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January 28, 1991


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).

Plaintiff's only evidence in opposition to summary judgment consists of his own affidavit. Defendant challenges the admissibility of this affidavit on the grounds that it contains conclusory statements, argumentation, hearsay evidence, and inadmissible assertions in violation of Federal Rule of Civil Procedure 56(e) and Local District Court Rule 27. However, if summary judgment is warranted regardless of whether the affidavit as a whole is invalid, we need not consider admissibility as a separate issue. Accordingly, the court will first consider the merits of defendant's motion.

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

(1) Defendant received complaints about plaintiff's job performance from three of his former accounts. After the Allied Chemical account was transferred to another salesman, an Allied official said that certain concerns it previously had regarding defendant stemmed from the "previous administration." Mackintosh dep. at 143. Another Allied employee noted that its relationship with defendant had improved since plaintiff left the account. Bryan dep. at 63-64. A General Electric official thanked an employee of defendant for removing plaintiff from that account. Mackintosh dep. at 141-42, 170-71. Further, while plaintiff was working with Reichhold Chemicals, defendant was told that it would have better success with Reichhold if defendant removed plaintiff from the account, because plaintiff antagonized buyers for Reichhold. Id. at 140-41. These complaints were serious in nature, as plaintiff himself acknowledges.

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 plaintiff.

(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 relationships.

(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 buying ...

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