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Yepez v. Custom Chemicals Corp.

September 1, 2009


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket Nos. L-4801-06 and L-0162-07.

Per curiam.


Submitted August 25, 2009

Before Judges Sabatino and Chambers.

This is an age discrimination case brought under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to 42, by three former employees of a manufacturing company that laid them off as part of a seniority-based reduction in force. The Law Division granted the employer summary judgment. The employees appeal, and we affirm.

These are the salient facts. Defendant, Custom Chemicals Corporation, is a company that manufactures color products used in the vinyl industry. As of January 2005, defendant had thirty-six employees within a collective bargaining unit represented by Local 418 of the Teamsters labor union.

The three plaintiffs in this matter were all employees of defendant and members of the union. Plaintiff Jose Yepez worked for the company in its "Tank Room" in a position known as a "batcher" or a "batchmaker." In that job function, Yepez and other batchers weighed and loaded batches of material, recorded information on batch cards, and maintained the batching equipment. Plaintiff Luis Barbosa was also a batcher. The third plaintiff, Jorge Gamarra, operated equipment known as a "Pulverizer."

Due to a decline in production, in the early part of 2005, defendant underwent a major layoff of its workforce. The layoff resulted in termination of about thirty percent of the union members. In making those layoffs, the company was bound to follow seniority-based "bumping" procedures specified in its collective bargaining agreement with Local 418. In particular, the agreement required that if layoffs became necessary, "the reduction in force shall be initiated with the job classification in which there are surplus employees, in reverse seniority." (Emphasis added). Additionally, a union member identified for layoff had the right, upon certain conditions, to "bump" a less senior employee. Specifically, a more senior employee about to be laid off "shall be entitled to exercise his [or her] seniority in any other [job] classification for the same pay level or lower pay level, provided he/she has the present ability and willingness to perform the work of his/her new classification with normal efficiency." (Emphasis added).

Consistent with these provisions, on March 4, 2005, defendant's plant manager notified all three plaintiffs that they were being laid off. In response, Yepez attempted to exercise his bumping rights by trying to displace a less-senior employee who operated the blending equipment in the so-called "Chip Room." However, when he attempted to perform those duties in the Chip Room "with normal efficiency" in the presence of the plant manager and his union shop steward, Yepez was unable to do so. Similarly, Barbosa tried to bump a less-senior batcher on a different shift, but he failed to demonstrate that he could perform that employee's duties, which included the operation of a forklift. Gamarra, meanwhile, declined the opportunity to try to bump a less-senior worker. All three plaintiffs were paid retirement benefits.

Yepez, Barbosa, and Gamarra all perceived that they had been singled out for discharge because of their ages. At the time of their layoffs, Yepez was age 62, Barbosa was age 67, and Gamarra was age 57. Plaintiffs also were under the impression that the company eventually back-filled their respective positions with younger workers, several months after they were laid off.

All three plaintiffs filed grievances with their union seeking redress. When the union declined to take action on their behalf, plaintiffs retained common counsel and filed a joint action against the company in the Law Division. Their complaint alleged that they had been selected for layoff based upon their ages, in violation of the LAD. The company, in defending the lawsuit, argued that the layoffs had been necessitated by economic factors, and that it simply had followed the seniority-based layoff procedures prescribed by the collective bargaining agreement.

Discovery ensued and plaintiffs were deposed. During their depositions, plaintiffs were unable to identify the names or ages of any younger workers who had allegedly filled their positions, or who were otherwise treated more favorably. Although Yepez and Barbosa admitted that they were afforded a chance to demonstrate an ability to perform the job functions of a less senior employee, they contended that the bumping process was a "sham" because they were not trained on how to perform those alternative functions.

Following discovery, defendant moved for summary judgment, arguing that there is no genuine issue that the manner in which it conducted the layoffs violated the LAD. The motion judge agreed, and entered an order dismissing the claims of all three plaintiffs.

Plaintiffs appeal, arguing that summary judgment was improvidently granted and that the trial court's order ...

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