United States District Court, District of New Jersey, D
October 21, 2002
DAVID WRIGHT, PLAINTIFF,
L-3 COMMUNICATIONS CORPORATION, AND JOHN DOES 1-10, DEFENDANTS.
The opinion of the court was delivered by: Stephen M. Orlofsky, United States District Judge
Plaintiff, David Wright ("Wright"), has sued his former employer, L-3
Communications Corporation ("L-3"), for age discrimination, in violation
of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. §
10:5-1, et seq. (2002). L-3 has now moved for summary judgment. In
deciding L-3's motion for summary judgment, I must address an unresolved
question of the governing New Jersey state law — namely, what is
the fourth element of a prima facie case of age discrimination under the
LAD? Based on my review of the case law — specifically, a July 2001
decision of the Superior Court of New Jersey, Appellate Division —
I must dissent from an earlier decision by my esteemed colleague, Judge
Wolin, who applied a "sufficiently younger" standard to the fourth
element of the prima facie age discrimination case under the LAD. See
Swider v. Ha-Lo Indus., Inc., 134 F. Supp.2d 607 (D.N.J. 2001). Instead,
I hold that in order to satisfy the fourth element of a prima facie case
of age discrimination under the LAD, an LAD plaintiff must only show that
sought others to perform the same work after he was terminated from his
Applying this standard, I find that the summary judgment record
presents genuine issues of material fact, and I shall deny L-3's motion
for summary judgment.
II. FACTS AND PROCEDURAL HISTORY
Defendant L-3 designs and manufactures various products, including
gyros, wheels, and sensors, to guide, position, navigate and control
satellites, space launch vehicles, the Hubble space telescopes, land
rockets, and the space shuttle international space center. See Def.'s
56.1 Statement ¶¶ 3, 5. Wright, who was employed as the Director of
Business Development for Space Products in L-3's Teterboro, New Jersey
office, see Pl.'s 56.1 Statement ¶¶ 1, 43; Certif. of David J. Wright
6/11/02 ("Wright Certif.") ¶ 14, claims he was throttled out of L-3
because of his age.
Wright did not begin his career in space technology at L-3. He was
previously employed in the Space and Navigation Division of another
company, Allied Signal. See Wright Certif. ¶ 2. Allied Signal sold
this division in 1999, and the sale included certain employees, including
Wright, who were transferred along with the Space and Navigation
Division. Id. ¶ 4. After L-3 purchased the Allied Signal division,
Wright became an L-3 employee in January 2000. Id. ¶ 2.
Not long after Wright joined the company, on or about April 17, 2000,
L-3 terminated him, at the age of sixty. See Def.'s 56.1 Statement
¶ 137; Wright Certif. ¶ 5. According to L-3, Wright's
termination was not related to his performance, see Wright Certif.
¶ 5, but because the market for space products was "flat," id.
¶ 9. Wright contests this characterization of the market for space
products and notes that after his termination, L-3 continued to pursue new
business opportunities in the Space and Navigation Division. See id.
¶¶ 17-27. Additionally, three other L-3 employees, Herb Califano,
Neil Piscatelli, and Mark Pisani, began soliciting new space
opportunities at conventions and trade shows for which Wright, as Director
of Business Development for Space Products, had previously been
responsible. See id. ¶¶ 31-34. Wright contends that these individuals
had little, if any, business development experience. Id.
This Court has jurisdiction over this action based on the diverse
citizenship of the parties and the requisite amount in controversy,
pursuant to 28 U.S.C. § 1332 (2002). As a federal court sitting in
diversity, this Court must apply state substantive law. Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938). I have considered the submissions of
the parties and decided this motion on the papers without oral argument
pursuant to Fed.R.Civ.P. 78 (2002). For the reasons set forth below,
Defendants' Motion for Summary Judgment shall be denied.
III. STANDARD FOR SUMMARY JUDGMENT
The legal standard governing summary judgment is well-settled. Summary
judgment is proper only "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c) (West 2002); see also Anderson v. Consol. Rail Corp.
("Conrail"), 297 F.3d 242, 247 (3d Cir. 2002). An issue is genuine "if
the evidence is such that a reasonable jury could return a verdict for
the nonmoving party." Conrail, 297 F.3d at 247 (citing Anderson v.
Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). A fact is material if it
bears on an essential element of the plaintiff's claim. Abraham v. Raso,
183 F.3d 279, 287 (3d Cir. 1999) (citing Anderson, 477 U.S. at 248-251).
Thus, to survive a motion for summary judgment, the party contesting the
motion must demonstrate a dispute over facts that might affect the
outcome of the suit. Groman v. Township of Manalapan, 47 F.3d 628, 633
(3d Cir. 1995) (citing Anderson, 477 U.S. at 250-52).
When considering a motion for summary judgment, "the judge's function
is not himself 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. In evaluating the evidence, the court must
"view the inferences to be drawn from the underlying facts in the light
most favorable to the party opposing the motion." Curley v. Klem,
298 F.3d 271, 276-77 (3d Cir. 2002) (quoting Bartnicki v. Vopper,
200 F.3d 109, 114 (3d Cir. 1999)); see also Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970). Notwithstanding this deference towards the
non-movant, "[t]he mere existence of a scintilla of evidence in support
of the [movant]'s position will be insufficient" to defeat a motion for
summary judgment. Anderson, 477 U.S. at 252.
Summary judgment is proper "if after adequate time for discovery and
upon motion, a party fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Conrail, 297 F.3d at 247
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
After one party has filed a properly supported summary judgment
motion, the party opposing it must present sufficient evidence for a
reasonable jury to find in its favor. Groman, 47 F.3d at 633 (citing
Anderson, 477 U.S. at 250-52). Moreover, "[w]hen a motion for summary
judgment is made and supported . . . an adverse party may not rest upon
the mere allegations or denials of the adverse party's pleadings, but the
adverse party's response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue
for trial." Fed.R.Civ.P. 56(e).*fn1 "If the adverse party does not so
respond, summary judgment, if appropriate, shall be entered against the
adverse party." Id.
IV. THE LEGAL STANDARD GOVERNING AGE DISCRIMINATION CLAIMS
UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION
A. THE NEW JERSEY LAW AGAINST DISCRIMINATION
The New Jersey Law Against Discrimination ("LAD") recognizes the
opportunity to obtain employment as a civil right. See Bergen Commercial
Bank v. Sisler, 157 N.J. 188, 200, 723 A.2d 944, 949 (1999). The statute
provides, in relevant part:
It shall be 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 in terms, conditions or privileges
of employment . . .
N.J.S.A. § 10:5-12(a) (West 2002).
Although Wright brought this action against L-3 under the LAD and not
any federal anti-discrimination statute, the LAD draws significantly from
federal anti-discrimination law. See Maiorino v. Schering-Plough Corp.,
302 N.J. Super. 323, 345, 695 A.2d 353, 364 (App.Div. 1997). Thus,
Wright's LAD claim is appropriately analyzed by examination of federal
cases arising under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment
Act ("ADEA"), 29 U.S.C. § 621, et seq., provisions of which were
modeled after Title VII. See Giammario v. Trenton Bd. of Educ.,
203 N.J. Super. 356, 361, 497 A.2d 199, 202 (App.Div. 1985), certif.
denied, 102 N.J. 336, 508 A.2d 212, cert. denied, 475 U.S. 1141 (1986);
see also Sisler, 157 N.J. at 200, 723 A.2d at 949.
The Supreme Court of New Jersey has adopted the three-stage inquiry set
forth by the United States Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), "as a starting point" in analyzing claims
under the LAD. Sisler, 157 N.J. at 210, 723 A.2d at 955 (quoting Andersen
v. Exxon Co., 89 N.J. 483, 492, 446 A.2d 486 (1982)). The New Jersey
Supreme Court has recognized a need to harmonize the LAD and federal
discrimination law in order to assure a reasonable degree of symmetry and
uniformity in the law. See Sisler, 157 N.J. at 212, 723 A.2d at 956;
Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 107, 570 A.2d 903, 912
(1990). Where appropriate, however, the New Jersey courts have modified
the elements of the McDonnell Douglas framework. See McKenna v. Pac. Rail
Serv., 32 F.3d 820, 827-28, 830 (3d Cir. 1994).
There are three stages of inquiry under the McDonnell Douglas
framework. Under the first stage, a plaintiff must prove, by a
preponderance of the evidence, the four elements of a prima facie case of
discrimination, as discussed infra. See McDonnell Douglas, 411 U.S. at
802. Establishment of a prima facie case gives rise to a presumption that
the employer unlawfully discriminated against the employee. See Sisler,
157 N.J. at 210, 723 A.2d at 955; see also Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 254 (1981).
The second stage of the McDonnell Douglas inquiry requires the employer
to come forward with admissible evidence of a legitimate,
non-discriminatory reason for its rejection of the employee. See Sisler,
157 N.J. at 210-11, 723 A.2d at 955; Burdine, 450 U.S. at 254. "Where the
employer produces such evidence, the presumption of discrimination
disappears." Sisler, 157 N.J. at 211, 723 A.2d at 955.
In the third and final stage of the McDonnell Douglas inquiry, the
burden of production then shifts back to the employee, who has "the
opportunity to prove by a preponderance of the evidence that the
legitimate nondiscriminatory reason articulated by the defendant was not
the true reason for the employment decision but was merely a pretext for
discrimination." Sisler, id. (citation omitted). An employee can meet
this burden either by persuading the court directly, by showing that a
discriminatory reason more likely motivated the employer, or indirectly,
by showing that the employer's proffered explanation
is unworthy of
credence. Id. (quotations and citations omitted).
Although the burden of production shifts throughout the McDonnell
Douglas inquiry, the employee-plaintiff has at all times the burden of
proving that the adverse employment action was caused by purposeful or
intentional discrimination. Sisler, 157 N.J. at 211, 723 A.2d at 955;
Burdine, 450 U.S. at 256. In meeting this burden, the plaintiff need not
prove that age was the sole or exclusive consideration for the discharge;
the plaintiff need only show by a preponderance of the evidence that age
made a difference in that decision. See Sisler, 157 N.J. at 211, 723 A.2d
at 955 (quotations and citations omitted).
B. WRIGHT'S PRIMA FACIE CASE OF AGE DISCRIMINATION
The McDonnell Douglas framework, as modified by the Supreme Court of
New Jersey, requires a plaintiff to satisfy four elements by a
preponderance of the evidence to establish a prima facie case of age
discrimination. See Sisler, 157 N.J. at 210, 723 A.2d at 955. First,
Wright must demonstrate that he belongs to a protected class. Id.
Second, he must show he was qualified for the position in question. Id.
Third, Wright must demonstrate that he was discharged despite his
adequate qualifications. Id., 157 N.J. at 212, 723 A.2d at 956. Finally,
Wright must demonstrate that the employer sought others to perform the
same work after he was terminated from his position. See Petrusky v.
Maxfli Dunlop Sports Corp., 342 N.J. Super. 77, 80, 775 A.2d 723, 725
(App.Div. 2001), certif. denied, 170 N.J. 388, 788 A.2d 772 (2001); see
also Reynolds v. Palnut Co., 330 N.J. Super. 162, 167, 748 A.2d 1216,
1218 (App.Div. 2000). The burden at this initial stage is not meant to be
onerous, but requires a plaintiff "to demonstrate to the court that [the]
plaintiff's factual scenario is compatible with discriminatory intent
— i.e., that discrimination could be a reason for the employer's
action." Marzano v. Computer Science Corp. Inc., 91 F.3d 497, 508 (3d
Unlike federal discrimination claims brought under the ADEA, the first
LAD element for a prima facie case of age discrimination is not limited
to employees age forty or older.*fn2 An LAD plaintiff must still
demonstrate that he or she is a member of a protected class, but unlike
the ADEA, the LAD reaches discrimination based on youth as well.*fn3
See Sisler, 157 N.J. at 218, 723 A.2d at 959 (applying
reverse-discrimination analysis to age discrimination claim brought by
twenty-five-year-old plaintiff). Wright, who was sixty-years old at the
time of his termination from L-3, is a member of the class protected by
the LAD. "[T]hat older workers form the presumptive protected class under
the anti-age-discrimination provisions of the LAD is clear." Sisler, 157
N.J. at 217, 723 A.2d at 958. Wright is older than forty, as required by
the ADEA, and is within the range of "older" plaintiffs who have
benefitted from the LAD's prohibition against age discrimination. See
e.g., Murray v. Newark Hous. Auth., 311 N.J. Super. 163, 174, 709 A.2d 340,
345 (1998) (applying LAD to sixty-five year-old plaintiff); Greenberg v.
Camden County Vocational & Technical Sch., 310 N.J. Super 189, 201,
708 A.2d 460, 466 (App.Div. 1998)
(applying LAD to forty-eight year-old
plaintiff); Geldreich v. American Cyanamid Co., 299 N.J. Super. 478, 489,
691 A.2d 423, 429 (App.Div. 1997) (applying LAD to fifty-four year-old
Second, the parties do not dispute that Wright was qualified for the
Director of Business Development for Space Products position that he held
prior to his termination. According to Christopher Clayton, L-3's former
President of the Space and Navigation Division, Wright's position was
eliminated due to a downturn in the space business and not for
performance reasons. See Decl. of Christopher Clayton 6/4/02 ("Clayton
Decl.") ¶¶ 22-24, 27. The responsibilities of Wright's eliminated
position were purportedly reallocated to the head of space programs and
the program managers. Id. ¶ 23.
Third, Wright clearly suffered an adverse employment decision because
he was involuntarily terminated on or about April 17, 2000. See Wright
Certif. ¶ 5.
The last element required to establish a prima facie case of age
discrimination under the LAD warrants further discussion. A plaintiff can
satisfy the fourth and final element of the prima facie case of age
discrimination by showing that the employer sought others to perform the
same work that the plaintiff did after the plaintiff was removed from his
position. See Petrusky, 342 N.J. Super. at 80, 775 A.2d at 725; Catalane
v. Gillian Instrument Corp., 271 N.J. Super. 476, 496-97, 638 A.2d 1341,
1351-52 (App.Div. 1994), certif. denied, 136 N.J. 298, 642 A.2d 1006
This fourth element under the LAD deviates from the standard the Third
Circuit applies to age discrimination claims under the federal ADEA. In
Sisler, a reverse age-discrimination case, the Supreme Court of New
Jersey explained that the fourth element of the prima facie test does not
focus on whether the plaintiff was replaced with someone from outside the
protected class: "[U]nder the LAD, which specifies no qualifying age,
courts have modified the fourth element to require a showing that the
plaintiff was replaced with `a candidate sufficiently younger to permit an
inference of age discrimination.'" Id., 157 N.J. at 213, 723 A.2d at
956. In Reynolds, 330 N.J. Super. 162, 748 A.2d 1216, however, the
Appellate Division limited Sisler`s "sufficiently younger" articulation of
the fourth prima facie element to cases of reverse age- discrimination.
Id., 330 N.J. Super. at 168, 748 A.2d at 1219. Reynolds noted that in
traditional cases of age discrimination brought by older plaintiffs, a
plaintiff could satisfy the fourth McDonnell Douglas element simply by
showing that the employer sought others to perform the same work after
the employee had been removed. Id.
Interpreting the LAD in Swider v. Ha-Lo Indus., Inc., 134 F. Supp.2d 607
(D.N.J. 2001), my distinguished colleague, Judge Wolin, rejected the
Reynolds view. Judge Wolin reiterated the Sisler standard for both
reverse age-discrimination cases and traditional age-discrimination cases
under the LAD, holding that "in order to satisfy the fourth prong of the
McDonnell Douglas prima facie case, plaintiff must show that he was
replaced by someone sufficiently younger to create an inference of
unlawful age discrimination." Swider, 134 F. Supp.2d at 625.
Four months after Swider was decided, however, in Petrusky,
342 N.J. Super. 77, 775 A.2d 723, the Appellate Division rejected Judge
Wolin's reasoning. There, the court found that the Swider view placed too
much emphasis on how old or young the employee-plaintiff's replacement
was, and instead focused on "whether the claimant's age, in any
`made a difference' in the treatment he was accorded by
his employer." Petrusky, 342 N.J. Super. at 82, 775 A.2d at 726. The
Petrusky opinion, id., relied on the following language from the New
Jersey Supreme Court's opinion in Sisler:
The fact that one person in the protected class has lost
out to another person in the protected class is
irrelevant, so long as he has lost out because of his
age. Or to put the point more concretely, there can be
no greater inference of age discrimination (as opposed
to "40 or over" discrimination) when a 40 year-old is
replaced by a 39 year-old than when a 56 year-old is
replaced by a 40 year-old. Because it lacks probative
value, the fact that an ADEA plaintiff was replaced by
someone outside the protected class is a not a proper
element of the McDonnell Douglas prima facie case.
Sisler, 157 N.J. at 212, 723 A.2d at 956 (quoting O'Connor v. Consol.
Coin Caterers Corp., 517 U.S. 308, 311 (1996)). Although this language
was written in the context of analyzing an ADEA claim, its focus on
discrimination "because of age" is relevant to age discrimination claims
under the LAD as well. Furthermore, Sisler noted that, as a
characteristic that varies over time, age can be a ground for subtle
patterns of discrimination:
Seldom will a sixty-year-old be replaced by a person in
the twenties. Rather the sixty-year-old will be
replaced by a fifty-five year old, who, in turn, is
succeeded by a person in the forties, who will also be
replaced by a younger person.
Sisler, 157 N.J. at 212-13, 723 A.2d at 956 (quoting McCorstin v. United
States Steel Corp., 621 F.2d 749, 754 (5th Cir. 1980)). Thus, because
replacing the discharged employee with another member of the protected
class does not obviate the possibility of age discrimination, the proper
focus of attention is on the age of the plaintiff and not on the age of
the employee who replaces the terminated plaintiff. Cf. Keller v. Orix
Credit Alliance, 130 F.3d 1101, 1118-19 (3d Cir. 1997) (en banc) (Lewis,
J., dissenting) (providing examples of how discriminatory animus can be
present even though the replacement is of the same protected class as the
Thus, the Petrusky court concluded that only in cases of reverse age
discrimination under the LAD is a plaintiff required to show that he or
she was replaced with a candidate of a different age. See id., 342 N.J.
Super. at 81, 775 A.2d at 725. In traditional discrimination cases, the
Reynolds standard applies, and a plaintiff satisfies the fourth element
of the prima facie case by showing that his or her employer sought others
to perform the plaintiff's work after the plaintiff was removed. See
Petrusky, 342 N.J. Super. at 82, 775 A.2d at 725. As Petrusky explained:
The focal question is not necessarily how old or young
the claimant or his replacement was, but rather whether
the claimant's age, in any significant way, made a
difference in the treatment he was accorded by his
Id., 342 N.J. Super. at 82, 775 A.2d at 726.
I find the Appellate Division's reasoning in the recent Petrusky
decision to be persuasive. Although this Court, in construing the LAD, is
guided by federal anti-discrimination caselaw, see Giammario,
203 N.J. Super. 356, 361, 497 A.2d 199, 202; Sisler, 157 N.J. at 200, 723
A.2d at 949-50, on questions of New Jersey state law, I will defer to and
adopt the Appellate Division's interpretation of the New Jersey Supreme
Court's decision in Sisler. This is particularly appropriate because the
language of the LAD differs from the ADEA, in that the ADEA applies only
to workers forty-years of age and older. See
29 U.S.C. § 630 (2002).
As the New Jersey Supreme Court noted in Sisler, the LAD does not impose
the forty-year minimum age requirement.*fn4
In cases brought under the ADEA, courts apply the "sufficiently
younger" standard to establish the fourth prong of the prima facie case,
so as not to be constrained by the boundaries of that statute's
forty-year age threshold. As explained by the Supreme Court in O'Connor,
supra, this standard recognizes the fact that, even if a plaintiff is
replaced by someone else within the protected class of persons age forty
and above, the plaintiff may still be a victim of age discrimination if
he is replaced by someone within the protected class, but "sufficiently
younger." Because the LAD takes a more expansive view of age
discrimination than does the ADEA, encompassing age discrimination
against younger employees, as well as older employees, the fourth element
of the prima facie case does not focus on whether a plaintiff is
sufficiently younger. Instead, the fourth McDonnell Douglas element is
satisfied in traditional cases if the employer sought others to perform
the same work that the plaintiff performed after the plaintiff was
Under Sisler and Petrusky, however, the LAD adopts a variant of the
"sufficiently younger" standard for the fourth element of a prima facie
case in non-traditional cases of age discrimination against younger
employees. Such cases are analyzed as reverse-discrimination cases, and a
heightened standard for the fourth prima facie element applies, requiring
a plaintiff to demonstrate that he was replaced by someone sufficiently
older. See Reynolds, 330 N.J. Super. at 168, 748 A.2d at 1219. Such a
heightened standard applies because the plaintiff is not a member of a
historically disadvantaged class. See id. In the ordinary LAD case, such
as Wright's, based on discrimination against an older worker, there is no
need for a heightened standard to satisfy the fourth element of the
prima facie case of age discrimination.
L-3 argues that Wright cannot demonstrate that he was replaced by
someone "sufficiently younger." See Def.'s Mem. in Supp. of Summ. J. at
23. As I have explained above at some length, this is not the governing
standard in traditional age discrimination cases brought under the LAD.
The proper standard for establishing the fourth prima facie element is
whether the employer sought others to perform the plaintiff's work after
the plaintiff was removed. See Petrusky, 342 N.J. Super. at 80, 775 A.2d
at 725. To meet this element, a plaintiff need not show that his job
functions were reassigned to a single employee after the plaintiff's
termination, but can demonstrate that multiple employees assumed
responsibility for the same job functions that the plaintiff performed
prior to termination. See e.g., Geldreich, 299 N.J. Super. at 489-90, 691
A.2d at 429.
John Donne, L-3's Director of Human Resources of the Space and
Navigation Division, explained that after Wright was terminated, the
responsibilities of his position were reallocated to at least twelve
other employees — the program managers and Mark Pisani, the head of
space business. See Aff. of John Donne 5/15/02 ("Donne Aff.") ¶ 31;
see also Aff. of Mark Pisani 5/15/02 ("Pisani Aff.") ¶ 21. All of
these employees were younger than Wright, including Pisani, who is
twenty-two years younger than Wright. See Donne Aff. ¶ 31.
Moreover, Pisani began to perform space business development functions in
April 2000, at approximately the same time that Wright was terminated.
See Pisani Dep. 20:22 to 21:25 (attached as Ex. 1 to Certif. of Laura D.
Ruccolo 6/5/02). These functions were previously performed by Wright, as
Director of Business Development for Space Products. See Clayton Decl.
¶ 12. Indeed, prior to his termination, Wright "was responsible for
pursuing business opportunities with new customers," id., and follow-on
business from existing customers, see Wright Certif. ¶ 14.
In addition to Pisani and the program managers, Herb Califano, L-3's
Director of Business Development for Tactical Battlefield areas, also
assumed some of Wright's previous functions. See Wright Certif. ¶¶
31-32; Clayton Decl. ¶ 29. After his termination, in March 2001,
Wright encountered Califano at two space business trade shows, where
Califano was actively seeking new space-products business on behalf of
L-3. See Wright Certif. ¶¶ 31-32. Moreover, Pisani and Neil
Piscatelli, a Program Manager, were also at one of these trade shows
seeking new space business for L-3. Id. ¶ 31.
Contrary to the arguments of defense counsel, Wright does not have to
show that "he is similarly situated in terms of qualifications and
position to the younger employees retained." Def.'s Reply Br. at 1. This
argument was explicitly rejected in Marzano v. Computer Science Corp.
Inc., 91 F.3d 497, 510 (3d Cir. 1996), in which the court explained that
the fact that similarly situated employees are retained may bolster a
party's case, but that a plaintiff need not make such a showing to
establish a prima facie case. Id. Moreover, the fact that Wright was the
only person in his position is not fatal to his prima facie case, as
explained in Marzano:
Consider, for instance, the situation of an employee
who performs tasks in the firm that no one else
performs, and whose functions become obsolete. In that
case, the employee's "uniqueness" may explain why he
or she, and not an unprotected colleague, was
terminated. Such a scenario, however, goes to the
employer's reason for its action, and may be presented
to the judge after the plaintiff has made his or her
prima facie case, when the burden switches to the
employer to proffer a nondiscriminatory reason for its
Id. at 511.
Wright has satisfied the fourth element required to establish a prima
facie case of age discrimination under the LAD because he has
demonstrated that, after his termination, other L-3 employees performed
the same job functions that Wright had performed prior to his
termination. Thus, I find that Wright has established a prima facie case
of age discrimination under the LAD.
B. WHETHER L-3 PROFFERED A PRETEXTUAL REASON FOR WRIGHT'S
Under the second stage of the McDonnell Douglas inquiry, after the
plaintiff establishes a prima facie case of age discrimination, the
employer must come forward with admissible evidence of a legitimate,
non-discriminatory reason for its rejection of the employee. See Sisler,
157 N.J. at 210-11, 723 A.2d at 955; Burdine, 450 U.S. at 254.
Christopher Clayton, L-3's President, explained that Wright's position
was eliminated due to the downturn in the space business, based on
Clayton's "business judgment and evaluation of [the] relative
the space business for growth in the immediate future." Clayton Decl.
¶¶ 22-24. In an April 6, 2000 memo to all L-3 employees, Clayton
proclaimed: "The growth potential in Space Business is very flat at the
moment and we are going to consolidate the organization to optimize our
ability to gain follow-on business; for example, in classified
programs." Id. ¶ 20. This downturn in the space business and L-3's
decision to focus on its other areas of business presents a legitimate,
non-discriminatory reason for L-3's termination of Wright, its Director
of Space Business Development.
Under the third and final stage of the McDonnell Douglas inquiry, the
burden of production shifts back to the plaintiff. "If a plaintiff who
has established a prima facie case can raise enough suspicions that the
employer's proffered reasons for termination were pretextual, the motion
for summary judgment should  be denied." Greenberg v. Camden County
Vocational and Technical Schs., 310 N.J. Super. 189, 200, 708 A.2d 460,
466 (App.Div. 1998) (citing Bray v. Marriott Hotels, 110 F.3d 986, 990-91
(3d Cir. 1997)); see also Sisler, 157 N.J. at 211, 723 A.2d at 955. The
standard for evaluating "pretext" under the LAD is:
[W]hether evidence of inconsistencies and
implausibilities in the employer's proffered reasons
for discharge reasonably could support an inference
that the employer did not act for non-discriminatory
reasons, not whether the evidence necessarily leads to
[the] conclusion that the employer did act for
Greenberg, 310 N.J. at 200, 708 A.2d at 466 (quoting Chipollini v.
Spencer Gifts, Inc., 814 F.2d 893
, 900 (3d Cir. 1987)). "An employee may
meet this burden either by persuading the court directly that a
discriminatory reason more likely motivated the employer or indirectly by
showing that the employer's proffered explanation is unworthy of
credence." Sisler, 157 N.J. at 211, 723 A.2d at 955 (internal quotations
and citations omitted).
Wright has not presented direct evidence that L-3 discriminated against
him on the basis of age, but Wright has presented sufficient indirect
evidence of pretext to create a genuine issue of material fact that
withstands L-3's motion for summary judgment. This is because L-3's
proffered reason for terminating Wright was the downturn in the space
technology business, see Clayton Decl. ¶ 24, but Wright has
presented evidence that L-3 continued to pursue space business after his
Clayton testified that L-3 was "not going to pursue new business in
space, and, therefore, did not need a business development function."
Clayton Dep. 85:18 to 86:3. In April 2000, however, at approximately the
same time Wright was terminated from L-3, Mark Pisani was promoted to
Director of Space Products. See Pisani Dep. 13:17 to 13:20. Pisani is
twenty-two years younger than Wright. See Donne Aff. ¶ 31; Wright
Certif. ¶ 5. Since April 2000, Pisani approached approximately seven
new customers to do space-products business with L-3. See Pisani Dep.
21:9 to 21:17. These new business solicitations began as early as one
month after Wright's termination, in May and June of 2000. Id. 53:2 to
53:25. These actions contradict L-3's claim that it intended to focus on
developing other areas of business due to the downturn in space
There is also an issue of material fact as to whether there was indeed
a downturn in the space-technology business at the time of Wright's
termination. In January 2000, Wright identified a number of new space
opportunities to Clayton in the areas of satellite communications,
sensing, and launch vehicles. See Wright Certif. ¶
13. Additionally, Wright had specified four space projects that L-3
actively solicited and negotiated from April to July of 2000. Id. ¶¶
20-23. Viewing the evidence in the summary judgment record in a light
most favorable to Wright, the non-moving party in this motion for summary
judgment, I find that Wright has presented sufficient evidence of
inconsistencies in L-3's proffered explanation for his discharge to
survive a motion for summary judgment.
In summary, Wright has established a prima facie case of age
discrimination under the LAD, and he has presented sufficient evidence to
create a genuine issue of material fact as to whether L-3's proffered
reason for Wright's discharge, a downturn in the space business, was a
pretext for age discrimination. Accordingly, I shall deny L-3's Motion for
For the reasons stated above, I shall deny the Motion for Summary
Judgment of Defendants, L-3 Communications Corporation and John Does
1-10. The Court shall enter an appropriate form of Order.
This matter having come before the Court on the Motion of Defendants,
L-3 Communications Corporation and John Does 1-10, for Summary Judgment,
pursuant to Fed.R.Civ.P. 56, John K. Diviney, Esq., ALAN B. PEARL &
ASSOCIATES, P.C., and John B. Livelli, Esq., ROBINSON & LIVELLI,
ESQS., appearing on behalf of Defendants, and Laura D. Ruccolo, Esq.,
KENNEY & KEARNEY, LLP, appearing on behalf of Plaintiff, David
The Court having considered the submissions of the parties, for the
reasons set forth in the OPINION filed concurrently with this ORDER;
IT IS, on this 21st day of October, 2002, hereby ORDERED that the
Motion for Summary Judgment of Defendants, L-3 Communications
Corporation, is DENIED.