United States District Court, D. New Jersey
June 3, 2005.
KEVIN BOHL, Plaintiff,
FEDERAL EXPRESS CORPORATION, Defendant.
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
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.
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
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 . . .
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
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 employer
who knowingly discriminates on the basis of [protected status]
may leave no written records revealing the forbidden motive and
may communicate it orally to no one.'" 814 F.2d at 899 (citing
LaMontagne v. American Convenience Products, Inc.,
750 F.2d 1405, 1410 (7th Cir. 1984)).
To address the difficulty of proving discriminatory intent, New
Jersey has adopted the procedural burden-shifting methodology
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Zive v. Stanley Roberts, Inc., 867 A.2d 1133,1139 (N.J.
2005). In a McDonnell Douglas case, "[a] plaintiff must first
produce evidence sufficient to convince a reasonable factfinder
as to all of the elements of a prima facie case of
discrimination." Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d
When a plaintiff alleges unlawful discharge based on age, the
prima facie case requires proof that (i) the plaintiff was a
member of the protected class, i.e., was 40 years of age or older
(see 29 U.S.C. § 631(a)), (ii) that the plaintiff was
discharged, (iii) that the plaintiff was qualified for the job,
and (iv) that the plaintiff was replaced by a sufficiently
younger person to create an inference of age discrimination.
Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997). Under the McDonnell Douglas framework, once the
plaintiff establishes a prima facie case, "the burden of
production (but not the burden of persuasion) shifts to the
defendant, who must then offer evidence that is sufficient, if
believed, to support a finding that the defendant had a
legitimate, nondiscriminatory reason for the adverse employment
decision." Stanziale, 200 F.3d at 105 (internal quotations
Here, prongs (i) and (ii) of the prima facie case are not
in dispute because Plaintiff was terminated when he was forty one
years old. However, Plaintiff has not produced evidence that he
was qualified for the job in satisfaction of the third prong of
the prima facie case. According to Defendant, FedEx Acting
Senior Manager Michael Dochney terminated Plaintiff for his
violation of FedEx's Acceptable Conduct Policy on November 4,
2002. Def.'s Statement of Undisputed Material Facts at 5.
Plaintiff offers nothing to suggest that he was in fact qualified
for the position and had not violated the Acceptable Conduct
Policy or that the investigation which uncovered that Plaintiff
had scanned four missing packages in his truck was somehow flawed
or inaccurate. All that he offers is his own conclusory
allegation in his Complaint that FedEx's reason for his
termination, the "non-scanning of packages," is a "false" charge.
Compl. ¶ 2. Such a bald allegation is simply insufficient.
The fourth prong of the prima facie case requires that the
plaintiff show that he was replaced by a sufficiently younger
person, because an inference that an employment decision was
based on an illegal discriminatory criterion cannot be drawn from
the replacement of one worker with another worker who is
insignificantly younger. See O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308, 312-313 (1996). Defendant has
offered the testimony of its Custodian of Records, who avers that
according to FedEx's PRISM system, Plaintiff was replaced by Adams, who was thirty nine years old, and only two
months shy of her fortieth birthday. Decl. of Tracy Wheatley at
2. Thus, Adams, barely two years Plaintiff's junior, was not
significantly younger than Plaintiff, and her replacement of
Plaintiff cannot create an inference of age discrimination.
Notwithstanding Defendant's evidence regarding Adams's
replacement of Plaintiff, Plaintiff is hanging his hat on this
prong by arguing without any foundation that Masciulli actually
replaced him, and that the issue as to who replaced him is a
genuine issue of material fact sufficient to survive summary
judgment. Plaintiff's argument is unavailing.
To avoid summary judgment, Plaintiff must "go beyond the
pleadings and by his 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. Plaintiff offers only
his own deposition testimony as evidence that he was replaced by
Masciulli. However, the testimony fails to identify any
foundation, source or factual basis for his belief that he was
replaced by Masciulli and not Adams, a belief which contradicts
the employment records provided by FedEx's PRISM system. While
the Court must "view the inferences to be drawn from the
underlying facts in the light most favorable" to Plaintiff, see
Curley, 298 F.3d at 276-77, the Court need not credit a bald
allegation when Plaintiff has not satisfied his duty to set forth
specific facts showing that a genuine issue of material fact
exists and a reasonable factfinder could rule in his favor, see
Ridgewood Bd. of Ed., 172 F.3d at 252. Therefore, because
Plaintiff has not satisfied the third and fourth prongs of the
prima facie case and because he has not produced "evidence
adequate to create an inference that an employment decision was
based on a[n] [illegal] discriminatory criterion," see
Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977), I find that Plaintiff
has not produced evidence sufficient to convince a reasonable
factfinder as to all of the elements of a prima facie case of
discrimination under the NJLAD.*fn2 Even assuming,
arguendo, that Plaintiff has established a prima facie
NJLAD case, Defendant explains that Plaintiff was terminated
because he violated FedEx's Acceptable Conduct Policy by scanning
four missing packages in his truck, which is a legitimate,
nondiscriminatory reason for terminating Plaintiff
By virtue of Defendant having put forth sufficient evidence
that it had a legitimate, nondiscriminatory reason for
terminating Plaintiff, to survive summary judgment Plaintiff must
establish pretext by submitting "evidence from which a factfinder
could reasonably either (1) disbelieve the employer's articulated
legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action." Stanziale,
200 F.3d at 105. To show pretext, the plaintiff must show "not merely
that the employer's reason was wrong but that it was so plainly
wrong that it cannot have been the employer's real reason."
Keller, 130 F.3d at 1109. The plaintiff may do this by
producing evidence of "inconsistencies and implausibilities in
[Defendant's] proffered reason?." Josey v. John R.
Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993).
Plaintiff has offered no evidence that reveals any
inconsistencies and implausibilities in FedEx's reason for his
termination, or that his scanning four missing packages in his
truck and resulting violation of the Acceptable Conduct Policy could not
possibly have been the employer's real reason. Again, all that he
offers is his own conclusory allegation in his Complaint that
FedEx's reason for his termination was pretextual. Therefore, I
find that Plaintiff has failed to establish pretext. Indeed,
Plaintiff has not briefed the McDonnell Douglas burden shifting
analysis and simply discusses the prima facie case.
Plaintiff also argues, in effect, that a factfinder could
reasonably believe that an invidious discriminatory reason was
more likely than not a motivating or determinative cause of his
termination because of alleged remarks made by one of his
supervisors, Reader, 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," and Reader's alleged references to "older"
workers other than Plaintiff as "old farts" and "old fucks."
Deposition of Kevin Bohl, Transcript at 23, 25-26. However,
Plaintiff admits that Reader simply stated that certain drivers
were more productive, and while those drivers happened to be
younger, Reader never actually used the word "younger" when
describing them or their performance. Id. at 23-24. It is
Plaintiff who has placed that gloss on Reader's comments. Indeed,
Plaintiff conceded at his deposition that Reader made no specific
age-related comments about these younger workers. Id. Moreover,
according to the Third Circuit, "stray remarks by non-decision
makers . . . are inadequate to support an inference of
discrimination by the employer." Gomez v. Allegheny Health
Services, Inc., 71 F.3d 1079, 1085 (3d Cir. 1995). While Reader
was one of Plaintiff's supervisors, FedEx Acting Senior Manager
Michael Dochney is the individual who terminated him for his
violation of FedEx's Acceptable Conduct Policy. Plaintiff fails
to submit any evidence, other than the fact that Reader was one
of his supervisors, that Reader was a decisionmaker with regard to his termination. Finally,
Plaintiff's assertion that he was actually terminated because
FedEx was trying to save money on salary and benefits does not
state a claim for age discrimination. See Hazen Paper Co. v.
Biggins, 507 U.S. 604, 611-12 (1993). Thus, I find that
Plaintiff's evidence does not reasonably support an inference of
discriminatory intent on the part of FedEx. Therefore, because
Plaintiff has failed to produce evidence sufficient to convince a
reasonable factfinder as to all of the elements of a prima
facie case of discrimination and has not adequately rebutted
FedEx's legitimate, nondiscriminatory reason for terminating him,
Defendant's motion for summary judgment is granted.
For the reasons stated above, Defendant's motion for summary
judgment is granted. An appropriate Order follows. The case is