Instead, plaintiff focuses on the fact that he performed well for thirty five years and was a dedicated and loyal employee. Schering does not challenge that. The fatal flaw in plaintiff's presentation is that he never controverts, and in fact does not address, the specific reasons given for his demotion or the ultimate elimination of the position.
The deposition submitted in the present case sets forth in precise detail the reasons for plaintiff's demotion. LaHood, plaintiff's supervisor testified that he was dissatisfied with Turner's performance as Manager of Distribution. LaHood testified that problems existed at the distribution centers under Turner's control. He also testified that there were concerns about Turner's lack of awareness regarding his responsibilities, and about Turner's apparent inability to supervise and direct others. LaHood states that he discussed these concerns with Turner and that the decision to demote Turner was made after Turner did not improve. Rather than dispute each basis for LaHood's assessment, plaintiff merely states that LaHood was thirty five years old and had only observed plaintiff for a short time.
Plaintiff does not offer any evidence that LaHood's assessment was inaccurate or subject to dispute which is what plaintiff is required to do to defeat a motion for summary judgment.
Concerning plaintiff's ultimate discharge, defendant has offered testimony that plaintiff's termination was motivated by a reorganization of management which resulted in plaintiff's position being eliminated.
Other than respond that defendant corporation was not in an economic crisis so as to warrant a reorganization, plaintiff offers no rebuttal. Plaintiff's response, however, does not refute defendant's reason because Schering never claimed to be undergoing financial difficulty. Therefore, plaintiff does not call into dispute defendants proffered explanation for his discharge. As the Court stated in Healy, plaintiff must do more than just show that he was qualified for the position; "he must also introduce evidence that casts doubt on his employer's contention that there was a legitimate business justification for letting him go." 860 F.2d at 1220.
Lastly, plaintiff attempts to show that other positions were available within defendant corporation which plaintiff was qualified to fill. Plaintiff contends that defendants refusal to consider him for these positions constitutes age discrimination. Once again, plaintiff does not directly refute affidavits of LaHood and Rich Happel that they both tried to locate positions for plaintiff. Further, plaintiff's statements that many jobs were available within the company does not necessarily mean that plaintiff was qualified to fill those jobs. Plaintiff merely draws conclusions which are not supported by any facts in the record. Since plaintiff has been unable to demonstrate specific evidence that could support an inference that the employer did not act for non-discriminatory reasons, summary judgment is appropriate. As the Court in Healy, so aptly noted, "our inquiry must concern pretext, and is not an independent assessment of how we might evaluate and treat a loyal employee." Healy, 860 F.2d at 1216 (citations omitted).
New Jersey courts have analyzed state law claims by using the guidelines set out in the federal cases dealing with discrimination. See Goodman v. London Metals Exchange, 86 N.J. 19, 429 A.2d 341 (1981). For the reasons set forth above, summary judgment is granted on these counts as well.
Plaintiff has cross-moved for reconsideration of my decision to grant summary judgment in favor of defendant on plaintiff's claim for liquidated damages on his ADEA claim on plaintiff's ERISA claim.
Plaintiff alleges a willful violation of ADEA thus entitling him to liquidated damages under 29 U.S.C. § 626(b). Under Dreyer v. Arco Chemical Co., 801 F.2d 651 (1986), the Third Circuit made it clear that a showing of "outrageousness" is needed to support a claim of willfulness. "Nonetheless, in order that the liquidated damages be based on evidence that does not merely duplicate that needed for compensatory damages, there must be some additional evidence of outrageous conduct." Id. at 658. In the instant case, the record is clearly devoid of such evidence and I will reaffirm my initial grant of summary judgment.
Plaintiff's claim under ERISA also must fail. In order to recover under ERISA, a plaintiff must demonstrate that the defendant had a "specific intent" to violate ERISA. Gavalik v. Continental Can Co., 812 F.2d 834, 851-52 (3d Cir.), cert. denied, 484 U.S. 979, 108 S. Ct. 495, 98 L. Ed. 2d 492 (1987). From the evidence submitted, plaintiff has failed to demonstrate that Schering had any "specific intent" to violate ERISA. Plaintiff's deposition testimony reveals that his claim rests on the fact that he was terminated and received a smaller pension benefit as a result of the termination. Proof of loss of benefits, alone, will not constitute a violation of ERISA. Id.
For the reasons outlined in this Opinion,
IT IS on this 10th day of February, 1989, hereby
ORDERED that defendant's motion for reconsideration of the denial of summary judgment on the ADEA Counts and on the state law claims of age discrimination be, and it hereby is GRANTED; and it is further
ORDERED that plaintiff's motion for reconsideration be, and it hereby is DENIED; and it is further
ORDERED that plaintiff's Complaint be, and it hereby is dismissed.
Within one and a half months as Plaintiff's supervisor, with little opportunity to observe Plaintiff's performance over a sufficient period of time, and in direct contradiction to all prior evaluations of Plaintiff, Defendant's employee, LaHood, gave Plaintiff his first unsatisfactory evaluation in over 35 years with Defendant corporation. The short period of time in which this evaluation was made, demonstrates Defendant's intent through its employee LaHood, to discriminate against Plaintiff because of his age by humiliating him, subjecting him to unfair reviews with the hope that Plaintiff would resign. Defendant knew that Plaintiff was a hard working, proud, dedicated and strong minded individual. Defendant Corporation hoped that humiliation based upon discrimination would force his resignation.