                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      _____________

                                       No. 09-3295
                                      _____________

                                  THOMAS A. FINN,

                                                Appellant

                                           v.

               J.B. HUNT TRANSPORT SERVICES, INC.;
  X AND Y CORPORATIONS, (said entities being fictitious and presently unknown);
      JOHN DOES 1-10, (said entities being fictitious and presently unknown)
                               _____________


                    On Appeal from the United States District Court
                             for the District of New Jersey
                               (D.C. No. 3:07-cv-04851)
                      District Judge: Hon. Garrett E. Brown, Jr.

                               Argued: January 11, 2011

    Before: MCKEE, Chief Judge, and AMBRO and CHAGARES, Circuit Judges.

                                 (Filed: July 14, 2011)


Neal M. Unger, Esq. (Argued)
Neal M. Unger, P.C.
334 Milltown Road, Third Floor
East Brunswick, New Jersey 08816
      Counsel for Appellant

Madeline S. Baio, Esq.
Carianne P. Torrissi, Esq. (Argued)
Rawle & Henderson, LLP

                                            1
100 West Sixth Street, Suite 300
Media, Pennsylvania 19063
      Counsel for Appellee

                                        _____________

                                          OPINION
                                        _____________

CHAGARES, Circuit Judge.

       Thomas A. Finn appeals from the District Court’s grant of summary judgment in

favor of J.B. Hunt Transportation Services, Inc. (“J.B. Hunt”) on his New Jersey Law

Against Discrimination (“NJLAD”) claims. For the reasons set forth below, we will

affirm the District Court’s decision.

                                             I.

       Because we write solely for the benefit of the parties, we will only briefly recite

the facts. Finn was initially hired as a driver for J.B. Hunt on December 28, 1992, at the

age of 48. Shortly thereafter he transferred to an office position, and then was promoted

to Safety Manager, a position that he held until 1999. In 1999, Finn was again promoted,

this time to the position of Operations Manager, and this promotion was followed with

another promotion to Fleet Manager in 2000. In February of 2003, Finn was injured and

took leave from work. When he returned in May of that year, he was placed in the

position of Area Service Manager (later renamed Logistics Manager) in J.B. Hunt’s

Elizabeth, New Jersey facility, under the supervision of Cheryl Sawula.

       On September 11, 2003, Finn received his first official notice of the fact that he

was not meeting Sawula’s expectations, which came in the form of a 90-Day


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Performance Review. In this review, Sawula listed three broad areas of deficient

performance (communication with and management of third parties, customer service,

and equipment accountability) on which Finn needed to focus. On October 24, 2003,

Finn received his first disciplinary action from Sawula when she filed a Job Performance

Documentation highlighting the areas outlined in his September Performance Review that

still needed improvement. Along with this Job Performance Documentation, Finn was

given a one-day suspension and warned that failure to improve his performance could

result in termination. In March of 2004, Sawula again submitted a Job Performance

Documentation, which outlined areas that still required attention. Finn then had his

annual performance review in May, and as part of this review received eleven “Needs

Improvement” ratings as well as several “Unacceptable” ratings, the lowest two levels on

J.B. Hunt’s four-tiered rating system. This evaluation was also reviewed and contained

comments written by Sawula’s supervisor, Robert Coulter.

      In October 2004, Finn was demoted to the position of Fleet Manager, but

remained under Sawula’s supervision. He received an annual performance review in

May of 2005, and again was given an overall rating of “Needs Improvement.” This was

followed in July of 2005 with a Job Performance Documentation, which stated that “this

shall serve as Mr. Tom Finn’s written warning regarding professionalism and attitude

while at work.” Appendix (“App.”) 117. Despite the lackluster performance review and

the Job Performance Documentation, Finn did receive a bonus at the end of 2005 and a

pay raise at the beginning of 2006.



                                            3
       Finn’s 2006 annual review came in April, and again had ratings of “Needs

Improvement” in eleven categories. As Sawula did not believe that he was adequately

improving his performance, Finn was terminated on November 29, 2006, at the age of 62.

       Finn filed suit on August 2, 2007, in New Jersey Superior Court, requesting relief

under the NJLAD, as well as asserting claims for intentional infliction of emotional

distress and breach of contract. Specifically, Finn asserted that he was discriminated

against because of his age. He alleged that he was given unmanageable duties to set him

up for failure, that his performance was judged more harshly than that of his younger

counterparts, and that his termination was part of a broader plan by J.B. Hunt to replace

the older portion of its workforce with employees who were substantially younger. The

case was removed to the United States District Court for the District of New Jersey on

October 5, 2007, and the District Court entered summary judgment in J. B. Hunt’s favor

on July 7, 2009. Finn filed the instant appeal on August 4, 2009, but appeals only the

District Court’s decision on his NJLAD claims.

                                            II.

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441, and

we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the

District Court’s grant of summary judgment. Bouriez v. Carnegie Mellon Univ., 585

F.3d 765, 770 (3d Cir. 2009).

                                            III.

       Claims brought under the NJLAD that seek to prove discrimination by using

circumstantial evidence are evaluated under the McDonnell Douglas framework. Bergen

                                             4
Commercial Bank v. Sisler, 723 A.2d 944, 949, (N.J. 1999). This framework allows the

plaintiff to create an inference of discrimination by establishing a prima facie case of

discrimination. This prima facie case may then be rebutted by the employer if it is able to

articulate a legitimate, nondiscriminatory reason for the adverse employment action. The

production of a legitimate, nondiscriminatory reason switches the focus back to the

plaintiff who must then prove that the employer’s proferred reason was a pretext for

discrimination. Id. at 954-55. The District Court in this case determined that Finn had

adequately established a prima facie case of discriminatory discharge based upon his age,

and that J.B. Hunt successfully provided a legitimate nondiscriminatory reason for his

termination—his poor job performance. The District Court concluded, however, that

Finn failed to carry his burden of demonstrating that J.B. Hunt’s proffered reason was a

pretext, and, therefore, failed on his ultimate burden of proving that his termination was

motivated by a discriminatory animus. It is on the issue of pretext that Finn focuses his

argument.

       Finn lists seventeen ways in which he argues that the District Court erred in its

treatment of the evidence in this case. Despite Finn’s arguments, we agree with the

District Court’s conclusion that no reasonable juror could have found in Finn’s favor on

the issue of pretext, and see no need to address each of the specific errors that he finds

with the District Court’s opinion. We are left with a record that portrays a long period of

subpar job performance that is documented adequately by J.B. Hunt, and a request to

reach the conclusion that a discriminatory animus existed based on the facts that Finn had

worked for J.B. Hunt for fourteen years before he was terminated and that another

                                              5
employee over the age of 55, Paul Mordecai, resigned in 2004 while working under

Sawula. To reach such a conclusion would require rampant speculation in which this

Court is unwilling to engage. Although Finn has provided evidence to demonstrate that

Sawula had higher expectations for his job performance than some of his previous

supervisors, he has introduced no evidence that would lead us to conclude that these

expectations were motivated by his age or that his termination for poor job performance

was motivated by a discriminatory animus. In sum, we see no ground for reversing the

District Court’s grant of summary judgment on the basis of its treatment of the issue of

pretext.

                                           IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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