Labor & Employment Law Daily Wrap Up, DISCHARGE—N.D. Ind.: Older Jewish salesperson fired nine months after EEO complaint can’t advance bias, reprisal claims, (Jul 18, 2025)

By Marjorie Johnson, J.D.

The record showed he was terminated because the employer was reducing its workforce and he was not a skilled salesperson, not because of his age or complaint about his former manager’s anti-Jewish remark.

A 63-year-old Jewish salesperson at a Top Fitness exercise-equipment store who, nine months after complaining that his manager made a religious slur, was selected for termination as part of a downsizing, failed to advance his age discrimination and retaliation claims to trial. Amongst other things, the record showed that the accused manager was fired after his complaint, there was no evidence suggesting his new manager held any discriminatory or retaliatory animus, and he was undisputedly ranked last out of 17 salespeople and had the lowest sales figures. Ruling on the parties’ cross-motions for summary judgment, a federal magistrate judge also held that he was entitled to unpaid accrued vacation pay under the Indiana Wage Claims Statute (IWCS) pursuant to his offer letter, and that the employer violated the FLSA by failing to include his commissions in his regular rate for purposes of computing overtime pay during certain weeks (Maller v. Chicago Fitness Partners, LLC, No. 2:23-cv-8 (N.D. Ind. July 10, 2025)).

Employment offer letter. The employee was hired as a “fitness consultant” at a Top Fitness exercise-equipment store in Highland, Indiana, on August 14, 2021. At the time, he signed an employment offer letter that outlined the vacation accrual policy and did not contain any forfeiture language or language limiting his ability to collect accrued vacation wages. The letter also stated that he would be paid “standard commission,” which was noted as 2 percent of sales.

Discrimination complaint. On September 18, he told a director that he was considering filing an EEOC complaint based on his manager’s having denied him training and the ability to sell. After investigating the complaint, the director scheduled a mediation which resulted in the manager participating in a corrective action plan.

Accused manager fired. About 10 days later, the employee made a second complaint to the director about the manager, this time reporting that he had made an offensive, stereotypical comment about his being Jewish. The manager was terminated by November 2021.

Let go in downsizing. After the manager’s firing, the national service manager (NSM) took over managing the employee’s store and provided him with training and time on the sales floor per his request. Meanwhile, the company’s president informed the NSM that staffing at the Highland store would be reduced. The NSM then evaluated the three salespeople at the store by comparing sales figures, performance and output. Based on the results, the NSM informed the employee of his termination on May 4, 2022, and did not replace him after his departure. His final pay stub showed that 28.22 paid vacation hours had ben accrued.

Overtime compensation. Payroll records showed that the employer paid the employee overtime compensation at a rate that was equal to 1.5 times his base hourly rate of $20.00 an hour. The records also showed that he earned a total of $2,623.36 in commissions over the course of his employment. However, it was undisputed that the employer did not include commissions in the calculation of a salesperson’s overtime compensation.

Age not a factor. The court first found that the employer was entitled to summary judgment on the employee’s ADEA claim failed since he could not show that he performed his job according to expectations. He did not dispute that he was ranked last out of 17 salespeople and had the lowest sales figures over a four-month period. Moreover, the only younger salesperson who was similarly situated to him undisputedly had better sales figures. The court also noted that he testified during his deposition that he didn’t think that the NSM, discriminated against him or had any ill-will towards him.

No retaliation. Because he had abandoned his claim of religious discrimination, the court only considered whether he presented sufficient evidence to support his Title VII retaliation claim and found that he did not. After he reported his former manager for the religious slur in September 2021, the employer promptly investigated the incident and ultimately terminated the manager by November 2021. Yet the employee was not terminated until nearly nine months later, which was too long to support his claim. He also conceded that nobody else made any derogatory comments and that he did not believe his second manager discriminated against him.

Accrued vacation pay. However, he demonstrated that he was entitled to payment for his accrued vacation hours under the IWCS. While an offer letter does not constitute an employment contract under Indiana law, “parties can contract to other elements of employment, such as salary, benefits, paid-time-off, and sick days,” and the record demonstrated an offer, consideration, and mutual assent. The employer offered an accrual plan to acquire vacation time that would begin vesting on his first day of work and could be recouped after six months of employment, he accepted by signing the letter and starting work, and the parties maintained a working relationship for 10 months. Accordingly, the court calculated that he was owed $566.60 for accrued vacation time and double that amount in liquidated damages (totaling $1,699.80), and attorneys’ fees.

Overtime claim. The employer also violated the FLSA by failing to include the employee’s commissions in his regular rate for purposes of computing overtime pay during those weeks in which he worked over 40 hours and earned commissions. In so ruling, the court agreed with the employer that the regular rate should not be calculated with commission pay as a lump sum since payroll records showed that there were weeks in which he made commissions but did not work overtime. Ultimately, the court computed that the unpaid overtime compensation due to him was $132.17. Adding liquidated damages, the court ordered the employer to pay him $264.34.

The case is No. 2:23-cv-8.

Judge: Rodovich, A.

Attorneys: Robert P. Kondras, Jr. (Hassler Kondras Miller) for Robert E. Maller. Kayla E. Davis (Burke Costanza & Carberry) for Chicago Fitness Partners, LLC.

Companies: Chicago Fitness Partners, LLC

Cases: Discharge AgeDiscrimination Discrimination Retaliation WageHour ContractClaims Overtime PayDiscrimination StateLawClaims IndianaNews