The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2186-12T3
LAMONT W. GARNES,
APPROVED FOR PUBLICATION
Plaintiff, October 24, 2014
and APPELLATE DIVISION
ROBERT A. KLEIN,
Plaintiff-Respondent,
v.
PASSAIC COUNTY and the PASSAIC
COUNTY SHERIFF'S DEPARTMENT,
Defendants-Appellants,
and
JERRY SPEZIALE, SHERIFF,
Defendant.
_________________________________
Submitted May 29, 2014 – Decided October 24, 2014
Before Judges Grall, Waugh and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-
56-10.
Florio Perrucci Steinhardt & Fader, L.L.C.,
attorneys for appellants (J. Andrew Kinsey,
of counsel; Veronica P. Hallett, on the
brief).
Resnick Law Group, P.C., attorneys for
respondent (Gerald Jay Resnick, on the
brief).
The opinion of the court was delivered by
GRALL, P.J.A.D.
Plaintiffs Robert A. Klein and Lamont W. Garnes filed a
complaint alleging that Passaic County (the County), the Passaic
County Sheriff's Department (the PCSD) and the former Sheriff,
Jerry Speziale, violated the Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -42. Specifically, they contended that their
employer used age as a determinative factor in identifying the
sheriff's investigators whose employment would be terminated to
reduce personnel costs in a budgetary crisis and those who would
be rehired when the budget permitted. By statute, sheriff's
investigators serve at the pleasure of the sheriff appointing
them and are in the unclassified service. N.J.S.A. 40A:9-117a.
Plaintiffs dismissed their claims against Sheriff Speziale, but
not the PCSD, prior to trial. They sought damages from the
County in the amount of past and future lost wages, damages for
emotional distress and punitive damages.
The jury rejected plaintiffs' claims of age discrimination
in rehiring and determined that Garnes failed to prove that the
County and the PCSD, collectively defendants, intentionally
discriminated against Garnes in terminating his employment. In
2 A-2186-12T3
contrast, the jury found in favor of Klein on one of his claims
— discriminatory termination. The jury awarded Klein $177,700
for past wages but no punitive damages. Following the verdict,
the judge increased the damages award by $18,279 to account for
taxes. The judge also awarded Klein a $389,593.33 counsel fee
(consisting of a $292,195 lodestar plus a $97,398.33 fee
enhancement) plus $17,459.11 for expenses and $14,890.60 for
pre-judgment interest.
Defendants appeal the $617,922.04 judgment in favor of
Klein. Garnes does not challenge the verdict against him.
Klein did not file a cross-appeal.
On appeal defendants urge reversal on several grounds.
They contend that plaintiffs, having dismissed their claim
against the sheriff, should not have been permitted to maintain
an action against them based on vicarious liability. They argue
the LAD should be interpreted as the United States Supreme Court
interpreted the Age Discrimination in Employment Act (ADEA) in
Gross v. FBL Financial Services, 557 U.S. 167, 129 S. Ct. 2343,
174 L. Ed. 2d 119 (2009), and contend that Klein did not adduce
adequate evidence to meet that standard. They further argue
3 A-2186-12T3
that the evidence was inadequate to support the verdict in favor
of Klein.1
Defendants also challenge the amount of the judgment. They
submit that even if Klein had established age discrimination, he
could not establish damages because, as an "at will employee,"
he had no expectation of continued employment. In addition,
they contend that the counsel fee award is excessive. For the
reasons that follow, we affirm.
I
Before setting forth the facts of the case, we address
defendants' claims that present questions of law independent of
the evidence presented at trial. On such matters, a reviewing
court owes no deference to the trial court's determinations and
1
Defendants' argument on the adequacy of the evidence includes
a reference to the verdict being "against the weight" of the
evidence. The record on appeal does not include the transcript
of defendants' post-trial motion, but it appears from the notice
of motion and the form of order defendants submitted that they
moved for a judgment notwithstanding the verdict, R. 4:40-2, and
remittitur, not for a new trial on liability on the ground that
the verdict on liability was against the weight of the evidence,
R. 4:49-1(a). We note that the judge used the form order
defendants submitted to memorialize his denials of those two
types of relief, and he indicated on the order that he had
stated his findings on the record on July 13, 2012. Because we
do not have that transcript and because a claim that the verdict
was against the weight of the evidence cannot be raised on
appeal if it was not raised by way of motion for a new trial in
the trial court, R. 2:10-1, we do not address defendants' remark
about the verdict on liability being against the weight of the
evidence.
4 A-2186-12T3
decides the question de novo. State v. Coles, 218 N.J. 322, 342
(2014).
A.
Defendants argue that plaintiffs should not have been
permitted to maintain this action following their dismissal of
their claims against the sheriff. They contend that because
sheriff's investigators serve at the pleasure of the county
sheriff, who is a constitutional officer with the exclusive
statutory authority to hire and fire sheriff's investigators,
the County cannot be held vicariously liable even if the sheriff
unlawfully and intentionally terminated plaintiffs' employment
because of their age.
The Federal Court of Appeals for the Third Circuit,
applying New Jersey law, rejected a claim similar to defendants'
in Coleman v. Kaye, 87 F.3d 1491, 1495 (3d Cir. 1996), cert.
denied, 519 U.S. 1084, 117 S. Ct. 754, 136 L. Ed. 2d 691 (1997),
a case in which a county argued that it could not be held
vicariously liable for the county prosecutor's violation of the
LAD in deciding whether to promote one of his investigators.
Coleman is instructive because county prosecutors and county
sheriffs both have exclusive authority to hire and terminate
5 A-2186-12T3
their investigators. Id. at 1502; see N.J.S.A. 2A:157-10;
N.J.S.A. 40A:9-117a.2
In Coleman, the "district court found that the County of
Monmouth could not be held liable under the New Jersey LAD
premised upon a theory of respondeat superior for the actions
of" the county prosecutor, because "there was no master/servant
relationship between the County of Monmouth and" its prosecutor.
Id. at 1496. The Third Circuit, applying New Jersey law,
reversed that determination.
Applying New Jersey law, the Court of Appeals determined
that the prosecutor "was acting as a local, county official when
he denied [the plaintiff's] applications for promotion," and
held "that the discriminatory acts of [the prosecutor] and his
subordinates may be imputed to the County of Monmouth since [the
prosecutor] was the final policymaking authority acting on
behalf of Monmouth County in the prosecutor's office." Id. at
1506.
We see no basis for reaching a different conclusion in
this case. For all practical and pertinent purposes, a county
sheriff's and a county prosecutor's statutory authority over
employment decisions involving investigators is the same,
2
Both county prosecutors and county sheriffs have terms fixed
in the constitution. N.J. Const. art. VII, § II, ¶¶ 1 & 2.
6 A-2186-12T3
exclusive and independent of the county. Moreover, the New
Jersey Supreme Court has followed the reasoning in Coleman twice
— most recently in Lavezzi v. State, 219 N.J. 163 (2014), and a
decade earlier in Wright v. State, 169 N.J. 422, 441-42 (2001).
We recognize that Lavezzi, Wright and Coleman all involved
a separate question of the State's vicarious liability in
matters related to law enforcement that is not at issue here,
but our Supreme Court has agreed with the Third Circuit that a
county prosecutor performs his or her administrative functions
"'on behalf of the county.'" Lavezzi, supra, 219 N.J. at 175
(quoting Coleman, supra, 87 F.3d at 1499); accord Wright, supra,
169 N.J. at 442. And, in discussing Coleman and decisions of
our courts, the Supreme Court has concluded that a county
prosecutor's "liability derived from the prosecutor's
administrative functions . . . is deemed to be the county's
responsibility." Lavezzi, supra, 219 N.J. at 178.
On the foregoing authority, we conclude that neither the
exclusivity of the sheriff's authority over employment of
sheriff's investigators nor plaintiffs' dismissal of their
claims against the sheriff himself had any bearing on the
County's liability for any violation of the LAD by the PCSD
through the conduct of the sheriff's subordinates who terminated
7 A-2186-12T3
plaintiffs' employment. The liability of the sheriff's
subordinate employees may be imputed to the County.
B.
Defendants also argue that the United States Supreme
Court's interpretation of the ADEA, 81 Stat. 602, as amended 29
U.S.C. §§ 621 to 634, in Gross, supra, 557 U.S. at 173-79, 129
S. Ct. at 2348-52, 174 L. Ed. 2d at 126-30, requires a special
interpretation of the LAD where discrimination based on age is
alleged. Both statutes require a plaintiff to prove that an
adverse employment action was taken "because of" the plaintiff's
age. 29 U.S.C. § 623(a)(1); N.J.S.A. 10:5-12(a).
The Court's decision in Gross rests on its interpretation
of the plain language of the ADEA which prohibits employment
discrimination "because of [the] individual's age,"
29 U.S.C. § 623(a)(1). The Court determined that "the ordinary
meaning of the ADEA's requirement that an employer took adverse
action 'because of' age is that age was the 'reason' that the
employer decided to act." Id. at 176, 129 S. Ct. at 2350, 174
L. Ed. 2d at 128. As defendants in this case correctly note,
the LAD also makes it unlawful "[f]or an employer, because of
the . . . age . . . of any individual . . . to refuse to hire or
employ or to bar or to discharge or require to retire, unless
8 A-2186-12T3
justified by lawful considerations other than" age. N.J.S.A.
10:5-12a.
In Gross, the Court cited its decision in Hazen Paper Co.
v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 1706, 123 L. Ed.
2d 338, 347 (1993), a case based on disparate treatment
attributable to age. The Court described Hazen Paper Co. as
holding that such a claim "cannot succeed unless the employee's
protected trait actually played a role in [the employer's
decision making] process and had a determinative influence on
the outcome." Gross, supra, 557 U.S. at 176, 129 S. Ct. at
2350, 174 L. Ed. 2d at 128.
We discern no significant difference between the Court's
description of the essential showing in Gross, and our Supreme
Court's description of what a plaintiff must prove to establish
a claim of age discrimination in employment under the LAD.
Under New Jersey law, "an employee must 'show that the
prohibited consideration[, age,] played a role in the decision
making process and that it had a determinative influence on the
outcome of that process.'" Bergen Commercial Bank v. Sisler,
157 N.J. 188, 207 (1999) (quoting Maiorino v. Schering-Plough
Corp., 302 N.J. Super. 323, 344 (App. Div.) (quoting Miller v.
CIGNA Corp., 47 F.3d 586, 597 (3d Cir. 1995)), certif. denied,
152 N.J. 189 (1997)).
9 A-2186-12T3
"Although the discrimination must be intentional, an
employee may attempt to prove employment discrimination by using
either direct or circumstantial evidence." Id. at 208 (internal
citation omitted); see O'Brien v. Telcordia Technologies, Inc.,
420 N.J. Super. 256, 262 (App. Div. 2011) (noting that a
"plaintiff must present either circumstantial or direct evidence
of age discrimination"). Pursuant to Gross, "the burden of
persuasion necessary to establish employer liability is the same
in alleged mixed-motives cases as in any other ADEA disparate-
treatment action. A plaintiff must prove by a preponderance of
the evidence (which may be direct or circumstantial) that age
was the 'but-for' cause of the challenged employer decision."
557 U.S. at 177-78, 129 S. Ct. at 2351, 174 L. Ed. 2d at 129.
And as previously noted, the showing required is that "the
plaintiff's age must have 'actually played a role in [the
employer's decision making] process and had a determinative
influence on the outcome.'" Reeves v. Sanderson Plumbing
Prods., 530 U.S. 133, 141, 120 S. Ct. 2097, 2105, 147 L. Ed. 2d
105, 116 (2000) (quoting Hazen Paper Co., supra, 507 U.S. at
610, 113 S. Ct. at 1706, 123 L. Ed. 2d at 347); accord Gross,
supra, 557 U.S. at 177-78, 129 S. Ct. at 2351, 174 L. Ed. 2d at
129 (citing Reeves).
10 A-2186-12T3
The Court's decision in Gross raises a separate issue about
proof of age discrimination claims that is not implicated in
this case. In Gross, based on differences in the language
Congress used in the ADEA and Title VII, the Court held that the
shift in burden of persuasion to the defendant in a mixed-motive
discrimination case under Title VII of the Civil Rights Act of
1964 described in Price Waterhouse v. Hopkins, 490 U.S. 228, 109
S. Ct. 1775, 104 L. Ed. 2d 268 (1989), has no application in an
ADEA case. There is no reason for us to consider whether our
courts should or would follow that aspect of Gross in addressing
age discrimination claims under the LAD because the trial court
did not give this jury an instruction on the shifting burden of
persuasion. As we did in O'Brien v. Telecordia Technologies,
Inc., we leave that "thorny" question for a case in which it is
necessary to decide it. 420 N.J. Super. at 270; see McDevitt v.
Bill Good Builders, Inc., 175 N.J. 519 (2003) (discussing Price
Waterhouse in a case with a claim based on the ADEA).
It is worth noting, however, that the Court's decision in
Gross casts no significant doubt on the applicability of the
burden of production framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), to
claims of age discrimination under the LAD. Defendants do not
argue otherwise. In Gross, the Court consistently and
11 A-2186-12T3
unambiguously disapproved a shift of the "burden of persuasion."
See Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009)
(concluding that its prior decisions applying the McDonnell
Douglas framework, which shifts only the burden of production,
to ADEA claims were not irreconcilable with Gross and following
its precedent). Our courts have applied the McDonnell Douglas
framework to age discrimination claims under the ADEA and the
LAD. McDevitt, supra, 175 N.J. at 523 (ADEA); Sisler, supra,
157 N.J. at 209-13 (LAD). The Court recently stated, "All LAD
claims are evaluated in accordance with the United States
Supreme Court's burden-shifting mechanism." Battaglia v. United
Parcel Serv., Inc., 214 N.J. 518, 546 (2013) (citing McDonnell
Douglas, supra, 411 U.S. at 802-04, 93 S. Ct. at 1824-25, 36 L.
Ed. 2d at 677-79).
Based on the foregoing, we conclude that Gross has no
impact on our review of the adequacy of evidence supporting the
jury's verdict in favor of Klein.
C.
Defendants also claim that Klein is not entitled to damages
because, as an "at will" employee, he had no expectation of
continued employment. That claim has insufficient merit to
warrant any discussion beyond the brief remarks that follow. R.
2:11-3(e)(1)(E). The LAD prohibits an employer from basing "any
12 A-2186-12T3
employment decisions on discriminatory reasons." Nini v. Mercer
Cnty. Cmty. Coll., 202 N.J. 98, 107 (2010). "'[T]he overarching
goal' of the LAD, reflecting the clear public policy of this
State, '"is nothing less than the eradication 'of the cancer of
discrimination'"' in the workplace." Sisler, supra, 157 N.J. at
199 (quoting Fuchilla v. Layman, 109 N.J. 319, 334 (quoting
Jackson v. Concord Co., 54 N.J. 113, 124 (1969)), cert. denied,
488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988)). It
provides a remedy for violation of civil rights that is
independent of private or public contract. Ibid. Accordingly,
relief is not dependent upon a contractual right or any
expectation other than freedom from unlawful discrimination.
Having addressed these foregoing preliminary legal
questions, we turn to address the evidence.
II
This controversy was born of a budget crisis. In 2007, the
Freeholders for Passaic County informed the sheriff that the
PCSD budget would be cut significantly. Although the projected
reduction in PCSD's budget varied between the initial disclosure
and the development of PCSD's plan to address it, cuts as high
as thirty percent — $20 to $12 million of a $70,000,000 budget —
were forecast. Because ninety percent of the PCSD's budget was
spent on personnel, the PCSD considered a reduction in force.
13 A-2186-12T3
The sheriff assigned Charles Myers, Director of
Administration, to develop and implement a plan. Myers
explained that he had no "selection criteria" for identifying
sheriff's investigators for removal but that his recommendations
were "[m]ore or less based on the staffing needs of the agency
and the need to cut a certain amount from the budget." In his
words, "[i]t was a constant balancing act between what do we
need, what can we cut, and where are we at with the number at
this point." Myers did not recall why Garnes and Klein were on
the list of investigators whose service would be terminated
while others in the same position were not, but he did recall
that seniority played no role in his decision and that the need
to "meet a certain number" — the amount that had to be cut and
the minimum staffing levels required — did play a role. Myers,
however, did not know what Klein's assignment as a sheriff's
investigator was. Further, he explained that the duties a
particular sheriff's investigator was then performing "[b]ore no
relevance to the layoffs." He looked at the cost of having the
investigator work — a matter of salary, pension and social
security contributions.
Using Garnes as an example, Myers explained: "I don't
recall how we may have selected him out [of] the group of 25
other investigators. But that's just what worked. The final
14 A-2186-12T3
list was the final list." Myers also recalled that the first
investigator he placed on the removal list was his stepson, a
man much younger than Garnes and Klein.3
At trial, Myers testified that he did a staffing levels
study that consisted of identifying the number of officers or
investigators needed in the corrections positions and court
positions. In addition, he made decisions about sheriff's
investigators based on N.J.S.A. 40A:9-117a, which limits the
number of appointments to those unclassified positions to no
more than fifteen percent of the total number of officers
employed. According to Meyers, to meet the statutory limit and
the overall reduction in personnel costs, eight investigators
had to be removed.
Myers explained that the reduction in staff was
necessitated by the cuts to the PCSD's budget and done for the
purposes of efficiency and economy. He noted that there was an
additional cost savings when sheriff's investigators, as opposed
to sheriff's officers, were removed. Myers explained that
because the investigators serve at the pleasure of the sheriff
and do not have civil service protections enjoyed by other
officers, they can be laid off more promptly than their
3
Myers disclosed the information in the text during his
deposition, and plaintiffs' attorney presented selected portions
of the deposition transcript as part of plaintiffs' case.
15 A-2186-12T3
colleagues who have civil service protection and must be laid
off in conformity with a civil process that can take as long as
ninety days. For that reason, the PCSD discontinued the service
of sheriff's investigators so that its budget could be reduced
by the cost of keeping the employee as early as January 1, 2008.
Although the sheriff had met with his investigators and
warned of the budget cut and the staff reductions earlier,
formal notice was first sent to Klein and Garnes on December 10,
2007. The notices were given by memo from the sheriff. The
memos advised the recipient that for "reasons of economy and
efficiency," he would be "separated from duty effective January
1, 2008." The memo did not mention any reemployment
opportunities within the PCSD, but it did advise the
investigators of their ability to apply for civil service
positions in other jurisdictions pursuant to N.J.S.A. 40A:14-180
and offer assistance to them in that endeavor.
Klein and Garnes were two of eight investigators separated
from employment effective January 1, 2008. There was no
evidence that either of these investigators was tendering
substandard or less than quality performance.
Garnes, born in November, was forty-nine years old on
January 1, 2008. He had worked as a PCSD sheriff's investigator
since his initial appointment in 1990. Among the investigators
16 A-2186-12T3
employed by the PCSD in December 2007, Garnes was one of the
highest paid. According to information provided by the PCSD
listing base salary and total earnings as of September 28, 2007,
Garnes's salary was $79,568 and with longevity and a stipend for
education he had been paid $89,025. Garnes did not claim to
have earned less. Indeed, at trial he testified that his
earnings in 2006 and 2007 respectively, were $101,331.45 and
$94,584.95.
Klein was older than Garnes, and his earnings were lower.
Klein, appointed in December 2003, was fifty-seven years old by
January 1, 2008. His base salary was $60,561 in 2007, and the
PCSD records do not reflect that he had any additional earnings
as of September 28, 2007.
The ages and salaries of the other six investigators whose
service was discontinued effective January 1, 2008 were as
follows4: a fifty-nine year old with a base salary of $79,568; a
twenty-seven year old with a base salary of $46,739 and earnings
of $52,913; a thirty-six year old with a base salary of $46,739;
a thirty-six year old with a base salary of $46,739 and earnings
of $48,239; a twenty-six year old with a base salary of $66,284
4
In stating the age of these investigators we have been less
than precise, in that we have used the age each would be as of
December 31, 2008. The earnings stated are based on information
provided by the PCSD that purports to state earnings as of
September 28, 2007.
17 A-2186-12T3
and total earnings of $69,817; and a twenty-five year old with a
base salary of $46,739.
At trial, defendants relied upon the mixed ages of this
group of eight investigators and their asserted purposes of
efficiency and economy to defeat Garnes' and Klein's allegations
of age discrimination. The jurors determined that Garnes, who
was ten years younger than and paid more than the eldest
investigator discharged who had the same base salary, failed to
prove that he was terminated because of his age. As previously
noted, Garnes did not appeal.
The jurors reached a different conclusion with respect to
Klein. Klein was several years older than Garnes — fifty-seven
— and earned less than Garnes — $60,561. The only investigator
working at the time older than Klein was the fifty-nine year old
whose base salary was $79,568 and whose service was discontinued
with Klein's, effective January 1, 2008.
Several investigators younger than Klein and with base
salaries and earnings as high or higher than his on September
28, 2007, continued their employment as investigators beyond
January 1, 2008. Identified by the age they would reach by
December 2008 and stating their earnings as of September 28,
2007, they include: a thirty-six year old earning $60,561, whose
employment was discontinued in December 2010; a thirty-one year
18 A-2186-12T3
old earning $89,116, whose employment was discontinued in March
2009; a forty-nine year old earning $92,208, whose employment
was discontinued in March 2008; a thirty-six year old earning
$84,342, whose employment was discontinued in March 2008; a
forty-three year old earning $66,264, whose employment was
discontinued in March 2008; a forty-six year old earning
$66,264, whose employment was discontinued in April 2010; and a
forty-six year old earning $72,890, whose employment was
discontinued in March 2008.
In addition, several younger sheriff's investigators with
base salaries as high or higher than Klein's were still employed
as sheriff's investigators in the PCSD at the time of trial,
which was in May 2012. They include5: a thirty-eight year old
investigator in 2008 earning $88,229; a twenty-eight year old in
2008 earning $60,561; a thirty-nine year old in 2008 earning
$72,890; a thirty-nine year old in 2008 earning $62,061; and a
thirty-three year old in 2008 earning $72,890.
In addition to the foregoing, there is evidence that
numerous sheriff's investigators, all of them younger than
Klein, were hired from January 1, 2008 through December 23,
5
Once again, in stating the age of these investigators we have
been less than precise, in that we have used the age each would
be as of December 31, 2008. The earnings stated are based on
information provided by the PCSD that purports to state earnings
as of September 28, 2007.
19 A-2186-12T3
2009. During that period, eleven sheriff's investigators who
were younger than Klein was on January 1, 2008 were appointed as
sheriff's investigators.
Neither plaintiff presented any direct evidence of
discrimination based on age.
As previously noted, to establish a claim of age
discrimination in employment under the LAD, "an employee must
'show that the prohibited consideration[, age,] played a role in
the decision making process and that it had a determinative
influence on the outcome of that process.'" Sisler, supra, 157
N.J. at 207 (quoting Maiorino, supra, 302 N.J. Super. at 344
(quoting Miller, supra, 47 F.3d at 597)). Proof by a
preponderance of the evidence is required. Id. at 210.
Where, as here, a claim of age discrimination is supported
only by circumstantial evidence, the evidence is assessed under
the McDonnell Douglas framework. Id. at 209. If the plaintiff
establishes a prima facie case, a presumption of unlawful
discrimination arises. Id. at 210. The employer may obliterate
that presumption "with admissible evidence of a legitimate, non-
discriminatory reason" for taking the employment action at
issue. Ibid. At that point, the employee has an opportunity to
prove that the employer's asserted reason for the action is not
20 A-2186-12T3
true and is merely a pretext for discriminating among employees
on an impermissible basis. Id. at 211.
The elements of a LAD plaintiff's prima facie case vary
depending upon the discrimination alleged and the employment
action taken. The McDonnell Douglas framework as stated by our
Supreme Court in Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 492
(1982), a case involving discriminatory hiring, is as follows:
The plaintiff must demonstrate by a
preponderance of the evidence that he or she
(1) belongs to a protected class, (2)
applied and was qualified for a position for
which the employer was seeking applicants,
(3) was rejected despite adequate
qualifications, and (4) after rejection the
position remained open and the employer
continued to seek applications for persons
of plaintiff's qualifications. 411 U.S. at
802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677
(footnote omitted).
Modification to address the circumstances of the particular
case is obviously required. Thus, where the plaintiff complains
of a discharge, evidence of qualification and discharge suffices
to establish the third element. Sisler, supra, 157 N.J. at 212.
And evidence of replacement efforts may substitute for evidence
of continued efforts to fill a vacant position. Erickson v.
Marsh & McLennan Co., 117 N.J. 539, 551 (1990). Similarly,
where the allegation is discrimination based on age under the
LAD, which, unlike the ADEA that protects only those over forty,
does not limit the protection to persons who have reached a
21 A-2186-12T3
certain age, evidence of membership in a specified age group is
not required. See Sisler, supra, 157 N.J. at 212-14 (noting the
need for refocusing the first and fourth elements that hinge
respectively on membership and non-membership in a protected
class). Instead, the third and fourth elements can be shown by
evidence giving rise to an inference that an older employee has
been treated less favorably than his or her younger
counterparts. Sisler, supra, 157 N.J. at 212-13, 217-18.
In the context of an age discrimination claim based on a
reduction in force, the Third Circuit described the prima facie
case as follows: "To establish a prima facie case under the
McDonnell Douglas/Burdine pretext framework in a RIF case, the
plaintiff must show he was in the protected class, he was
qualified, he was laid off and other unprotected workers were
retained." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d
Cir. 1994). Adapting that case to account for the fact that the
LAD does not identify a protected age group, we conclude that
Klein, a fifty-seven year old and of an age sufficient to
warrant an inference that his age was relevant, had to show that
he was laid off while other younger employees earning as much or
more than he were carried. See Murray v. Newark Hous. Auth.,
311 N.J. Super. 163, 172-74 (Law Div. 1998) (restating the prima
facie case articulated in Armbruster). Judge Payne's reasoning
22 A-2186-12T3
in Murray was cited with approval by our Supreme Court in
Sisler. 157 N.J. at 201, 210, 211, 217.
In this regard, it is important to note that the reasons
the employer offers for selections of employees to be among
those let go in a reduction in force are pertinent to an
evaluation of the plaintiff's proofs of age discrimination in
that context. "An employee may meet this burden either by
persuading the court 'directly "that a discriminatory reason
more likely motivated the employer or indirectly by showing that
the employer's proffered explanation is unworthy of credence."'"
Sisler, supra, 157 N.J. at 211 (quoting Murray, supra, 311 N.J.
Super. at 173 (quoting Texas Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 217
(1981))).
Klein clearly made the essential prima facie showing and
overcame the evidence defendants offered to prove that Klein was
selected to be among the investigators terminated for reasons of
economy and efficiency. The evidence showing that younger and
higher paid investigators who also served at will were retained
gave rise to a reasonable inference that the reasons the PCSD
asserted for terminating him were simply a pretext for the
employer's preference to retain younger investigators. There is
no question that defendants established a budget crisis
23 A-2186-12T3
requiring terminations, but they did not establish a
justification for addressing that budget crisis by leaving
investigators who were younger and higher paid on the job while
terminating Klein who was older and paid less.
Accepting "as true all evidence supporting" Klein's claim
and according him "the benefit of all legitimate inferences
which can be deduced [from the evidence]," we cannot conclude
that defendants were entitled to a judgment notwithstanding the
verdict. Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l
Sch. Dist., 201 N.J. 544, 572 (2010). Accordingly, we affirm.
III
A trial judge's fee determinations are "disturbed only on
the rarest occasions, and then only because of a clear abuse of
discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). We
have considered the record and the findings and reasons for the
award the judge placed on the record on September 14, 2012, in
light of that deferential standard of review. In the end, we
have determined that no argument defendants raise to establish
that this award is excessive has sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
24 A-2186-12T3