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7-19-2018
The Chief July 16, 2018: Laid-Off H+H Manager Sues Alleging He, Others Were Age-Bias Victims

Laid-Off H+H Manager Sues Alleging He, Others Were Age-Bias Victims

  • A 67-year-old manager who was laid off last year by New York City Health+Hospitals has brought an age-discrimination lawsuit on behalf “of himself and other similarly situated” ex-employees who were part of the layoff of 400 managers in June 2017.

According to legal filings obtained by this newspaper, Jeffrey Wallach is alleging that the mass firing violated the city's Human Rights Law because “86.3 percent of those employees terminated were over the age of 40” and “the centralized [H+H] leadership decided which employees to terminate and chose to terminate specific employees, upon information and belief, because of their age.”

'All Senior People Cut'

Mr. Wallach worked at the Behavioral Health Center of the Kings County Psychiatric Center. He had 37 years on the job.

In a phone interview right after he was laid off, he had said he was contemplating legal action. “When I saw the list of names, it seemed it was all senior people in their 50s, 60s and older,” Mr. Wallach said. “I was making $100,200 a year and you got to wonder if this is not age discrimination. Did they just go after the people ma­king the most money?”

According to the complaint by lawyers Joseph Aron and Michael Taubenfeld, managers who like Mr. Wallach were between 60 and 70 years of age were  singled out for termination. They represented 30.1 percent of those let go, even though that age cohort was only 20.2 percent  of H+H's managerial workforce.

In a phone interview, Mr. Aron said that he had documented that the layoffs had a “disparate impact” upon the older managers, an important legal threshold to prove age discrimination under the city Human Rights Law. He said that since a Daily News story on the case was published, "the phone has been ringing off the hook" with former H+H staffers looking for redress.

'Intent Doesn't Matter' 

“The statute is very unique in that it's irrelevant whether the discrimination was intentional or not as long as you can prove it was disproportionate,” Mr. Arun said.  “Now, H+H could come back and say the firings were all part of the normal course of business purposes, and that would shift the burden to us to prove there were other ways for [it] to balance the books other than laying off these older workers.”

He believed the city was going to have a tougher time making that case for the layoffs in light of a spreadsheet he has obtained of all the hires made by H+H in 2017 before and after the layoffs.

The list contains 284 new hires or re-hires, with 121 paid in excess of $100,000 and 49 paid $150,000 or more. The highest-paid posts included $400,000 for a Senior Vice-President, $320,000 for an Executive Director, and $283,486 for a Senior Assistant Vice-President. 

“It makes you wonder what is going on. They say they have a shortfall, and look at these numbers,” Mr. Aron said. “And at Kings County alone [Mr. Wallach’s former hospital], they have a dozen new managers all with six-figure salaries.”

Shelly Shulman, president of the New York City Managerial Employees Association, said that his group supports the legal action. Mr. Shulman was also one of the managers who was fired by H+H last year.

"I was one of those managers," he said in a phone interview. "I worked for Elmhurst Hospital for 38 years primarily in finance and patient accounts. I was told I was fired because I was a manager. They said it had nothing to do with performance. Now, I learn it was because I was old."  

Tough Case to Win

But an age-discrimination case is no slam dunk, according to Josh Weiner, co-chair of the Employer and Labor Group at Budd Larner, PC. “It is not unusual for a company to target higher-paid employees when conducting a layoff, and since salary is many times a function of seniority, the older employees get the short end of the stick. Unfortunately for those employees, laying off someone based on an individual factor such as pension status [or] seniority that is empirically correlated with age does not necessarily constitute age discrimination,” he wrote in an email. “The affected employees would have to make an additional showing of age-related animus in order to establish a case of age discrimination.”

H+H confirmed it had received the lawsuit but through a spokesman said it still needed to review it. It is being represented by the city Corporation Counsel.         

H+H maintains that the restructuring has subsequently had “no impact on services or patient care, quality or safety.”

H+H Rationale

At the time it made the 10-percent cut to its 4,000-person managerial ranks, the  City Council was told by then-CEO Stanley Brezenoff that the system was “facing a fiscal cliff” with a budget gap of $1.1 billion in FY 18, which would increase to $1.9 billion by FY 21.

He called the layoffs part of a $250-million "restructuring and personnel initiative" that he said  "is based on industry best practices, to create a more-efficient and financially-sustainable management structure to direct resources where we need them most—at the front line of patient care."

H+H estimated the layoffs would produce $60 million in personnel savings  by reducing  its  layers of management from six down to four, which officials said at the time was in line with the industry standard. 

Close to 25 percent of the managers hit with layoff notices in 2017 opted to revert back to their last civil-service job title. 

In January,  Dr. Mitchell Katz, who had earned a reputation as a turn-around specialist, took over at H+H. A month after he came in, he told the City Council Committee on Hospitals that the only way out of the system’s ever-deepening annual deficits was to do new hiring for positions that would generate revenue.

“I understand that when you have a large deficit, people look at requests for new positions with skepticism. I certainly would in their position,” Dr. Katz said. “But to get Health + Hospitals out of its current crisis, I need to hire revenue-generating positions, including primary-care doctors, nurse practitioners, pharmacists and other specialized professionals.”

Helped Revive Psych Unit 

Mr. Wallach played a role in H+H's turnaround of the Kings County Psych Unit, which until January 2017  was under a Federal consent decree monitored by a Federal judge and the U.S. Attorney for the Eastern District since shortly after the 2008 death of a mentally-ill woman who was unattended for 24 hours in the emergency room of Kings County Hospital.  Surveillance video, which was made public only after the New York Civil Liberties Union sued to force its release, captured Esmin Green, 49, lying on the floor for an hour before the staff noticed. The tape showed that a hospital security officer and another staff member had seen her lying unconscious and failed to take appropriate action.

Mr. Wallach was responsible for training new employees on core competencies, like how to de-escalate quarrels with an agitated patient. He presided over the hospital’s Master’s of Social Work internship program, inspected his unit’s physical plant and, in the last weeks before he was let go, saw the patients of a psychologist who was on medical leave.

“I really loved working there,” he said last year. “A lot of us who were let go were the change agents that brought that place back from the brink and made it a center of excellence. And on my last day, this is how it went with Human Resources: ‘Your line has been eliminated. You are terminated. Give me your ID card,’ and that was it. There was no ‘thanks for your dec­ades of service’ nor anything like that.”

Mike Winfield was 63 when he was let go as an Information Technology  manager for Kings County. He said that during the years he was at the facility, he dramatically reduced the number of pending-work tickets from 400 a day to just 30. “What really hurts is that they came after the unprotected people, and I turn 64 in September,” he said in a phone interview back in 2017. “I am sending out résumés, but once they see my age, they stop calling.”



  
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