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Bergen Commercial Bank v. Sisler

January 21, 1998

BERGEN COMMERCIAL BANK, PLAINTIFF-RESPONDENT,
v.
MICHAEL SISLER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Before Judges Dreier, Keefe and Wecker.

The opinion of the court was delivered by: Dreier, P.j.a.d.

Argued: December 9, 1997

Defendant, Michael Sisler, appeals from a summary judgment *fn1 dismissing his age discrimination claim against plaintiff Bergen Commercial Bank.

In 1993, plaintiff recruited defendant to work for Bergen Commercial Bank to operate its merchant and credit card programs. After several meetings, defendant entered into an agreement with plaintiff to become the Vice President of Credit Card Operations, earning a salary of $70,000 per year. Shortly before defendant's starting date, Anthony M. Bruno, the chairman and co-founder of Bergen Commercial Bank, asked defendant his age. Defendant replied that he was twenty-five years old. According to defendant, Bruno appeared shocked. Bruno then told defendant not to disclose his age to anybody because it would be embarrassing if other people at Bergen Commercial Bank learned that defendant had been hired at such a young age as a vice president and at such a high salary.

On September 1, 1993, plaintiff commenced his employment at the bank. Eight days later, Bruno and Mark Campbell, the president and CEO of Bergen Commercial Bank, expressed dissatisfaction with defendant's work and indicated that he might be terminated. At the same time, they suggested that defendant relinquish his position and become a consultant. Defendant refused, and thereafter he was demoted. Following a meeting on January 21, 1994, in which defendant's poor job performance was discussed, plaintiff fired defendant after less than five months' employment.

After negotiations concerning defendant's potential age discrimination claim broke down, defendant informed plaintiff that he intended to file a lawsuit. Before defendant could initiate his suit, plaintiff commenced this action on August 11, 1994, against defendant for damages resulting from the conversion of files, breach of duty of loyalty, intentional interference with business relations, and trespass. *fn2 These claims were later dismissed without prejudice to allow this appeal.

Defendant filed an answer and counterclaim, asserting violations based on age discrimination under the New Jersey Law Against Discrimination (LAD) and breach of the compensation agreement. Although interrogatories were still outstanding and defendant had not yet had an opportunity to depose Bruno and Campbell, plaintiff moved for summary judgment on defendant's claim of age discrimination on the ground that the LAD's prohibition of age discrimination did not apply to twentyfive-year-old claimants. The trial Judge granted plaintiff's motion for summary judgment on defendant's claim of age discrimination.

If defendant's claim of age discrimination states a cause of action, it is obvious that the absence of complete discovery should preclude the entry of summary judgment under R. 4:46-5(a). Even when such discovery is completed, it is probable from the certifications already filed by the parties that there would be factual issues requiring resolution by a jury. The Judge, however, entered summary judgment based solely upon statutory construction, not the factual posture of the case, thus presenting solely a legal issue for our review.

This case is governed by two sections of the LAD. The first is N.J.S.A. 10:5-4, prohibiting age discrimination:

"All persons shall have the opportunity to obtain employment ... without discrimination because of race, creed, color, national origin, ancestry, [or] age ... subject only to conditions and limitations applicable alike to all persons."

The LAD also proscribes unlawful employment practices or unlawful discrimination based on age under N.J.S.A. 10:5-12a:

"It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:"

a. For an employer, because of race, creed, color, national origin, ancestry, age ... to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such ...


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