organization contained "just too many people." Gorham Dep.
1/17/90 at 41-42.
Under the AT & T Force Management Guidelines ("FMG"), a
management team establishes a new design for the department or
organization, then ranks or bands the effective employees based
upon individuals' skills, abilities and flexibility for the
newly-designed organization. They then ascertain the minimum
number of positions which will be eliminated, and then the
company solicits volunteers who wish to leave the company in
return for a termination payment. If the number of volunteers
equals or exceeds the minimum number of eliminated positions,
there are no involuntary terminations. If the volunteers are
fewer, involuntary separations are made, starting with the lowest
band, until the minimum number is reached. Yochum Aff.
When the force management program was implemented in Yochum's
directorate, there were a total of thirteen positions to be
eliminated. In plaintiff's district manager universe, two
positions were targeted for elimination. At the second-level
universe, eleven positions were surplus. Both the district
manager and second-level employee universes were banded. Yochum
Aff., para. 5. Plaintiff was placed at risk and so advised. She
was subject to separation from the company if other employees did
not volunteer to leave. Of the ten district managers who were not
subject involuntary termination, six were plaintiff's age or
older, five were male and five were female. The only other
district manager placed at risk was Maureen Tierney, a white
female, age 47. Exh. 19. During the voluntary phase of
downsizing, Maureen Tierney elected to leave the company rather
than be terminated involuntarily. Yochum Dep. at 56-57. Plaintiff
did not volunteer and thus was involuntarily terminated on
January 27, 1989.
Yochum had previously advised plaintiff of her at-risk status
by letter of November 15, 1988. Exh. 20. In that letter Yochum
informed plaintiff that two volunteers were needed to avoid
plaintiff's involuntary termination from employment. By follow-up
letter of December 19, Exh. 21, Yochum advised plaintiff that she
would be separated from the company involuntarily under the FMG
unless she was able to secure another position within the
company. By letter of December 22, Yochum repeated that the
plaintiff's employment would be terminated if she failed to
locate another AT & T position before January 27, 1989. Exh. 22.
In that same letter Yochum warned plaintiff that taking vacation
would seriously impair her chances to find another job with AT &
T. Plaintiff admitted that she was given the opportunity to look
for another job within the company. Gorham Dep. 4/20/90 at 92.
Plaintiff admitted she did not try to locate another position
within AT & T, Id. at 90-93, and, as notified, was separated
from the company with a termination payment of $64,000. Gorham
Dep. 1/16/90 at 10-11. From July 5, 1988, until at least the date
of her last deposition, April 20, 1990, plaintiff had not made a
single attempt to locate other employment. Gorham Dep. 4/20/90 at
On September 2, 1988, plaintiff filed a charge of
discrimination with the Equal Employment Opportunity Commission
and the New Jersey Division on Civil Rights, claiming age, race
and sex discrimination and retaliation. On May 26, 1989, after
investigation, the EEOC issued its determination, finding no
basis to support the charge.
Summary judgment is appropriate when there is no genuine issue
of material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56; Brown v. Hilton, 492 F. Supp. 771,
774 (D.N.J. 1980). The burden of showing that no genuine
issue of material fact exists rests initially on the moving
party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d
Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50
L.Ed.2d 748 (1977). This "burden . . . may be discharged by
`showing' . . . that there is an absence of evidence to support
the nonmoving party's case." Celotex Corp. v. Catrett,
477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once a
properly supported motion
for summary judgment is made, the burden shifts to the nonmoving
party to "set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505,
2509-10, 91 L.Ed.2d 202 (1986).
There is no issue for trial unless the nonmoving party can
demonstrate that there is sufficient evidence favoring the
nonmoving party so that a reasonable jury could return a verdict
in that party's favor. Anderson, 477 U.S. at 249, 106 S.Ct. at
2510. In deciding a motion for summary judgment, the court must
construe the facts and inferences in a light most favorable to
the nonmoving party. Pollock v. American Tel. & Tel. Long
Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court,
however, is not "to weigh the evidence and determine the truth of
the matter, but to determine whether there is a genuine issue for
trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.
AT & T is entitled to summary judgment dismissing the claim
brought pursuant to 42 U.S.C. § 1981 because, as a matter of law,
§ 1981 applies only to the making and enforcement of contracts.
The court need not discuss this in detail, because plaintiff
concedes that this is correct under the United States Supreme
Court decision of Paterson v. McLean Credit Union,
491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Plaintiff's
remaining claims are premised upon age discrimination under the
ADEA and age, race and sex discrimination under the NJLAD.
ADEA and NJLAD claims feature a shifting burden of proof. In
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), the United States Supreme Court set forth
the standards for Title VII cases. The Third Circuit has extended
this approach to claims brought under the ADEA. See Lockhart v.
Westinghouse Credit Corp., 879 F.2d 43 (3d Cir. 1989);
Massarsky v. General Motors Corp., 706 F.2d 111, 117 (3d Cir.
1983), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d
314 (1983). Likewise, the New Jersey courts have adopted the
McDonnell Douglas rationale to establish a prima facie case
under the NJLAD. See Anderson v. Exxon Co., U.S.A., 89 N.J. 483,
492, 446 A.2d 486 (1982). Accordingly, the court will use
these criteria to analyze plaintiff's claims of age, race and sex
Under the McDonnell Douglas formula, a plaintiff must prove a
prima facie case of discrimination by a preponderance of the
evidence. Once plaintiff establishes her prima facie case, the
burden shifts to the defendant to articulate some legitimate,
nondiscriminatory reason for its actions. If the defendant
succeeds in this burden, the plaintiff must then prove by a
preponderance of the evidence that the legitimate reason(s)
offered by the defendant were not its true reasons, but a pretext
for discrimination. McDonnell Douglas, 411 U.S. at 802, 93
S.Ct. at 1824.
In proving her prima facie case of discrimination, the
plaintiff must show:
(1) that she belongs to a racial minority;
(2) that she was qualified for the position she held;
(3) that, despite her qualifications, she was
(4) that the employer replaced plaintiff with a
nonminority or [as asserted by plaintiff in the
instant case] retained a nonminority,
similarly-situated employee while plaintiff was
Although plaintiff contends that, to establish a prima facie
case of race discrimination, she need only show that
similarly-situated nonminority employees were treated more
favorably than she, this court must reject this. The key element
missing from plaintiff's analysis is that she must show that she
was otherwise qualified for that position and that she was laid
off or fired from that job, for which she was qualified, while
others not in that protected class were treated more favorably.
See Massarsky, 706 F.2d at 118.