Appellate Division Holds Former Employee Should Have the Opportunity to Show Her Employer’s Reason for Firing Her was Mere Pretext

May 16, 2019

In an unpublished opinion, the New Jersey Appellate Division ruled in Caballero v. Cablevision Systems Corp. that a former Cablevision employee is entitled to present her claims of age and disability discrimination to a jury, reversing the dismissal of her complaint. The Appellate Division held that the employee presented enough evidence in her case to create a factual dispute as to whether her termination was discriminatory, or whether she was let go for legitimate business reasons.


Ada Caballero worked for Cablevision for 15 years and was 50 years old at the time of her termination. She was replaced by someone approximately half her age. In her last employee review with the company, Caballero’s supervisor had given her a “strong performance evaluation.” Her termination also came on the heels of Caballero’s leave of absence for gallbladder surgery. While Caballero admitted that she did not need an accommodation post-surgery, the timing of her termination so close to the surgery date left questions as to whether she could have been discriminated against based upon a perceived disability.

Cablevision refuted Caballero’s contention that she was the victim of discrimination, and argued that the company had a legitimate non-discriminatory reason for firing her. A company-wide audit of its benefits plan performed while Caballero was out on leave for her surgery revealed that Caballero’s ex-husband was still a covered family member on her employee health insurance policy, despite the couple having been divorced for two years. Yet Caballero claimed that she did notify Cablevision of her divorce, and Cablevision did not dispute that Caballero had sent a copy of her divorce judgment to Human Resources two years prior to her termination.

Appellate Division Decision

While the Appellate Division did not decide whether Caballero’s termination was discriminatory, it held that the lower court’s dismissal of her complaint was premature. The Court ruled that Caballero was entitled to present her evidence to the jury and argue that Cablevision’s reason for terminating her – that she failed to ensure that her ex-husband was removed from her health insurance benefits – was pretext, and not the true reason for her firing.

Cablevision’s argument that it had previously accommodated Caballero in connection with seven prior medical leaves of absence during her employment was not enough to decide the issue in favor of the company. Nor was Caballero’s admission that her latest surgery would not have required an accommodation once she returned to work. The Appellate Division found that while these arguments in the employer’s favor should be considered in weighing the evidence, it did not automatically absolve the company from potential liability.

The Court reasoned that while “it may be that [Caballero] was cleared to return to work and did not claim the surgery affected her in any way,” she was fired so soon after surgery that a decision as to whether an accommodation was needed could not have been made. Instead, the Court found that the timing could suggest that the real reason behind Caballero’s termination was the company’s “amplified discontent” with these leave requests, noting that it was possible a jury could find that Cablevision was simply tired of accommodating Ms. Caballero’s numerous leaves of absences.

The Court explained that the factual circumstances could lead to two possible determinations: a jury could find that Caballero should have been more active in ensuring that her ex-husband was removed from her benefits plan, and that his continued status as an eligible dependent on her plan was evidence of intent to defraud the company, a valid reason for termination. Conversely, a jury could find that Cablevision’s assertions that Caballero defrauded the company were pretextual because Caballero had previously notified the company of her divorce at the time it first occurred.

This assessment made it clear that there were significant fact issues in dispute, and the outcome should have been left to a jury to decide.

Bottom Line

It is not enough for an employer to assert a legitimate, non-discriminatory reason for an adverse employment action taken against an employee, when additional circumstances could lead to an inference that the decision was discriminatory. Employers should be aware that they must also withstand the employee’s attempts to show that the reason given by the employer is merely pretext, designed to disguise the discriminatory basis for the action.

This case also makes clear that a company’s history of accommodating an employee during prior leave requests, while helpful, will not impact a court’s assessment of whether the company acted properly in handling the most recent request for leave or accommodation. It is important to review any management decision that would affect an employee who recently took protected leave, as the close proximity between the leave of absence and any adverse employment action could be enough to suggest pretext and potentially have the case advance to trial.


Tags: Erica CliffordCablevisionDiscriminationAppellate DivisionEmployment Law & LitigationHuman Resources Counseling & Compliance