Vantage, which sells telephones and other communications products and services, at one time operated a facility in Ewing, Mercer County. Complainant Michael O’Shea worked out of the company’s Ewing office for approximately 16 months before being terminated in the summer of 2009.

A 2013 Amended Complaint filed by both O’Shea and Division Director Craig T. Sashihara accused Vantage of violating New Jersey’s Law Against Discrimination (LAD) by firing O’Shea on July 31, 2009 – one day after he requested leave to undergo a hip replacement operation. Vantage denied engaging in unlawful discrimination and contended that O’Shea’s dismissal was performance related.

“Disability status is protected under the law,” said Director Sashihara. ”You can fire someone for performance reasons, but it’s illegal to fire someone because he or she needs to undergo a medical procedure. It is akin to firing someone based on their sexual orientation, race or gender. We hope this case will help drive home that message to employers across the state.”
 
In addition to the $20,000 settlement payout to O‘Shea, Vantage has agreed to ensure it has an up-to-date anti-harassment and anti-discrimination policy in place that includes discussion of age and disability, and to provide the Division with written verification of that policy.

Vantage does not presently operate any facilities in New Jersey, and currently has no New-Jersey-based employees. However, the settlement also includes a provision that Vantage will notify the Division within 60 days if it should re-establish operations in the state or employ individuals whose work base is located here. In that circumstance, the settlement agreement provides, Vantage is to arrange for all management, staff, and human resources personnel involved in its re-established New Jersey operations to attend training on the LAD, and on Vantage’s own anti-harassment and anti-discrimination policy.

O’Shea, of Middletown, Monmouth County, was hired by Vantage in April 2008 as a Channel Account Manager. His earnings were to include a base salary and additional compensation based on sales revenue generated from his sales territory of New York, Connecticut and New Jersey. At the time of his hiring, O’Shea was 69.

During the Division’s investigation, Vantage maintained that it individually counseled O’Shea on numerous occasions for not meeting sales quotas before deciding to terminate him on July 2, 2009 — weeks before his announced intention to have hip surgery. Vantage management also told Division investigators they did not give O’Shea advance notice about his impending dismissal because that was a standard company practice – to prevent terminated or disgruntled employees from absconding with proprietary information.

However, a Vantage management employee who left the company sometime after his first interview with the Division regarding O’Shea subsequently revised his account of the O’Shea dismissal. The former Vantage manager stated that none of the sales staff at Vantage met their quotas, which he described as unrealistic in the first place. The ex-manager noted that although his prior account of having counseled O’Shea regarding his performance was accurate, he had done so for all salespersons on his team and never counseled O’Shea individually, or told him that he would be terminated for failure to meet Vantage’s sales quota. He also noted that, with the exception of O’Shea, he had never known Vantage to withhold notice of its decision to terminate a salesperson until the last day of the salesperson’s employment.

In addition to considering the former Vantage manager’s revised account of the O’Shea firing, Division investigators reviewed Vantage documents and determined there had been an on-going internal discussion in July 2009 about offering O’Shea a different position at a lower base salary, or possibly a “commission only” job.

The Division found no performance reviews or other indications that O’Shea had been formally notified his job was in jeopardy. By comparison, several salespersons who were younger, or who had not requested medical leave, received written warnings and were placed on probation before being terminated. Vantage also retained a younger, similarly performing salesperson at the time O‘Shea was terminated.

As a result, a Finding of Probable Cause issued by the Division following its investigation noted that Vantage appeared poised not to fire O’Shea, but rather to offer him alternative employment options within the company, until O’Shea announced that he would be undergoing hip replacement surgery and be out for eight days.

Deputy Attorney General Megan Harris, assigned to the Division of Law’s Civil Rights section, handled the O’Shea matter on behalf of the State.

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