Before Judges Pressler and Kimmelman.
The opinion of the court was delivered by: Kimmelman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Union County.
Plaintiff Albert Reynolds' complaint against defendants alleging (1) age discrimination by reason of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; and (2) breach of an implied contract whereby warnings were required to be given before termination was dismissed by way of summary judgment following the completion of discovery. We affirm the LAD dismissal but reverse the dismissal of plaintiff's implied contract claim and remand for further proceedings.
Plaintiff was hired by defendant The Palnut Company (Palnut) in 1976 as a press operator and eventually was promoted to the position of second-shift supervisor where he supervised approximately fifty persons including press operators, quality control inspectors, die setters, and toolmakers during the 3:30 p.m. to 11:30 p.m. shift. Palnut manufactured metal fasteners and small parts for use in the automobile assembly process. A press machine was used to stamp out the metal products.
Palnut was originally owned by TRW but, in 1993, it was purchased from TRW by co-defendant TransTechnology Corporation. Palnut management underwent some changes. In particular, Mr. Joe Formoso became vice-president of operations at Palnut in the spring of 1996. TransTechnology retained as director of human resources, Mr. Clifton Holmes, who had worked at Palnut since 1981 in that post. Employees were told to expect change in the direction of the business. According to plaintiff, all employees of Palnut were informed at an early meeting, that if they did not do their job the way TransTechnology wanted, they would be terminated.
On or about February 4, 1997, problems were detected in the quality of metal fasteners being manufactured and were brought to the attention of Formoso. A substantial portion of the fasteners were out of specification Formoso referred the problem to the quality control inspector and, after an inspection, it was determined that the quality issue had begun on the second shift on which plaintiff was the supervisor. Formoso then met with the president of Palnut concerning the results of the investigation and other quality issues affecting the second shift. On that same day, after the meeting, Formoso called plaintiff into his office and discussed the matter of the defective parts coming from plaintiff's shift. Plaintiff, who was forty-nine years old at the time, was then summarily terminated for "poor work performance." No prior warning had been given to plaintiff.
Formoso then asked Holmes to suggest replacements for plaintiff. Three persons, all long-time employees of Palnut, were suggested. They were aged fifty, forty-nine, and fifty-nine respectively. They were each offered the promotion to second-shift supervisor, but each declined. A replacement for plaintiff was eventually found. He was forty-two years of age. However, the person selected ultimately proved that he was unable to handle the personnel issues on the shift nor could he satisfactorily handle the technical issues. He was removed after six months and one of the persons, aged forty-nine, who had originally been offered the position, changed his mind and became second-shift supervisor. He was the same age as plaintiff.
The motion judge determined, on defendants' motion for summary judgment that plaintiff (1) did not establish a prima facie case of age discrimination and (2) did not establish that the oral employment policy he claimed was breached was an accurate representation of Palnut's actual policy.
We are satisfied that plaintiff's LAD claim should have been dismissed. However, our legal analysis differs somewhat from that of the judge. We find that plaintiff did establish a prima facie case of age discrimination, but he failed to establish that the non-discriminatory reasons defendants offered for firing plaintiff were used as a pretext for discrimination.
The LAD provides, in pertinent part:
It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:
a. For an employer, because of the . . . age, . . . of any individual, . . . 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 individual in compensation or ...