The opinion of the court was delivered by: Anne E. Thompson, District Judge.
This matter comes before the court on defendant's motion for
summary judgment. Plaintiff was employed by defendant from
March of 1978 until he was terminated in June of 1987.
Plaintiff alleges that he was demoted and subsequently
terminated in violation of the Age Discrimination in Employment
Act, 29 U.S.C. § 621-634 ("ADEA") and New Jersey's Law Against
Discrimination, N.J.S.A. §§ 10:5-1 to 10:5-38 ("NJLAD").
A court may enter summary judgment under Federal Rule of
Civil Procedure 56(c) when the moving party demonstrates (1)
that there is no genuine issue of material fact, and (2) that
the evidence establishes the moving party's entitlement to
judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The
non-moving party has the burden to establish that a genuine
issue exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).
Further, the non-moving party cannot rest upon allegations; it
must present actual evidence that creates a genuine issue of
material fact. Jersey Central Power & Light Co. v. Lacey
Township, 772 F.2d 1103, 1109 (3d Cir. 1985), cert. denied
475 U.S. 1013, 106 S.Ct. 1190, 89 L.Ed.2d 305 (1986). The court
must draw all reasonable inferences in the non-moving party's
favor, and must assume that its evidence is valid when
considering the merits of the summary judgment motion. See
Pollock v. American Telephone & Telegraph Long Lines,
794 F.2d 860, 864 (3d Cir. 1986).
Claimants under both the ADEA and the NJLAD must meet the
same burden of proof that is required to establish a claim
under Title VII. Giammario v. Trenton Board of Education,
203 N.J. Super. 356, 361, 497 A.2d 199 (App. Div. 1985). To state a
prima facie case of age discrimination, plaintiff must show (1)
that he belongs to a protected class, (2) that he was qualified
for and satisfactorily performing his position, (3) that he was
fired in spite of his abilities, and (4) that a younger person
was hired to take his place. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)
(claim under Title VII); Spangle v. Valley Forge Sewer Auth.,
839 F.2d 171, 173 (3d Cir. 1988) (claim under ADEA). If
plaintiff establishes a prima facie case, defendant may still
obtain summary judgment by "introduc[ing] evidence of a
nondiscriminatory animus and show[ing] that the plaintiff can
raise no genuine issue of fact as to whether the proffered
reason is a pretext for discrimination." Spangle at 173. If
plaintiff has shown a prima facie case, defendant is required
to present evidence of valid reasons for its actions which show
a "nondiscriminatory animus." Defendant need not prove that its
reasons were the exclusive basis for termination. McDonnell,
411 U.S. at 802-03, 93 S.Ct. at 1824-25.
Defendant bases its motion on two grounds. First, it argues
that plaintiff has not presented a prima facie case of age
discrimination; specifically, that there is no material issue
of fact that plaintiff's job performance was unsatisfactory.
Second, defendant claims that, even if plaintiff can establish
a prima facie case, defendant has stated permissible reasons
for demoting and then firing plaintiff, and plaintiff has
failed to establish that those reasons were pretextual.
Assuming arguendo that plaintiff has developed a prima facie
case of age discrimination, this court finds that there is no
issue of material fact that defendant has proffered evidence of
legitimate, nondiscriminatory reasons for its actions, and that
plaintiff has not presented any material issue of fact whether
these reasons were pretextual or whether defendant had other,
discriminatory reasons for firing plaintiff. By way of
analysis, the court will first review each of defendant's
stated reasons for terminating plaintiff, as well as
plaintiff's attempts to show an issue of material fact as to
these reasons. The court will then examine plaintiff's efforts
to raise material issues of fact as to whether defendant's
reasons are pretextual, or whether defendant had other,
improper reasons for its actions.
Plaintiff was hired when he was 53 years old as a sales
manager for Georgia Pacific Corporation. At the time, he had
had 30 years of experience in the chemicals industry. It is
defendant's contention that plaintiff never performed in a
manner commensurate with this experience level during the time
he was employed by defendant and that plaintiff was terminated
as of June 12, 1987 for poor performance.
Defendant has presented evidence of the following legitimate,
nondiscriminatory reasons for its actions:*fn1
Plaintiff presents no evidence to counter defendant's
allegation of customer complaints. He only asserts that "[n]o
customer . . . ever at any time complained to me about my work
or my conduct thereof." Retter affid. at ¶ 10; see also id. at
¶ 48 ("maintained good relations" with Allied); id. at ¶ 49
("kept at all times a good relationship" with General
Electric); id. at ¶ 50 ("maintained a good relationship at all
times with Reichhold Chemicals"). These comments do not
contradict the evidence of specific complaints from customers.
They are conclusory, having no probative value in a summary
judgment proceeding. Olympic Junior, Inc. v. David Crystal,
Inc., 463 F.2d 1141, 1146 (3d Cir. 1972). Thus, there is no
issue of material fact as to this reason for terminating
(2) Plaintiff did not work well with other employees or with
supervisors. Defendant claims that plaintiff caused frustration
among fellow sales representatives at one meeting because of
his poor communication and lack of meaningful participation.
Bryan dep. at 48-49. Plaintiff was criticized in his 1982
performance review for "bickering" with other employees. Def.
ex. 40; see also Melcher dep. at 55-56. A memorandum dated
March 23, 1984 indicated that plaintiff "continues to have some
difficulty communicating with various members of our sales
group." Def. ex. 61. Plaintiff had difficulty communicating
with his supervisors. One supervisor asserts that he could not
talk productively with plaintiff about plaintiff's job
performance. Bryan dep. at 28-29. Another supervisor,
Mackintosh, noted that he had difficulty eliciting meaningful
responses from plaintiff to suggestions for improvement.
Plaintiff admits only one conflict with a co-worker, and
asserts that "that was not a valid dispute." Retter affid. at
¶ 11. He "categorically den[ies]" that he had poor work
relationships, id. at ¶ 30, but he offers no factual support.
Plaintiff claims that "instances sited [sic] by defendant . . .
are isolated and one-time instances which do not alter the
basic good charcter [sic] of relationships I achieved." Id. at
¶ 38. Broad, unsupported denials are insufficient to establish
issues of fact in opposition to a summary judgment motion.
Plaintiff's assertion that "the general allegations [in the
March 23, 1984 memorandum] . . . remain unjustified," id. at ¶
42, is similarly conclusory. Plaintiff presents evidence which
casts doubt on defendant's characterization of the 1984 sales
meeting. However, this does not refute other proof of tension
with fellow employees and supervisors. He offers no evidence
regarding relationships with supervisors. In light of the
deposition testimony and internal documents, there is no
factual issue that plaintiff had problems with work
(3) Defendant claims that plaintiff did not gather accurate
information from his accounts regarding customer needs and
market prices. Defendant needed this information to be
competitive, and expected plaintiff to become more familiar
with market rates on products which he sold. Mr. Mackintosh
decided that plaintiff was incapable of eliciting this
information from clients. Mackintosh dep. at 60-61. Defendant
cites one example where plaintiff reported that a customer was