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McDevitt v. Bill Good Builders

March 05, 2003



(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

LaVECCHIA, J., writing for a unanimous Court

This age-discrimination case presents two issues. First, whether the plaintiff failed to demonstrate a prima facie case of age discrimination under the four-pronged test of McDonnell Douglass Corp. v. Green, 411 U.S. 792, 802, The opinion of the court was delivered by: LaVECCHIA, J.

Argued December 2, 2002

On certification to the Superior Court, Appellate Division.

Plaintiff Bernard McDevitt brought this action against defendant Bill Good Builders, Inc. ("employer" or "defendant"), under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.A. § 623a(1), alleging that his termination of employment at age sixty-nine was motivated by his age rather than by a legitimate reduction in force as the employer asserted. The Appellate Division, in an unreported opinion, affirmed the trial court's grant of summary judgment dismissing the complaint, and we granted plaintiff's petition for certification, 172 N.J. 357 (2002), to address the significant evidential issue raised. We agree with the lower courts that plaintiff failed to demonstrate a prima facie case of age discrimination under the four-pronged test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677-78 (1973). The question, rather, is whether, as plaintiff contends, he presented such direct evidence of discriminatory purpose as would entitle him, under the principles of Price Waterhouse v. Hopkins, 490 U.S. 228, 276, 109 S. Ct. 1775, 1796-97, 104 L. Ed. 2d 268, 304-05 (1994) (O'Connor, J., concurring), to a shift of the burden of persuasion thereby requiring the employer to prove it would have taken the adverse employment action even without consideration of the proscribed factor.

The asserted direct evidence was the head nodding by the employer's president, Bill Good ("Good"), who allegedly was present when his secretary, answering an inquiry by another employee as to why plaintiff was being terminated, said that he was "too old." Plaintiff contends that Good's nodding of his head in response to his secretary's statement constituted an adoptive admission by a party, admissible pursuant to N.J.R.E. 803(b)(2), of his discriminatory purpose in terminating the employment. The issues before us are whether a nod of the head may constitute an adoptive admission and, if so, whether that adoptive admission, if made, meets the Price Waterhouse direct- evidence test. Clearly, if both these questions are answered affirmatively, the summary judgment dismissing the complaint was improvidently granted. The difficulty is that neither question can be answered on this record. Both require circumstantial resolution in a hearing pursuant to N.J.R.E. 104. Accordingly, we reverse the summary judgment and remand for the necessary hearing.


The relevant facts are presented in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Plaintiff had been a painter at the Philadelphia Naval Yard for thirty years when he retired in 1990 at age sixty-two. A year or two later, he began working as a painter again for defendant employer whose company specialized in home restoration projects funded by insurance claim proceeds. Plaintiff was terminated effective October 31, 1997. The reason given was a need to reduce the company's workforce. At about the time of plaintiff's termination, the company was experiencing a decline in larger restoration jobs and had begun subcontracting its painting work to spray painting companies. Plaintiff concedes that he did not have spray-painting experience; his specialty was hand painting. Prior to plaintiff's termination, the employer had hired a younger painter, Martin Heimbach, who died of cancer within a few weeks after plaintiff's termination. No other worker with the job description of "painter" had been hired prior to plaintiff's termination and none was hired to replace either plaintiff or Heimbach. Around the same time, the employer also reduced the number of its foremen from two to one and the number of its carpenters from seven to three. According to plaintiff, the one remaining foreman paints as well as supervises at job sites. Plaintiff bases his McDonnell Douglas claim of pretextual firing on the retention of that one foreman who, plaintiff contends, is primarily a painter. Plaintiff asserts that the foreman's "other" supervisory duties entail nothing more than those which he himself had performed at job sites.

Plaintiff's suspicions concerning the true reason for his termination resulted from a conversation he had with another former employee, Wendy Haddock, a few weeks after he was terminated. Plaintiff received a telephone call from Haddock, a former office assistant and receptionist for the company, who coincidentally had quit on plaintiff's last day of employment, October 31, 1997. She informed plaintiff that he had been fired because Good thought that he was too old for the job. According to Haddock, on October 30, 1997, while Nancy Cockrell, Good's secretary, was typing plaintiff's termination letter, Haddock asked her why plaintiff was being fired. Cockrell responded by saying that it was because plaintiff was "too old." Haddock said that Good was present at the time and she observed him nodding his head in agreement when she and Cockrell had this exchange although he did not say anything. Cockrell, on the other hand, does not recall the conversation taking place or even typing the letter. Good does not recall the conversation either. According to plaintiff, however, Good made a similar comment to him on at least one earlier occasion, remarking to plaintiff that he was "getting too old for this type of work." Good denies that statement also. He consistently has maintained that the company's shortage of work motivated the reduction in force that included plaintiff's termination. Nonetheless, in an effort to resolve this matter the company extended an offer of reemployment to plaintiff eighteen months after he had been terminated. Plaintiff declined the offer.

The parties filed cross-motions for summary judgment. Plaintiff asserted that he met the four-prong McDonnell Douglas test required for a prima facie age discrimination cause of action in that he (1) was over age 40, (2) was qualified for the job as a painter, (3) was laid off by the company, and (4) Robert Shaw, the remaining foreman, was an "unprotected worker" retained by the company. See McDonnell Douglas, supra, 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677-78. Plaintiff also asserted that he had direct evidence of a discriminatory termination, namely, Good's statement about plaintiff getting too old for the job and his head nod in apparent agreement with Cockrell's statement that plaintiff was being terminated because of his age. Accordingly, he claimed that under Price Waterhouse, he was entitled to have his case presented to a jury with the burden of persuasion shifted to defendant to prove that plaintiff would have been terminated notwithstanding the impermissible consideration of his age.

Defendant disputed plaintiff's asserted prima facie case under McDonnell Douglas because no unprotected worker was retained by the company and all "painters" were terminated, except for Heimbach, who died within weeks after plaintiff's termination and was not replaced. Moreover, it contended that Shaw was a foreman and not a painter and hence he was not an unprotected worker of the same class as plaintiff. Finally, defendant disputed that plaintiff was entitled to a shift of the burden of persuasion under Price Waterhouse, asserting that Good's head nod did not meet the required standard for "directness" of proof. Defendant, moreover, discounted Good's alleged earlier comment as a mere stray remark.

The trial court granted summary judgment to defendant, determining from the record that a reasonable factfinder would find that plaintiff legitimately was terminated due to a reduction in force. The Appellate Division affirmed on the basis of plaintiff's failure to make a prima facie showing of the fourth prong of McDonnell Douglas. In respect of whether plaintiff had presented direct evidence of discrimination under Price Waterhouse, the court considered the alleged nodding of the head to have been "equivocal" and, moreover, that it was "highly questionable" whether the head nod would constitute an adoptive admission.

Plaintiff's petition for certification raises two issues: (1) whether he successfully presented a prima facie case of age discrimination under McDonnell Douglas, and (2) whether the trial court should have considered Price Waterhouse, addressing the head nod as an adoptive admission, which, plaintiff contends, would constitute direct evidence of discrimination by the company. As noted, we agree with the lower courts that plaintiff failed to establish that the company retained a sufficiently younger worker in the same position as plaintiff and, therefore, he failed to meet the fourth prong of the ...

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