A Split Decision

A U.S. district court upholds three counts of former NPCA executive vice president Harvey Gold's lawsuit against the association.

Staying alive. An anthem for the 1970s disco generation has taken on a new meaning in the `90s for former NPCA executive vice president Harvey Gold and his lawsuit against his former employer.

In an odd twist of legal fate, Gold's lawsuit against the NPCA found new life on June 20, when U.S. District Court Judge T.S. Ellis III reversed his earlier decision for summary judgment and allowed a key element of one of the case's counts to remain in federal court. As a result of this decision, two additional counts were also reinstated in federal court instead of being filed in Virginia state court.

The count in question focused on retaliatory discharge alleging the NPCA illegally fired Gold, thus violating his civil rights under the Civil Rights Act of 1991 with regard to the Age Discrimination in Employment Act (ADEA). In his two-part summary judgment, Judge Ellis said the count was dismissed insofar as it alleges retaliation prohibited by Title VII, but denied as it alleges retaliation prohibited by the ADEA.

The judge also allowed the alleged actual retaliatory discharge portion of the wrongful termination count and the entire breach of contract count to be reinstated as part of the suit in federal court. The constructive retaliatory discharge in the wrongful termination count was, however, dismissed.

The case is scheduled to go to trial August 5, according to a spokesperson in the U.S. District Court clerk's office.

The court also upheld an earlier summary judgment against Gold's claim of retaliatory conduct on behalf of the NPCA, and claims of interference with contractual relations by former NPCA president Larry Treleven and industry consultant James Budzynski and infliction of emotional distress by Treleven, Budzynski and the NPCA against Gold.

The court also denied without prejudice the NPCA's motion for reimbursement of attorney's fees until its renewal at the appropriate time.

Gold, who served as executive vice president of the NPCA from 1984 to 1995, filed a federal lawsuit against his former employer last year after he was terminated by the association's executive board. On May 22, in what observers saw as a victory for the 63-year old trade association, Judge Ellis granted an NPCA motion for summary judgment on two of the lawsuit's six counts, and dismissed the other four counts "without prejudice to their being refiled in a state court." At the time, the court indicated that it found no basis for the lawsuit's two federal counts and chose not to rule on the other four counts, which were to have been refiled in state court.

However, the court invited Gold and his attorneys to file a motion for reconsideration of the summary judgment and on June 3 they did so. Oral arguments for the motion for reconsideration were heard by Judge Ellis on June 14 and according to Gold's attorney, Linda Jackson, an associate at Charlson & Bredehoft, Reston, Va., Judge Ellis "asked questions and made comments that were very favorable to our position."

Jackson added that the judge's invitation to Gold to file a motion for reconsideration was "unusual" and was taken as a positive sign. "We thought it showed the judge felt that the legal issues on which the summary judgment was based was a close call and he wanted to give it further consideration," Jackson said.

Asked whether the plaintiff had presented additional evidence during the June 14 oral hearing on the motion for reconsideration, Jackson said, "No, not additional evidence per se, but merely a reargument of the same issues from a slightly different perspective."

At the center of the court's reversal was Gold's recasting of his argument that he was fired not for refusing to fire former NPCA director of communications Joel Paul by June 1, 1995, but for objecting to the plan to fire Paul after that date. It is Gold's assertion that the plan was subterfuge for age discrimination and the court agreed these were triable issues.

In the suit Gold alleged that Paul's termination would have been in conflict with the NPCA's termination policy and would have been illegal because Paul was in a "protected class" of employment because of his age, which was 49.

A "protected class of employment" is defined as a person whose rights are protected under federal or state civil rights laws. Employers are prohibited from taking action against protected employees based on issues including race, sex, national origin, age (40 or older), religion, color and disability.

According to court documents, Gold charged that the NPCA Executive Board's directive to dismiss Paul would have violated Gold's employment agreement with NPCA. He insisted the firing would leave the association open to potential legal action based on age discrimination against Paul and that a proper investigation hadn't been conducted into Paul's dismissal.

The NPCA refuted Gold's claims, stating that Gold was never "instructed by the Executive Board to engage in any illegal or discriminatory acts." They also indicated that Paul's July 31, 1995, dismissal was based solely on the fact that the NPCA had chosen to outsource Paul's job duties, a recommendation of the Gateway Management Report conducted by Budzynski, and that it had nothing to do with his age.

In his judgment of Gold's claim of breach of contract by the NPCA, Judge Ellis stated, "Whether the Board's (NPCA Executive Board) actions in fact went beyond direction and became interference is a question for the jury."

The surprise reversal was an even bigger shock because of the fact that in the transcript of the original hearing, in regard to the state counts and the fact that they were being dismissed without prejudice and therefore could be refiled in state court, Judge Ellis is quoted ashaving said, "I wouldn't ... be terribly sanguine, Ms. Jackson, about some or any of them." (Webster's New World Dictionary defines sanguine as "cheerful and confident; optimistic; hopeful.")

NPCA attorney Lawrence Ebner of the Washington law firm McKenna & Cuneo withheld comment on the judge's decision until he had a chance to fully review the ruling.

Last fall, Gold's lawsuit, "a civil action arising out of discrimination and harassment in employment on the basis of age and in retaliation for opposing discrimination," was filed in the U.S. District Court. The complaint originally named three defendants: the NPCA; former NPCA President Larry Treleven; and James Budzynski, a St. Louis-based consultant who was retained by the NPCA last year to study the association and prepare a report on its strengths and weaknesses.

Gold filed the lawsuit, which sought an unspecified amount of dollar damages, believed to be in the $5 million to $7 million range, following his dismissal after 11 years at the helm of NPCA.

Gold claimed "severe emotional distress" in retaliation for his refusal to participate in discriminatory actions. He alleged his termination was a result of age discrimination and that the NPCA breached his employment contract and dismissed him without cause. These charges have been denied by the NPCA since Gold's dismissal on June 27, 1995.