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August 12, 1982

FRED S. NOLAN, et als., Plaintiffs,

The opinion of the court was delivered by: BIUNNO

 This is a case removed here from Superior Court of New Jersey, in which the court initiated inquiry by order to show cause on the question whether the case was removed improvidently and without jurisdiction so as to require its remand under 28 USC § 1447(c).

 The case is not removable under diversity jurisdiction because defendant has dual citizenship in New Jersey (where it was incorporated) and Connecticut (where its principal place of business is located), see 28 USC § 1332(c), and 28 USC § 1441(b), last sentence. Only defendants who are not citizens of the forum may remove a case on diversity grounds. Beyond that, all but one of the plaintiffs appear to be citizens of New Jersey.

 Thus, removal is grounded (if it can be sustained at all) on grounds that the case "arises under" the Constitution, laws or treaties of the United States, 28 USC § 1331(a), or under an Act of Congress regulating commerce, 28 USC § 1337.

 The complaint, which is by 25 named plaintiffs, alleges that all the plaintiffs were employees of defendant Otis, were employed in management positions, and were not represented by any labor union. It says that during 1980, all plaintiffs were terminated as part of a reduction in force effected for financial reasons at the Harrison plant, with a final work date of May 16, 1980. [NOTE: the Answer alleges that only 20 plaintiffs were so terminated; it says that four were transferred to another facility at Yonkers, N.Y. and were later terminated, or retired, while a fifth went on sick-leave and then retired on disability pension. Assuming these allegations to be true, the case asserted by the other 20 remains unaffected].

 The complaint alleges that each plaintiff had 25 or more years of service with Otis at termination, and that each was under 55 years of age, and received a severance benefit of 1 week's pay for each year of service.

 It says that "other employees" who had 25 years' or more service when terminated but who were 55 years of age or older, received "benefits greatly exceeding those paid to plaintiffs." It does not say whether the "other employees" were also management employees not represented by a labor union, nor does it say whether the other employees received a severance benefit plus some other kind of benefit, or no severance benefit but some other kind of benefit instead.

 What it does say, for each plaintiff, is that had the individual been 55 years or more old, and was treated as were those of that age, each would have received benefits worth $ X more than was paid (each amount being in excess of $10,000).

 It then alleges that Otis' action in paying greater benefits to those 55 years of age or more, with 25 years or more of service, than was paid to those under 55 with like service, was an unlawful discrimination as to a term, condition or privilege of employment because of age, in violation of NJSA 10:5-12(a), and claim is made for the differential.

 Whether or not the claims are valid ones under State law is not the question here. New Jersey statutes dealing with various kinds of discrimination under various circumstances are quite old, going back to the 1800's. The modern Law Against Discrimination originated as NJPL 1945, c.169, and was designed to fulfill guarantees of civil rights provided in the Constitution of 1844, which were continued in the Constitution of 1947, as well as in exercise of the police power and to promote the general welfare, see N.J.S.A. 10:5-2.

 N.J.Const. 1844, Art. I, par. 1, declared the natural and inalienable right of pursuing and obtaining safety and happiness. Art. I, sec. 4, declared that no person was to be denied the enjoyment of any civil right, merely on account of his religious principles. N.J. Const. 1947, by Art. I, par. 1, continued the happiness clause, and enlarged the civil rights clause in Art. I, par. 5 to forbid discrimination because of religious principles, race, color, ancestry or national origin.

 The New Jersey Law Against Discrimination did not list age, marital status or sex as forbidden criteria in various contexts. These were added later by amendment.

 At the time "age" was added as a forbidden criterion in employment contexts but not for other circumstances, the act was also amended to include what is now N.J.S.A. 10:5-2.1, which provided in part that nothing in the Law Against Discrimination is to be construed "to interfere with the operation of the terms or conditions and administration of any bona fide retirement, pension, employee benefit or insurance plan or program." See N.J.P.L. 1962, c. 37.

 These features, of course, do not tend to disclose that the case "arises" under any federal source of law. They deal only with state law, ...

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