Trial Report: Dave Wachtel and Karen Tanenbaum Win Promotion for Nuclear Engineer

APRIL 20, 2015

Judge Messitte of the United States District Court, District of Maryland recently ruled that B&W client John Budzynski, a 69-year-old* nuclear engineer, had proven by direct evidence at trial that the Nuclear Regulatory Commission denied him a promotion because of his age. The Judge ordered the agency to promote Mr. Budzynski and awarded back pay.

Mr. Budzynski litigated his case before the EEOC without an attorney and lost. He then retained B&W and defeated pre- and post-discovery motions for summary judgment before winning at trial.

Mr. Budzynski's supervisor had regularly crossed off the names of older, retirement eligible employees, including Mr. Budzynski, when calculating the skill levels and hiring needs of his branch, effectively "tak[ing] retirement eligible people off the table," said Judge Messitte. "That is direct evidence of age and it's strong evidence of age."

"Reflecting back on the case," Dave Wachtel says, "it's remarkable how many key facts we learned only during discovery. The government is supposed to investigate each complaint of discrimination within 6 months after the complaint is filed.

But when Mr. Budzynski came to us, he only knew he was more qualified than the person the NRC selected (19 years younger). He didn't know that same individual had applied for the job seven months earlier and was found not qualified enough to get an interview. Likewise, Mr. Budzynski didn't know about succession planning. He didn't know that his supervisor regularly crossed off the names of older, retirement eligible employees. The judgment in his favor really underscores that our system of civil justice only works for individuals when the courts give plaintiffs and their lawyers the latitude to take reasonable discovery.

The government tried to have this case thrown out before discovery, arguing that Mr. Budzynski was only entitled to the limited information he got in the administrative process. Courts sometimes grant motions like that. They shouldn't - and hopefully, this result makes that point."

This case, like many others, was about assumptions. John Budzynski was denied a promotion because the NRC assumed he would soon retire. But it is unlawful to make employment decisions grounded in assumptions about age, just as it's illegal to discriminated based on assumptions about disability, race, sex, sex orientation, or any other characteristic the law protects.

Read Employment Law Daily's article about the case, and the official transcript of the Judge's opinion in Budzynski v. Burns.

*Mr. Budzynski was 64 when the NRC denied him the promotion.

Tagged with: Employment law • John Budzynski