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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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