How old do you have to be to claim your employer discriminated against you because of your age? An age-discrimination lawsuit targeting Morgan Stanley and its subsidiary currently pending in New York federal court raises that question since the former executive director for Morgan Stanley Funds Services making the age-bias claim is only 41 years old.
In July, the Morgan Stanley defendants responded to the lawsuit by filing a brief supporting a motion to compel the former executive director, Peter Zajaczkowski, who was terminated in late 2017, to arbitrate his claims. The Morgan Stanley defendants also asked the court to halt the federal court proceedings until after an arbitrated outcome.
In its brief, Morgan Stanley also denies Zajaczkowski’s age-bias allegations and adds that it “does not tolerate discrimination of any kind.”
A Morgan Stanley spokesperson says about the litigation: “We intend to defend ourselves vigorously.”
Zajaczkowski’s litigation stands out because of his relatively young age, raising the prospect of other financial services industry employees, who haven’t yet celebrated their 50th birthdays following his example. It also is noteworthy due to his assigned role after he was hired in 2014 – leading an “Operational Excellence” program, training employees to be more effective and productive.
It’s been 50 years since Congress enacted the Age Discrimination in Employment Act (ADEA), which bars bias on the basis of age against anyone 40 years or older. So Zajaczkowski falls into a protected class of workers.
But age-discrimination claims are more typically filed by workers older than Zajaczkowski, according to Cathy Ventrell-Monsees, senior attorney and advisor to the acting chairperson of the Equal Employment Opportunity Commission, the federal agency that enforces anti-discrimination laws.
“The age of claimants has been increasing rather than getting younger. The average tends to skew around 58 years. To have a claim from someone that young, it’s not surprising, but it’s not the norm,” Ventrell-Monsees says.
“It is very unusual. But that is why 40 is in the protected class,” agrees Jacquelyn B. James, the co-director for the Boston College Center on Aging & Work.
In the fiscal year ending Sept. 30, 2017, 21% of the more than 84,000 discrimination complaints filed with the EEOC were based on age bias allegations. The agency does not yet break down those statistics by industry sectors, so it’s not clear how many were filed against financial services employers, Ventrell-Monsees says.
In his lawsuit, Zajaczkowski alleges he heard “ageist comments” in the workplace and that two other former executive directors in their early 40s were terminated due to “a pattern” of age discrimination. “Each of these terminations was attributed to the employee’s ‘personality’ or ‘style,’ ” the lawsuit alleges. A former vice president in his 40s was terminated and replaced by someone ten years his junior because a manager said the older employee “moved and spoke too slow,” according to Zajaczkowski’s lawsuit.
According to his lawsuit, Zajaczkowski was paid $225,000 in annual salary, with an initial bonus of $75,000, which then increased in the following years. At Morgan Stanley Fund Services, Zajaczkowski’s assigned role was “to drive continuous improvement projects and initiatives to achieve resource scale, process efficiencies, and reduce risk and unnecessary complexity, as well as to develop a culture of continuous improvement,” his lawsuit states.
For those tasks, Zajaczkowski traveled to the European and Indian offices of the Morgan Stanley subsidiary, which has some 750 employees, according to his lawsuit. During his employment, conflicts arose between his team and a product development team and the two teams would “occasionally duplicate each other’s efforts, or work on the same projects without clear definition of the roles and responsibilities designated to each,” Zajaczkowski’s lawsuit alleges.
He also alleges one of his managers erroneously accused of him making a comment to colleagues that “heads are gonna roll” at one point. “It should be noted that Plaintiff is a Polish immigrant who moved the United States at the age of 17. He speaks with a fairly heavy Polish accent. The idiomatic phrase, ‘heads are gonna roll’ lies unquestionably outside [Zajaczkowski’s] vernacular,” the lawsuit states.
When Zajaczkowski was told on Nov. 30, 2017 that he had 60 days to look for a new job at Morgan Stanley or elsewhere, his manager told him, according to the lawsuit: “Organizations can be assholes.”
Mark P. Carey, a lawyer in Southport, Conn., represents Zajaczkowski. He did not provide a comment for this story.
Toby Soli, a shareholder in the law firm Greenberg Traurig, is defending Morgan Stanley in the Zajaczkowski litigation, as well in another age (and gender) discrimination case. In that litigation, Morgan Stanley persuaded a federal district court in New Haven, Conn. that Roberta Antollino, a former Morgan Stanley employee also making age-bias allegations must arbitrate her claims.
Her nephew, Gregory Antollino, a New York-based lawyer, represents the former Morgan Stanley sales assistant. On her behalf, the nephew has appealed to the district court ruling compelling his aunt to arbitrate.