Andrew J. Krassowski v. Bloomberg Lp

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2928-21

ANDREW J. KRASSOWSKI,

Plaintiff-Appellant,

v.

BLOOMBERG L.P.,

Defendant-Respondent.

________________________

Argued September 14, 2023 – Decided January 9, 2024

Before Judges Vernoia, Gummer, and Walcott-

Henderson.

On appeal from the Superior Court of New Jersey, Law

Division, Somerset County, Docket No. L-0364-20.

Charles Z. Schalk argued the cause for appellant (Savo,

Schalk, Corsini, Warner, Gillespie, O'Grodnick &

Fisher, attorneys; Charles Z. Schalk, of counsel and on

the briefs).

David Wayne Garland argued the cause for respondent

(Epstein Becker & Green, PC, attorneys; David Wayne

Garland, of counsel and on the brief; Jiri Janko, on the

brief).

PER CURIAM

Plaintiff Andrew J. Krassowski contends his employer, defendant

Bloomberg L.P., wrongfully terminated him based on his age in violation of the

New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.

Plaintiff claims his termination was part of a scheme to replace older workers

with younger and lower-paid recent hires. Plaintiff appeals an April 21, 2022

order in which the motion judge granted defendant's summary-judgment motion

and dismissed the complaint with prejudice based on his determination plaintiff

had failed to demonstrate the circumstances surrounding his discharge supported

an inference of age discrimination. We agree and affirm.

I.

We discern the material facts from the summary-judgment record, viewing

them in a light most favorable to plaintiff, the non-moving party. See Memudu

v. Gonzalez, 475 N.J. Super. 15, 18-19 (App. Div. 2023).

Plaintiff was fifty-three years old when defendant hired him in the summer

of 2014 to work as a "Software Engineer-Senior" in its Research & Development

(R&D) department. Plaintiff initially reported to Raju Dantuluri, an

Engineering Team Leader who was then forty-three-years old and had

interviewed plaintiff and had recommended defendant hire him. In February

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2018, plaintiff began reporting to Neeraj Jain, an Engineering Team Leader, and

Dantuluri became plaintiff's "skip-level" manager, meaning Dantuluri was one

level above Jain. Plaintiff reported directly to Jain for the duration of his

employment, and Jain continued to report to Dantuluri.

Plaintiff initially worked on developing and testing various vendor-related

functions of defendant's databases in the R&D ISYS Supply Chain Department.

In plaintiff's 2015 interim review, which was his first review, Dantuluri wrote

plaintiff could "accomplish some of [his] tasks faster" and that he "expected him

[to] . . . be able to deliver faster." He rated plaintiff's overall performance as

"Meets Expectations." Plaintiff received an overall numerical rating of "3.5"

out of "6," a rating that fell between "Good – Occasionally Exceeds

Expectations" and "Meets Expectations."

In plaintiff's 2015 year-end performance evaluation, Dantuluri wrote that

"[a]lthough, overall [plaintiff] has met expectations of his business sponsor, the

timeframe for his deliverables [was] longer than expected for someone with his

experience and knowledge." Dantuluri wrote that on another project, "business

was satisfied with the benefits obtained . . . but the quality of the initial release

[of the project] was below [Dantuluri's] expectations where we had to do

multiple patches in order to get it right. [His] expectations [for plaintiff were]

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higher due to his level of experience." For the year 2015, plaintiff received an

overall rating of "3.4," which meant he had been rated "Above Expectations,"

with "1" being the highest and best rating and "6" being the lowest.

In plaintiff's 2016 performance evaluation, Dantuluri wrote plaintiff had

been "hired with high expectations . . . . Although he has contributed more on

the process front, he is also expected to be able to handle multiple projects in

parallel and also be more aggressive in delivering solutions while maintaining

the quality of the deliverables." Dantuluri also noted "occasions where

[plaintiff's] estimates were significantly higher than th[ose] expect[ed from] a

senior developer." Plaintiff received a "3.4" rating for the year; however,

defendant had changed from a six-point to a five-point rating scale, and

plaintiff's score meant he had "achieve[d] results in line with expectations and

exceed[ed] expectations in a limited area." Plaintiff did not receive any base

salary raises after 2016.

In 2017, plaintiff moved to the Travel and Expense (TNE) subteam. The

TNE system had a much larger user base and was highly visible within

Bloomberg. Plaintiff was expected to work closely with other team members,

deliver solutions in an aggressive timeframe, and be able to work on multiple

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initiatives and tasks simultaneously. Plaintiff was the oldest member of the

team.

In plaintiff's 2017 performance evaluation, Dantuluri again rated plaintiff

"3.4," which was the lowest score of all the employees in the TNE subteam.

Dantuluri wrote in the performance review that "[b]eing a senior developer,

[plaintiff] is expected to independently partner with business, manage bigger

[and] complex projects and also be able to handle multiple projects at a time.

[Plaintiff] fell short on expectations to demonstrate these skills adequately while

working on [the] above mentioned projects." Dantuluri wrote that plaintiff

"struggled to understand" certain concepts, "kept trying to investigate without

reaching out to another team which . . . could have helped him on resolving those

technical challenges," and "did not meet [certain] expectation[s] and this along

with some other factors resulted in a few weeks delay." With respect to

"implementation of agreed upon processes," Dantuluri found plaintiff "does not

always follow them" even though he was "expected to follow and champion

them." Dantuluri wrote plaintiff "has to be more aggressive in delivering

solutions while maintaining the quality of the deliverables. There are occasions

where his estimates were significantly higher than the expectation of a senior

developer."

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For 2018, Jain rated plaintiff "4.0," which meant he had "achieve[d] some

results but d[id] not meet all expectations." Plaintiff was again the lowe st rated

employee on the TNE subteam. In plaintiff's performance evaluation, Jain wrote

that "[o]verall, he did a good job completing his tasks on time and his efforts

towards reducing the file size were well appreciated." However, "[b]eing a

senior engineer, [plaintiff] is expected to be more thorough and diligent" with

certain projects and that with another project, "he struggled to deliver it on time

and went back and forth with other team members to understand the

functionality and the design." According to Jain, plaintiff had been "expected

to research the existing functionality and also understand the new design prior

to starting the development." Jain indicated plaintiff had not "clearly

underst[oo]d the design" of a component and stated "[e]xpectation from a senior

engineer like [plaintiff] is to not just build software but also understand the

capabilities and limitations of the software and be able to explain them to

others."

In 2018, Bloomberg retained two contractors: John Saponara and

Sudhanshu Kumar. In April 2019, they were hired as "regular" employees.

When Bloomberg terminated plaintiff's employment the following year,

Saponara was fifty-seven years old, and Kumar was thirty-three years old.

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Plaintiff received an interim performance evaluation in 2019. According

to Jain, an employee received a mid-year review if the employee was new or if

there were "serious concerns" about the employee's performance. According to

Dantuluri, plaintiff received an interim performance evaluation in 2019 because

he was "[n]ot performing up to expectations." Jain prepared the written

evaluation, and Dantuluri reviewed it. Jain wrote:

There are areas where [plaintiff] is not meeting

expectations. These areas have been highlighted during

year-end evaluations for [a] couple of years as well as

during one-on-one meetings. [Plaintiff] has not made

any significant progress in these areas towards meeting

expectations and is expected to work on these areas

immediately . . . .

While acknowledging plaintiff had done "a good job" on certain aspects

of some projects, Jain wrote plaintiff on one project had been "unable to explain

[the implementation plan] and it was apparent that he didn't understand the

design. As a result, his manager had to re-explain the design workflow and

monitor closely to keep him focused on the remaining tasks to ensure success of

the project." Regarding another project, Jain wrote that plaintiff "started coding

based on the sample file," which was "different than the specification, . . . instead

of escalating to raise [an] issue with the vendor about the mismatch. He also

didn't actively follow up with other Bloomberg teams until reminded," which

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"resulted in delay . . . ." Regarding another project, Jain faulted plaintiff for

having "started coding without validating the design and thinking through how

it should be done" and for not "following the principles and guidelines agreed

to by the team . . . . It is expected from a senior engineer like [plaintiff] to

remember and follow agreed upon processes and get the design reviewed prior

to start coding to save his and others time."

Plaintiff received a "4.0" score for that evaluation, which again meant he

had "achieve[d] some results but d[id] not meet all expectations." The

evaluation provided that plaintiff was expected in the remaining year to focus

on being "more aggressive in software development" and in "[w]ork[ing] more

independently," among other things.

In an October 9, 2019 email, Yelena Naginsky, the human resources

business partner supporting plaintiff's team, reported to Brenda Clark, an

employee relations and compliance specialist, that she had met with Jain

regarding "performance concerns" about plaintiff. Naginsky advised Clark that

based on plaintiff's "history of underperformance," citing the "4.0" scores in his

last two evaluations, "and the lack of improvement following the [i]nterim and

subsequent conversations," she was "comfortable with moving forward to the

[m]utual [separation] or [written warning] option at this point" and asked for

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Clark's "take on the situation and if [she] agree[d] that we should move forward

with those options." Clark responded that she had met with Jain and Dantuluri

the previous week and "agree[d] because [plaintiff's] been getting the feedback

but no change." Jain and Dantuluri told her they "had been giving plaintiff

feedback about the performance deficiencies" but had not seen the improvement

they needed to see and, consequently, wanted to give plaintiff a written warning.

Clark read plaintiff's performance evaluations, obtaining a sense of what

feedback previously had been provided to plaintiff, and advised Jain and

Dantuluri she was comfortable issuing a written warning.

In an October 28, 2019 email, Clark asked her supervisor Deborah Barker

to review the request for the mutual separation package for plaintiff, which

would give plaintiff the option to leave Bloomberg with a separation package or

to remain employed with a written warning. In response, Barker wrote:

The interim doesn't have a lot of info and there are no

eval notes that I can see. There is no verbal that's really

documented anywhere that I can find. . . . I am sure you

both have had tons of chats with the managers to

validate this, but . . . do you think this guy is at [the

written warning] stage (assuming he doesn't take a

mutual)? Unless there has been a lot of conversations

that took place undocumented, there does not look like

he's had much direct feedback. Just double checking

because of risk factors.

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According to Barker, one of the risk factors associated with terminating plaintiff

was plaintiff's age. Clark explained to Barker she was comfortable with issuing

a written warning if plaintiff declined the mutual separation package because

plaintiff had received a verbal warning during his 2019 interim revi ew, the

interim performance evaluation indicated plaintiff was not meeting expectations

in certain areas and had not been making any progress in those areas despite

having been given the same feedback over several evaluation periods, and his

managers had told her the "conversation with plaintiff at that time was very clear

and they have since discussed concerns with missing deadlines and not working

independently." Barker ultimately approved the request for a mutual separation

package.

On October 31, 2019, Jain, Dantuluri, and Clark met with plaintiff and

told him that he "could either leave the company then or start a performance

improvement program." They explained "there was an opportunity [for him] to

go through a formal performance review to demonstrate that [he] was making

progress and contributing to the level that they thought was appropriate for a

senior member of the team." The next day, plaintiff told Dantuluri he "wanted

to try and go through this performance improvement session" but also "want[ed]

to hear that there was a possibility of a positive outcome." Dantuluri "assured

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[him] that this was done in good faith and that this was an opportunity for [him]

to demonstrate improvement and continue [his] career at Bloomberg." Plaintiff

then advised Clark he would continue at Bloomberg.

On November 22, 2019, Dantuluri, Jain, and Clark met with plaintiff to

present the written warning to him. His managers made clear to him they were

not satisfied with his performance. The warning outlined "continuing areas of

serious concern with [plaintiff's] performance," identifying special concern with

plaintiff's purported inability to "complete the tasks assigned to [him] in a timely

manner," "demonstrate an understanding of the functionality [he] own[ed]," and

"follow coding processes discussed and agreed [on] by the team." The warning

advised plaintiff that "fail[ure] to follow the procedures outlined in this

memorandum . . . [or] to meet the expected levels of performance" might result

in his termination. Plaintiff signed the document, acknowledging that he had

received and discussed it.

After giving him the written warning, Jain met with plaintiff about every

two weeks, coinciding with the conclusion of a "sprint," meaning an assignment.

During those meetings, Jain conveyed his dissatisfaction with some aspects of

plaintiff's performance. Plaintiff testified that at those meetings Jain had

"agreed that performance had been improved, transparency and communication

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w[ere] better," but "there's room for further improvement. . . . if there were a

letter grade [he] was probably getting a B and [he] should be getting an A." For

example, during a December 6, 2019 meeting, Jain told plaintiff that out of three

tasks assigned to him, plaintiff had completed one successfully and in excess of

expectations but had not completed the other two timely. Plaintiff met

expectations in the next sprint; Jain gave him additional assignments and

continued to monitor him. In his 2019 year-end review, plaintiff received a "4.5"

rating, once again the lowest of his team. Plaintiff did not receive a bonus for

2019; in prior years, he had received a bonus of $28,500.

On January 17, 2020, Jain and Dantuluri met with Clark to discuss

plaintiff's progress. They told her he had been "meeting the tasks in the sprints

for the most part," but he had not used the correct approach in a more complex

assignment. Jain and Dantuluri agreed to meet with plaintiff again to "explain

that while on the surface, it might look like he's making some progress, they are

seeing him still struggle with one of the [three] deficiencies addressed in his

written warning, independent problem solving" and that "they can't sustain

having someone unable to navigate through ambiguity." They planned to "give

him a new sprint that w[ould] require him to do so on his own and if [he] isn't

able to, term[ination] w[ould] be the next step."

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At their meeting that day with plaintiff, Dantuluri advised plaintiff they

had seen "improvement in some areas but [they] also [had seen] a pattern where

some complex tasks require[d] additional help and/or t[ook] longer to finish."

Dantuluri told plaintiff he would "have a task of this nature" in the "upcoming

sprint" and that it was "critical that [he] complete this [assignment in a] timely

manner without much additional help."

In a January 31, 2020 email, Jain wrote to Dantuluri that plaintiff had

completed one task as expected, one task was partially completed and delayed

for reasons apparently unrelated to plaintiff, and plaintiff failed to complete a

third task timely even though plaintiff had worked "both weekends and long

hours on weekdays. My concerns are on his ability to complete the bigger [and]

complex task in [a] timely manner while maintaining the same quality." Jain

also wrote to Clark that day, stating that with plaintiff, "some complex tasks

require additional help and/or take[] longer to finish. As mentioned before, this

is not sustainable and as a result, we recommend terminat[ing] his employment."

In a February 6, 2020 email, Dantuluri told Clark, "I don't want to wait until the

following week as it would be around three weeks from the time he failed on the

task. Also, if he delivers his next task on time, it would make it more difficult."

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Clark created a request for termination for plaintiff and wrote that plaintiff

had been receiving repeated feedback since 2017 "that he needs to work more

independently and on more complex projects." She wrote that while working

on the performance goals for his warning,

he wasn't able to complete the more complex work on

time. . . . [Plaintiff's] managers feel termination is

appropriate in this case because [plaintiff], despite his

best efforts, is unable to contribute the way they need

him to. Because he needs so much support on complex

work, he's monopolizing time and resources from

others and slowing deliverables which is no longer

sustainable.

On February 11, 2020, Barker approved the termination request.

During a February 12, 2020 meeting Clark also attended, Dantuluri

presented plaintiff with a termination package and advised him that although he

had made some progress, "it was not sufficient progress fast enough."

Bloomberg offered plaintiff a $25,615 severance payment in exchange for

releasing claims he might have; plaintiff rejected the offer.

When he was terminated, plaintiff was fifty-eight-years old; the other

team members were thirty-three, thirty-seven, forty-five, fifty-five, and fifty-

seven years old. After terminating plaintiff, Bloomberg did not hire anyone new

to replace him, and his unfinished work was assigned to other team members.

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Plaintiff filed a complaint, alleging defendant had engaged in unlawful

age discrimination and unlawful employment practices in violation of the LAD.

After the close of discovery, defendant moved for summary judgment. After

hearing argument, the motion judge granted the motion in an order and written

statement of reasons. The judge found plaintiff had not satisfied the fourth

element of a prima facie age discrimination claim; defendant had articulated a

legitimate, nondiscriminatory reason for terminating plaintiff's employment;

and plaintiff had failed to demonstrate defendant's legitimate reason for

terminating his employment was a pretext for age discrimination.

On appeal, plaintiff argues the judge erred in granting defendant's motion

because defendant wrongfully had replaced plaintiff with younger employees

before his termination, plaintiff had demonstrated sufficient evidence of pretext,

and genuine issues of material fact existed. Unpersuaded by those arguments,

we affirm.

II.

We review a grant or denial of summary judgment de novo, applying the

same standard as the trial court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022).

That standard requires us to "determine whether 'the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

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any, show that there is no genuine issue as to any material fact challenged and

that the moving party is entitled to a judgment or order as a matter of law.'"

Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-

2(c)). "Summary judgment should be granted . . . 'against a party who fails to

make a showing sufficient to establish the existence of an element essential to

that party's case, and on which that party will bear the burden of proof at trial.'"

Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the trial court's legal

analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co.,

234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).

The LAD prohibits employment discrimination based on an employee's

age. N.J.S.A. 10:5-4 & -12. Specifically, N.J.S.A. 10:5-12(a) provides:

It shall be an unlawful employment practice, or, as the

case may be, an unlawful discrimination . . . [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 justified by lawful

considerations other than age, from employment such

individual or to discriminate against such individual in

compensation or in terms, conditions or privileges of

employment[.]

In assessing an age-discrimination claim based on circumstantial

evidence, New Jersey courts rely on the burden-shifting test articulated in

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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), and adopted

by our Supreme Court in Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-15 (2002).

See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). Thus, a plaintiff

claiming age discrimination must first present evidence establishing a prima

facie case of discrimination. Victor v. State, 203 N.J. 383, 408 (2010). "[T]o

successfully assert a prima facie claim of age discrimination under the LAD,

plaintiff must show that: (1) [he] was a member of a protected group; (2) [his]

job performance met the 'employer's legitimate expectations'; (3) [he] was

terminated; and (4) the employer replaced, or sought to replace, [him]." Nini v.

Mercer Cnty. Cmty. Coll., 406 N.J. Super. 547, 554 (App. Div. 2009) (quoting

Zive, 182 N.J. at 450).

Satisfaction of the fourth element "require[s] a showing that the plaintiff

was replaced with 'a candidate sufficiently younger to permit an inference of age

discrimination.'" Bergen Com. Bank v. Sisler, 157 N.J. 188, 213 (1999) (quoting

Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 429 (App. Div. 1995)); see

also Smith v. Millville Rescue Squad, 225 N.J. 373, 395 (2016) (finding that to

satisfy the fourth element, a plaintiff alleging a discriminatory discharge "must

show . . . the employer thereafter sought similarly qualified individuals for that

job") (quoting Victor, 203 N.J. at 409); Young v. Hobart West Grp., 385 N.J.

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Super. 448, 459 (App. Div. 2005) (same). However, it is not enough for the

replacement to merely be younger; "'[t]he focal question is . . . whether the

claimant's age, in any significant way, "made a difference" in the treatment he

was accorded by his employer.'" Ibid. (quoting Petrusky v. Maxfli Dunlop

Sports Corp., 342 N.J. Super. 77, 82 (App. Div. 2001)). To prove age

discrimination, a plaintiff must demonstrate age "played a role in the decision

making process and that it had a determinative influence on the outcome of that

process." Garnes v. Passaic Cnty., 437 N.J. Super. 520, 530 (App. Div. 2014)

(quoting Bergen Com. Bank, 157 N.J. at 207).

If the plaintiff demonstrates a prima facie case of age discrimination, the

burden shifts to the employer to articulate a legitimate non-discriminatory

reason for the adverse employment action. Bergen Com. Bank, 157 N.J. at 209-

10. If the employer shows a legitimate non-discriminatory reason for the

adverse action, the burden shifts back to the plaintiff to show the employer's

proffered reasons were pretextual. Id. at 210-11; see also Spinks v. Twp. of

Clinton, 402 N.J. Super. 465, 482 (App. Div. 2008) (same). "To prove pretext,

a plaintiff may not simply show that the employer's reason was false but must

also demonstrate that the employer was motivated by discriminatory intent."

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Zive, 182 N.J. at 449. The plaintiff must persuade the court "he was subjected

to intentional discrimination." Ibid.

We are satisfied plaintiff did not demonstrate that age played a significant

role in his termination and, thus, did not establish a prima facie case of age

discrimination. In Smith, 225 N.J. at 398, the plaintiff supported a

circumstantial case of discrimination by "testif[ying] at length about his

employment history, including promotions, regular pay increases, and the lack

of any criticism or poor performance evaluations." In contrast, plaintiff had not

had any promotions, had not received an increase in his base salary since 2016,

had consistently in his evaluations received criticism for, among other things,

having "timeframe[s] for his deliverables [which] were longer than expected for

someone with his experience and knowledge," and had been the lowest rated

person on his subteam in the three years before his termination. 1

1

Plaintiff's reliance on Saffos v. Avaya Inc., 419 N.J. Super. 244 (App. Div.

2011), is misplaced. That case was decided not on a summary-judgment motion

but after a jury trial, which included evidence that the plaintiff had been

terminated after twenty years and replaced by a woman fourteen years younger

than him who did not have comparable experience in plaintiff's field, several

other older employees had been terminated and replaced by significantly

younger people, and the supervisor at issue had engaged in "favored treatment

of his younger, mostly female, new hires." Id. at 252-57. In addition, the focus

of the decision was on the punitive-damage and counsel-fee awards, not on any

underlying liability issues. Id. at 259.

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Plaintiff was fifty-three-years old when he was hired and fifty-eight-years

old when he was terminated. "Courts have rejected age discrimination claims

when a plaintiff was both hired and fired while a member of the protected age

group." Young, 385 N.J. Super. at 461. Dantuluri, who had recommended

defendant hire plaintiff, was forty-eight-years old and Jain was forty-one-years

old when plaintiff was terminated. "Courts have found discriminatory intent

lacking where the decision-makers are over forty when the employment decision

was made." Ibid.; see also ibid. (that the same person promoted the plaintiff and

later recommended the elimination of her position "counters against an inference

of age discrimination").

Specifically as to the fourth element of a prima facie discrimination case,

plaintiff failed to establish that, having terminated plaintiff, defendant

"thereafter sought similarly qualified individuals for that job." Smith, 225 N.J.

at 395 (quoting Victor, 203 N.J. at 409). Plaintiff does not dispute that after his

termination, defendant did not hire anyone to replace him and his workload was

distributed to existing subteam members. Instead, plaintiff claims defendant's

hiring of Kumar and Saponara, who were retained as contractors in 2018, was

"an excuse to push him out." But arguments based on assumptions or

speculation are not enough to defeat a summary judgment motion. See Dickson

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v. Cmty. Bus Lines, Inc., 458 N.J. Super. 522, 529 (App. Div. 2019)

("'[C]onclusory and self-serving assertions by one of the parties are insufficient

to overcome' summary judgment motions." (quoting Puder v. Buechel, 183 N.J.

428, 440-41 (2005))); Hoffman v. AsSeenOnTV.com, Inc., 404 N.J. Super. 415,

426 (App. Div. 2009) ("Competent opposition [to a summary judgment motion]

requires 'competent evidential material' beyond mere 'speculation' . . . ." (quoting

Merchs. Express Money Ord. Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563

(App. Div. 2005))). And the distribution of plaintiff's work among existing

employees, some of whom were younger, does not by itself rise to the level of

showing his termination was due to his age and, thus, was unlawful. See Young,

385 N.J. Super. at 459-60 (finding the plaintiff's duties had been assumed by co-

workers, court concluded the plaintiff had not established that age played a

significant role in her termination).

Even if plaintiff had established his age was a factor in defendant's

decision to terminate him, he failed to demonstrate defendant's proffered

legitimate business reason for the termination was a pretext for discrimination.

The record does not support plaintiff's assertions that he had had "excellent

reviews" and "year after year of excellent performance." The evidence in the

record includes written evaluations by two different supervisors, including one

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who had recommended defendant hire plaintiff, and the testimony of those

supervisors. Their evaluations demonstrate, among other issues, a consistent

concern about plaintiff's ability to handle multiple projects and complete them

timely with an appropriate level of supervision.

Plaintiff contends his evaluations, including his 2018 year-end rating of

"4.0," compared to those of his colleagues was "arbitrary" and that younger

members of his subteam had received "the same critiques" but were not

terminated. Plaintiff's subjective view of the evaluations is not supported by the

record, and his conclusory assertion of arbitrariness is not sufficient to

demonstrate discriminatory intent or to defeat summary judgment. See Zive,

182 N.J. at 449 (holding that to prove pretext, a plaintiff must demonstrate the

employer's proffered reason was false and that "the employer was motivated by

discriminatory intent").

Because plaintiff failed to present evidence establishing a prima facie case

of age discrimination and that defendant's legitimate non-discriminatory reason

for terminating his employment was a pretext for unlawful age discrimination,

plaintiff failed to sustain his burden to support his claim under the LAD. See

Young, 385 N.J. Super. at 458-63 (affirming summary judgment because the

plaintiff did not establish a prima facie case of age discrimination and did not

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present sufficient evidence to discredit as pretext the defendant's legitimate

reasons for the plaintiff's termination). Accordingly, we affirm the order

granting defendant's summary-judgment motion.

Affirmed.

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