stating that ADEA plaintiff must present direct evidence of discrimination to warrant mixed-motive analysis
How later courts described this case
- stating that ADEA plaintiff must present direct evidence of discrimination to warrant mixed-motive analysis
Written by the judges who cited it.
The opinion
Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-23-2004
Monaco v. Amer Gen Assurance
Precedential or Non-Precedential: Precedential
Docket No. 02-4190
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PRECEDENTIAL Mark B. Watson
Robert H. Jaffe & Associates
UNITED STATES COURT OF 8 Mountain Avenue
APPEALS Springfield, N.J. 07081
FOR THE THIRD CIRCUIT
Attorneys for Appellant
No. 02-4190 Thomas J. Barton (argued)
Patricia Proctor
Kimberly M. Coffina
ROBERT R. MONACO, Drinker, Biddle & Reath
105 College Road East
Appellant P.O. Box 627, Suite 300
Princeton, N.J. 08542
v.
Attorneys for Appellees
AMERICAN GENERAL ASSURANCE
COM PANY, an Illinois corporation;
AMERICAN GENERAL OPINION OF THE COURT
CORPORATION, a
Texas corporation; WILLIAM LEARY;
JOHN DOE; RICHARD ROE GREENBERG, Circuit Judge.
_______________ I. FACTUAL AND PROCEDURAL
HISTORY
On Appeal from the United States
District Court
for the District of New Jersey This matter comes on before this
(D.C. Civ. No. 01-03642) court on Robert Monaco’s appeal from
Honorable Mary Little Cooper, an order entered by the district court on
District Judge October 25, 2002, granting appellees’
motion for summary judgment. Monaco
brought this action against his former
Argued January 13, 2004 employer, its corporate parent, and
certain of his former co-employees,
BEFORE: MCKEE, SMITH, and alleging that they discriminated against
GREENBERG, Circuit Judges him on the basis of his age when his
employer laid him off as part of a
(Filed: February 23, 2004) company-wide reduction in force on June
30, 1999. In addition, he asserted breach
of contract claims against the corporate
Robert H. Jaffe (argued) defendants.
Monaco was born on March 9, constituted a significant portion of the
1946. On June 2, 1975, he began sales volume in the Eastern Region,
working for United States Life Insurance AGAC determined to cut expenses by
Company (“United States Life”) as a consolidating its operations and reducing
sales representative for the New Jersey its workforce.
area selling term life and medical
insurance. United States Life promoted When AGAC laid off Monaco on
him in 1979 to regional group manager June 30, 1999, he was age 53. At that
in which position he was responsible for time AGAC had two regional vice
opening the New Jersey regional office presidents, Monaco, who was vice
in Chatham and oversaw the sales president of the Eastern Region, and
representatives and clerical staff in that Robert Shaw (“Shaw”) age 55, who was
office. In 1988 United States Life vice president of the Western Region.
promoted him again, this time to regional Shaw and Monaco had identical
vice president in charge of the Eastern responsibilities in the two different
Region, a position in which he regions. In June 1999, AGAC had eight
coordinated insurance sales in several sales vice presidents/branch managers
states along the eastern seaboard. During who reported directly to Monaco: (1)
his tenure as regional vice president his Edward M cDonald in Danbury,
employer expanded his territory to Connecticut, approximately age 45; (2)
include several additional states. Walter Schroeder for the New England
Region, approximately age 47; (3) Ted
In 1997, American General Makuch in New York, in his mid-40s; (4)
Assurance Company (“AGAC”) Richard Gawlak in the Philadelphia area,
purchased United States Life. After the approximately age 50; (5) Joseph
AGAC acquisition, Monaco remained Ficorilli in the Cincinnati area,
the vice president in charge of the approximately age 62; (6) Paul Bouchard
Eastern Region. Prior to April 1999, J. in the Florida area, in his early 40s; (7)
Hugh Bailey (“Bailey”), senior vice Dale Brockman in New Jersey,
president of sales and marketing, then approximately age 50; and (8) Michael
age 62, was Monaco’s immediate Lombardi in charge of double override
supervisor, but in May 1999, William agencies, approximately age 64.
Leary (“Leary”), age 50, replaced Bailey,
who was retiring, in that capacity. In late On June 14, 1999, when Leary
1998, AGAC determined that its medical informed Monaco that AGAC was laying
insurance line of business was incurring him off effective June 30, 1999, he
large losses, a circumstance which led it explained that it was doing so because it
to decide to exit this product line. was eliminating his position of vice
Notwithstanding its unprofitably, president for the Eastern Region as it was
inasmuch as sales of medical insurance consolidating its Eastern and W estern
2
Regions under Shaw’s control. At the In addition, he asserted claims against
time of Monaco’s layoff, AGAC also the corporate defendants for breach of
laid off several other employees as part contract. Defendants removed the case
of a company-wide reduction in force. to the district court on the basis of
Following Monaco’s layoff, Shaw diversity of citizenship and subsequently
assumed the day-to-day management of moved for summary judgment. On
the Eastern Regional sales office but October 25, 2002, the district court
Leary also provided oversight of the granted the defendants’ motion,
Eastern Region. concluding with respect to his age
discrimination claim that while Monaco
In April 2000, AGAC hired Tom could satisfy the first three elements of
McKellar, who was born on April 26, the McDonnell Douglas (McDonnell
1948, and is approximately two years Douglas Corp. v. Green, 411 U.S. 792,
younger than Monaco, as national vice 93 S.Ct. 1817 (1973)) prima facie case
president of sales. McKellar worked out test, he could not satisfy the fourth
of the New Jersey office and was element. It also granted summary
responsible for national sales and other judgment to the corporate defendants on
senior management duties in addition to Monaco’s breach of contract claim.
overseeing the Eastern Regional sales Monaco then brought this appeal.
offices.
On June 11, 2001, Monaco
brought this action in the Superior Court II. JURISDICTION
of New Jersey against his former
employer, AGAC, and its parent The district court had jurisdiction
corporation, American General pursuant to 28 U.S.C. § 1332 inasmuch
Corporation, as well as his supervisor, as the parties are of diverse citizenship
Leary, and two unnamed AGAC and the amount in controversy exceeds
employees, John Doe and Richard Roe, $75,000, exclusive of interest and costs.2
charging all defendants with age
discrimination, directly or as aiders and
abettors, under the New Jersey Law claims made against them. See Garvin v.
Against Discrimination, N.J. Stat. Ann. § City of Philadelphia, 354 F.3d 215 (3d Cir.
10:5-1 et seq. (West 2002) (“NJLAD”).1 2003).
2
When we reviewed this case we
questioned whether the parties were of
1
Inasmuch as Monaco never sought to diverse citizenship and thus we directed
replace the John Doe and Richard Roe them to make submissions on this point.
defendants with the names of actual We now are satisfied that the parties are of
AGAC employees we will not address any diverse citizenship and there is diversity of
3
We have jurisdiction pursuant to 28 for him to establish a prima facie case,
U.S.C. § 1291. though an action under the ADEA would
have required that he make such a
showing. Appellees contend, however,
that Monaco has waived this argument
III. DISCUSSION because in his brief in opposition to their
motion for summary judgment he stated
A. STANDARD OF REVIEW that to determine if the fourth element of
the prima facie case step of the
We exercise plenary review of the McDonnell Douglas burden shifting
district court's order granting summary framework had been satisfied the court
judgment to defendants. See Fakete v. should look to “whether the plaintiff is
AETNA, Inc., 308 F.3d 335, 337 (3d Cir. discharged while the defendant retained
2002) (citing Fogleman v. Mercy Hosp., similarly situated sufficiently younger
Inc., 283 F.3d 561, 566 n.3 (3d Cir. persons in comparable job positions,”
2002)). J.A. at 293-94, seemingly relying on a
McDonald Douglas formulation of that
B. THE REQUIREMENTS OF element. Appellees’ br. at 11 n.3. But it
THE NEW JERSEY LAW does not matter whether Monaco waived
AGAINST his argument that he has a lesser burden
DISCRIMINATION under the NJLAD than he would have
COMPARED TO THOSE OF had under the ADEA with respect to the
THE AGE fourth element of the McDonnell
DISCRIMINATION IN Douglas test as we conclude that the two
EMPLOYMENT ACT statutes contain similar requirements for
proving the fourth element of a
Monaco asserts that the plaintiff’s prima facie case.3 Thus, his
requirements to set forth a prima facie argument is to no avail.
case under the NJLAD are less stringent
than those required in similar cases under Under the ADEA, it is “unlawful
the Age Discrimination in Employment for an employer . . . to fail or refuse to
Act, 29 U.S.C. § 621 et seq. (“ADEA”), hire or to discharge any individual or
a statute not involved directly in this case otherwise discriminate against any
brought solely under New Jersey law. In individual with respect to his
particular, he contends that he does not compensation, terms, conditions, or
have to make a showing that AGAC privileges of employment, because of
retained a sufficiently younger employee
3
We doubt that he in fact made such a
citizenship jurisdiction in this case. waiver.
4
such individual’s age.” 29 U.S.C. § 1775, 1796 (1989),5 or (2) presenting
623(a)(1). The protection against age indirect evidence of discrimination that
discrimination in the ADEA is “limited satisfies the familiar three-step burden
to individuals who are at least 40 years of shifting framework identified in
age.” Id. § 631(a). When, as here, a McDonnell Douglas. Fakete, 308 F.3d at
plaintiff alleges that he has suffered age 337-38; Sisler, 723 A.2d at 954.
discrimination predicated on disparate Inasmuch as Monaco attempted to prove
treatment, liability under the ADEA his case solely through the use of indirect
depends on whether age “actually evidence, our analysis will focus on the
motivated the employer’s decision.” burden shifting framework of McDonnell
Hazen Paper Co. v. Biggins, 507 U.S. Douglas as applied under the NJLAD.
604, 610, 113 S.Ct. 1701, 1706 (1993);
see also Raytheon Co. v. Hernandez, 124 The Supreme Court of New Jersey
S.Ct. 513, 519 (2003).4 The NJLAD, has explained the three-step burden
though worded differently, similarly shifting analysis “as a starting point” for
makes age discrimination unlawful but analysis of claims under the NJLAD.
does not limit its protections to persons Sisler, 723 A.2d at 955. Under this
at least 40 years of age. In cases brought analysis a plaintiff first must establish a
under either the ADEA or the NJLAD, prima facie case, the step at which
the plaintiff’s age actually must have Monaco lost his case in the district court.
played a role in the employer’s If the plaintiff does so the burden shifts
decisionmaking process and had a to the defendant to articulate a legitimate
determinative influence on the outcome non-discriminatory reason for the
of that process. Reeves v. Sanderson adverse employment action. Mogull v.
Plumbing Prods., Inc., 530 U.S. 133, CB Commercial Real Estate Group, Inc.,
141, 120 S.Ct. 2097, 2105 (2000); 744 A.2d 1186, 1197-98 (N.J. 2000).
Bergen Commercial Bank v. Sisler, 723 Then, if the defendant meets this rather
A.2d 944, 953 (N.J. 1999). light burden, the plaintiff must discredit
the defendant’s proferred reason for its
Under both the ADEA and the action or adduce evidence that
NJLAD, a plaintiff may meet his or her discrimination was more likely than not a
burden by (1) presenting direct evidence
of discrimination that meets the
requirements of Justice O’Connor’s 5
We have regarded Justice O’Connor’s
concurring opinion in Price Waterhouse
opinion as controlling, see Fakete, 308
v. Hopkins, 490 U.S. 228, 261, 109 S.Ct.
F.3d at 337 n.2, but we note that in Desert
Palace, Inc. v. Costa, 123 S.Ct. 2148, 2153
(2003), the Court declined an opportunity
4
Monaco does not attempt to advance a to indicate which opinion in Price
disparate impact argument. Waterhouse was controlling.
5
motivating or determinative cause of the Monaco cites Sisler, 723 A.2d at 956,
adverse employment action. See Potence Petrusky v. Maxfli Dunlop Sports Corp.,
v. Hazleton Area Sch. Dist., No. 03- 775 A.2d 723 (N.J. Super. Ct. App. Div.
1535, F.3d , 2004 WL 188083, at 2001), and Reynolds v. Palnut Co., 748
*2 (3d Cir. Feb. 2, 2004) (ADEA case). A.2d 1216 (N.J. Super. Ct. App. Div.
2000).
In an ordinary employment
termination case under the ADEA to The NJLAD provides, in pertinent
establish a prima facie case of age part, that “[a]ll persons shall have the
discrimination at the first step of the opportunity to obtain employment . . .
McDonnell Douglas burden shifting without discrimination because of . . .
framework a plaintiff must show that he age . . . . This opportunity is recognized
or she: (1) was a member of the protected as and declared to be a civil right.” N.J.
class, i.e., was over 40, (2) was qualified Stat. Ann. § 10:5-4 (West 2002). It
for the position, (3) suffered an adverse further states, in relevant part that:
employment decision, and (4) ultimately
was replaced by a person sufficiently It shall be an unlawful
younger to permit an inference of age employment practice, or, as
discrimination. Duffy v. Paper Magic the case may be, an
Group, Inc., 265 F.3d 163, 167 (3d Cir. unlawful discrimination:
2001). In the context of a reduction in
force, in order to satisfy the fourth a. For an employer,
element of a prima facie case under the because of the . . . age . . .
ADEA, a plaintiff must show that the of any individual . . . to
employer retained a sufficiently younger refuse to hire or employ or
similarly situated employee. Anderson v. to bar or to discharge or
Consol. Rail Corp., 297 F.3d 242, 249-50 require to retire, unless
(3d Cir. 2002). justified by lawful
considerations other than
As we have indicated, however, age, from employment
Monaco maintains that the NJLAD does such individual or to
not require him to show that AGAC discriminate against such
retained a sufficiently younger employee individual in compensation
in order for him to make out a prima or in terms, conditions or
facie case of age discrimination in a privileges of employment .
reduction-in-force case and thus it differs ...
from the ADEA. His failure to make this
showing led the district court to grant the Id. § 10:5-12.
appellees’ motion for a summary
judgment. In support of this argument In general, to establish a prima
6
facie case under the NJLAD for unlawful legally forbidden ground.’
termination, and thus satisfy the first step Thus, under the [NJ]LAD,
of the burden shifting analysis, a plaintiff which specifies no
must demonstrate that he or she: (1) qualifying age, courts have
belongs to a protected class, (2) was modified the fourth
qualified for the position held, (3) was element to require a
terminated despite adequate showing that the plaintiff
qualifications, and (4) after termination was replaced with ‘a
the position remained open and the candidate sufficiently
employer continued to seek applications. younger to permit an
See Sisler, 723 A.2d at 955 (citations inference of age
omitted). Of course, the NJLAD makes discrimination.’
it unlawful for an employer to terminate
an employee for numerous reasons in Id. at 956 (citations omitted) (emphasis
addition to age and thus is much more added). Obviously the reference to a
than an age discrimination statute. younger replacement could not have been
intended to apply when an employee is
In Sisler, a bank vice president discharged on account of his or her youth
brought a claim of age discrimination because in that situation his or her
under the NJLAD, alleging that his burden to establish a prima facie case
employer wrongfully discharged him quite logically is to show that the
because of his youth, an unusual action replacement employee was “sufficiently
that conceptually was possible because, older to permit an inference of age
as we have indicated, in contrast to the discrimination.” Id. at 959. It is
ADEA, the NJLAD does not limit the apparent that the court in Sisler refined
individuals protected from age the fourth element of the requirements
discrimination to persons over the age of for a prima facie case in age
40. Id. at 950. In Sisler the Supreme discrimination situations that it had set
Court of New Jersey stated that under the forth for application in NJLAD cases in
NJLAD in an age discrimination case, general.
the fourth element of the McDonnell
Douglas prima facie case analysis: We recognize, however, that the
court’s focus in Sisler was not on the
properly focuses not on fourth element of the McDonnell
whether the replacement is Douglas framework, but on the first
a member of the protected element, i.e., how to modify the
class but on ‘whether the requirement that an individual belong to
plaintiff has established a a protected class when the claimant
logical reason to believe brings a charge of age discrimination on
that the decision rests on a the basis of youth. Id. at 956-57. The
7
Sisler court held that in order to satisfy the Supreme Court of New Jersey’s
the first element, claimants such as Sisler analysis in that case was limited to cases
must show background circumstances involving allegations of reverse
supporting the suspicion that the discrimination. Petrusky, 775 A.2d at
defendant is “the unusual employer who 725; Reynolds, 748 A.2d at 1219. The
discriminates against the majority.” Id. court in Reynolds held that in cases
at 957.6 Nevertheless we are not at involving a “traditional age
liberty to ignore Sisler’s language discrimination claim” a plaintiff:
recognizing the necessity of a sufficient
age differential between the terminated need not show that he was
and replacement employees for the replaced by someone
plaintiff to establish a prima facie case of sufficiently younger.
age discrimination demonstrating the Rather, plaintiff must show
presence of its fourth element. that he was a member of a
protected class, that he was
In Petrusky, 775 A.2d at 725-26, performing the job at a
and Reynolds, 748 A.2d at 1219-20, on satisfactory level; that he
which Monaco relies, the Appellate was discharged, and that
Division of the Superior Court of New the employer sought others
Jersey, the intermediate state court of to perform the work after
appeals, addressed the application of the complainant had been
Sisler to cases involving allegations of removed.
traditional age discrimination brought by
older employees. In both cases the Id. The court in Petrusky adopted the
Appellate Division declined to adopt the Reynolds court’s interpretation of Sisler.
formulation of the fourth element of the See Petrusky, 775 A.2d at 725 (“We
prima facie case in the language we have adhere to that view and regard it as
quoted from Sisler regarding age governing until the Supreme Court
discrimination cases, holding instead that declares otherwise.”).
Two cases in the district court
have espoused divergent views on
6
Notwithstanding opinions so whether to follow the interpretation of
suggesting it may not be so unusual for Sisler that Reynolds and Petrusky set
employers to discriminate against the forth. In Wright v. L-3 Communications
majority because an employer might do Corp., 227 F. Supp. 2d 293, 294-95
exactly that to satisfy demands for (D.N.J. 2002), the court held that in order
diversity in its work force, to promote to satisfy the fourth element of a prima
affirmative action, or because the facie case of age discrimination under
employer for other reasons prefers to hire the NJLAD, a plaintiff “must only show
an individual who is not in the majority.
8
that his employer sought others to 725). Thus, we have given careful
perform the same work after he was consideration to Petrusky and Reynolds.
terminated from his position.” On the Nevertheless, after analyzing these
other hand, earlier, in Swider v. Ha-Lo Appellate Division cases, we conclude
Indus., Inc., 134 F. Supp. 2d 607, 625 that the district court in Swider was
(D.N.J. 2001), the court held that under correct and agree with it “that the
the NJLAD, “in order to satisfy the Reynolds court misconstrued the
fourth prong of the McDonnell Douglas standard in Sisler.” Swider, 134 F. Supp.
prima facie case, plaintiff must show that 2d at 623.7 To us it is clear from Sisler
he was replaced by someone sufficiently that when the Supreme Court of New
younger to create an inference of Jersey set out the fourth element of the
unlawful age discrimination.” We are McDonnell Douglas prima facie case
impressed with the comprehensive framework in an age discrimination case
analysis in Swider which points out that it regarded that standard as applicable in
the Appellate Division itself has not both traditional and reverse age
interpreted Sisler consistently. In this discrimination cases, the difference being
regard, Swider cites Williams v. that in a traditional case the replacement
Pemberton Township Pub. Schs., 733 employee must be sufficiently younger
A.2d 571, 577 (N.J. Super. Ct. App. Div. than the replaced employee and in a
1999), in which the court quoted Sisler Sisler reverse discrimination situation the
for the point that under the NJLAD the replacement employee must be
fourth element of a prima facie case sufficiently older than the replaced
requires a showing that the plaintiff was employee.
replaced with “a candidate sufficiently
When the Sisler court explained
younger to permit an inference of age
the fourth element it was following the
discrimination.”
analysis of prior cases as to what was
Of course, in light of the required to establish a prima facie case in
circumstance that we are applying state an age discrimination context. As set
law we recognize that we are bound by forth above, the Supreme Court of New
the opinions of the state’s highest court, Jersey in Sisler specifically stated that,
Gares v. Willingboro Township, 90 F.3d “under the [NJ]LAD, which specifies no
720, 725 (3d Cir. 1996), though “[i]n the qualifying age, courts have modified the
absence of guidance from [it], we are to fourth element to require a showing that
consider decisions of the state’s the plaintiff was replaced with ‘a
intermediate appellate courts for candidate sufficiently younger to permit
assistance in predicting how the state’s
highest court would rule.” Werwinski v.
7
Ford Motor Co., 286 F.3d 661, 670 (3d The district court decided Swider
Cir. 2002) (quoting Gares, 90 F.3d at before the Appellate Division decided
Petrusky.
9
an inference of age discrimination.’” discrimination that he or she was a
723 A.2d at 956 (citation omitted) member of the protected class, performed
(emphasis added).8 Nothing in Sisler satisfactorily, but was discharged
suggests that the principles underlying following which the employer sought a
this modest modification are applicable replacement employee then, in view of
only in cases involving reverse age the circumstance that the NJLAD does
discrimination and we see no reason to not include a 40-year old age threshold,
limit the holding of the Supreme Court of practically every terminated employee
New Jersey to those cases as it would not would be able to establish a prima facie
be logical to do so. See Swider, 134 F. case of age discrimination.9 Thus,
Supp. 2d at 624 (stating that under Sisler Reynolds and Petrusky require that a
“[t]he fourth prong remains unchanged in court find that a plaintiff has established
age discrimination cases, whether they be a prima facie case of age discrimination
traditional or reverse”). Indeed, the even though none of the four elements of
modification, as literally stated, could not his or her prima facie case in any way
be applicable in a case in which the relates to the plaintiff’s age.
employer is terminating the employee by
Such a result would fly in the face
reason of youth as in such a case it would
of the requirement set forth in O’Connor
be inconsistent with the discriminatory
v. Consolidated Coin Caterers Corp.,
act for an employer to hire an even
517 U.S. 308, 311-12, 116 S.Ct. 1307,
younger replacement. Thus, we are at a
1310 (1996) (citation omitted), that
loss to understand how the Appellate
“there must be a least a logical
Division limited Sisler’s articulation of
connection between each element of the
the fourth element of a prima facie case
prima facie case and the illegal
to cases involving reverse age
discrimination for which it establishes a
discrimination.
‘legally mandatory, rebuttable
In declining to follow Reynolds presumption.’” M oreover, the result
and Petrusky we point out that they lead would be at odds with the recognition in
to an absurd result. If a plaintiff only Sisler that a prima facie case analysis
need show, as these cases indicate, to focuses “on whether the plaintiff has
make out a prima facie case of age established a logical reason to believe
that the decision rests on a legally
forbidden ground.” Sisler, 723 A.2d at
8
In fact, as we have indicated, in cases 956 (internal quotation marks and
involving allegations of reverse age citation omitted). Furthermore, the
discrimination under the NJLAD, a presumed age discrimination would be
plaintiff would be required to show that
the individual who replaced him or her
9
was sufficiently older in order to infer There are some limited exceptions. See
discrimination on the basis of youth. Sisler, 723 A.2d at 952.
10
generic because the plaintiff under Sisler convinced that Sisler compels this result.
could be either too young or too old.10 Of course, as we explain below, we
apply this element in a way to make it
Overall we are satisfied that we
relevant in this reduction-in-force
should apply the same standard for the
situation.
fourth element of Monaco’s prima facie
case under the NJLAD as we would have C. “SIMILARLY SITUATED”
applied under the ADEA if he had
Frequently courts apply the
brought his case under that statute. Thus,
McDonnell Douglas burden shifting
we look to the ages of the remaining
analysis when an employer replaces an
similarly situated employees to compare
employee. But here we deal with that
them to Monaco to see if he has
analysis in the different context of a
established the existence of that element.
reduction in force. In Anderson, 297
See Anderson, 297 F.3d at 249-50;
F.3d at 250, we explained that in the first
Sisler, 723 A.2d at 956.11 We are
step of the burden shifting analysis in a
reduction-in-force case brought under the
10
ADEA, “the plaintiff must show, as part
Under Reynolds and Petrusky a 35- of the fourth element, that the employer
year old terminated individual usually retained someone similarly situated to
could demonstrate a prima facie case of him who was sufficiently younger.” We
age discrimination under the NJLAD even reasoned that unless the fourth element
though he or she is so young that the required the individual retained to be
ADEA would be inapplicable in the case similarly situated to the one who was
but so old that it would be bizarre to terminated we would be construing the
believe that the employer discriminated ADEA as a bumping statute guaranteeing
against the individual by reason of youth. employment to a protected worker at the
11 expense of a sufficiently younger
It is conceivable that in an
employee. Id.
employment discrimination case under the
ADEA or other applicable law in which In the absence of divergent
there was compelling direct evidence of language between the NJLAD and
discrimination by reason of age, race, or federal discrimination laws, the Supreme
some other interdicted factor that the mere Court of New Jersey has applied federal
fact that a replacement worker is in the standards in NJLAD cases “in the
same protected class as the terminated
employee would not mean that the
employer could not be liable under the was in the same protected class and thus
statute involved. See Williams, 733 A.2d hire that replacement employee. In that
at 578. After all, the employer after event it would be difficult to conclude that
discharging the employee might find that the employer should not be liable for the
the only suitable replacement employee wrongful discharge.
11
interest of achieving a degree of NJLAD.12 In accord with Anderson, we
uniformity in the discrimination laws.” will not compare an individual such as
Sisler, 723 A.2d at 950; see Lawrence v. Monaco, a vice president in charge of the
Nat’l Westminster Bank N.J., 98 F.3d 61, Eastern Region, with lower-level
65 (3d Cir. 1996) (“[a]ge discrimination employees without evidence of routine
claims under the ADEA and [NJ]LAD job shuffling which does not exist. See
are governed by the same standards and id. However, an individual does not
allocation of burdens of proof”) need to be situated identically to satisfy
(citations omitted). Inasmuch as there is the fourth element of a plaintiff’s prima
no applicable divergent statutory facie case under the NJLAD. In order to
language in this case, and taking into determine who might qualify as a
consideration the references in Sisler to similarly situated employee we must look
the age of replacement employees, we to the job function, level of supervisory
believe that if faced with a case of age responsibility and salary, as well as other
discrimination in the context of a factors relevant to the particular
reduction in force, the Supreme Court of workplace. This determination requires a
New Jersey would adopt the similarly court to undertake a fact-intensive
situated requirement of Anderson. inquiry on a case-by-case basis rather
than in a mechanistic and inflexible
In Anderson, 297 F.3d at 250, we
manner. See Pivirotto v. Innovative Sys.,
held that non-union employees were not
Inc., 191 F.3d 344, 357 (3d Cir. 1999).
similarly situated to “entry-level
positions or other low-level positions Thus, we must determine which
without providing any evidence of employees at AGAC were similarly
[routine job] shuffling.” We affirmed the situated to Monaco. AGAC maintains
decision of the district court granting that Shaw, the vice president for the
summary judgment to the defendants as Western Region, who was two years
to certain plaintiffs “because the older than Monaco, was the only
employees retained were either not individual it employed similarly situated
sufficiently younger or the evidence to Monaco. Of course, there is no doubt
failed to show that the duties were but that Monaco and Shaw were
comparable or that they were otherwise similarly situated as they had the same
similarly situated.” Id. job responsibilities, though for different
regions, and Monaco does not contend
In this case we are required to
articulate further who is “similarly
situated” for purposes of making out the 12
We do not suggest that the standard
fourth element of a prima facie case in a
would be different under the ADEA.
reduction-in-force situation under the
Rather, we merely recognize that this case
insofar as it claims age discrimination is
solely under the NJLAD.
12
otherwise. He does counter AGAC’s Monaco does maintain that he had the
argument, however, by contending that qualifications to serve in one of these
we should read the similarly situated positions, and clearly he was so qualified
requirement more broadly and also as he had held such a position prior to
consider the eight sales vice being promoted to vice president of the
presidents/branch managers whom he Eastern Region in 1988. But, as the
directly supervised to be similarly district court in Anderson explained,
situated. The district court rejected “[m]erely because a plaintiff has met the
Monaco’s argument, finding that there standards for a particular position . . .
was no evidence to suggest that sales does not mean that the plaintiff and the
vice presidents/branch managers were person who occupied that position were
similarly situated. We agree with the similarly situated for purposes of a prima
district court. facie age discrimination claim.”
Anderson v. Consol. Rail Corp., No. Civ.
Under Federal Rule of Civil
A. 98-6043, 2000 WL 1201534, at *5
Procedure 56(e), when a party has filed a
(E.D. Pa. Aug. 9, 2000).
motion for summary judgment, “an
adverse party may not rest upon the mere Monaco contends that if we adopt
allegations or denials of the adverse a narrow reading of the similarly situated
party’s pleading, but the adverse party’s requirement we will be inviting
response, by affidavits or as otherwise “mischief” by employers. Appellant’s
provided in this rule, must set forth
specific facts showing that there is a
genuine issue for trial.” Monaco states brokers. However, Monaco had
in his brief that he “should have been supervisory responsibility over all of the
given an equal employment opportunity offices in the eastern United States while
to fill a branch manager or district sales each of the eight vice president/branch
position in which he had previously been managers was responsible for his
employed.” Appellant’s br. at 20. individual office. If we were to focus on
However, in this litigation he has not the job responsibilities of Monaco’s
produced any evidence to show that his position at the level of abstraction which
position of vice president of the Eastern he suggests is appropriate, his position
Region was similarly situated to that of would be similarly situated to many entry-
the eight vice presidents/branch level employees who solicited insurance.
managers whom he directly supervised.13 As we explained in Anderson, 297 F.3d at
250, this approach, if applied under the
ADEA, would cause that statute, and, if
13
At oral argument, Monaco argued that applied under the NJLAD, would cause it
the focus of his position as well as the as well, to require the “bumping” of lower-
eight vice president/branch managers was level sufficiently younger employees in
to solicit insurance through independent order to retain protected workers.
13
br. at 17. He argues that employers will under the NJLAD cannot be successful.
manipulate reductions in force by first In O’Connor, 517 U.S. at 312-13, 116
placing older workers into “dead-end” S.Ct. at 1310, the Supreme Court
positions for a few months where there explained that under the ADEA an
are no similarly situated individuals and individual cannot make out a prima facie
then later terminating or laying off the case such that a court will infer unlawful
older employees, thereby, according to age discrimination if the employee is
Monaco’s reasoning, avoiding liability replaced with another worker who is
for age discrimination. “insignificantly younger.” We
subsequently have explained that in order
We disagree. First, Monaco’s
to satisfy the sufficiently younger
case fails to present such a factual
standard, “there is no particular age
scenario. AGAC laid off Monaco after
difference that must be shown, but while
he had been employed as vice president
different courts have held . . . that a five
of sales for the Eastern Region for many
year difference can be sufficient, . . . a
years and certainly it did not “shuffle”
one year difference cannot.” Showalter
him into a dead-end position prior to the
v. Univ. of Pittsburgh Med. Ctr., 190
reduction in force. Second, as explained
F.3d 231, 236 (3d Cir. 1999) (internal
above, a determination of whether an
citation marks and citation omitted).
individual can satisfy the “similarly
situated” requirement triggers a fact- In fact Shaw, the vice president of
intensive inquiry based on a whole the Western Region, is two years older
constellation of factors facing that than Monaco. Therefore, in the light of
individual employee. Certainly if there O’Connor, Showalter, and Sisler, Shaw’s
was evidence that an employer retention in this reduction-in-force
transferred an older worker from his situation cannot help Monaco establish
position to a new one which happens to the fourth element of his prima facie
have few similarly situated individuals case. Indeed, the exact opposite is true.
soon before his termination, a court Furthermore, even if we make the
would be able to consider that unfounded assumption that Monaco was
circumstance in determining whether the similarly situated to his supervisor Leary
employee established the fourth element and to McKellar, the national vice
of his or her prima facie case of age president of sales who was hired ten
discrimination. See Marzano v. months after Monaco’s layoff, this
Computer Science Corp., 91 F.3d 497, assumption would not help him set forth
511 (3d Cir. 1996). But we reiterate that a prima facie case.14 Leary and McKellar
here there was no such transfer.
In view of the circumstance that 14
Significantly Monaco does not even
Shaw was the only employee at AGAC
ask us to make this assumption for in his
similarly situated to him, Monaco’s case
brief, though he points out that Leary took
14
respectively were only three and two summary judgment as to Monaco’s claim
years younger than M onaco, a under the NJLAD.15
differential which does not satisfy the
D. CONTRACT CLAIM
sufficiently younger standard O’Connor
and Showalter set forth. Moreover, as The AGAC employee handbook
Monaco acknowledged at his deposition, provides, in relevant part, that the
their levels within the company differed company complies with “all applicable
from his. Inasmuch as we agree with the laws regarding equal employment
district court that M onaco has failed to opportunities without regard to . . . age . .
establish the fourth element of his prima . .” J.A. at 206. It further states that
facie case, we will affirm its grant of “[n]othing in this manual or in the
company’s policies, practices, or
procedures should be read as a guarantee
over a portion of Monaco’s supervisory
functions for the Eastern Region, he
15
indicates “the comparison sought is In his complaint, Monaco asserted
between the plaintiff who held an individual claims against Leary and the
executive sales vice president position John Doe and Richard Roe defendants
with other employees who held executive under N.J. Stat. Ann. § 10:5-12(e) (West
sales vice president/branch manager 2002). He claimed that the individual
positions, the very same job position the defendants did “aid, abet, incite, compel or
plaintiff previously held before he had coerce the doing of any of the acts
been promoted to Vice President of the forbidden under [the NJLAD], or to
Eastern Region.” Appellant’s br. at 16. In attempt to do so.” Id.; see J.A. at 54. In
his reply brief he adheres to this approach granting summary judgment in this case to
as he recites that he “should have been all defendants the district court did not
given the opportunity to compare his skills discuss this claim. However, inasmuch as
and work experience to employees holding we hold that the district court correctly
executive sales position/branch manager at granted summary judgment to the
a level he had previously performed prior corporate defendants, any claim he brought
to being promoted to Regional Vice against the individual defendants for
President.” Appellant’s reply br. at 2. aiding and abetting fails as well.
Monaco’s contention in his briefs, to the
extent that he does not claim that Leary Our disposition makes it
and McKellar were similarly situated with unnecessary for us to consider appellees’
him, is consistent with his deposition contention that they asserted a legitimate
testimony which was that, besides himself, non-discriminatory basis for Monaco’s
Shaw was the only person “on the same termination which Monaco did not rebut
level . . . within the company.” J.A. at and that for this independent reason are
125. entitled to summary judgment.
15
of employment, a commitment to provide company’s employment manual
employment, or a promise to continue contractually can bind the company
any terms or conditions of existing notwithstanding its inclusion of a
employment.” J.A. at 206. The disclaimer of a creation of enforceable
handbook also makes clear that “[e]xcept rights. Geldreich v. Am. Cyanamid Co.,
where mandated by law, these policies 691 A.2d 423, 426 (N.J. Super. Ct. App.
and programs may be changed or Div. 1997). In order not to create a
discontinued at any time at the discretion binding obligation on the company, the
of the company.” Id. language in the manual “must be such
that no one could reasonably have
Monaco maintains that the
thought it was intended to create legally
provision stating that AGAC complies
binding obligations.” Id. at 427.
with all applicable equal opportunity
laws without regard to age created a The only statement in the
binding contractual obligation between employee handbook to which Monaco
him and AGAC which it breached when points as creating a binding contractual
it terminated him allegedly on the basis obligation between him and AGAC is the
of age. The district court rejected this general language on the same page as the
argument as it held that the language table of contents that the company
contained in the handbook “was no more “complies with all applicable laws
than the language necessary to meet the regarding equal employment
statutory requirements of the NJLAD.” opportunities without regard to . . . age . .
J.A. at 8. . .” J.A. at 206; appellant’s br. at 21.
But this statement merely sets forth that
Under New Jersey law, the
AGAC strives to comply with its legal
employment-at-will doctrine provides
obligations, nothing more, and “no one
that “an employer may fire an employee
could reasonably have thought it was
for good reason, bad reason, or no reason
intended to create legally binding
at all” unless prohibited by law or public
obligations,” beyond those the law
policy. Witkowski v. Thomas J. Lipton,
already imposed. Geldreich, 691 A.2d at
Inc., 643 A.2d 546, 552 (N.J. 1994); see
427.
also Silvestri v. Optus Software, Inc.,
814 A.2d 602, 607 (N.J. 2003). Either If we were to agree with Monaco
party may terminate an employment that the quoted provision could be the
relationship at will unless an agreement predicate for a breach of contract claim,
exists between the parties that provides individuals bringing employment
otherwise. Varrallo v. Hammond Inc., discrimination cases in New Jersey
94 F.3d 842, 845 (3d Cir. 1996) where an employment manual contained
(applying New Jersey law). such a provision could as a matter of
course assert both statutory
In certain circumstances, a
discrimination and breach of contract
16
claims based on the employer’s same breach of contract claim.17
underlying conduct. In order to prove
the breach of contract claim the plaintiff
would be required to prove the IV. CONCLUSION
underlying discrimination claim by
In reaching our conclusion we
showing how the employer’s actions
point out that the facts of this case
violated the anti-discrimination laws.
demonstrate why a terminated plaintiff
We reject M onaco’s attempt to create
should not be able in a McDonnell
two causes of action where he is only
Douglas burden shifting case to
able to assert one. We are satisfied that
demonstrate a prima facie case of age
New Jersey law does not provide a
separate breach of contract cause of
action on the basis of generalized anti- 17
The district court held in the
discrimination language in an employee
alternative that even if the language of the
handbook where the alleged
handbook could create a binding
discrimination would be in violation of
contractual obligation, two disclaimers in
the NJLAD.16 Such a breach of contract
the handbook would have prevented
cause of action would add nothing to the
Monaco from being able successfully to
statutory cause of action. Moreover,
assert a breach of contract cause of action.
even if such a cause of action could exist,
However, as stated above, the only
Monaco’s case would fail because he
statement to which Monaco points as
cannot demonstrate that AGAC was
creating a contractual obligation between
guilty of age discrimination. We
him and AGAC is the statement in the
therefore will affirm the district court’s
handbook that AGAC “complies with all
grant of summary judgment on Monaco’s
a p plicab le la ws r e ga rding e q u a l
employment opportunities without regard
to . . . age . . . .” J.A. at 206. Clearly,
AGAC could not disclaim its legal duty to
16
If the AGAC employee handbook comply with the NJLAD. Therefore, to
stated that the company does not the extent the district court relied on the
discriminate on the basis of some disclaimer language in the AGAC
characteristic not covered by the NJLAD, handbook in granting summary judgment
then an individual might be able to assert against Monaco on his breach of contract
a breach of contract claim on that basis. cause of action, it erred. But the error is
However, that is not the case here as the harmless for, as stated above, the language
N J L A D p r o h i b i t s t h e ty p e of in the AGAC handbook tracked the
discrimination Monaco claims exists in requirements of the NJLAD and did not
this case and the language of the handbook create any binding legal obligations
merely states that AGAC complies with all beyond those already established under the
applicable anti-discrimination laws. NJLAD.
17
discrimination without showing a
difference in age between him or her and
the replacement employee sufficient to
support an inference of age
discrimination or, in the circumstance
that he or she was discharged in a
reduction in force, showing that the
employer retained someone similarly
situated to him or her sufficiently
younger to permit the drawing of such an
inference. While we can understand
Monaco’s frustration after losing his
position after so many years, the fact is
that nothing in the record could support
drawing an inference that age played any
factor in AGAC’s decision to terminate
his employment. In view of all the
reasons we have set forth, we will affirm
the order of the district court granting
summary judgment entered October 25,
2002.
18