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June 3, 2005.

KEVIN BOHL, Plaintiff,

The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge


This matter comes before the Court upon the motion for summary judgment filed by Defendant Federal Express Corporation ("Defendant" or "FedEx"). Plaintiff Kevin Bohl ("Plaintiff" or "Bohl"), a former FedEx courier, is suing FedEx for age discrimination pursuant to the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1, et seq. The issues before the Court are, (i) whether Plaintiff has produced evidence sufficient to convince a reasonable factfinder as to all of the elements of a prima facie case of discrimination, and if so, (ii) whether Defendant has produced evidence of a legitimate, non-discriminatory reason for terminating Plaintiff, and if so, (iii) whether Plaintiff has adequately rebutted Defendant's legitimate, nondiscriminatory reason for terminating him. This Court has jurisdiction pursuant to 28 U.S.C. § 1332. For the reasons set forth below, Defendant's motion for summary judgment is granted.


  A. Facts

  Plaintiff alleges in his Complaint that on or about November 4, 2003,*fn1 FedEx terminated his employment with the company as a courier "for alleged `improper procedures.'" Compl. ¶ 1. He also alleges that Defendant's alleged reason for his termination, "the non-scanning of packages," was a "false" charge and a pretext for age discrimination in violation of the NJLAD. Id. ¶ 2. Plaintiff asserts that he was actually terminated because he was one of the highest paid couriers and that FedEx was therefore trying to save on salary and benefits. Deposition of Kevin Bohl, Transcript at 35-36, 52-56.

  Plaintiff was forty one years old when he was terminated, and at his deposition he testified that he was replaced by Bartholome Masciulli ("Masciulli"), who was then thirty or thirty one years old. Id. at 17-18. According to Plaintiff's testimony at his deposition, one of his supervisors, Mark Reader ("Reader"), a FedEx Manager, referred to "older" workers other than Plaintiff as "old farts" and "old fucks." Id. at 25-26. Plaintiff also testifies that Reader made remarks regarding "younger guys doing more stops per hour and being able to actually do [Plaintiff's] route when [he] wasn't there and getting it done earlier than [him] and being more productive." Id. at 23. However, Plaintiff admits that Reader merely stated that certain drivers were more productive and that while those drivers happened to be younger, Reader never actually used the word "younger" when describing them or their performance. Id. at 23-24.

  According to Defendant's Statement of Undisputed Material Facts, during the year 2002, eleven FedEx packages disappeared from the WWD station, which covers the Marlton, New Jersey area. Def.'s Statement of Undisputed Material Facts at 2. As a result, Reader, FedEx Acting Senior Manager Michael Dochney and FedEx Security Specialists Jerry Laskowski and Joseph Sweeney conducted an investigation regarding the missing packages. Id. Specifically, they decided to search the vehicles of the three FedEx drivers who were working and/or present when the packages went missing, i.e. Joseph Reitano, Chris Campbell and Plaintiff. Id. The results of the investigation revealed that "the contents of the missing packages from the station were similar to the contents of the four packages that were scanned late in Plaintiff's truck on October 30, 2002." Id. at 4. Based on this investigation, on November 4, 2002, FedEx Acting Senior Manager Michael Dochney terminated Plaintiff for his violation of FedEx's Acceptable Conduct Policy. Id. at 5. Defendant has also produced evidence from its computer personnel information system ("PRISM") that Plaintiff was replaced by Cynthia Adams ("Adams"), who was thirty nine years old, and just two months shy of her fortieth birthday. Id. at 6.

  B. Procedural History

  On October 28, 2003, Plaintiff filed his Complaint against FedEx in the Superior Court of New Jersey, Law Division-Burlington County alleging that his termination by Defendant violated the NJLAD. FedEx filed a Notice of Removal on December 9, 2003, and the case was assigned to this Court on December 18, 2003. FedEx filed its Answer on January 29, 2004. Following the close of discovery on September 15, 2004, FedEx filed the instant motion for summary judgment on December 30, 2004.


  A. Summary Judgment Standard

  Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To avoid summary judgment the non-moving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324. A genuine issue of material fact is one that will permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating the evidence, the Court must "view the inferences to be drawn from the underlying facts in the light most favorable to the [nonmoving] party." Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (quoting Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir. 1999)). Conclusory allegations do not meet the non-moving party's duty to set forth specific facts showing that a genuine issue of material fact exists and a reasonable factfinder could rule in its favor. Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999).

  B. New Jersey Law Against Discrimination Enacted in 1945, the NJLAD guarantees that all citizens be afforded the civil rights promised by the State Constitution. Viscik v. Fowler Equip. Co., 800 A.2d 826, 832 (N.J. 2002). The LAD provides in pertinent 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 . . . 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).
  The "overarching goal of the [NJLAD] is nothing less than the eradication `of the cancer of discrimination.'" Fuchilla v. Layman, 537 A.2d 652, 660 (quoting Jackson v. Concord Co., 253 A.2d 793, 799 (N.J. 1969)), cert. denied, 488 U.S. 826 (N.J. 1988). Because of its remedial purpose, the NJLAD should be construed liberally to achieve its aims. Franek v. Tomahawk Lake Resort, 754 A.2d 1237, 1243 (N.J. App. Div. 2000). Nonetheless, the NJLAD prevents only unlawful discrimination; it does not prevent the termination or change of employment of any person who "is unable to perform adequately the duties of employment, nor [does it] preclude discrimination among individuals on the basis of competence, performance, conduct or any other reasonable standards." Viscik, 800 A.2d at 833 (quoting N.J.S.A. 10:5-2.1). Put another way, the NJLAD acknowledges the authority of employers to manage their own businesses. Id.

  What makes an employer's personnel action unlawful is the employer's intent. Marzano v. Computer Sci. Corp., 91 F.3d 497, 507 (3d Cir. 1996). Employment discrimination cases thus suffer from the difficulty that inheres in all state-of-mind cases — the difficulty of proving discriminatory intent through direct evidence, which is often unavailable. Id. at 499. "All courts have recognized that the question facing triers of fact in discrimination cases is both sensitive and difficult. . . . There will seldom be `eyewitness' testimony as to the employer's mental processes." U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983). To be sure, there are occasionally cases involving the "proverbial 'smoking gun.'" Marzano, 91 F.3d at 507. However, a legal scheme against discrimination would have no teeth if the courts were to require such direct evidence of discrimination. As the Third Circuit explained in Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 899 (3d Cir. 1987)], "we do not require direct proof of . . . discrimination because it is often unavailable or difficult to find. . . . `Even an ...

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