                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-17-1994

McKenna, et al. v. Pacific Rail Service
Precedential or Non-Precedential:

Docket 93-5253, 93-5277




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                             ___________

                        Nos. 93-5253, 93-5277,
                          93-5385 and 93-5386
                              ___________


PETER MCKENNA; GREG SPINA; JACK RICCIARDI; JOHN OLIVER;
     ANDREW HENNESSEY; AL ARMETTA; PINCUS COHEN; DAVE QUAID;
     ADAM LUKASWESKI; WILLIAM HARPER; DORRANCE A. LINDH;
     JOHN GUGLIOTTA; GEORGE WHITEHEAD; JOHN SHEA; ANTHONY
     NAZARE; ROBERT TIGHE; DENNIS MCCARTHY; RICHARD
     MONTACALVO; JEANETTE MCCAFFERTY; GEORGE MARTIN; RALPH
     FERNANDEZ; PAUL NOETHE; PATRICIA BURWITZ; MICHAEL
     DEMONE; EDDIE DECHERT; SALVATORE PETRUZZELLI; PHYLLIS
     LINDH; JOSEPH K. PFEIL,

                              vs.

PACIFIC RAIL SERVICE,

          Pacific Rail Service,

                              Appellant Nos. 93-5253
                                and 93-5385.


PETER MCKENNA; GREG SPINA; JACK RICCIARDI; JOHN OLIVER;
     ANDREW HENNESSEY; AL ARMETTA; PINCUS COHEN; DAVE QUAID;
     ADAM LUKASWESKI; WILLIAM HARPER; DORRANCE A. LINDH;
     JOHN GUGLIOTTA; GEORGE WHITEHEAD; JOHN SHEA; ANTHONY
     NAZARE; ROBERT TIGHE; DENNIS MCCARTHY; RICHARD
     MONTACALVO; JEANETTE MCCAFFERTY; GEORGE MARTIN; RALPH
     FERNANDEZ; PAUL NOETHE; PATRICIA BURWITZ; MICHAEL
     DEMONE; EDDIE DECHERT; SALVATORE PETRUZZELLI; PHYLLIS
     LINDH; JOSEPH K. PFEIL,

                              vs.
PACIFIC RAIL SERVICE,

          Peter McKenna; Greg Spina; Jack Ricciardi; John Oliver;
          Andrew Hennessey; Al Armetta; Pincus Cohen; Dave Quaid;
          Adam Lukasweski; William Harper; Dorrance A. Lindh;
          John Gugliotta; George Whitehead; John Shea; Anthony
          Nazare; Robert Tighe; Dennis McCarthy; Richard
          Montacalvo; Jeanette McCafferty; George Martin; Ralph
          Fernandez; Paul Noethe; Patricia Burwitz; Michael
          Demone; Eddie Dechert; Salvatore Petruzzelli; Phyllis
          Lindh; Joseph K. Pfeil,

                              Appellants Nos. 93-5277
                                and 93-5386.

                             ___________


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW JERSEY

                      (D.C. Civil No. 91-00693)

                             ___________


                        ARGUED MARCH 10, 1994

          BEFORE:     MANSMANN and LEWIS, Circuit Judges,
                    and MCKELVIE, District Judge.*

                       (Filed August 11, 1994)

                             ___________


John W. Kyle
Roger D. Meade
Littler, Mendelson, Fastiff, Tichy, & Mathiason
World Trade Center, Suite 1653
Baltimore, MD 21202-3005




*
    Honorable Roderick R. McKelvie, United States District Judge
    for the District of Delaware, sitting by designation.
Gary P. Scholick (ARGUED)
Littler, Mendelson, Fastiff, Tichy & Mathiason
650 California Street, 20th Floor
San Francisco, CA 94108

Attorneys for Appellant/Cross-appellee, Pacific Rail Service


Louie D. Nikolaidis
Thomas M. Kennedy (ARGUED)
Lewis, Greenwald, Kennedy, Lewis,
 Clifton & Schwartz
355 Murray Hill Parkway
East Rutherford, NJ 07073

Attorneys for Appellees/Cross-appellants, McKenna, Spina,
     Ricciardi, Oliver, Hennessey, Armetta, Cohen, Quaid,
     Lukasweski Harper, Lindh, Gugliotta, Whitehead, Shea,
     Nazare, Tighe, McCarthy, Montacalvo, McCafferty,
     Martin, Fernandez, Noethe, Burwitz, Demone, Dechert,
     Petruzzelli, Lindh, and Pfeil


                            ___________

                        OPINION OF THE COURT
                            ___________



LEWIS, Circuit Judge.

Appellees/cross-appellants are 23 of 28 former yard and clerical

employees of Pennsylvania Truck Lines, Inc. ("PTL") who asserted

that appellant/cross-appellee Pacific Rail Services ("Pacific

Rail") engaged in age discrimination in violation of the New

Jersey Law Against Discrimination (the "LAD") by failing to hire

them in 1990.   Since the trial in this case, the United States

Supreme Court has issued a decision clarifying the standards by

which federal employment discrimination cases are to be judged.

St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993).   Because

we believe the New Jersey Supreme Court would adopt Hicks's
clarification of the test to be applied in federal discrimination

cases in interpreting the LAD, we will vacate the judgment that

was entered and remand for a new trial.   To assist the district

court on remand, we will also decide several subsidiary issues

relating to individual claims and plaintiffs.

                                I.

Because our resolution of the legal issues will require a new

trial, it is not necessary to discuss the facts in great detail.

The following, however, provides some background to the dispute.

Beginning in 1960, PTL performed lift operations -- loading and

unloading freight from flat bed railroad cars -- for Consolidated

Rail Corporation ("Conrail") at its North Bergen, New Jersey,

terminal.   In July, 1990, however, after solicitation of bids by

Conrail, Pacific Rail won the North Bergen contract, effective

September 1, 1990.

Upon learning that PTL had lost the North Bergen contract, PTL

employees at the North Bergen terminal became interested in

working for Pacific Rail at that site.    Pacific Rail

representatives testified at trial, however, that even before

submitting its bid, Pacific Rail had decided not to simply hire

all of the PTL/North Bergen yard and clerical workers

"wholesale," because Pacific Rail was concerned about the

attitudes and work habits of some of the workers.1



1
.    Plaintiffs at trial disputed both the sincerity of Pacific
     Rail's concern and the accuracy of Pacific Rail's
     characterization of the PTL employees at North Bergen.
Instead, upon winning the North Bergen contract, Pacific Rail

apparently undertook a three-step hiring process.    First, Pacific

Rail offered positions to its own employees at Conrail's

Elizabeth, New Jersey ("E-Rail") terminal on a "promote from

within" theory.   (Pay rates at North Bergen were higher than at

E-Rail, so a move to North Bergen was effectively a promotion,

according to the Pacific Rail representatives.)    Testimony

indicated that one of the six yard and clerical employees

transferred from E-Rail on this basis was over 40 years old.

Pacific Rail next offered employment to three Conrail clerks and

two PTL employees from the nearby Conrail/PTL terminal at Kearny,

New Jersey.   The three Conrail offerees (only two of whom

accepted their offers) were over 40.    The two PTL offerees (both

of whom accepted) were under 40.

Finally, Pacific Rail hired all 11 applicants referred by the

union local that represented yard and clerical employees at E-

Rail.   Of these, one was over 40.

As of September 1, only a limited number of positions in North

Bergen remained open.   Pacific Rail apparently offered employment

to two former PTL/North Bergen yard employees who were over 40,

but both refused the offer.   Then a former PTL supervisor working

for Pacific Rail recommended for hire four former PTL/North

Bergen yard employees, two of whom were in their 20s and two of

whom were over 40.   Pacific Rail offered employment to the

younger two, and they accepted.    To fill a remaining clerk

position, Pacific Rail made offers to two former PTL/North Bergen

clerical employees, both over 40, but both declined.    Ultimately,
instead of simply filling the clerk position, Pacific Rail

transferred a person who was over 40 from E-Rail to assist with

clerical work and act as office manager.

To summarize, prior to September 1, Pacific Rail had apparently

hired 21 employees, none of whom came from the pool of PTL

employees at North Bergen.    Only four of these 21 individuals

were over 40 years old.    After September 1, Pacific Rail hired

either three or four more employees, at least two of whom were

under 40 and from PTL/North Bergen and at least one of whom was

over 40 and formerly with E-Rail.2    Thus, of the 25 yard and

clerical employees that the evidence showed Pacific Rail hired to

work at North Bergen, either 19 or 20 were under 40 years old.

The 28 former PTL/North Bergen yard and clerical employees who

filed this lawsuit were over 40.     They alleged that Pacific

Rail's failure to hire them was due to age discrimination in

violation of the LAD.     A jury found in favor of 18 of the 28

employees and awarded them a total of more than $7 million

($1,448,000 in back pay and $5,743,500 in front pay).     Both

Pacific Rail and the 18 verdict winners, plus five plaintiffs

whose claims were dismissed by the district court, appeal and

cross-appeal several issues.

2
.    Curiously, the record is somewhat ambiguous as to whether
     three or four additional employees were hired after
     September 1. Plaintiffs' Exhibit 10 indicates that Pacific
     Rail hired a total of 25 persons. The parties agree that 21
     were hired prior to September 1. That would leave four to
     be hired after September 1, but, as discussed in the text,
     the parties specifically discuss only three employees hired
     after that date. The discrepancy is immaterial for our
     purposes, as we are certain it will be clarified on remand.
                                 II.

The primary issue presented involves the delicate task of

predicting how the New Jersey Supreme Court would interpret and

apply the LAD in the aftermath of the United States Supreme

Court's decision in St. Mary's Honor Ctr. v. Hicks, 113 S. Ct.
2742 (1993).   As a federal court sitting in diversity, the

district court was, and we are, obliged to apply state

substantive law.    Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938);

Colantuno v. Aetna Ins. Co., 980 F.2d 908, 909 (3d Cir. 1992).

In so doing, we are not free to impose our own view of what state

law should be; we are to apply state law as interpreted by the

state's highest court.   Id.   In the absence of guidance from that

court we are to refer to decisions of the state's intermediate

appellate courts for assistance in determining how the highest

court would rule.   Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107,

113 (3d Cir. 1992); Fisher v. USAA Casualty Ins. Co., 973 F.2d

1103, 1105 (3d Cir. 1992).     In cases such as this, where neither

the state supreme court nor any intermediate appellate courts

have spoken to the issue at hand, our task of predicting state

law becomes even more complicated.     Nevertheless, we must proceed

into these uncharted waters, using pronouncements from the New

Jersey Supreme Court on analogous issues as our compass.

                                  A.

In Hicks, the Supreme Court considered "whether, in a suit
against an employer alleging intentional racial discrimination in

violation of [Title VII], the trier of fact's rejection of the

employer's asserted reasons for its actions mandates a finding
for the plaintiff."   Hicks, 113 S. Ct. at 2746.   Under the

familiar McDonnell Douglas shifting-burden analysis applicable to

federal employment discrimination cases involving indirect proof

of discrimination, the plaintiff bears the burden of proving a

relatively simple prima facie case, which the employer must rebut

by articulating a legitimate, non-discriminatory reason for its

actions.   See generally Chipollini v. Spencer Gifts, Inc., 814

F.2d 893, 897 (3d Cir. 1987).3   Prior to Hicks, we had held that

a finding that a defendant employer had articulated false reasons

mandated entry of judgment for plaintiff.    See Chipollini, 814

F.2d at 898; Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d

1393, 1395-96 (3d Cir. 1984).    Hicks changed that:   the Court

ruled definitively that a finding that an employer had

articulated a pretextual reason for its actions does not mandate

judgment for a plaintiff.   Instead, "a reason cannot be proved to

be `a pretext for discrimination' unless it is shown both that

the reason was false, and that discrimination was the real

reason."   Hicks, 113 S. Ct. at 2752.   Thus, "[t]hat the

3
.    The McDonnell Douglas analysis was derived from McDonnell
     Douglas Corp. v. Green, 411 U.S. 792 (1973). See also
     Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248
     (1981). Although McDonnell Douglas itself involved
     allegations of intentional (disparate treatment)
     discrimination in violation of Title VII of the Civil
     Rights Act of 1964, 42 U.S.C. § 2000e, the shifting burden
     analysis with which the case name is now synonymous also
     has been applied in section 1983 cases, section 1981 cases
     and age discrimination cases. See Hicks, 113 S. Ct. at
     2746-47 n.1; Seman v. Coplay Cement Co., slip op. at 8 n.7
     No. 93-3544 (3d Cir. June 8, 1994); Geary v. Visitation of
     the Blessed Virgin Mary Parish Sch., 7 F.3d 324, 329 & n.4
     (3d Cir. 1993).
employer's proffered reason [for its actions] is unpersuasive, or

even obviously contrived, does not necessarily establish that the
plaintiff's proffered reason of race is correct."   Id. at 2756

(emphasis added).   In our most recent decisions addressing this

issue, we have followed this teaching that a finding of pretext

may lead to a reasonable inference of discriminatory motives, but

it does not automatically compel a finding of discrimination.

See Miller v. CIGNA Corp., slip op. at 19-20, No. 93-1773 (3d

Cir. June 28, 1994); Seman v. Coplay Cement Co., slip op. at 9,

No. 93-3544 (3d Cir. June 8, 1994); Geary v. Visitation of the

Blessed Virgin Mary Parish Sch., 7 F.3d 324, 329 n.4 (3d Cir.

1993).

                                B.

In this LAD case, the district court instructed the jury several

times that the plaintiffs bore the burden of proving that they

were not hired because of their age.   See App. at 91-93.    The

court also instructed the jury that in evaluating Pacific Rail's

asserted legitimate business reasons for its actions, they were

to decide whether those reasons were its true reasons or whether

they "ha[d] been presented to hide or avoid disclosure of the

true reason, namely:   age discrimination."   App. at 94.   In

summarizing the charge, the court said:
If I may recap for you, if you find that plaintiff has
     established . . . either, one, that his/her age was a
     determining factor "but for" which he/she would have
     been hired; or two, that the reasons advanced by the
     defendant for not hiring plaintiff were a pretext, a
     reason or reasons unworthy of credence, then plaintiff
     will have established his/her claim of intentional age
     discrimination and you must return a verdict in his/her
     favor. If, however, he/she has failed to establish
     either of those two propositions, then your verdict
     must be in favor of the defendant.


App. at 94-95 (emphasis added).    Clearly, these instructions

would be an incorrect statement of federal law after Hicks.4
                                  C.

The question, however, is whether the New Jersey courts would

apply Hicks in an LAD case.5   Hicks, of course, involved the

United States Supreme Court's interpretation of federal anti-

discrimination statutes and case law.   Whether the New Jersey

Supreme Court will decide that the same principles apply in cases

brought under the LAD is another question.


4
.    Pacific Rail requested a jury instruction explaining that
     even if the jury rejected Pacific Rail's rationale as
     unsupported by the evidence or false, the jury would
     nevertheless still need to find that the plaintiffs met
     their burden of proving wrongful discrimination. Suppl.
     App. at 2799. The district court did not give this
     instruction.
5
.    Pacific Rail contends that plaintiffs are estopped from
     arguing that Hicks does not apply because the plaintiffs
     contended throughout this litigation that New Jersey courts
     generally follow federal law in this area. Plaintiffs
     certainly have consistently taken the position that the
     standards and allocations of proof applicable to federal
     Title VII cases apply in cases involving the LAD. But on
     these facts we cannot say plaintiffs are estopped from
     arguing that Hicks does not apply. Trial took place in
     September, 1992, and post-trial motions were decided in
     March and April, 1993. Hicks was not decided until June,
     1993. Until then, our position on this issue, which the
     district court was bound to follow, was one the plaintiffs
     believed the New Jersey Supreme Court would also follow.
     The fact that the United States Supreme Court has since
     disavowed our position should not foreclose the plaintiffs
     from arguing that the New Jersey Supreme Court might
     nonetheless decide to adopt the approach taken in Title VII
     cases in this circuit before Hicks.
The LAD provides:
          It shall be an unlawful employment practice, or,
     as the case may be, an unlawful discrimination:

          a. For an employer, because of the race, creed,
     color, national origin, ancestry, age, marital status,
     affectional or sexual orientation, sex or atypical
     hereditary cellular or blood trait of any individual,
     or because of the liability for service in the Armed
     Forces of the United States or the nationality of any
     individual, to refuse to hire or 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. Stat. Ann. 10:5-12(a).   First enacted in 1945, well before

federal legislative attempts to eliminate discrimination in the

workplace, the LAD was intended by the New Jersey legislature to

eradicate "the cancer of discrimination."   Jackson v. Concord
Co., 54 N.J. 113, 124, 253 A.2d 793, 799 (1969); see Lehmann v.

Toys `R' Us, Inc., 132 N.J. 587, 600, 626 A.2d 445, 451 (1993).6

6
.    The New Jersey legislature has provided:

          All persons shall have the opportunity to obtain
          employment . . . without discrimination because of
          race, creed, color, national origin, ancestry,
          age, marital status, affectional or sexual
          orientation, familial status, or sex, subject only
          to conditions and limitations applicable alike to
          all persons. This opportunity is recognized and
          declared to be a civil right.

     N.J. Stat. Ann. 10:5-4. It has clearly stated the intent
     behind the LAD within the statute itself:

               The Legislature finds and declares that
          practices of discrimination against any of its
          inhabitants, because of race, creed, color,
          national origin, ancestry, age, sex, affectional
          or sexual orientation, marital status, familial
          status, liability for service in the Armed Forces
The New Jersey Supreme Court has generally looked to standards

developed under federal anti-discrimination law for guidance in

construing the LAD.   Lehmann, 132 N.J. at 600, 626 A.2d at 452.
The New Jersey Court has adopted the McDonnell Douglas framework,
(..continued)
          of the United States, or nationality, are matters
          of concern to the government of the State, and
          that such discrimination threatens not only the
          rights and proper privileges of the inhabitants of
          the State but menaces the institutions and
          foundation of a free democratic State; provided,
          however, that nothing in this expression of policy
          prevents the making of legitimate distinctions
          between citizens and aliens when required by
          federal law or otherwise necessary to promote the
          national interest.

               The Legislature further declares its
          opposition to such practices of discrimination
          . . . in order that the economic prosperity and
          general welfare of the inhabitants of the State
          may be protected and ensured.

               The Legislature further finds that because of
          discrimination, people suffer personal hardships,
          and the State suffers a grievous harm. The
          personal hardships include: economic loss; time
          loss; physical and emotional stress; and in some
          cases severe emotional trauma, illness,
          homelessness or other irreparable harm resulting
          from the strain of employment controversies;
          relocation, search and moving difficulties;
          anxiety caused by lack of information,
          uncertainty, and resultant planning difficulty;
          career, education, family and social disruptions;
          and adjustment problems, which particularly impact
          on those protected by this act. Such harms have,
          under the common law, given rise to legal
          remedies, including compensatory and punitive
          damages. The Legislature intends that such
          damages be available to all persons protected by
          this act and that this act shall be liberally
          construed in combination with other protections
          available under the laws of this State.

     N.J. Stat. Ann. 10:5-3.
although it has noted that it has never "embraced the McDonnell
Douglas test literally, invariably, or inflexibly."    Grigoletti

v. Ortho Pharm. Corp., 118 N.J. 89, 97-98, 570 A.2d 903, 907

(1990).   Instead, the New Jersey Supreme Court has demonstrated a

marked willingness, and has instructed New Jersey courts in

general, to treat the McDonnell Douglas test as "only a general

framework for analyzing unlawful discrimination claims" which

"must be modified where appropriate."   Erickson v. Marsh &

McLennan Co., Inc., 117 N.J. 539, 550, 569 A.2d 793, 799 (1990);

see generally Carrington v. RCA Global Commun., Inc., 762 F.

Supp. 632, 644-45 (D. N.J. 1991) (noting that "[t]here is little

reason to believe that New Jersey courts will exhibit slavish

devotion to federal law in interpreting the NJLAD").

Thus, the New Jersey Supreme Court has refused to apply the

McDonnell Douglas framework in LAD cases alleging gender

discrimination in the form of unequal pay, Grigoletti, supra;

modified the elements of the McDonnell Douglas prima facie case

in the context of reverse discrimination failure-to-hire cases,

Erickson, supra; and shifted to employers the burden of proving

the validity of their decisions in some handicap discrimination

cases.    Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363,
541 A.2d 682 (1988).   See also Jamison v. Rockaway Twp. Bd. of

Educ., 242 N.J. Super. 436, 445-47, 577 A.2d 177, 183 (1990)

(establishing a variation of the McDonnell Douglas framework to

apply in cases alleging a retaliatory failure to promote).

Plaintiffs point to this willingness to modify the McDonnell
Douglas framework as evidence that the New Jersey Supreme Court
would disregard Hicks and instead hold that a plaintiff asserting
a claim of employment discrimination pursuant to the LAD is

entitled to judgment as a matter of law if he or she has proven a

prima facie case and has demonstrated that the reason or reasons

the employer gave for the challenged employment action were

false.

It is true that the New Jersey Supreme Court has taken to heart

the legislature's expressed intention that the LAD is to be

construed liberally.   See supra note 6.   It is also true,

however, that the legislature has admonished New Jersey courts to

construe the provisions of the LAD "fairly and justly with due

regard to the interests of all parties," N.J. Stat. Ann. 10:5-27,

as the New Jersey Supreme Court itself recognized in Andersen v.

Exxon Co., 89 N.J. 483, 496, 446 A.2d 486, 492 (1982).     Read

together, these admonitions are not inconsistent with one another

and are both significant to and instructive in our search for

guidance.   As we explain more fully below, because the New Jersey

legislature intended to protect and compensate victims of

discrimination but not to relieve them of the burden of proving

unlawful discrimination, and because the New Jersey rule

regarding presumptions parallels the federal rule on presumptions

upon which the Hicks Court based its decision, we predict that
the New Jersey Supreme Court would endorse Hicks's view that a

plaintiff in a discrimination case is not entitled to judgment as

a matter of law simply because he or she proves a prima facie

case and that the reason or reasons asserted by his or her

employer for the challenged action were false.
Our decision is informed by a number of observations concerning

New Jersey law.   First, under New Jersey law, as under federal

law, plaintiffs have always retained the ultimate burden of

demonstrating that the actions they challenged were due to

discrimination.   See, e.g., Peper v. Princeton Univ. Bd. of
Trustees, 77 N.J. 55, 87, 389 A.2d 465, 478 (1978); Kearny

Generating Sys. v. Roper, 184 N.J. Super. 253, 445 A.2d 1159

(1982).7   Our understanding of the McDonnell Douglas framework

7
.     We acknowledge that the New Jersey Supreme Court has not
      always been entirely clear on this point. In Peper, the
      case in which it decided to adopt the McDonnell Douglas
      shifting burden scheme, the court stated in dicta that it
      agreed with the statements of a federal judge who described
      the McDonnell Douglas scheme as shifting the burden of
      proof, rather than simply of production, to the defendant
      once a prima facie case has been made out. Peper, 77 N.J.
      at 84, 389 A.2d at 480. The focus of Peper, however, was
      on the plaintiff's inability to establish a prima facie
      case. That and numerous statements since by the New Jersey
      Supreme Court and superior courts confirming that the
      burden of proof does not shift (e.g., Goodman v. London
      Metals Exch., Inc., 86 N.J. 19, 429 A.2d 341 (1981);
      Kearny, supra), convince us that this single statement in
      Peper cannot serve as a basis for concluding that the court
      would refuse to incorporate the principles of Hicks into
      the law of the LAD.

      Similarly, statements in Jamison v. Rockaway Twp. Bd. of
      Educ., 242 N.J. Super. 436, 577 A.2d 177 (1990), do not
      sway our view of the burden placed on a plaintiff asserting
      a straightforward LAD claim. In that case, the New Jersey
      Superior Court referred extensively to a decision of the
      Court of Appeals for the Ninth Circuit, Wrighten v. Metro.
      Hosp., Inc., 726 F.2d 1346 (9th Cir. 1984), describing the
      McDonnell Douglas formulation applicable in retaliatory
      discharge cases. The Jamison court cited Wrighten as
      providing that an employee asserting a retaliatory
      discharge may "show by preponderating evidence that a
      discriminatory intent motivated the employer's action" by
      "proving that the articulated reason is a pretext for the
      retaliation or that a discriminatory reason more likely
      motivated the employer." Jamison, 242 N.J. Super. at 445,
before Hicks similarly required that the plaintiff bear the
ultimate burden of proving that the challenged employment action

resulted from unlawful discrimination.   See, e.g., Billet v.

CIGNA Corp., 940 F.2d 812, 817 (3d Cir. 1991).   Our decisions

finding that this burden could be borne merely by demonstrating

that the asserted legitimate, non-discriminatory reasons for the

employer's actions were incredible were based on the weight given

to the McDonnell Douglas prima facie case as a "presumption."     In

other words, our (and other courts') reasoning that proving

pretext entitled plaintiff to judgment reflected a belief that

the presumption of discrimination raised by the plaintiff's

ability to make out a prima facie case had not been rebutted and

was only strengthened by the proven falsity of the reasons the

employer gave for its actions, thus mandating a decision that the

employer's actions had been motivated by unlawful discrimination.

See Hicks, 113 S. Ct. at 2762-63 (Souter, J., dissenting).      Hicks

clarified that under federal law the presumption raised by

establishment of the prima facie case no longer exists once an

employer has articulated a legitimate, nondiscriminatory reason

for its actions. It does not hold that proving that reason false
(..continued)
      577 A.2d at 182 (emphasis added). Doing so, the court
      added, creates "a presumption . . . that the adverse
      employment action was the product of improper retaliatory
      intent. . . . Then, the employer must prove by the
      preponderance of the evidence that the adverse action would
      have been taken regardless of retaliatory intent." Id. at
      445-46, 577 A.2d at 182. The shifting of the ultimate
      burden in a retaliatory discrimination case does not
      necessarily imply that the New Jersey Supreme Court would
      advocate any shift or lessening of the burden in a
      straightforward failure-to-hire case.
will never suffice to support a decision for a plaintiff; it

merely establishes that the plaintiff does not merit judgment as

a matter of law once falsity is proven.

In thus clarifying the law, the Court in Hicks referred to and
relied upon Federal Rule of Evidence 301, concerning

presumptions.8   Hicks, 113 S. Ct. at 2747; see also id. at 2749

("[T]he Court of Appeals' holding that rejection of the

defendant's proffered reasons compels judgment for the plaintiff

disregards the fundamental principle of Rule 301 that a

presumption does not shift the burden of proof, and ignores our

repeated admonition that the Title VII plaintiff at all times

bears the `ultimate burden of persuasion.'").    The New Jersey

Supreme Court has similarly interpreted the LAD, describing the

prima facie stage of the McDonnell Douglas test as establishing a

"rebuttable presumption" of discrimination.     Erickson, 117 N.J.

at 551, 569 A.2d at 799.    It has also stated that when a

defendant rebuts the presumption by articulating a legitimate

nondiscriminatory reason for its actions, the inference of

discrimination which literally arose from the plaintiff's

evidence is destroyed.     Goodman v. London Metals Exch., Inc., 86
8
.     Rule 301 provides:

               In all civil actions and proceedings not
          otherwise provided for by Act of Congress or by
          these rules, a presumption imposes on the party
          against whom it is directed the burden of going
          forward with evidence to rebut or meet the
          presumption, but does not shift to such party the
          burden of proof in the sense of the risk of
          nonpersuasion, which remains throughout the trial
          upon the party on whom it was originally cast.
N.J. 19, 33, 429 A.2d at 341, 348 (1981).   Therefore,

corresponding reference to the New Jersey Rule of Evidence

regarding presumptions seems appropriate, and our reference

thereto provides further support for the conclusion that New

Jersey would clarify the law of the LAD as the Court in Hicks
clarified Title VII jurisprudence.

Like Federal Rule of Evidence 301, New Jersey Rule of Evidence

3019 provides that the introduction of evidence to rebut a

presumption destroys that presumption, leaving only that evidence

and its inferences to be judged against the competing evidence

and its inferences to determine the ultimate question at issue

(in an LAD case, the question of whether the defendant illegally
9
.     The rule provides:

          Except as otherwise provided in Rule 303 or
          by other law, a presumption discharges the
          burden of producing evidence as to a fact
          (the presumed fact) when another fact (the
          basic fact) has been established.

          If evidence is introduced tending to disprove
          the presumed fact, the issue shall be
          submitted to the trier of fact for
          determination unless the evidence is such
          that reasonable persons would not differ as
          to the existence or nonexistence of the
          presumed fact. If no evidence tending to
          disprove the presumed fact is presented, the
          presumed fact shall be deemed established if
          the basic fact is found or otherwise
          established. The burden of persuasion as to
          the proof or disproof of the presumed fact
          does not shift to the party against whom the
          presumption is directed unless otherwise
          required by law. Nothing in this rule shall
          preclude the judge from commenting on
          inferences that may be drawn from the
          evidence.
discriminated against the plaintiff).   Specifically, it states

that "[i]f evidence is introduced tending to disprove the

presumed fact, the issue shall be submitted to the trier of fact

for determination unless the evidence is such that reasonable

persons would not differ as to the existence or nonexistence of

the presumed fact."   The commentary to the rule provides that "a

valid presumption can be used to establish a prima facie case,

but the presumption normally disappears in the face of

conflicting evidence.   Nevertheless, any logical inference which

can be drawn from the basic fact remains."   N.J. R. Evid. 301,

1994 supplemental comment.10   Therefore, the rule states with

regard to state law exactly what Hicks has explained to be the
operation of federal anti-discrimination law under the McDonnell

Douglas shifting burden analysis.   The New Jersey Supreme Court

may choose, as a policy matter, to interpret the LAD even more

broadly, so that the usual rules governing presumptions do not

apply in LAD cases, cf. N.J. R. Evid. 301 (rule governs "[e]xcept

as otherwise provided . . . by other law"), but in the face of

this explicit explanation of the operation of presumptions under

New Jersey law, we cannot make that state law policy decision for

it.   Compare Schweigert v. Provident Life Ins. Co., 503 N.W.2d
225, 288-29 (N.D. 1993) (refusing to adopt Hicks formulation

because of different state rule on presumptions).


10
 .    Rule 301 replaced N.J. R. Evid. 14, cited by the PTL
      employees, effective July 1, 1993. Commentary to it
      indicates that Rule 301 reflects established New Jersey
      law.
This is particularly true in light of the New Jersey courts'

general adoption of federal anti-discrimination law as their

guidepost.    Indeed, the courts' willingness to depart from

federal precedent in the anti-discrimination area has occurred in

only three contexts, involving either modification of the

McDonnell Douglas framework to fit specific factual situations
(e.g., Erickson and Jansen), departure from that framework in

accordance with cases decided by various federal courts of

appeals (Grigoletti), or departure from the standards we apply in

favor of what it believes to be a more sensible interpretation of

United States Supreme Court precedent (Lehmann).   It has never

rejected outright the United States Supreme Court's approach to

federal anti-discrimination law; to the contrary, it has noted

that there exists "an imputed but strong legislative intent to

harmonize the State's anti-discrimination statutes with the

dominant federal view to maximize the protections for the victims

of discrimination and . . . to benefit all of society by these

efforts."    Grigoletti, 118 N.J. at 108, 570 A.2d at 913.

Finally, the New Jersey Supreme Court's decision in Goodman

provides further support for our decision, if only by

implication.    In Goodman, the court considered a case in which a
company and its principals argued that a hearing examiner in the

New Jersey Division on Civil Rights had misapplied the burden of

proof.    The complainant, a female job applicant, established a

prima facie case that she had not been hired because of her

gender.   The respondents contended that she was not granted an

interview because her attitude had been unpleasant.    The hearing
examiner nevertheless ruled for the complainant, stating that the

"`case ultimately turns on credibility'" and that he believed the

complainant.   Goodman, 86 N.J. at 33, 429 A.2d at 348.   The New

Jersey Supreme Court ruled that the hearing examiner had properly

applied the McDonnell Douglas shifting burden scheme:
          The explanation given by respondents for
     complainant's rejection was sufficient for the employer
     to meet its burden of articulating a legitimate
     nondiscriminatory reason for the rejection and thus
     destroy `the legally mandatory inference of
     discrimination arising from the plaintiff's initial
     evidence.' . . . However, the trier of fact may
     nevertheless be persuaded by that evidence and its
     inferences combined with that adduced from the
     respondents that the employer's proposed explanation is
     unworthy of belief and is nothing more than a mere
     pretext for unlawful discrimination.


Goodman, 86 N.J. at 33, 429 A.2d at 348 (emphasis added).     In

explaining why it believed the hearing examiner had correctly

applied McDonnell Douglas, the court stated not only that the

hearing examiner had said he found the plaintiff and her witness

to be truthful, but also that he had "concluded that the reason

given by the employer for [the plaintiff's] rejection was
pretextual and that the true reason for her rejection was

`because she was a woman.'"   Id. at 33-34, 429 A.2d at 349

(emphasis added).   Thus, the New Jersey Supreme Court did not

find that mere disbelief of the employer would support a decision

for the complainant; it affirmed the hearing examiner's decision

because he had disbelieved the employer and had decided that the

true reason for the employer's failure to hire the plaintiff was

unlawful discrimination.   This is consistent with Hicks and
supports our belief that the New Jersey Supreme Court would

follow Hicks in interpreting the LAD.
In conclusion, we are persuaded that the New Jersey Supreme Court

would ultimately determine that plaintiffs in employment

discrimination cases under the LAD may not necessarily prevail

merely by proving a prima facie case and rebutting an employer's

asserted legitimate non-discriminatory reasons for its actions.

That level of proof may suffice if the factfinder believes that

the employer offered false reasons to conceal unlawful

discrimination, but it does not mandate entry of judgment for the

plaintiff.   Instead, as provided in the New Jersey Rule of

Evidence governing presumptions and their operation, the case

must go to the factfinder for decision of the ultimate issue --

whether the employer had engaged in unlawful discrimination.

Thus, the trial court erred in propounding jury instructions that

would entitle the plaintiffs to judgment if they merely presented

a prima facie case and demonstrated that the defendant's asserted

grounds for decision were pretextual.

                               III.

Our conclusion that the New Jersey Supreme Court would

incorporate the Hicks principles into its LAD jurisprudence

requires that this case be retried.     We do not believe that the

New Jersey Supreme Court would choose to apply this clarification

of New Jersey law only prospectively, as the PTL employees
argue.11   Nor do we accept either side's contention that this

case can be decided at the appellate level, without a remand.

Plaintiffs argue that the trial court's charge to the jury,

instructing that they at all times bore the burden of proving

that they were not hired because of their age, cured any error

that may have occurred when the court instructed that they would

win if they had proven that the reasons Pacific Rail advanced for

failing to hire them were false.   We cannot agree, for while the

trial court correctly placed the burden of proving illegal

discrimination on the plaintiffs at all times, the statement

rendered incorrect in light of Hicks was direct and explicit and
served to summarize the charge for the jury.   If there was any

portion of the charge that guided the jury's deliberations, it

was more than likely the portion we have held to be erroneous.

On the other hand, Pacific Rail contends that we need not remand

this case but instead may enter judgment for it because the

evidence was insufficient to support a verdict in the plaintiffs'

favor even under an appropriate charge.   We cannot   agree with

11
 .    The employees argue that, "[a]t a minimum, if the New
      Jersey Supreme Court were to follow Hicks it would only
      apply its holding prospectively." Appellees/Cross-
      Appellants' Brief at 16. Unlike New Jersey law,
      "Prospective application is appropriate when a decision
      establishes a new principle of law by overruling past
      precedent or by deciding an issue of first impression."
      Montells v. Haynes, 133 N.J. 282, 295, 627 A.2d 654 (1993).
      As explained above, the New Jersey Supreme Court would not
      be overturning past precedent or deciding a new issue by
      following the Hicks approach; it would merely be clarifying
      prior decisions. There is no reason to believe that the
      New Jersey Supreme Court would choose to apply such a
      decision only prospectively.
this contention, either.   Undeniably, plaintiffs' evidence was

aimed mainly at proving pretext, but that evidence, viewed in the

light most favorable to the verdict winner (Billet, 940 F.2d at
817), could conceivably have supported a decision for the

plaintiffs under the correct charge.

In light of our inability to divine whether the jury's verdict

was premised on correct or erroneous portions of the charge, we

will remand the case for retrial under the principles we have set

forth above.

                                 IV.

Some of the issues the parties have raised have been rendered

moot by our decision thus far.12   Others, however, remain, for

they determine whether certain claims are still properly at issue

in this case and thus whether they should be addressed on remand.




12
 .    Specifically, given that   the judgment will be vacated and
      the case retried, we see   no reason to decide whether the
      trial court erred in (1)   refusing to order remittitur of
      some plaintiffs' backpay   awards, (2) awarding plaintiffs
      prejudgment interest, or   (3) refusing to order
      reinstatement.

      We may quickly dispose of one issue raised by Pacific Rail
      which still must be resolved. Pacific Rail argues that the
      district court erred in refusing to dismiss the cases of
      plaintiffs Phyllis Lindh, Sal Petruzzelli and Ed Dechert
      for failure to establish a prima facie case. After
      reviewing the record, we do not agree that the district
      court erred. Depending upon credibility judgments, which
      we are in no position to make, the evidence may be
      sufficient to support a verdict for each of these
      plaintiffs.
                                A.

Among these is a question which arose after trial as to whether

the plaintiffs were entitled to front pay awards.    Plaintiffs

stated in their complaint that they sought "a judgment ordering

defendant to offer them employment and to pay back wages,

compensatory damages, punitive damages and attorneys' fees."

App. at 14.   They alleged that as a result of Pacific Rail's

actions they had "lost income and otherwise suffered the effects

of discrimination on account of their age," App. at 20, and

sought judgment "[o]rdering defendant to offer employment to

plaintiffs and make them whole for all wages and benefits lost by

reason of defendant's unlawful discrimination; granting

compensatory damages to plaintiffs; . . . and [g]ranting any

further relief the Court deems just and proper."    Id. at 21.    The

final pretrial order, upon which the parties collaborated and

which the magistrate judge handling pretrial matters reviewed and

entered, said only that "[a]s a result of defendant's actions,

plaintiffs have lost income and otherwise suffered the effects of

discrimination on account of their age."   Id. at 42.   They were

ordered to quantify their damages by March 16, 1992 (id.), but
they did not do so.   The first mention of "front pay," or

compensation for future lost earnings, surfaced two weeks prior

to trial, when plaintiffs submitted proposed jury instructions

requesting an instruction on front pay.    Id. at 2689, 2702.     Over

an objection from Pacific Rail, the district court decided to

charge on front pay, but after the jury returned a verdict of
more than $5 million in front pay, the court granted a post-trial

motion to strike the front pay award.

 In light of the way this case developed, the district court did

not abuse its discretion in striking the plaintiffs' front pay

award as a sanction for having failed to claim front pay prior to

two weeks before trial (and even then only to mention it in

proposed jury instructions, which included many items not at

issue).   Plaintiffs argue that their request for "compensatory

damages" encompasses an award of future lost earnings, but in the

context of the pleadings filed in this case, we cannot say that

their vague pleading style -- even under the lenient rules of

notice pleading -- sufficed to put Pacific Rail on notice of a

claim for front pay.   Moreover, had there been any question, the

plaintiffs had every opportunity to clarify the damages they

sought in the pretrial order.   When they failed to do so, the

magistrate judge ordered quantification of their damages by a

date certain -- an opportunity to put Pacific Rail on notice of

their claims which the plaintiffs simply did not seize.

In these circumstances, then, the district court did not abuse

its discretion in striking the plaintiffs' front pay awards at

the conclusion of the first trial.   Rather than usurp the

district court's role as presider over the second trial, we hold

only that on remand it will be left to the sound discretion of

the district court to determine in the interests of fairness and

justice whether to allow any new claims.
                                B.

Although the plaintiffs cannot claim front pay on remand, they

will be permitted to seek emotional distress damages, contrary to

the rulings of the magistrate judge and district court.    This

case was originally bifurcated so that liability would be tried

separately from damages.   The parties initially prepared their

pretrial order with that in mind, but for some reason, presumably

discussed during a pretrial conference with the magistrate judge,

it was decided that the case would not be bifurcated.    App. at

64.   Because they had apparently only envisioned a trial on

liability prior to this, plaintiffs then sought permission to

list exhibits regarding damages and to amend the pretrial order

to list additional witnesses, who happened to be doctors, to

support their claims of emotional distress damages.    App. at

2746, 2761.   The magistrate judge permitted plaintiffs to include

additional exhibits to support their claims for pecuniary damages

(to which Pacific Rail did not object), but denied plaintiffs'

request to name the doctors as witnesses.   In conjunction with

that decision, the magistrate judge struck the plaintiffs' claims

for emotional distress damages because he believed that

"competent medical testimony of an expert nature . . . as to the

causation of any emotional distress" was required.13    App. at

13
 .    Significantly, the plaintiffs were not offering the doctors
      as expert witnesses, for they had no expert reports from
      which the doctors could state expert opinions. App. at
      2759. Instead, they intended that the doctors would
      testify as lay witnesses describing what they had observed.
      Thus, this is not a case in which a denial of a motion to
      amend to add the doctors as witnesses resulted in the lack
      of evidence for which the claims were dismissed. Refusing
2762.   The district court affirmed this ruling when plaintiffs

appealed.

Plaintiffs argue that their claims for emotional distress damages

should not have been stricken.    In reviewing the magistrate

judge's decision to this effect, the district court had to

determine whether that decision was "clearly erroneous or

contrary to law."   28 U.S.C. § 636(b)(1)(A); Cipollone v. Liggett
Group, Inc., 785 F.2d 1108, 1120 (3d Cir. 1986).    The question

before the magistrate judge, the district court and us does not,

as Pacific Rail argues, arise in the context of Rule 701 of the

Federal Rules of Evidence (regarding opinion testimony by lay

witnesses) but is instead a matter of New Jersey law concerning

whether expert evidence is needed to prove emotional distress

damages in this type of case.    We will thus determine whether the

magistrate judge's decision to strike plaintiffs' claims for

emotional distress damages was contrary to law.    Cf. Bolden v.

Southeastern Pennsylvania Transp. Auth., 953 F.2d 807, 829 n.30

(3d Cir. 1991) (whether district court properly dismissed

punitive damages request is question of law subject to plenary

review).

"Emotional stress" damages may be recovered under the LAD.      N.J.

Stat. Ann. 10:5-3; Milazzo v. Exxon Corp., 243 N.J. Super. 573,
580 A.2d 1107 (1990).   New Jersey courts require expert testimony

to prove the causal link between a claimed injury and the
(..continued)
      to permit the doctors to testify merely lessened the number
      of lay witnesses who would be testifying for plaintiffs.
      It did not deprive them of expert testimony.
tortious act alleged when the plaintiff is claiming that he or

she suffered subjective injury (such as pain, humiliation,

emotional distress) that is not obviously related to an

identifiable injury.   Kelly v. Borwegen, 95 N.J. Super. 240, 243-
44, 230 A.2d 532, 534 (1967).    This requirement is based on a

concern that "a jury should not be allowed to speculate on the

issue of causation.    If the question of causal relation is so

esoteric that lay minds cannot form any intelligent judgment

about it without expert aid an opinion from an expert may be

required."   Bushman v. Halm, 798 F.2d 651, 659 (3d Cir. 1986)

(applying New Jersey law and citing 2 F. Harper & F. James, Jr.

The Law of Torts § 20 at 15-16, § 21 at 1116-17 (1956)).

The requirement is not without boundaries, however.    In Bushman,

for example, we held that a "plaintiff is not required under New

Jersey law to submit expert medical opinion on the element of

legal causation to establish a prima facie case of negligence."

Bushman, 798 F.2d at 653.   In that case, a plaintiff whose truck

had collided with a United States Postal Service jeep sued the

government under the Federal Tort Claims Act alleging negligence.

The trial court granted summary judgment to the government

because the plaintiff had alleged only "soft tissue injuries"

(i.e., he was seeking recovery only for pain and suffering

related to an injury to his knees, which had struck the dashboard

in the accident), and his expert witness had not opined that his

pain was caused by the accident.   We reviewed Kelly and Menza and
determined that New Jersey law requires a case-by-case analysis

to determine when expert testimony is required to buttress
subjective complaints of pain and suffering.    The key question is

whether there is evidence tending to show some objective basis

for the pain.   If there is, no expert testimony is needed because

a jury is competent to decide whether there exists a causal

connection.

In Bushman,
plaintiff testified that his legs were pain-free prior to
     the accident. However, he stated that he experienced
     recurrent pain in his knees and surrounding soft
     tissues after they contacted his truck's dashboard
     during the accident. . . . Plaintiff has adequately
     drawn into question the objective nature of his pain
     and suffering through his own sworn statements. The
     pain and suffering plaintiff experienced immediately
     after the accident is directly linked to objectively
     identifiable symptoms of soft tissue injury verified in
     the medical evidence. Thus, the lower court erred when
     it concluded that plaintiff's injuries were "not
     obviously related to an identifiable injury."


Bushman, 798 F.2d at 660.

Here, we are not apprised of any objective evidence supporting

the plaintiffs' claims of emotional distress.   Neither the

magistrate judge, nor the district court, nor this court has been

presented any evidence of "objectively identifiable symptoms"

upon which the plaintiffs rely to support their claims.    Absent

such evidence, the alleged emotional distress in this case seems

to resemble Menza and Kelly.   (In Menza, the plaintiff claimed

chest pain 21 months after a fall, and in Kelly, the plaintiff

alleged permanent difficulty in sleeping, walking, climbing steps

and breathing after a car accident.)   Plaintiffs allege

subjective claims of emotional distress, but we have no
objectively identifiable, medically verified symptoms as the

plaintiff had in Bushman.
On the other hand, the magistrate judge's decision was made well

before trial, when no evidence had yet been presented.    Some of

the plaintiffs may be able to establish objectively identifiable

symptoms from which a jury could infer causation even in the

absence of an expert witness.   If, as to some or all plaintiffs,

there exists other evidence tending to establish causation, such

as objectively identifiable symptoms appearing close in time to

Pacific Rail's takeover at North Bergen, then the plaintiffs who

presented such evidence might not need to present expert evidence

to reach the jury.   Thus, the magistrate judge's wholesale

dismissal of all the plaintiffs' claims for emotional distress

damages without knowing anything more about each plaintiff's case

was "contrary to law."   28 U.S.C. § 636(b)(1)(A).   Plaintiffs'

claims for emotional distress damages are to be reinstated on

remand.

                                C.

To further assist the district court on remand, we will also

review plaintiffs' allegations that the court erred in dismissing

the cases of five former PTL workers.   We will affirm its

dismissal of all but one of those plaintiffs.   On remand, that

one plaintiff's claims are to be reinstated for consideration of

whether his cause of action survived his death.

                                1.

Four of these plaintiffs' cases are easily addressed.    The

district court properly dismissed the cases of David Quaid, John
Gugliotta, Andrew Hennessey and Adam Lukasweski because the

evidence was insufficient to support judgment for them as a

matter of law.

Quaid's case falters because of insufficient evidence from which

a jury could conclude that he was injured.   Evidence at trial

revealed that a Pacific Rail representative called Quaid three

times to offer him a job, but Quaid did not accept.    The first

time, September 1, Quaid told the representative that he was

"number ten" on the list (presumably the union's seniority list)

and that Pacific Rail would have to ask the nine men or women

above him on the list before he would accept a job.    App. at 729-

30.   The second time, September 3, Quaid reiterated this and told

the Pacific Rail representative he would get back to him.    App.

at 730-31.   The third time, in the third week in September, the

representative again told Quaid that Pacific Rail would like

Quaid to work for the company.   Quaid said that he would work for

Pacific Rail but did not accept the job because of ongoing union

proceedings.   Specifically, he stated that he did not want to

"jump[] before [he] knew where [he] was going to land and then

wind[] up in limbo."   App. at 737.   Quaid stated at trial that he

"never, never refused employment," "[n]ever turned [Pacific Rail]

down," that "[Pacific Rail understood] that I wanted the job,"

and that "[a]ll I did was to ask [Pacific Rail] for time.    But

there was [sic] never any refusals."   App. at 728.   Quaid's

explanations, however, fail to negate the fact that he did not

accept employment that was offered to him and cannot be
considered to have been injured by Pacific Rail's actions when

Pacific Rail actually offered him employment.

Gugliotta, Hennessey and Lukasweski present similar situations.

These three plaintiffs were receiving workers' compensation

payments for medical conditions at the time Pacific Rail took

over at North Bergen.   They could not have been denied jobs

because of their age; they were not available to occupy positions

when Pacific Rail needed them.   The only argument the plaintiffs

advance in opposition to this reasoning is a contention that

Pacific Rail would have offered them jobs even if they were

injured but for age discrimination.   As evidence for this

proposition, they note that a Pacific Rail representative, upon

seeing Gugliotta in early September, asked Gugliotta if he was

ready to work, thus impliedly offering him a job.   The

representative's statement, however, was not exactly a job offer

but was more in the nature of an inquiry about when Gugliotta

might be ready to work.   App. at 1356.   Moreover, Gugliotta

refused (id.), so even if it was a job offer, that merely
transforms his particular case into one which resembles Quaid's

more than Hennessey's and Lukasweski's.   Dismissal of their cases

was not error.
                                 2.

Finally, we address the case of the estate of plaintiff Al

Armetta, who passed away in December, 1991, after commencement of

this lawsuit.   Plaintiffs' attorneys apparently learned of

Armetta's death in August, 1992, and defense counsel was notified

either then or on the first day of trial in mid-September, 1992.

Plaintiffs' counsel never filed a "suggestion of death" or served

formal written notice of the death on defense counsel or the

court.

At trial, upon learning of Armetta's death, the district court

ruled that Armetta should be stricken from the case.     At the

close of plaintiffs' case, in discussing directed verdict

matters, plaintiffs' counsel argued that Armetta's estate should

be considered a plaintiff for purposes of claiming damages until

the time of his death.   The court refused because "there ha[d]

been no substitution of Mr. Armetta's estate in this matter."

App. at 964.    The district court judge stated that he did not

"know that [Armetta's] estate has an interest in this matter,"

and pointed out that there was no "motion nunc pro tunc or . . .

to relax the rules" about Armetta.    App. at 1018.   Plaintiffs'

counsel stated that he had spoken with Armetta's widow, who had

said she wanted to continue the lawsuit.   Id.    The court refused

to accept this representation and, the next day, denied counsel's

oral motion to substitute Mrs. Armetta for her husband, saying

that plaintiffs had produced no proof that Mrs. Armetta was the

executrix of Armetta's estate.   It rejected plaintiffs' counsel's

offer to supply such proof.    Id. at 1023-26.   Specifically, the
district court denied the motion because (1) it questioned

whether this cause of action survived Armetta's death,

(2) "[t]here has been no showing of excusable neglect . . . [or]

actions on the part of the defendant which would put the

plaintiff in a prejudicial position," (3) there was no proof that

Mrs. Armetta was the executrix of Armetta's estate, and (4) it

was too late to move to substitute Armetta's estate as a

plaintiff because the defendant had had no chance to conduct

discovery concerning "whoever the estate is" or "to do anything

that is necessary to prepare for trial."    Id. at 1029-30.
Rule 25(a)(1) provides:
If a party dies and the claim is not thereby extinguished,
     the court may order substitution of the proper parties.
     The motion for substitution may be made by any party or
     by the successors or representatives of the deceased
     party and, together with the notice of hearing, shall
     be served on the parties as provided in Rule 5 and upon
     persons not parties in the manner provided in Rule 4
     for the service of a summons, and may be served in any
     judicial district. Unless the motion for substitution
     is made not later than 90 days after the death is
     suggested upon the record by service of a statement of
     the fact of the death as provided here for the service
     of the motion, the action shall be dismissed as to the
     deceased party.


Fed. R. Civ. P. 25(a)(1).    Thus, if a party dies, ideally his or

her attorney will file a "suggestion of death" with the court and

serve it upon all parties.    After the suggestion of death is

filed, a 90-day countdown begins.    Within 90 days, some other

party or the executor or administrator of the deceased must move

for substitution of the estate for the deceased, or the

deceased's case will be dismissed.    Decisions on the motion for

substitution are within the trial court's discretion.    Fed. R.
Civ. P. 25(a) ("the court may order substitution"); Advisory
Committee Note to 1963 Amendments.

Nothing was ideal here.   Plaintiffs' counsel served neither a

formal suggestion of death nor a formal motion for substitution.

That does not mean, however, that the district court properly

denied the motion made at trial to substitute Armetta's estate as

the plaintiff claiming damages on his behalf.    Nothing in Rule 25

says that a suggestion of death must be made or sets forth a time

frame for doing it.   In circumstances in which the deceased's

counsel only recently learned of the death, failure to file a

suggestion of death within a particular period of time does not

constitute sufficient grounds for refusing such a motion.

Moreover, the district court's denial on the basis that the

plaintiff did not make a formal motion, filed and served in

accordance with Rule 25, also was, in our view, an overly strict

interpretation of the rule.   We have indicated a willingness to

permit lesser attempts to suffice.   See Anderson v. Republic

Motor Inns, Inc., 444 F.2d 87 (3d Cir. 1971) (reversing a

district court's dismissal of a case for failure to comply with

Rule 25(a) because the plaintiff's attorney had noted in his

pretrial memorandum that the wife, as executrix of the estate,

intended to continue as substitute plaintiff).    In doing so, we

have emphasized that our lenient view would apply only in "an

extraordinary case, and that departure from the requirements of

the Federal Rules is not to be permitted routinely," Anderson,
444 F.2d at 89, but this case strikes us as extraordinary.    Here,

the district court ruled that plaintiffs' counsel had failed to
move for substitution within an appropriate time, yet the time

period for so moving had not yet begun to run because death had

not yet been suggested on the record.     Cf. 7C C. Wright, A.
Miller & M. Kane, Federal Practice and Procedure § 1955 at 544

(2d ed. 1986) ("the time does not run until the death is

suggested on the record").     Concerns about prejudice to the

defendant are not well-placed in this instance, for the record

reveals that defense counsel was notified of Armetta's death very

shortly after plaintiffs' counsel became aware of it.     And,

contrary to the district court's view, Rule 25 contains no

"excusable neglect" standard by which the district court is to

gauge its exercise of discretion.     We fully understand why the

court might desire some written proof of Armetta's death and of

the estate's desire to proceed with his case, but we see no

reason not to permit plaintiff's counsel an opportunity to

produce such proof before deciding the motion.

Thus, we cannot find that the district court exercised sound

discretion on this issue.     Armetta's claims should be re-examined

on remand, and plaintiffs' counsel is to be given an opportunity

to provide written proof of Armetta's death, his widow's

relationship to his estate and the estate's wishes with regard to

proceeding in this lawsuit.    Also on remand, however, the parties

are to address the district court's first concern, namely whether

Armetta's LAD claim survived his death.    See Fed. R. Civ. P.

25(a)(1) (substitution permitted "[i]f a party dies and the claim

is not thereby extinguished").     This issue is a matter of state

law, cf. Ransom v. Brennan, 437 F.2d 513, 520 (5th Cir. 1971);
see N.J. Stat. Ann. 2A:15-3, which we decline to resolve at this
stage because the parties have neither briefed nor argued it

either here or before the district court.

                                V.

In conclusion, we predict that the New Jersey Supreme Court would

accept the Supreme Court's decision in Hicks as clarifying LAD

law, just as Hicks did federal anti-discrimination law.   Our

conclusion to that effect necessitates a remand of this case for

retrial in accordance with this opinion.    On remand, although

plaintiffs may not seek front pay, they may assert claims for

emotional distress damages.   In addition, the claims of deceased

plaintiff Al Armetta are to be reinstated so that the district

court may consider whether Armetta's claims survived his death

and, if so, so that his claims may be tried along with those of

the other plaintiffs.
Peter McKenna, et al. v. Pacific Rail Services, Nos. 93-5253,
93-5277, 93-5375 and 93-5386




MANSMANN, J., dissenting.


                                I.

          I agree with the majority that our role is to determine

whether the New Jersey Supreme Court would adopt for the LAD the

Supreme Court's analysis in Hicks.   Commissioner v. Estate of

Bosch, 387 U.S. 456, 465 (1966); McKenna v. Ortho Pharmaceutical

Corp., 622 F.2d 657, 661-62 (3d Cir. 1980), cert. denied, 449

U.S. 976 (1980).   It is without doubt, as the majority holds,

that were the New Jersey Supreme Court to apply the Hicks rule of

law to the LAD, this case would require a new trial because the

jury instructions did not provide the Hicks framework.14   See

14
 .        Hicks settled conflicting decisions found among the
courts of appeals regarding whether the jury's finding of
employer pretext mandates the finding of illegal discrimination
in Title VII cases. Hicks, 113 S. Ct. at 2750. The burdens of
production and the order for the presentation of proof were set
forth mainly in McDonald-Douglas Corp. v. Green, 411 U.S. 792
(1973), and then revisited in Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248 (1981). Contrary to what we stated in
Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395-96
(3d Cir. 1984), Hicks states that after a plaintiff makes a prima
facie case of discrimination and the defendant rebuts that with
legitimate non-discriminatory reasons, the presumption raised by
the prima facie case drops from the case, and the plaintiff now
must show that the defendant's proffered reasons were not the
true reasons for the employment decision and that the
discriminating characteristic was. Hicks, 113 S. Ct. at 2747.
No longer is it sufficient for the plaintiff to show that the
defendant's proffered reasons were pretextual.

          Pacific Rail argues, first, that because the New Jersey
courts have consistently applied the principles and analysis
developed by the federal courts in Title VII age and sex
discrimination claims, they would continue to do so in this
Majority slip op. at 13.   It is in the majority's prediction of

what the New Jersey Supreme Court would hold that we part ways,

and because I believe it will not adopt the Hicks analysis for
the LAD, I respectfully dissent.15

          We have, of course, previously articulated the proper

standard to be used in predicting state law:
          In attempting to forecast state law we "must
          consider relevant state precedents, analogous
          decisions, considered dicta, scholarly works,
          and any other reliable data tending
          convincingly to show how the highest court in
          the state would decide the issue at hand."


McGowan v. University of Scranton, 759 F.2d 287, 291 (3d Cir.
1985) (quoting McKenna, 622 F.2d at 663).   See also Blum v. Witco

Chemical Corp., 829 F.2d 367, 376 (3d Cir. 1987).

                               II.


          Historically, as the majority correctly points out,

Majority slip op. at 15-16, New Jersey has generally followed

Title VII federal precedent in interpreting the LAD.   For a list

of such cases, see Grigoletti v. Ortho Pharmaceutical Corp., 570

(..continued)
context. The error in this reasoning is simply that it fails to
consider that a new interpretation of the burden of proof has
been established. Second, Pacific Rail suggests that, because
the plaintiffs originally argued that federal precedent should
apply to this case, they are estopped now from changing their
position before this court. Such a contention is meritless, for
again it fails to consider that a new rule regarding the various
burdens has been established in the interim. See Majority slip
op. at 13 n.5.
15
 .        I join the court's analysis in Part IV.
A.2d 903, 907 (N.J. 1990).   Nonetheless, as the majority also

agrees, Majority slip op. at 16-17, New Jersey is not wedded to

federal precedent and applies it selectively.   The New Jersey

Supreme Court has stated:

          In construing the terms of the LAD, the court
          has frequently looked to federal precedent
          governing Title VII of the Civil Rights Act
          of 1964, 42 U.S.C.A. § 2000e-2000e-17 ("Title
          VII"), as "a key source of interpretative
          authority." Although the "substantive and
          procedural standards that we have developed
          under the State's LAD have been markedly
          influenced by the federal experience," we
          have "applied the Title VII standards with
          flexibility" and "have not hesitated to
          depart" from federal precedent "if a rigid
          application of its standards is inappropriate
          under the circumstances."


Lehmann v. Toys `R' Us, Inc., 626 A.2d 445, 452 (N.J. 1993)
(citations to quotations omitted).   Grigoletti, 570 A.2d at 907

("[T]he court has never embraced the McDonnell Douglas test

literally, invariably or inflexibly."); Erickson v. Marsh &

Mclennan Co., 569 A.2d 793, 799 (N.J. 1990) ("We have recognized,
however, that the criteria announced in Peper, Goodman, and

Anderson provide only a general framework for analyzing unlawful

discrimination claims and must be modified where appropriate.");

Clowes v. Terminix Intern., Inc., 538 A.2d 794, 805 (N.J. 1988)

("Under [certain] circumstances the McDonnell Douglas analysis

should be used only to the extent that its application is

appropriate."); Peper v. Princeton University Board of Trustees,

389 A.2d 465, 479 (N.J. 1978) ("While we commend the McDonald-
Douglas standards to our trial courts as a starting point in
actions brought under the Law Against Discrimination or any other

State proscription against discrimination, it must be emphasized

that these tests are to be used only where and to the extent that

their application is appropriate.").

           It is especially relevant that whenever federal

precedent establishes a standard that makes it more difficult for

the plaintiff to make its case, the New Jersey Supreme Court

departs.   Lehmann v. Toys `R' Us, Inc., 626 A.2d at 453

(denouncing the Andrews test from this circuit and creating a new

test for sexual harassment under the LAD); Montells v. Haynes,

627 A.2d 654, 661 (N.J. 1993) (disregarding United States Supreme

Court caselaw questioning prospective application of a new rule

of law in a sexual harassment case under the New Jersey LAD);

Grigoletti, 570 A.2d at 913 (adopting the EPA standard, which is

more burdensome on the defendant, rather than the Title VII

standard for gender discrimination claims); Anderson v. Exxon

Co., 446 A.2d 486, 494 (N.J. 1982) (declining to follow the

allocation of the burdens of proof established in McDonald-
Douglas to LAD claims for handicap discrimination); Castellano v.

Linden Board of Education, 386 A.2d 396, 402 (N.J. Super. Ct.

App. Div. 1978), mod. on other grounds, 400 A.2d 1182 (N.J. 1979)
(holding that pregnancy discrimination violated the LAD contrary

to the Supreme Court's decision in Gilbert).16

16
 .        Similarly, the district courts in New Jersey have also
recognized the independence of New Jersey courts in interpreting
the LAD.

          There is little reason to believe that New
          Jersey courts will exhibit slavish devotion
          to federal law in interpreting the NJLAD.
          Quite the contrary, in construing New Jersey
          antidiscrimination law, enacted nearly twenty
          years before the analogous federal statute
          prohibiting employment discrimination, see,
          Shaner v. Horizon Bancorp., 116 N.J. 433,
          436, 561 A.2d 1130 (1989); Nolan v. Otis
          Elevator Co., 102 N.J. 30, 48, 505 A.2d 580,
          cert. denied, 479 U.S. 820, 107 S.Ct. 84, 93
          L.Ed. 2d 38 (1986), New Jersey courts have
          not considered themselves bound by federal
          caselaw, "even though [the NJLAD] relates
          essentially to the same subject matter as
          parallel federal civil rights law. We are
          free to apply our own concept of that which
          is right and proper in the circumstances.
          Castellano v. Linden Board of Education, 158
          N.J. Super. 350, 360, 386 A.2d 396 (App. Div.
          1978) (holding that pregnancy discrimination
          violated NJLAD despite contrary United States
          Supreme Court precedent), modified on other
          grounds, 79 N.J. 407, 400 A.2d 1182 (1979).
          Moreover, "mindful of the clear and positive
          policy of our state against discrimination,"
          New Jersey courts have consistently held that
          "[e]ffectuation of that mandate calls for
          liberal interpretation of any legislative
          enactment designed to implement it."
          Castellano, 158 N.J. Super. at 361, 386 A.2d
          396.

Carrington v. RCA Global Communications, Inc., 762 F. Supp. 632,
644 (D.N.J. 1991). See also Abrams v. Lightolier, Inc., 841 F.
Supp. 584, 590 (D.N.J. 1994) ("This court is not persuaded that
the New Jersey State Supreme Court would disavow the standard
enunciated in Slohoda [v. United Parcel Service, Inc., 504 A.2d
53 (N.J. Super. Ct. App. Div. 1986)] to find that the NJLAD
          In Castellano v. Linden Board of Education, 386 A.2d
396 (N.J. Super. Ct. App. Div. 1978), the New Jersey Superior

Court addressed whether requiring a pregnant female teacher to

take a mandatory maternity leave and refusing to permit her to

utilize accumulated sick leave during her childbirth absence

constituted impermissible gender discrimination.   Id. at 354.

The United States Supreme Court, prior to the decision in

Castellano, held that a disability plan provided by an employer

for all its employees, which paid weekly non-occupational

sickness and accident benefits, but excluded from coverage

disabilities arising from pregnancy, did not violate Title VII of

the Civil Rights Act of 1964.   General Electric Co. v. Gilbert,

429 U.S. 125 (1976).   See also Nashville Gas Co. v. Satty, 434

U.S. 136 (1977) (holding that an employer's policy of

compensating employees for limited periods of time during which

the employee missed work because of a non-job related illness or

disability, but excluding sick leave paid to pregnant employees,

was legally indistinguishable from the disability insurance




(..continued)
warrants application of the `sole motivating factor' test
[announced in Griffiths v. CIGNA Corp., 988 F.2d 457 (3d Cir.
1993)] in pretext cases."); United States v. Board of Educ. of
the Township of Piscataway, 798 F. Supp. 1093, 1099 (D.N.J. 1992)
("[T]here is nothing to indicate that the New Jersey Supreme
Court would exhibit a `slavish devotion' to federal law.").
program in Gilbert).17    In response to Gilbert and Satty the New

Jersey Superior Court stated:
          Clearly, we are not bound by those decisions
          in construing our own statute, even though it
          relates essentially to the same subject
          matter as the parallel federal civil rights
          law. We are free to apply our own concept of
          that which is right and proper in the
          circumstances.


Id. at 401 (citing Oakwood at Madison, Inc. v. Madison Tp., 371
A.2d 1192 (N.J. 1977); State v. Johnson, 346 A.2d 66 (N.J.

1975)).   Cf. Robinson v. Cahill, 303 A.2d 273 (N.J. 1973), cert.

denied, 414 U.S. 976 (1973).

             There have also been other areas where the New Jersey

courts have departed from federal precedent.    In Lehmann v. Toys

"R" Us, Inc., 626 A.2d 445 (N.J. 1993), the New Jersey Supreme

Court did not adopt the test we set forth in Andrews v. City of

Philadelphia, 895 F.2d 1469 (3d Cir. 1990), for a sexual

harassment claim under the LAD.    There we set forth a five factor

test to determine an actionable claim for sexual harassment under
Title VII, creating a test with both subjective and objective

standards.    Andrews, 895 F.2d at 1482-83.   The New Jersey Supreme

Court disavowed the Andrews test and found its own elements of a




17
 .        Notably, on October 31,    1978, Title VII of the Civil
Rights Act of 1964 was amended to    include pregnancy-based
discrimination in its prohibition    of sex discrimination. See
California Fed. Sav. & Loan Ass'n    v. Guerra, 478 U.S. 272, 284-85
(1987).
hostile work environment for a sexual harassment cause of action

under the LAD. Lehmann, 626 A.2d at 451-54. The court stated:
          We find that the standards expressed in the
          EEOC Guidelines, while helpful, are
          insufficiently structured to define the cause
          of action at this stage in the development of
          the law. However, we agree with the dissent
          below that the Third Circuit's Andrews test
          employed by the majority below contains too
          many analytical difficulties and deficiencies
          to be usefully employed here.

          Rather than risking confusion by engrafting
          major revisions to the Andrews test, we
          announce a new test in the hope of creating a
          standard that both employees and employers
          will be able to understand and one that
          employers can realistically enforce. We
          cannot overstate the importance we place on a
          test that allows employees to know their
          rights in a given set of circumstances and
          that allows employers to set policies and
          procedures that comply with that test.


Id. at 453.18


                              III.

          In Lehman, the New Jersey Supreme Court also discussed
the legislative intent and public policy behind the New Jersey

LAD:
          The New Jersey law against discrimination was
          first enacted in 1945. Its purpose is
          "nothing less than the eradication `of the
          cancer of discrimination.'" The opportunity
          to obtain employment "is recognized as and
18
 .        Notably, the United States Supreme Court has recently
undertaken to define the elements of a sexual harassment claim
under Title VII. Harris v. Forklift Systems, Inc., 114 S. Ct.
367 (1993).
          declared to be a civil right."   N.J.S.A.
          10:5-4.

          The LAD was enacted to protect not only the
          civil rights of individual aggrieved
          employees but also to protect the public's
          strong interest in a discrimination-free
          workplace. Freedom from discrimination is
          one of the fundamental principles of our
          society. Discrimination based on gender is
          "peculiarly repugnant in a society which
          prides itself on judging each individual by
          his or her merits."


Id. at 451-52 (case citations to quotations omitted).   See also

Shaner v. Horizon Bancorp, 561 A.2d 1130, 1131-32 (N.J. 1989);

Anderson v. Exxon Co., 446 A.2d 486, 490 (N.J. 1982) ("Our court

has repeatedly emphasized the strong public policy of New Jersey

against employment discrimination.").   In Fuchilla v. Laman, the

New Jersey Supreme Court engaged in a similar discussion of the

public policy in New Jersey:
          We begin by recognizing that the clear public
          policy of this state is to abolish
          discrimination in the workplace. Indeed, the
          overarching goal of the law is nothing less
          than the eradication "of the cancer of
          discrimination." Jackson v. Concord Co., 54
          N.J. 113, 124 (1969). As the Legislature has
          declared, "discrimination threatens not only
          the rights and proper privileges of the
          inhabitants of the State but menaces the
          institutions and functions of a free
          democratic state." N.J.S.A. 10:5-3. The day
          is long past when any employee need endure
          discrimination because of his or her race,
          religion, national origin, or gender.
          Employment discrimination is not just a
          matter between employer and employee. The
          public interest in a discrimination-free
          workplace infuses the inquiry. David v.
          Vesta Co., 45 N.J. 301, 327 (1965).
Fuchilla v. Laman, 537 A.2d 652, 660 (N.J. 1988), cert. denied,
University of Medicine and Dentistry of New Jersey v. Fuchilla,

488 U.S. 826 (1988).19   These passages relied in part on the New

Jersey Legislature's declaration that employment in New Jersey

shall be free from discrimination.   N.J. Stat. Ann. 10:5-3, 5-4.

For the full text, see Majority slip op. at 15 n.6.   I find this

proclamation overwhelmingly persuasive.

            I am cognizant of other New Jersey caselaw stating the

contrary:
            In a sex discrimination case arising under
            the N.J. L.A.D., our supreme court held that
            the test for prima facie showing was the same
            as that used in federal cases arising under
            Title VII of the Civil Rights Act of 1964.
            Because the provisions of the ADEA were
            modeled after Title VII and are nearly
            identical in wording and purpose, Title VII
            standards are applied to ADEA cases. We thus
            conclude, as did the judge below, that
            plaintiffs' contentions should appropriately
            be analyzed by examination of federal cases
            arising under Title VII and the ADEA.




19
 .        Additionally, the New Jersey Supreme Court has led the
way in furthering the rights of employees in other areas. Shebar
v. Sanyo Business Systems Corp., 544 A.2d 377 (N.J. 1988) (oral
promise of discharge for cause only, even though employment was
terminable at will, may be enforceable); Woolley v. Hoffmann-
LaRoche, Inc., 491 A.2d 1257 (N.J. 1985) (a written implied
promise of discharge for cause only, even though employment was
terminable at will, may be enforceable); Pierce v. Ortho
Pharmaceutical Corp., 417 A.2d 505 (N.J. 1980) (adopting a
general public policy exception to employment at will recognizing
that an at-will employee cannot be discharged for reasons
contrary to public policy).
Giammarino v. Trenton Bd. of Educ., 497 A.2d 199, 202 (N.J.
Super. Ct. App. Div. 1985), cert. denied, 508 A.2d 212 (1985),

cert. denied, 475 U.S. 1141 (1986) (citations omitted).    However,

in that case the court followed Supreme Court precedent because,

at the time, the Supreme Court was consistent with New Jersey

public policy.   This does not lead to the conclusion that New

Jersey will continue to follow the Supreme Court.   The above

passage was correct when stated, but is now doubtful.     Cf. Clowes

v. Terminix Intern, Inc., 538 A.2d 794, 802 (N.J. 1988) (holding

that alcoholism is a handicap under the New Jersey LAD:     "We

begin our analysis from the perspective that because the [LAD] is

remedial social legislation, it is deserving of a liberal

construction.").



                               IV.

           The major premise of the majority's opinion is that the

New Jersey rule regarding presumptions parallels the federal rule

of presumptions upon which Hicks is based.   Majority slip op. at

18.   I am not persuaded that the New Jersey rule so closely

resembles the federal rule that it justifies serving as the basis

of this decision, particularly in light of the liberal anti-

discrimination policy adopted by both the New Jersey Legislature

and the New Jersey Supreme Court.

           The Federal Rule of Evidence on presumptions states:
                In all civil actions and proceedings not
           otherwise provided for by Act of Congress or
           by these rules, a presumption imposes on the
          party against whom it is directed the burden
          of going forward with evidence to rebut or
          meet the presumption, but does not shift to
          such party the burden of proof in the sense
          of the risk of nonpersuasion, which remains
          throughout the trial upon the party on whom
          it was originally cast.


Fed. R. Evid. 301. The New Jersey rule on presumptions states:
               Except as otherwise provided in Rule 303
          or by other law, a presumption discharges the
          burden of producing evidence as to a fact
          (the presumed fact) when another fact (the
          basic fact) has been established.

               If evidence is introduced tending to
          disprove the presumed fact, the issue shall
          be submitted to the trier of fact for
          determination unless the evidence is such
          that reasonable persons would not differ as
          to the existence or nonexistence of the
          presumed fact. If no evidence tending to
          disprove the presumed fact is presented, the
          presumed fact shall be deemed established if
          the basic fact is found or otherwise
          established. The burden of persuasion as to
          the proof or disproof of the presumed fact
          does not shift to the party against whom the
          presumption is directed unless otherwise
          required by law. Nothing in this rule shall
          preclude the judge from commenting on
          inferences that may be drawn from the
          evidence.


N.J. R. Evid. 301.   A comparison of the two rules reveals that

the federal rule "bursts the bubble" of the presumption, while

the New Jersey rule creates an issue for the jury.   Although the

New Jersey rule does not necessarily follow Morgan's theory of

presumptions20 that the party resisting the presumption must
20
 .        See generally 9 Wigmore, Evidence § 2493c (Chadbourn
rev. 1981).
introduce sufficient evidence to overcome the presumption, it is

certainly not an enactment of Thayer's "bursting bubble"21 -- it

falls somewhere along the continuum between the two.    One

commentator has placed the New Jersey rule closer to Morgan's

theory than Thayer's because in New Jersey the evidence

supporting the presumption or possibly even the presumption

itself remains.   Ralph N. Del Deo & John H. Klock, 2B New Jersey

Practice Ch. 3 at 334 (1987).22   Although the author was

commenting on the former New Jersey rule on presumptions, Rule

14, a comparison between Rule 14 and Rule 301 does not reveal any

substantial change.   The text of the first sentence of the second

paragraph of Rule 301 is essentially the same as Rule 14.     The

added language does not change the effect of the rule.      Rule 14

states:
               Except as provided by Rule 15, if
          evidence to the contrary of a presumed fact
21
 .        See generally 9 Wigmore, Evidence § 2490 (Chadbourn
rev. 1981).
22
 .        The New Jersey Model Jury Charges - Civil (4th ed.
1992) for employment cases supports this interpretation. In the
section dealing with retaliation for a discrimination claim --
the only section that discusses the effect of the presumption --
the model charge cites to Jamison v. Rockaway Township Bd. of
Educ., 577 A.2d 177, 182 (N.J. Super. Ct. App. Div. 1990) (citing
Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1354
(9th Cir. 1984)), for the proposition that once the plaintiff
proves that the defendant's articulated reason for the alleged
discriminatory action is false, a presumption is created that the
adverse employment action was the product of improper retaliatory
intent and the defendant is required to prove by a preponderance
of the evidence that the adverse action would have been taken
regardless of retaliatory intent. Model Jury Charges - Civil,
Ch. 2 § 22C.
            is offered, the existence or nonexistence of
            such fact shall be for the trier of fact,
            unless the evidence is such that the minds of
            reasonable men would not differ as to the
            existence or nonexistence of the presumed
            fact.


See also Majority slip op. at 23 n.10.    Rule 14 and presently

effective Rule 301 do not follow the previous rule, which was

interpreted to be an enactment of Thayer's theory.    In Dwyer v.

Ford Motor Co., 178 A.2d 161, 171 (N.J. 1962), the court held

that a presumption of fact is emptied of all probative force and

disappears from the case upon introduction of any proof to the

contrary.   Cf. McGlynn v. Newark Parking Auth., 432 A. 2d 99, 105

(N.J. 1981).    When Rule 14 was enacted, the Commission Note

accompanying the new rule explained it this way:
          This rule changes existing law. The rule has
          been that if contrary evidence was
          introduced, the presumption was gone . . . .
          Under this rule a fact issue remains, with no
          distinction between "logical" and
          "artificial" presumptions. The effect of the
          rule is that (a) if there is no evidence to
          contradict either the underlying fact or the
          assumed fact, the assumed fact must be taken
          to exist and the jury should be so instructed
          . . .; and (b) if there is evidence to
          contradict either the underlying fact or the
          assumed fact . . ., the jury is to determine
          the existence of the assumed fact as on any
          other contest issue.


Ralph N. Del Deo & John H. Klock, 2B New Jersey Practice Ch. 3 at

334 (1987).

            Although this interpretation has not been formally

adopted by the New Jersey Supreme Court, its existence
demonstrates that reasonable minds can differ on the issue.     That

being the case, I cannot conclude that the New Jersey Supreme

Court would follow the Supreme Court's analysis in Hicks,
particularly in light of New Jersey's public policy to eradicate

discrimination from the workplace.   At least one other state

supreme court has chosen not follow Hicks because it has

interpreted its own rule of evidence on presumptions differently.

Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225 (N.D.

1992).



                               V.

          Because New Jersey is clearly dedicated to preserving a

low threshold for establishing a civil rights violation with

regard to employment discrimination,23 I would hold that the New

Jersey Supreme court will not adopt for the LAD the Supreme

Court's analysis in Hicks.
23
 .        In sum, the LAD provides a distinctive cause
          of action arising from unlawful employment
          practices and unlawful discrimination in
          employment. The overarching goals of the LAD
          are not only vindication for aggrieved
          individuals victimized by discrimination.
          Protection for other persons similarly
          situated and the eradication of invidious
          discrimination in the exercise of civil
          rights are also paramount concerns of the
          LAD. The LAD confers broad and extensive
          remedial powers to fulfill these goals and to
          counteract the practices and effects of such
          unlawful practices and discrimination.

 Shaner v. Horizon Bancorp, 561 A.2d 1130, 1136 (N.J. 1989).
