                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1016-17T1

DOUGLAS HAZLETT,

          Plaintiff-Appellant,

v.

SANDY ALEXANDER, INC.,

     Defendant-Respondent.
__________________________

                    Submitted October 3, 2018 - Decided October 24, 2018

                    Before Judges Koblitz, Ostrer, and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Docket No. L-3875-15.

                    Laddey, Clark & Ryan, LLP, attorney for appellant
                    (Thomas N. Ryan, Jessica A. Jansyn, and Michael R.
                    Darbee, on the briefs).

                    Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC,
                    attorneys for respondent (Andrew J. Bernstein and
                    Kaitlin R. Walsh, on the brief).

PER CURIAM
      Plaintiff Douglas Hazlett appeals from the following orders: a June 23,

2017 order denying his motion to extend discovery; a September 18, 2017 order

granting summary judgment in favor of defendant Sandy Alexander, Inc.; and

an October 5, 2017 order denying plaintiff's motion for reconsideration of those

orders. We affirm.

      Plaintiff, an employee of defendant for almost nine years, alleged he was

terminated from his sales and marketing position based on his age. Plaintiff

filed suit against defendant alleging age discrimination and a hostile work

environment.

      Plaintiff's primary job responsibility for defendant involved sales and

marketing. Plaintiff's other job responsibilities included sales administration

and implementation of the company's "salesforce.com" software. Plaintiff's

duties also included marketing green technology initiatives, negotiating

renewable energy credits on behalf of defendant, and preparing an annual

sustainability report.

      Defendant experienced financial difficulty in 2008, which continued

through 2015. In 2010, in an effort to improve defendant's financial situation,

plaintiff retained Design Squared, an outside marketing agency, to assist with

the company's marketing as a cost-saving measure. From 2010 through 2013,


                                                                        A-1016-17T1
                                       2
defendant paid Design Squared the following sums: $25,931.30 in 2010,

$22,250.00 in 2011, $27,300.00 in 2012, and $6,035.00 in 2013.

      During his employment with defendant, plaintiff received several

warnings regarding his behavior. In 2013, a female employee complained to

human resources about plaintiff treating her in a hostile and aggressive manner,

and plaintiff received a verbal warning from defendant. Also in 2013, plaintiff

threatened defendant's interim chief financial officer, and received a written

warning, informing plaintiff his behavior was insubordinate and abusive, and

advising any further incidents would result in plaintiff's immediate termination.

      According to plaintiff, defendant's executives made numerous age-related

comments directed to him. Plaintiff alleged one executive stated interns brought

"young blood" to the business, reinvigorated the company, had a better idea of

what is "cool," "really [knew] social media," and relate to defendant's audience

better than someone plaintiff's age.     The same executive purportedly told

plaintiff the company needed to hire young people in the marketing department

because "old guys like us" did not know social media. Another executive

allegedly expressed older workers were lazy, stayed home, and did not work to

generate new clients. Plaintiff claimed the company's president stated: young

people are the future of the company; younger employees were the smartest


                                                                         A-1016-17T1
                                       3
people in the company; and the company wanted to hire younger people without

any experience because they were eager to make sales. Still another executive

was portrayed by plaintiff as exclaiming older sales people were not vigorously

pursuing sales because older people did not care about business prospecting and

were happy collecting paychecks until they retired.

      Plaintiff was unable to remember the specific dates these comments were

made. He also could not remember if there were any witnesses present when

the comments were made, or if the comments were exact quotes.

      At no time did plaintiff complain, either formally or informally, to anyone

at the company that he was the victim of discrimination based on his age.

Plaintiff continued working for defendant despite these comments.

      Based on the money defendant paid Design Squared for marketing

services, as compared to the sum defendant paid for plaintiff's salary and

benefits, defendant concluded Design Squared could fulfill the company's

marketing needs at a significantly lower cost, thereby improving the company's

financial situation.1 Plaintiff was told his position was being eliminated to


1
  In 2016, defendant saved $22,450 by eliminating plaintiff's job and retaining
Design Squared to perform work that had been done by plaintiff. This figure
did not include the savings defendant realized by not having to pay plaintiff's
benefits.


                                                                         A-1016-17T1
                                       4
reduce defendant's expenses. Plaintiff was sixty-one years old when he was

terminated. Defendant did not hire anyone to replace plaintiff. Defendant's

marketing function continued to be performed by Design Squared. Plaintiff's

other job responsibilities were absorbed by existing employees without any

additional salary increase for those employees.

      After plaintiff's filed his discrimination complaint, the parties exchanged

discovery and scheduled depositions.        The depositions, scheduled for the

summer of 2016, were adjourned based on the parties' participation in mediation.

The mediation, which occur in December 2016, was not successful.

      In late December 2016, plaintiff requested new dates for the deposition of

defendant's witnesses. Defendant claimed its counsel asked plaintiff's attorney

to telephone him regarding discovery, but counsel did not respond. Plaintiff

contended defendant did not respond until mid-January 2017, and then

demanded plaintiff's deposition be scheduled within thirty days.

      On January 28, 2017, the parties received a discovery end date notice,

advising discovery would expire on April 9, 2017. Between February and early

March 2017, defendant deposed plaintiff, plaintiff's wife, and plaintiff's treating

physician.




                                                                           A-1016-17T1
                                        5
      On April 6, 2017, a few days before the original discovery end date,

plaintiff, with defendant's consent, obtained an automatic sixty-day extension of

the discovery period. The new discovery end date was June 8, 2017. On April

28, 2017, plaintiff attempted to schedule depositions of defendant's witnesses.

Defendant's counsel had scheduling conflicts on the proposed deposition dates,

and asked plaintiff's counsel to provide alternative dates. Plaintiff's counsel did

not respond.

      On May 23, 2017, plaintiff submitted a letter requesting another sixty-day

extension of discovery. Defendant consented to plaintiff's request. However,

the court instructed plaintiff to file a formal motion for a discovery extension.

On May 26, 2017, plaintiff filed a motion to extend discovery through August

7, 2017.

      Anticipating the discovery motion would be granted, plaintiff asked

defense counsel for dates to depose defendant's witnesses. Defendant provided

four dates in June and July. However, plaintiff's counsel was unavailable on the

designated dates.

      While plaintiff's motion to extend discovery was pending, on June 19,

2017, the parties received a notice scheduling the matter for trial on September

5, 2017. Based on the trial notice, plaintiff scheduled the deposition of two


                                                                           A-1016-17T1
                                        6
defense witnesses for August 8 and 9, 2017. Defendant refused to produce the

witnesses on those dates because they were beyond the presumed date of the

discovery extension.

      On June 23, 2017, the judge assigned to the discovery motion denied the

extension based on plaintiff's failure to provide a proposed form of order in

accordance with Rule 4:24-1(c). One week later, again with defendant's consent,

plaintiff filed another motion to extend the discovery. The renewed motion

included a proposed form of order, stating all depositions would be completed

by August 15, 2017.

      The same discovery motion judge, in an order dated July 27, 2017, denied

plaintiff's renewed discovery extension motion based on plaintiff's failure to

present "exceptional circumstances" because the matter had a scheduled trial

date. The order stated: "Parties may always engage in consensual discovery."

However, defendant declined to produce its witnesses for depositions after the

expiration of the discovery end date.

      Plaintiff filed a motion for reconsideration of the July 27, 2017 order. 2

The judge denied the reconsideration motion. On the denial order, the judge


2
  Plaintiff's notice of appeal and case information statement do not include the
July 27, 2017 order. However, the order denying plaintiff's motion for
reconsideration is addressed to the July 27, 2017 order.
                                                                        A-1016-17T1
                                        7
wrote: "The parties had the opportunity to take discovery that was necessary

[and] if their adversaries were not cooperating, they had the opportunity to

engage in motion practice to compel or dismiss. The parties failed to do either

[and] exceptional circumstances have not been demonstrated."

      Prior to the disposition of plaintiff's reconsideration motion, defendant

filed a motion for summary judgment. The summary judgment motion was

argued before a different judge. On September 18, 2017, the judge granted

defendant's motion. The judge found plaintiff was unable to prove a prima facie

case of discrimination because defendant did not hire a younger person to

perform plaintiff's job duties. The judge determined:

            defendant has presented uncontroverted evidence that
            [p]laintiff's core responsibilities as Vice President of
            Marketing were outsourced to Design Squared, a third
            party agency originally retained by [p]laintiff. In so
            doing, the fees [d]efendant paid to Design Squared
            were less than the salary and benefits it paid to
            [p]laintiff. The menial task of inputting data into
            salesforce.com was assumed by a marketing assistant.
            Finally, what little responsibility [p]laintiff had for
            sustainability was assumed by the compliance
            manager[.]3

3
   Although the compliance manager was younger than plaintiff, she did not
replace him. In addition, plaintiff conceded his sustainability duties were only
fifteen percent of his overall job responsibilities, and the compliance manager
absorbed those responsibilities as part of her own job duties for defenda nt.



                                                                        A-1016-17T1
                                       8
       Even though the judge concluded plaintiff failed to demonstrate a prima

facie case of age discrimination, the judge reviewed plaintiff's claims under the

McDonnell Douglas 4 burden shifting framework. Assuming plaintiff had met

his burden on his age discrimination claim, the judge found defendant provided

a legitimate, non-discriminatory reason for its decision to terminate plaintiff

based on the significant cost-saving to the company resulting from the

elimination of plaintiff's job.     The judge determined defendant saved

approximately $22,000 the year after eliminating plaintiff's job and outsourcing

work to Design Squared.       As for plaintiff's job responsibilities related to

sustainability and salesforce.com, the judge concluded other employees , who

were paid less than plaintiff, absorbed those duties without additional

compensation, resulting in a further cost-savings to defendant.

       Thus, the burden of production shifted and plaintiff was required to show

the reasons proffered by defendant in support of termination were pre-textual.

However, the judge rejected plaintiff's pretext evidence. However, the judge

found plaintiff could not "even articulate" comments to support he was fired

because of his age.     Nor could plaintiff provide "precise quotes, context,



4
    McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).


                                                                         A-1016-17T1
                                       9
approximate dates, other witnesses, or in some cases, to even identify the

individual who allegedly made the comment." In addition, the judge determined

plaintiff was unable "to present any facts demonstrating that [d]efendant

engaged in a pattern of targeting older workers for termination." The judge

found:

            Looking at the total record, the evidence shows
            [d]efendant treated [p]laintiff far more favorably than
            it was required to do. Defendant provided [p]laintiff
            with copies of its policies regarding discrimination and
            harassment. Defendant treated [p]laintiff fairly and
            generously throughout his tenure with the company.
            Defendant continued to employ [p]laintiff despite
            serious misconduct. Plaintiff never raised the issue of
            discrimination or hostile work environment at any time
            during his employment with [d]efendant.

      In reviewing plaintiff's hostile work environment claim, the judge opined

"[n]ot even the most generous reading of [p]laintiff's allegations supports the

conclusion that a reasonable person could view the alleged comments as

'threatening or humiliating' statements likely to 'unreasonably interfere with an

employee's work performance.'"      The judge determined such a claim was

directly contradicted by "the support and generosity the [d]efendant repeatedly

showed [plaintiff]." In granting defendant's motion, the judge noted "there may

be some factual disputes present in the record, [but the disputes do] not rise to



                                                                         A-1016-17T1
                                      10
the level of being sufficient to defeat summary judgment. This is so even

assuming the veracity of plaintiff's alleged facts."

      On appeal, plaintiff raises three arguments: (1) the court erred in refusing

to extend discovery to permit plaintiff to depose key witnesses; (2) the court

erred in denying reconsideration on the requested discovery extension; and (3)

the court erred in granting summary judgment in favor of defendant , dismissing

his age discrimination and hostile work environment claims.

      We first examine plaintiff's arguments related to the judge's denial of the

motions to extend discovery. We "apply an abuse of discretion standard to

decisions made by . . . trial courts relating to matters of discovery." Pomerantz

Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (citing Bender v.

Adelson, 187 N.J. 411, 428 (2006)). "As it relates to extensions of time for

discovery, appellate courts, . . . have likewise generally applied a deferential

standard in reviewing the decisions of trial courts."     Ibid. Ordinarily, "we

decline to interfere with discretionary rulings involving discovery unless it

appear that an injustice has been done." Cunningham v. Rummel, 223 N.J.

Super. 15, 19 (App. Div. 1988).

      Rule 4:24-1(c) allows for one sixty-day extension of discovery by consent

of the parties. The discovery extension rule requires:


                                                                          A-1016-17T1
                                       11
            [t]he movant [ ] append to such motion copies of all
            previous orders granting or denying an extension of
            discovery or a certification stating that there are
            none . . . . Any proposed form of extension order shall
            describe the discovery to be completed, set forth
            proposed dates for completion, and state whether the
            adverse parties consent.

            [Rule 4:24-1(c).]

The discovery motion judge denied plaintiff's first motion to extend discovery

because plaintiff failed to provide a proposed form of order setting forth the

discovery to be completed, with a deadline for each requested discovery item,

and failed to state the adverse party consented to the extension.

      Plaintiff argues the judge erred in denying the first motion to extend

discovery because he demonstrated "good cause" for the additional sixty-day

extension of discovery. However, the judge's denial of plaintiff's first motion to

extend discovery was based on plaintiff's failure to comply with Rule 4:24-1(c).

Plaintiff admittedly failed to comply with the requirements of the Court Rule

governing extensions of the discovery. See R. 4:24-1(c); see also Pressler &

Verniero, N.J. Court Rules, cmt. 3 on R. 4:24-1(c) (2019) ("This paragraph

mandates that any proposed form of order extending discovery must describe

the discovery to be completed as well as indicate proposed dates for completion

and whether adverse parties have consented.").


                                                                          A-1016-17T1
                                       12
      The judge denied plaintiff's second motion to extend discovery, finding

plaintiff failed to demonstrate exceptional circumstances. Plaintiff's second

motion to extend discovery was also governed by Rule 4:24-1(c), which

provides that "[n]o extension of the discovery period may be permitted after

arbitration or trial date is fixed, unless exceptional circumstances are shown."

      To demonstrate exceptional circumstances, we generally require the

attorney to show she or he has diligently pursued the information sought during

the discovery period but had been frustrated from obtaining the discovery by

circumstances largely beyond counsel's control. See Bender, 187 N.J. at 429.

Specifically, the moving party must show: (1) why discovery was incomplete

and the diligence in pursuing discovery; (2) the additional discovery is essential;

(3) an explanation for why an extension was not sought within the original

discovery period; and (4) the circumstances were beyond the party's and

counsel's control. Garden Howe Urban Renewal Assocs., LLC v. HACBM

Architects Engineer Planners, LLC, 439 N.J. Super. 446, 460 (App. Div. 2015)

(internal quotation marks and citations omitted).

      At the time plaintiff filed the second motion to extend discovery, a trial

date had been set, elevating the requisite showing to obtain a discovery

extension from establishing "good cause" to demonstrating "exceptional


                                                                           A-1016-17T1
                                       13
circumstances."        The judge denied plaintiff's second motion, finding,

"Exceptional circumstances not demonstrated why after 510 days of discovery

on this track III case discovery is incomplete. Parties may always engage in

consensual discovery."

      Plaintiff failed to demonstrate exceptional circumstances justifying

plaintiff's second motion for a discovery extension.          Plaintiff did not

demonstrate diligence in pursuing discovery. Nor did plaintiff explain how the

circumstances necessitating a discovery extension were beyond the counsel's

control.   Plaintiff could have filed a motion to compel the depositions of

defendant's witnesses but did not do so. Thus, the judge's denial of plaintiff's

second motion for failure to demonstrate exceptional circumstances was not an

abuse of discretion.

      Turning to plaintiff's argument that the judge erred in denying his motion

for reconsideration, we review a trial court's determination on such a motion for

abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.

1996). Rule 4:49-2 provides that a party may file a motion for reconsideration

seeking to alter or amend a judgment or order, as long as the motion "state[s]

with specificity the basis on which it is made, including a statement of the




                                                                         A-1016-17T1
                                      14
matters or controlling decisions which counsel believes the court has overlooked

or as to which it has erred."

      "A litigant should not seek reconsideration merely because of

dissatisfaction with a decision of the [c]ourt." D'Atria v. D'Atria, 242 N.J.

Super. 392, 401 (Ch. Div. 1990)).

            Reconsideration should be utilized only for those cases
            which fall within that narrow corridor in which either
            1) the [c]ourt has expressed its decision based upon a
            palpably incorrect or irrational basis, or 2) it is obvious
            that the [c]ourt either did not consider, or failed to
            appreciate the significance of probative, competent
            evidence.

            [ Ibid.]

      The judge denied plaintiff's reconsideration motion, explaining "[t]he

parties had the opportunity to take the discovery that was necessary [and] if [the]

adversary[y] [was] not cooperating [plaintiff] had the opportunity to engage in

motion practice to compel or dismiss. The [plaintiff] failed to do either and

exceptional circumstances have not been demonstrated."

      Plaintiff argues his motion for reconsideration presented new information

regarding defendant's conduct after the court's denial of the first two discovery

motions. Specifically, plaintiff contends defendant refused to produce witnesses




                                                                           A-1016-17T1
                                       15
for depositions.    Plaintiff claims these newly asserted facts constituted

exceptional circumstances.

      We are satisfied the judge's denial of plaintiff's reconsideration motion

was appropriate under the circumstances. Plaintiff never raised defendant's

refusal to produce witnesses for depositions as a basis for granting the second

motion to extend discovery.       Moreover, the information was not newly

discovered.   Plaintiff's counsel was aware of defense counsel's position

regarding producing defendant's witnesses absent a court order extending

discovery. Nothing precluded plaintiff's counsel from filing a motion to compel

the depositions of defendant's witnesses or, alternatively, a motion to suppress

defendant's answer for failure to provide discovery. Thus, the judge's denial of

plaintiff's reconsideration motion was proper.

      We next consider plaintiff's argument that the court erred in granting

summary judgment, dismissing his age discrimination and hostile work

environment claims. We review a grant of summary judgment de novo, applying

the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204

N.J. 320, 330 (2010). Summary judgment must be granted if "the pleadings,

depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact


                                                                         A-1016-17T1
                                      16
challenged and that the moving party is entitled to a judgment or order as a

matter of law." R. 4:46-2(c). The court considers the evidence "in the light

most favorable to the non-moving party" and determines whether it would be

"sufficient to permit a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995). In satisfying this burden, the non-moving party may not rest

upon mere allegations or denials in the pleadings, but must produce sufficient

evidence to support a verdict in the non-moving party's favor. R. 4:46-5(a);

Triffin v. Am. Int'l Grp., Inc., 372 N.J. Super. 517, 523 (App. Div. 2004).

      In opposing summary judgment based on incomplete discovery, a plaintiff

must "demonstrate with some degree of particularity the likelihood that further

discovery will supply the missing elements of the cause of action." Wellington

v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003) (quoting

Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977)). The non-moving

party is required to present competent evidence, raising genuinely disputed

issues of material fact. Merchs. Express Money Order Co. v. Sun Nat'l Bank,

374 N.J. Super. 556, 563 (App. Div. 2005).

      Here, plaintiff failed to proffer facts sufficient to infer discriminatory

intent on the part of defendant. The alleged comments made by defendant's


                                                                            A-1016-17T1
                                        17
executives, even if true, do not refer to plaintiff's age to support his age

discrimination claim. In opposing defendant's motion, plaintiff never identified

any discovery deficiencies warranting denial of summary judgment. Therefore,

even assuming for argument's sake that the trial court erred in denying a

discovery extension – which we have concluded it did not – plaintiff failed to

articulate additional discovery that would bolster his claims or supply the

missing elements of his cause of action.

      To prevail on a claim under the New Jersey Law Against Discrimination

(LAD), N.J.S.A. 10:5-1 to -49, New Jersey courts have adopted the burden-

shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Id. at 14. Under that analysis, the plaintiff must establish a prima

facie case of discrimination. Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-14

(2002). The court required plaintiff to show that he or she:

            1) belongs to a protected class; (2) applied for or held a
            position for which he or she was objectively qualified;
            (3) was not hired or was terminated from that position;
            and that (4) the employer sought to, or did fill the
            position with a similarly-qualified person.           The
            establishment of a prima facie case gives rise to a
            presumption of discrimination.

            [Ibid.]




                                                                         A-1016-17T1
                                       18
      The judge focused on the fourth prong for proving a prima facie case of

discrimination. The judge explained "the fourth element requires a showing that

the [p]laintiff was replaced with 'a candidate sufficiently younger to permit an

inference of age discrimination,'" citing Nini v. Mercer County Community

College, 406 N.J. Super. 547, 554 (App. Div. 2009).

      Plaintiff claims he was not required to show he was replaced by a younger

individual, and he need only demonstrate "circumstances giving rise to an

inference of discrimination" consistent with Williams v. Pemberton Township

Public Schools, 323 N.J. Super. 490 (App. Div. 1999). However, that case is

inapposite as the plaintiff's job in Williams continued to exist after the plaintiff

was terminated.    Id. at 497, 502.

      This case is more analogous to Young v. Hobart West Group, 385 N.J.

Super. 448, 455-57 (2005). There, the plaintiff was terminated from her position

as a cost reduction measure. Ibid. The job position was eliminated, no one was

hired to replace the plaintiff, and the plaintiff's former duties were assumed by

her supervisor and branch managers. Id. at 460.

      In that case, we found the plaintiff could not show "either that she was

replaced by someone sufficiently younger, or that 'age in any significant way

made a difference' in the treatment she was accorded by her employer." Ibid.


                                                                            A-1016-17T1
                                        19
We concluded the plaintiff could not establish a prima facie case of age

discrimination under those circumstances. Ibid.

      Reviewing the facts in this case in the light most favorable to plaintiff, he

failed to meet his burden of demonstrating a prima facie case of age

discrimination by showing he was replaced with a younger employee. It is

undisputed that defendant eliminated plaintiff's position and did not hire, or seek

to hire, a replacement. To the contrary, plaintiff's primary job function was

outsourced to Design Squared at a substantial cost saving to defendant, and

plaintiff's remaining duties were assumed by existing employees at the

company.

      For the sake of completeness, we also review the judge's determination

that defendant articulated a legitimate, non-discriminatory reason for

terminating plaintiff's employment and plaintiff failed to demonstrate

defendant's reasons for terminating his job were pretextual. The unrefuted

evidence demonstrates defendant hired Designed Squared to provide marketing

services at a cost less than the amount defendant paid to plaintiff annually.

Plaintiff conceded his job responsibilities related to sustainability and

salesforce.com were assumed by other employees, who received no additional

compensation after absorbing these duties. The evidence supported defendant's


                                                                           A-1016-17T1
                                       20
desire to eliminate redundant services by using an outside company at

significant cost-savings.

      The judge evaluated the facts, assumed the veracity of plaintiff's

assertions of discriminatory comments, and viewed the record in a light most

favorable to plaintiff. On this record, the judge concluded plaintiff "failed to

provide any evidence by which a reasonable jury can conclude that [d]efendant's

reasons for eliminating his position were a pretext for age discrimination." We

discern no error in the judge's decision, determining there was no genuine issue

of material fact for the jury to resolve and finding plaintiff failed to present a

prima facie case of age discrimination.

      We next consider plaintiff's argument that the judge erred in dismissing

his hostile work environment claim. To establish such a claim under LAD,

            plaintiffs must satisfy each part of a four-part test.
            Specifically, they must show that the complained-of
            conduct (1) would not have occurred but for the
            employee's protected status, and was (2) severe or
            pervasive enough to make a (3) reasonable person
            believe that (4) the conditions of employment have
            been altered and that the working environment is
            hostile or abusive.

            [Shepherd v. Hunterdon Developmental Ctr., 174 N.J.
            1, 24 (2002), (citing Lehmann v. Toys 'R' Us, Inc., 132
            N.J. 587, 603-04 (1993)).]



                                                                          A-1016-17T1
                                       21
      A court must review a hostile work environment claim in light of the

totality of circumstances. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super.

145, 178, 196 (App. Div. 2005). The inquiry is whether a reasonable person in

plaintiff's position would consider the alleged discriminatory conduct "to be

sufficiently severe or pervasive to alter the conditions of employment and create

an intimidating, hostile or offensive working environment."          Ibid. (quoting

Heitzman v. Monmouth Cty., 321 N.J. Super. 133, 147 (App. Div. 1999)). The

test is strictly objective; whether a reasonable person in the plaintiff's position

would consider the work environment hostile. Godfrey v. Princeton Theological

Seminary, 196 N.J. 178 (2008).

      Here, the judge concluded, "[n]ot even the most generous reading of

[p]laintiff's allegations supports the conclusion that a reasonable person could

view the alleged comments as 'threatening or humiliating' statements likely to

'unreasonably interfere' with an employee's work performance."           The judge

determined, "[n]o reasonable fact finder evaluating the comments [p]laintiff has

alleged could conclude the evidence demonstrates severe or pervasive conduct

sufficient to alter [p]laintiff's working conditions and create a hostile or abusive

environment, particularly in view of the support and generosity the [d]efendant

repeatedly showed him."


                                                                            A-1016-17T1
                                        22
      Plaintiff claims the judge erred in determining the age-related comments

made by defendant's executives were not severe or pervasive. Plaintiff contends

the judge improperly weighed the credibility of plaintiff's evidence related to

his hostile work environment claim. Even taking plaintiff's allegations as true,

his claim fails to support an age-based hostile work environment claim under

the LAD. A plain reading of the comments allegedly attributable to defendant's

executives reveals the statements were not severe, physically threatening, or

humiliating to "unreasonably interfere" with plaintiff's work performance. Nor

did plaintiff complain the alleged comments by defendant's executives were

affecting his work performance.

      Having reviewed the record, we are satisfied the summary judgment

motion judge undertook a complete review of the record and determined that

plaintiff failed to raise a genuine issue of material fact. "[E]ven assuming the

veracity of plaintiff's alleged facts," the judge concluded no rational factfinder

could find in favor of plaintiff on his claims.

      Affirmed.




                                                                          A-1016-17T1
                                       23
