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January 3, 1994

LIGHTOLIER, INC., et al., Defendants.


The opinion of the court was delivered by: JOEL A. PISANO




 By consent of the parties, pursuant to 28 U.S.C. § 636(c) and Local Rule 40, a civil jury trial was conducted before the undersigned in the above captioned matter, commencing on October 4, 1993 and ending or October 19, 1993. At the conclusion of the presentation of the evidence and argument, the jury returned a verdict for plaintiff in the amount of $ 489,000. On November 3, 1993, judgment was entered in the amount of $ 606,806.91, representing the jury's verdict in addition to $ 117,806.91 in prejudgment interest.


 This action, filed June 29, 1988, arises under the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq., ("ADEA") and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1, et seq. ("NJLAD"). This court has jurisdiction over plaintiff's ADEA claim pursuant to 28 U.S.C. § 1331 and exercises supplemental jurisdiction over plaintiff's pendent NJLAD claim pursuant to 28 U.S.C. § 1367(a).

 Plaintiff, Bernard Abrams, was employed with Lightolier, Inc., from January 1970 until July 3, 1986. *fn1" Defendant Lightolier hired plaintiff as a Manager of Physical Distribution. From 1982 through July 3, 1986, plaintiff held the position of Vice President of Coastal Fast Freight, an in-house trucking company that was a subsidiary of Lightolier. *fn2" In 1981, plaintiff organized Team Purchasing, a system of combining the purchasing power of a number of companies in order to obtain significant price reductions. Plaintiff headed this system until late 1985. During the years of 1983 and 1984, Lightolier gave plaintiff primary responsibility for negotiating real estate transactions. Plaintiff asserted that between 1982 and 1986, he regularly received ample salary increases and bonuses.

 In July 1985, plaintiff had coronary by-pass surgery. He returned to work part-time in September of 1985, and full-time in November. Plaintiff claimed that when he returned to work in the fall, defendant began to restrict his job responsibilities. Among other things, plaintiff claimed that:

1. he was removed as the head of Team Purchasing;
2. he was not considered for a promotion to the position of Vice President of Administration at Genlyte;
3. his secretary was assigned to another officer, one of his subordinates was fired, and plaintiff was not permitted to replace either; and
4. he was given no further real estate responsibilities.

 Plaintiff was fired on July 3, 1986. Plaintiff alleged that his termination was the result of a campaign to eliminate older workers. In support of his claims, plaintiff cited similar terminations, effective and direct, of other older Lightolier employees. Plaintiff also offered testimony that Richard Kurtz, the vice-president of operations whom plaintiff claimed spearheaded the campaign to rid Lightolier of older workers, referred to older workers as "dinosaurs" and spoke of the need to replace older workers with more aggressive ones.

 Defendant professed that the true reasons for plaintiff's termination arose from his involvement with EZ Freight Co./Midland Transportation Co., Inc. In December of 1979, plaintiff executed a contract as Lightolier's authorized agent (the "1980 contract") with EZ Freight Company, a freight carrier company.

 In June 1980, plaintiff orally modified the 1980 contract, changing the applicable freight rates. This rate change purportedly saved Lightolier approximately $ 249,000. EZ billed at the modified rate for the duration of the contract, a period of approximately six months, and Lightolier performed by paying the invoices based upon the new rates. In 1981 EZ Freight filed for bankruptcy and Midland Transportation Co., Inc. ("Midland") became EZ's successor in interest. In November 1981, Midland sent a letter to Lightolier essentially claiming that the oral modification was invalid and that Lightolier owed Midland $ 249,000. The letter also demanded payment for detention charges. *fn3" The 1980 and 1981 contracts had not included an agreement whereby Lightolier was to pay Midland detention cnarges. However, the tariffs issued by Midland and approved by the Interstate Commerce Commission ("ICC") provided for detention payments.

 After Lightolier refused to pay either the $ 249,000 or the detention charges, Midland commenced suit on May 18, 1982 in the Superior Court of New Jersey, Hudson County. Defendant claims it discovered during the course of the litigation that plaintiff failed to memorialize in writing the afore-mentioned oral modification and failed to review the tariffs approved by the ICC. Moreover, allegations surfaced that plaintiff had accepted bribes from Steve Moallem, an employee of EZ and Midland. *fn4" Fred Heller, president of Lightolier at the time in question, claims that he declined to terminate plaintiff prior to trial in the Midland action because plaintiff was a crucial Lightolier witness whom Mr. Heller feared would become hostile and uncooperative if fired. In June 1986, Lightolier settled the Midland action for $ 300,000. Lightolier's attorneys' fees and litigation costs totalled approximately another $ 700,000, thus rendering the entire Midland affair an expense of nearly one million dollars.

 Defendant claimed that plaintiff's July 1986 termination was due to his lack of judgment regarding the oral modification, his failure to review the tariffs containing the detention charges, *fn5" his acceptance of bribes, *fn6" and the cost and embarrassment caused by the Midland trial. Following plaintiff's termination, his duties were assumed by Donald Kutlick, a forty year old employee who had been a traffic manager at Lightolier since April 1985.


 I. Rule 50 - Judgment as a Matter of Law

 Rule 50(a)(1) provides:

If during a trial by jury a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue, the court may grant a motion, for judgment as a matter of law against that party on any claim, counterclaim, cross-claim, or third party claim that cannot under the controlling law be maintained without a favorable finding on that issue.

 Rule 50(b) provides for post-trial renewal of motions made under 50(a). The standard for deciding the motion is the same whether it is made at trial or afterwards. Neville Chem. Co. v. Union Carbide, 422 F.2d 1205, 1210, n. 5 (3d Cir. 1970), cert. denied, 400 U.S. 826, 27 L. Ed. 2d 55, 91 S. Ct. 51 (1971).

 When deciding a motion for judgment as a matter of law, "the trial judge must determine whether the evidence and justifiable inferences most favorable to the prevailing party afford any rational basis for the verdict." Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258, 258-59 (3d Cir. 1987), cert. denied, 488 U.S. 1004, 109 S. Ct. 782, 102 L. Ed. 2d 774 (1989). See also Rotondo v. Keene Corp., 956 F.2d 436 (3d Cir. 1992). The motion should be denied if "the record contains the minimum quantum of evidence from which a jury might reasonably afford relief." Keith v. Truck Stops Corp., 909 F.2d 743, 745 (3d Cir. 1990). See also Dawson v. Chrysler Corp., 630 F.2d 950, 959 (3d Cir. 1980), cert. denied, 450 U.S. 959, 101 S. Ct. 1418, 67 L. Ed. 2d 383 (1981) (denial of motion affirmed "unless record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief"). In Brady v. Southern Railroad, 320 U.S. 476, 479-480, 64 S. Ct. 232, 234, 88 L. Ed. 239 (1943), the United States Supreme Court set forth the standard for a Rule 50 motion:

When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceedings by non-suit, directed verdict or otherwise in accordance with the applicable practice without submission to the jury, or by judgment notwithstanding the verdict. By such direction of the trial, the result is saved from the mischance of speculation over legally unfounded claims.

 Id. at 479-80.

 A. Whether this Court Charged the Correct Causation Standard under the New Jersey Law Against Discrimination.

 The court instructed the jury to apply two separate and distinct standards of causation for plaintiff's claims under the ADEA and the NJLAD. The jury found in favor of plaintiff on his claim under the NJLAD and in favor of defendant on plaintiff's ADEA claim. Defendant argues that the court erred in charging different standards of causation and that the standard charged under the ADEA should also have been applied to the NJLAD.

 Having found that the instant case is a pretext case, *fn7" the court instructed the jury that to render a verdict for plaintiff under the ADEA, it must find age to be "the sole motivating factor for the defendants' decision to terminate [plaintiff's employment]." The court charged this standard pursuant to Griffiths v. CIGNA Corp., 988 F.2d 457, 472 (3d Cir. 1993), cert. denied, 126 L. Ed. 2d 145, 114 S. Ct. 186 (1993) ("Griffiths"). In Griffiths the Third Circuit held that to prevail in a pretext case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to § 2000e-17 ("Title VII"), *fn8" a terminated plaintiff must prove that discrimination was the sole motive for the termination. Id. at 472. Prior to Griffiths, liability would attach in a Third Circuit pretext case if it was found that discrimination played a determinative or a substantial role in the plaintiff's dismissal, although there might also have been concurrent legitimate motivations. See Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992) (plaintiff-employee has burden of persuading fact finder that age was a determinative, though not necessarily the sole, factor).

 Defendant essentially argues that the "sole motivating factor" test Griffiths applied to Title VII pretext cases subsumes state law and applies to pretext cases arising under the NJLAD. However, pursuant to the doctrine articulated in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938) (state law governs substantive issues arising from state claims in federal actions), this court instructed the jury that to find for plaintiff under the NJLAD, it must find that age was "a determinative factor" in plaintiff's termination. This court based its instruction on the causation test set forth in Slohoda v. United Parcel Service, Inc., 207 N.J. Super. 145, 504 A.2d 53, 59 (N.J. Super. Ct. App. Div. 1986) (discriminatory purpose must be a "determinative factor").

 In Griffiths, the Third Circuit applied the "sole motivating factor" test to the plaintiff's claims under the Pennsylvania Human Relations Act ("PHRA") as well as to his Title VII claim. The court acknowledged the absence of a Pennsylvania state court decision establishing whether a "motivating" or "significant" factor level of causation would suffice under the PHRA. Griffiths, 988 F.2d at 471, n. 14. Apparently, the failure of the Pennsylvania courts to articulate a causation standard under the PHRA was crucial to the Third Circuit's conclusion that Pennsylvania state courts would follow federal decisions on causation. Id.

 In contrast, the New Jersey Appellate Division has set forth the causation standard a plaintiff must meet in a pretext case under the NJLAD. The Appellate Division specifically explained in Slohoda, a pretext case, that ". . . for purposes of the [NJLAD] plaintiff need not prove that the termination was motivated solely by a discriminatory purpose. It is sufficient if, taken with other possibly meritorious reasons, the discriminatory purpose was a 'determinative factor.'" Slohoda, 504 A.2d at 59 (emphasis supplied).

 This court is not persuaded that the New Jersey State Supreme Court would disavow the standard enunciated in Slohoda to find that the NJLAD warrants application of the "sole motivating factor" test in pretext cases. This court observes that on several occasions the New Jersey State Supreme Court has explicitly declined to follow Title VII precedent when interpreting the NJLAD, see Lehmann v. Toys ' R' Us, Inc., 132 N.J. 587, 626 A.2d 445, 452 (N.J. 1993), and has particularly eschewed "slavish devotion" to the McDonnell Douglas test, see Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 570 A.2d 903, 912 (N.J. 1990); cf. Erickson v. Marsh & McLennan 117 N.J. 539, 569 A.2d 793 (1990); Andersen v. Exxon Co., 89 N.J. 483, 446 A.2d 486 (1982).

 Grigoletti is an especially good example of the New Jersey Supreme Court's refusal to hold that the NJLAD tracks Title VII precedent in every instance. Grigoletti concerned an NJLAD gender-discrimination claim based on the payment of unequal wages for substantially equal work. The defendant claimed that the Appellate Division had erred in utilizing an Equal Pay Act analysis rather than the McDonnell Douglas standard. Grigoletti, 570 A.2d at 911. Stating that it "has not hesitated to depart from the McDonnell Douglas methodology if a rigid application of its standards is inappropriate under the circumstances," the New Jersey State Court held that application of the Equal Pay Act analysis was proper under the circumstances presented by the case, Id. at 912.

 Moreover, this court notes that the New Jersey Supreme Court looks to federal law generally for useful analogy in interpreting the NJLAD, and does not give particular deference to Third Circuit Law. For example, in Toys 'R' Us, the Court explicitly rejected the test the Third Circuit set forth in Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990) to prove existence of a hostile work environment under Title VII. Toys ' R' Us, 626 A.2d at 453, 455. The Court also considered a split among the federal circuits on the level of harm a plaintiff must show to state a valid hostile work environment claim. NJLAD. Id. at 455-56. Rather than showing deference to the law of any particular circuit, the Court made its determination based on the line of cases it deemed more consistent with the NJLAD. Id. at 456.

 In light of this eclectic approach to interpreting the NJLAD, it is important to note that other circuits apply causation standards closer to Slohoda than to Griffiths. See, e.g., Levin v. Analysis & Technology, Inc., 960 F.2d 314, 317 (2d Cir. 1992) (in pretext case under ADEA, plaintiff need show only that age was a "determinative factor"); Castleman v. Acme Bom. Co., 959 F.2d 1417, 1420 (7th Cir. 1992) (plaintiff need show only that age was a "but for" factor); Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir. 1979); Cankright v. Westinghouse Elec. Corp., 933 F.2d 231, 233 (4th Cir. 1991) ("but for" standard).

 This court believes that, if presented with the question, he New Jersey Supreme Court would decline to follow Griffiths and would affirm the "determinative factor" standard set forth in Slohoda and the afore-mentioned federal circuits. The New Jersey appellate courts have been pace-setters in the area of employee rights. See, e.g., Toys ' R' Us, supra; Gimello v. Agency Rent-A-Car Systems, Inc., 594 A.2d 264 (N.J. Super Ct. App. Div. 1991) (holding that obese persons may be considered handicapped under the NJLAD). In keeping with the liberal construction afforded the NJLAD, see Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 590, 538 A.2d 794 (1988), the New Jersey Supreme Court could easily reject the analysis set forth in Griffiths, just as it rejected the Third Circuit's analysis in Andrews, supra.

 Therefore, this court declines to grant defendant's Rule 50(a) motion on the basis that Griffiths ' "sole motivating factor" test should have been applied to the NJLAD charge. The charge conformed to the test the Appellate Division explicitly mandated in Slohoda. Because it was necessary for this court to instruct the jury as to the different federal and state causation standards, this court finds that defendant was not unduly prejudiced by the giving of separate causation charges.

 B. Whether the Evidence Presented at Trial Entitles Defendant to Judgment as a Matter of Law.

 As a preliminary matter, the court must address plaintiff's contention that defendant's motion for judgment as a matter of law exceeds the scope of Rule 50(b). Plaintiff claims that the only ground raised by defendant's counsel under Rule 50(a) at the close of trial was that plaintiff could not meet the standard set forth in Griffiths. Citing Kientzy v. McDonnell Douglas, 990 F.2d 1051, 1061 (8th Cir. 1993) (a motion made under Rule 50(b) cannot be based on new grounds), plaintiff argues that because no other ground was specified, and because the jury did not find that plaintiff had met the Griffiths standard, defendant has no basis for renewing its trial motion. The court rejects plaintiff's argument and finds that defendant has not waived the full scope of its Rule ...

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