                                                                   NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________
                                      No. 16-1854
                                     _____________
                                 MICHAEL CASERTA,
                                               Appellant
                                             v.
                                   INTERCALL, INC.

                                   ________________
                       Appeal from the United States District Court
                               for the District of New Jersey
                                 (Case No. 1-13-cv-07790)
                        District Judge: Honorable Noel L. Hillman
                                    ________________
                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 17, 2016
             Before: AMBRO, SHWARTZ, and FUENTES, Circuit Judges
                            (Opinion filed: December 8, 2016)


                                   ________________

                                       OPINION*
                                   ________________

AMBRO, Circuit Judge

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Michael Caserta appeals the order of the District Court granting InterCall, Inc.’s

(“InterCall”) motion for summary judgment with respect to this age-discrimination claim

under New Jersey State law. He contends that the District Court erred in its application

of the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), that is used by New Jersey courts. We believe the District Court did not err and

affirm its order.

                                     I. Background

       InterCall, an international communications provider, hired Caserta as Vice

President of Sales in December 2011 at age 61. He was terminated in May 2013 at the

age of 63. InterCall’s bases for terminating Caserta were his significantly low 2012 sales

numbers, the restructuring of its pharmaceutical sales team, and its decision to eliminate

his position in order to create budgetary space for the hiring of a desirable candidate to

fill the company’s Vice President of Product Management position. Caserta sued for age

discrimination under the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat.

Ann. § 10:5-12, alleging that InterCall terminated him because of his age and replaced

him with a younger person. The District Court granted InterCall’s motion for summary

judgment, reasoning that Caserta failed to show that any of the business reasons for his

termination were merely pretext based on his age. He appeals.

                       II. Jurisdiction and Standard of Review

       The District Court had diversity jurisdiction per 28 U.S.C. § 1332, and we have

appellate jurisdiction under 28 U.S.C. § 1291. Our review of a district court’s grant of


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summary judgment is plenary. Fed. Home Loan Mortg. Corp. v. Scottsdale Ins. Co., 316

F.3d 431, 443 (3d Cir. 2003).

                                       III. Discussion

          To establish a prima facie case of age discrimination under the NJLAD, a plaintiff

must show that: “(1) he was a member of the protected class; (2) he was performing the

job at the level that met the employer's legitimate expectations; (3) he was discharged;

and (4) the employer sought another to perform the same work after the complainant had

been removed from the position.” Maiorino v. Schering-Plough Corp., 695 A.2d 353,

364 (N.J. Super. Ct. App. Div. 1997) (quoting Catalane v. Gilian Instrument Corp., 638

A.2d 1341, 1351 (N.J. Super. Ct. App. Div. 1994)).            Once a plaintiff meets that

preliminary hurdle, a presumption is created that the employer unlawfully discriminated

against him on the basis of age. The burden thus shifts to the employer to give a

legitimate, nondiscriminatory reason for the termination. McDonnell Douglas, 411 U.S.

at 802.


          If the employee has successfully rebutted the presumption of discrimination by a

legitimate, nondiscriminatory reason for his firing, he must show that the reason given by

the employer was merely a cover—legally called pretext—for discrimination. Andersen

v. Exxon Co., U.S.A., 446 A.2d 486, 491 (1982). The employee can overcome this

burden by providing evidence from which a factfinder reasonably could (1) believe a

discriminatory reason was more likely than not a motivating or determinative factor in

the employment decision or (2) disbelieve the employer’s reason for termination. Keller


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v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (citing Fuentes v. Perskie, 32

F.3d 759, 764 (3d Cir. 1994)) (interpreting New Jersey law).


       Caserta argues that the District Court erred by not shifting the burden back to

InterCall to rebut a presumption of discrimination after he made his prima facie case.

This argument fails, as the Court acknowledged that InterCall sufficiently met its burden

by showing that Caserta’s 2012 sales numbers were low, that the pharmaceutical sales

team was being restructured, and that it needed to create budget space to hire a new

salesman. See Caserta v. Intercall, Inc., No. CV 13-7790, 2016 WL 1365993, at *4

(D.N.J. Apr. 6, 2016).

       At that point in the McDonnell Douglas analysis, Caserta needed to persuade the

Court that the three articulated reasons for his termination were no more than made-up

reasons for discrimination. Id. He failed to carry that burden, as he did not present any

evidence tending to show that InterCall’s termination was age-related or a ruse to

disguise its intentional discriminatory motive.

       Accordingly, we affirm the District Court’s grant of InterCall’s motion for

summary judgment.




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