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.
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 ...