interview job applicants and make hiring decisions on the company's behalf, then the company may be held liable if that individual improperly discriminates against applicants on the basis of age.

      A company is not, of course, liable for the hiring decisions made by independent contractors who are hiring on their own behalf. Nor is a company liable simply because a job applicant unreasonably (and incorrectly) believes that he is interviewing for a job with the company and that the independent contractor has the authority to make hiring decisions on behalf of the company. General principles of agency law determine whether the independent contractor or other third party has been given actual authority to hire on behalf of the company, or whether the company, through its own words or conduct, has created apparent authority in that individual in the eyes of the job applicant. See Minskoff v. Am. Express Travel Related Servs. Co., 98 F.3d 703, 708 (2d Cir.1996). Significantly, however, the company's potential liability does not depend on whether the individual hiring for the company as its agent is an employee or an independent contractor under the broadest meaning of those words as they are determined by the common law agency test.1 An independent contractor can act as an agent, or an apparent agent, of the company for the limited purpose of interviewing and potentially hiring job applicants while still retaining his independence for any number of other purposes. II.MAI's potential liability in this case thus turns on whether Brooks was acting as the hiring agent, or apparent hiring agent, for MAI when he interviewed Halpert for the position of showing apartments (“Shower”) or whether Brooks was simply hiring on his own account. Because we find that this question depends on disputed questions of fact, summary judgment is inappropriate.

      The District Court observed that Halpert has not disputed MAI's evidence that Brooks was paid on commission, set his own hours, could work from home, and paid taxes as an independent contractor. ROA doc 31 at 5-7. As explained above, this is not determinative. Halpert's submissions dispute MAI's assertion that it had no control over the manner and means by which Brooks conducted interviews and made hiring decisions related to the Shower position. Evidence adduced by Halpert indicates (a) that MAI sponsored a “training program to show rental apartments,” ROA doc 17 ¶ 22, and that those chosen from the program would receive commissions from MAI, and (b) that MAI enlisted sales associates like Brooks to interview candidates for this program. In support of that contention, Halpert has presented evidence (1) that Laura Nielson, the career counselor who arranged the interview for Halpert, believed that Halpert would be interviewing for a position with MAI, not Brooks; (2) that the interview took place at MAI's offices; and (3) that after the interview, Brooks and another MAI associate told Nielson “they were looking for someone younger.” That Brooks and another MAI associate informed Nielson that they (not just Brooks) were looking for someone younger tends to support Halpert's allegation that Brooks was interviewing Halpert not for himself but on behalf of MAI. We also note that an agreement between MAI and Brooks, which sets forth in great detail the rights and duties of both parties in connection with Brooks's work as a sales associate, indicates that Brooks is to pay “his own expenses,” including “automobile, travel and entertainment expenses,” but does not indicate that Brooks is to compensate Showers directly.

      MAI has presented affidavits from Brooks and an MAI representative asserting that Halpert, if hired, would have been compensated by Brooks, not MAI. But MAI has not presented evidence corroborating that contention, and we construe Halpert's submissions to dispute it. Nor has MAI established that it was not involved in advertising the Shower position or in establishing the parameters of that role. Accordingly, we conclude, contrary to the District Court, that disputed issues of material fact remain as to whether MAI's degree of control over the interview and hiring process for the Shower position rendered Brooks MAI's agent with respect to that process.

      Accordingly, the judgment of the district court is VACATED, and the matter is REMANDED to the district court.2

      FOOTNOTES

      1. We embraced the common law agency test in Frankel v. Bally, Inc., 987 F.2d 86, 90 (2d Cir.1993) for the purposes of determining whether the party asserting a discrimination claim under the ADEA was an employee or an independent contractor.

      2. During oral argument before this Court, Halpert indicated that he would like appointed counsel. On remand, the district court is encouraged to revisit the question of whether it is appropriate to appoint pro bono counsel for Halpert. See, e.g., 28 U.S.C. § 1915(e)(1).
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    • GOOD FOR HER
      TerryMarch 2, 2012 6:19 PM
      I am pleased that Susan Guyett got her day in court, so to speak. I am tired of reading about age discrimination. I believe that penalties which close in on millions of dollars is the only way of sending a strong message to employers like the Star. By the way, I cancelled my subscription to the Star when this case came to light, and I will not renew. Greed should be addressed with our feet, and I walked away from the Star.
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    • I would have never known!
      Really....March 2, 2012 2:21 PM
      Because she always had a thumbnail pic taken 20 years earlier next to her tagline. Just like some of the vanity driven prominent northside real estate agents.....#1 20 years in a row with a picture just as old.
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    • Now that is news
      Big BMarch 2, 2012 1:49 PM
      Will this make the front page of the paper like it would if it was Lilly or another large employer in the city and an employee??????????????
      Reply to CommentFlag Comment
    • Justice
      GMarch 2, 2012 1:16 PM
      Finally. For anyone who knows the parties or was a victim of the same discriminatory policy, this case was a no-brainer. Many of us who were laid off had decades of experience, piles of awards and advanced degrees. Our reward? Booted out the door. I hope this helps the public realize that The Star is not a champion of causes but a money-making machine that stomps on people. Please don't pay a dime for their online product. Visit IBJ, the TV and radio websites. There you will find geniune concern for our people and areas. Let The Star die. Perhaps then a legitimate, general news product will rise from the ashes.
      Reply to CommentFlag Comment

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      1. liek the rest of America

      2. These quaint,obsessed musings by the stalkers are certainly entertaining, but I'm trying to figure out what, if anything, all the yelping below has to do with Zak Brown.

      3. It's evident that Moffett was pushing the right buttons and corporate America is now trying to squash him. He just wanted to withdraw the free pilot services provided to the company by the pilots to try and put some pressure on a company that has not been interested in negotiating a contract in over 5 years. The company does not provide a contract because not having one has saved them a bundle of money. Shame on any Republic pilots not standing behind their union leader just because things are getting tough, can you not see such strategic moves by the company as putting the last union president in a corporate position and into THEIR pocket. Do you really believe the last union president is so appalled at the attempts by Moffett, do you not remember his oppositions to the company? We stood behind him. It has been proven over and over again for thousands of years without fail, a man cannot serve two masters. Anyone that believes people vote contrary to their paycheck and livelihood deserve to be taken advantage of, the recent statements by the former union president are laughable as he denounces the current union president from his new corporate position. Have you ever seen a drafted sports player score points for his previous team, it cannot be done, he is not on the pilots side anymore, he gets his money a different way now than you and I do, and he should not be allowed to remain on the seniority list. A drafted player brings strength, credibility, tactical knowledge, and a strategic advantage to his NEW team, he would not be drafted or paid were it otherwise. We are all forced to choose only one side to play for and support, not doing so has many references in life such as insider trading and shaving points, all illegal for good reason. This basic fact is why corporate moguls, scientist, and engineers all sign non-discloser agreements and non-compete clauses, as protection in case they are lured into switching sides as our former union president has done. No NFL coach ever drafted a player so that both teams could benefit and better understand each other, they are recruited to win the game against that former team, period. Likewise the company does not recruit the former union president by accident or mutual understanding, its strategy. Don't confuse playing the game with good sportsman-like conduct in support of common business and prosperity goals, with the requirement to only play for one side. Good men we all love and favor fall subject to this manipulation, often without their knowledge, and it is not a betrayal of their friendship to oppose them when they switch sides. If we did not love and trust them, they would not have been chosen and lured to the other side in the first place. The deception by the drafted player is not made at a conscious level, it's just human nature and it's all about money and power which corrupts our ability to be objective and loyal to two masters. This is why our court system created the defense attorney, and why our military created counter intelligence. Its strategy and its propaganda, and it works, and that's why the "powers to be" manipulate the chess pieces by sometimes changing their colors. Some players know they are being manipulated when their color is changed, but it brings them more money and power so they do not care. The rest have good intentions but do not even realize they are being manipulated. This tactic is also known by another name, Divide and Conquer. In battle sending an imperfect message with an imperfect team is obviously not ideal, but it's still being sent by YOUR team, your union leader, a leader that has common goals and common rewards with you, they are the best, because we have elected them to do a job for us. If you are not backing Moffett but believing the spin by those that have recently switched sides, you are taking food out of your own mouth. Showing unity and backing an imperfect situation still results in taking just as much ground, it's about unity and bargaining power. It's not necessary to wait around for that perfect attack because it will never come, the company will spin and attempt to destroy anyone that gets in their way. Ultimately it's not about any specific attack anyway, ASAP or whatever it makes no difference, it is and always has been only about power. If this company cared about safety it would not build pairings with 8 hour overnights, come on, are you that naive? Besides, do you really think Hoffa cares, no, he got a call from corporate America and was squeezed into denouncing Moffett. If he didn't they would spin the safety card against him and the Teamsters National with implication for truckers, future contracts, insurance rates etc...saying something like the Teamsters use safety as a bargaining chip, blah blah blah... Do you really think any pilot is going to do something unsafe for the contract, absolutely not, the only ones threatening safety here is the company with reduced rest, fatigue, and poverty. Do you not find it odd that Hoffa and the Teamsters are opposing a Teamster president publicly? Would the Teamsters National not normally support and work with one of their own? Why did they not sit down and help him strategize, correct any mistakes, and charge ahead? Would the Teamsters National not normally support and leverage a contract for all those pilots that have been paying Teamster dues, isn't that why we have all been paying Teamster dues in the first place? I sure haven't been paying dues so that the Teamsters National could come along and write this kind of an article undercutting our union leader and our unity. Whose side is the Teamsters National really on, it's obviously not the Republic pilots side.

      4. No matter what Moffatt does the company is going to spin it like he is the terrorist and brainwash people like you into believing it, wake up, back your players that are trying to change things for you and your livelihood. Where has Hoffa been for the last 6 years, except collecting our dues. Seriously, do you really think an FO going for upgrade, signed off by a checkairman ready for the upgrade, who then fails, is not even capable of returning as a First Officer.

      5. whoa!

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