2d 265, 106 S. Ct. 2548 (1986).
At the summary judgment stage, it is not the role of the judge to weigh the evidence or to evaluate its credibility, but to determine "whether there is a genuine issue for trial." Id. at 249. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party such that a reasonable jury could return a verdict for that party. Id. A non-moving party may not rest upon mere allegations, general denials, or vague statements. If the non-moving party's evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Bixler v. Central Penn. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir. 1993); Trap Rock Indus. Inc. v. Local 825, Int'l Union of Operating Engineers, 982 F.2d 884, 980-91 (3d Cir. 1992).
The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Finally, summary judgment should be granted unless a dispute over a material fact is genuine, which the Court has defined as such that "a reasonable jury could return a verdict for the nonmoving party." Id.
B. Plaintiff's Claims for Age Discrimination
Age discrimination claims under the LAD and the ADEA are - governed by the same standards and burden of proof structures applicable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See generally Erickson v. Marsh & McLennan Co., 117 N.J. 539, 550, 569 A.2d 793 (1990); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 595, 538 A.2d 794 (1988). Given this identity of standards, the Court will consider plaintiff's LAD and ADEA claims together.
The ADEA makes it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To recover under the ADEA, a plaintiff must prove "by a preponderance of the evidence that age was the determinative factor in the employer's [adverse employment] decision." Bartek v. Urban Redevelopment Authority, 882 F.2d 739, 742 (3d Cir. 1989). The three-stage shifting allocation of the burden of proof, originally developed in the context of Title VII employment discrimination cases, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), has been adapted for use in claims filed under the ADEA. See, e.g., Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir. 1985), cert. denied 474 U.S. 1057, 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986).
An employee asserting a disparate treatment claim carries the burden of proving, by a preponderance of evidence, that the employer intentionally discriminated against him on the basis of a particular protected characteristic, in this case age. See St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2753 (1993); Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 522 (3d Cir.1992), cert. denied, 126 L. Ed. 2d 56, 114 S. Ct. 88 (1993). Because this is a "pretext" case, and not a "mixed motive" case, the plaintiff must prove by direct or indirect evidence that Waber's "discriminatory motive was the sole cause of the employment action." Griffiths v. CIGNA Corp., 988 F.2d 457, 472 (3d Cir.), cert. denied, 126 L. Ed. 2d 145, 114 S. Ct. 186 (1993).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1983), the Supreme Court set forth a detailed method for establishing an inference of discrimination in the absence of direct evidence. Id. at 802-05, 93 S. Ct. at 1824-26. McDonnell Douglas implemented a three-step analysis, which is applicable in the summary judgment context and which allocates the burden of production as follows: (1) plaintiff must come forth with sufficient evidence to establish a prima facie case of discrimination; (2) if plaintiff succeeds in establishing a prima facie case, the burden then shifts to the defendant, who must articulate some legitimate, non-discriminatory reason for the employee's rejection; (3) if defendant is able to meet this burden, plaintiff must be given the opportunity to come forth with sufficient evidence to show that the legitimate reasons offered by the defendant should not be believed and that the protected characteristic was "the real reason" for the adverse employment action. St. Mary's, 113 S. Ct. at 2752; see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); Griffiths, 988 F.2d at 472.
The Supreme Court's decision in St. Mary's clarified step three in the McDonnell Douglas framework. Previously, the plaintiff could meet the burden of proof merely by establishing that the non-discriminatory reason proffered by the defendant was not credible. See Ezold, 983 F.2d at 522; Bennun v. Rutgers State University, 941 F.2d 154, 170 (3d Cir.1991), cert. denied, 117 L. Ed. 2d 124, 112 S. Ct. 956 (1992).
Under St. Mary's, the plaintiff does not necessarily meet the burden by merely producing evidence that defendant's articulated reason is pretextual, but instead must prove by a preponderance of evidence that unlawful discrimination was the determinative factor underlying the adverse employment action. 113 S. Ct. at 2752 ("It is not enough to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination."); see also Griffiths, 988 F.2d at 472; E.E.O.C. v. MCI Int'l, Inc., 829 F. Supp. 1438, 1451 (D.N.J. 1993) (applying St. Mary's in summary judgment context).
1. The Prima Facie Case
To establish a prima facie case of age discrimination, the plaintiff must prove by a preponderance of evidence that he was (1) a member of a protected class (here, persons aged forty to seventy), (2) qualified for the position, (3) dismissed from, or not selected for, a position, and (4) passed over in favor of a candidate sufficiently younger to permit an inference of age discrimination. Maxfield, 766 F.2d at 792-93; see also Ezold, 983 F.2d at 522. "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Burdine, 450 U.S. at 254; see also Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).
Plaintiff indicates that (1) he was 63 years old at the time his employment was terminated, (2) he was qualified for the positions of Electrical or Electronics Marketing Manager, (3) he did not receive either position, and was in fact terminated, and (4) the position of Industrial Marketing Manager was ultimately given to Ed Brown, who at the time was 32 years old. Plaintiff has therefore presented evidence sufficient to establish a prima facie case.
2. Articulation of Legitimate, Non-Discriminatory Reasons for the Employee's Termination
If a prima facie case is established, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employee's rejection. If the defendant fails to produce evidence which, if taken as true, would permit the conclusion that there was a non-discriminatory reason for the defendant's action, judgment must be entered on behalf of the plaintiff. St. Mary's, 113 S. Ct. at 2747; see also Ezold, 983 F.2d at 522; Chipo llini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.), cert. dismissed, 483 U.S. 1052 (1987). However, the defendant's burden is not one of persuasion, but only of production of evidence logically supporting a reason for the dismissal.
Burdine, 450 U.S. at 254-55; Bellissimo v. Westinghouse Elec. Corp., 764 F.2d 175, 179 (3d Cir. 1985), cert. denied, 475 U.S. 1035, 89 L. Ed. 2d 353, 106 S. Ct. 1244 (1986).
Defendants have presented the following explanation for the adverse employment decisions made as to the plaintiff: After a year in which Industrial Market sales dropped by more than $ 1.2 million from the preceding year, Waber concluded that "further restructuring changes would be necessary" if the company was to survive and prosper. Brief in Support at 6. One of these changes involved reverting to the previous bifurcated organizational structure under which each segment of the Industrial Market -- Electrical and Electronics -- would have its own manager.
Waber determined that plaintiff was not the best candidate for either of the two positions, despite his experience as Electrical Market Manager and Industrial Market Manager, for a variety of reasons, including:
1. Plaintiff's refusal to visit key customer accounts at their corporate headquarters, despite several conversations with Mr. Mazik in which plaintiff was reminded of the corporate policy encouraging such visits.