                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-2186-12T3



LAMONT W. GARNES,
                                         APPROVED FOR PUBLICATION
      Plaintiff,                             October 24, 2014

and                                         APPELLATE DIVISION

ROBERT A. KLEIN,

      Plaintiff-Respondent,

v.

PASSAIC COUNTY and the PASSAIC
COUNTY SHERIFF'S DEPARTMENT,

      Defendants-Appellants,

and

JERRY SPEZIALE, SHERIFF,

     Defendant.
_________________________________

          Submitted May 29, 2014 – Decided October 24, 2014

          Before Judges Grall, Waugh and Nugent.

          On appeal from Superior Court of New Jersey,
          Law Division, Passaic County, Docket No. L-
          56-10.

          Florio Perrucci Steinhardt & Fader, L.L.C.,
          attorneys for appellants (J. Andrew Kinsey,
          of counsel; Veronica P. Hallett, on the
          brief).
         Resnick Law Group, P.C., attorneys for
         respondent (Gerald Jay Resnick, on the
         brief).

    The opinion of the court was delivered by

GRALL, P.J.A.D.

    Plaintiffs Robert A. Klein and Lamont W. Garnes filed a

complaint alleging that Passaic County (the County), the Passaic

County Sheriff's Department (the PCSD) and the former Sheriff,

Jerry Speziale, violated the Law Against Discrimination (LAD),

N.J.S.A. 10:5-1 to -42.   Specifically, they contended that their

employer used age as a determinative factor in identifying the

sheriff's investigators whose employment would be terminated to

reduce personnel costs in a budgetary crisis and those who would

be rehired when the budget permitted.   By statute, sheriff's

investigators serve at the pleasure of the sheriff appointing

them and are in the unclassified service.   N.J.S.A. 40A:9-117a.

Plaintiffs dismissed their claims against Sheriff Speziale, but

not the PCSD, prior to trial.   They sought damages from the

County in the amount of past and future lost wages, damages for

emotional distress and punitive damages.

    The jury rejected plaintiffs' claims of age discrimination

in rehiring and determined that Garnes failed to prove that the

County and the PCSD, collectively defendants, intentionally

discriminated against Garnes in terminating his employment.     In




                                2                         A-2186-12T3
contrast, the jury found in favor of Klein on one of his claims

— discriminatory termination.   The jury awarded Klein $177,700

for past wages but no punitive damages.    Following the verdict,

the judge increased the damages award by $18,279 to account for

taxes.   The judge also awarded Klein a $389,593.33 counsel fee

(consisting of a $292,195 lodestar plus a $97,398.33 fee

enhancement) plus $17,459.11 for expenses and $14,890.60 for

pre-judgment interest.

    Defendants appeal the $617,922.04 judgment in favor of

Klein.   Garnes does not challenge the verdict against him.

Klein did not file a cross-appeal.

    On appeal defendants urge reversal on several grounds.

They contend that plaintiffs, having dismissed their claim

against the sheriff, should not have been permitted to maintain

an action against them based on vicarious liability.   They argue

the LAD should be interpreted as the United States Supreme Court

interpreted the Age Discrimination in Employment Act (ADEA) in

Gross v. FBL Financial Services, 557 U.S. 167, 129 S. Ct. 2343,

174 L. Ed. 2d 119 (2009), and contend that Klein did not adduce

adequate evidence to meet that standard.   They further argue




                                3                          A-2186-12T3
that the evidence was inadequate to support the verdict in favor

of Klein.1

     Defendants also challenge the amount of the judgment.      They

submit that even if Klein had established age discrimination, he

could not establish damages because, as an "at will employee,"

he had no expectation of continued employment.      In addition,

they contend that the counsel fee award is excessive.      For the

reasons that follow, we affirm.

                                  I

     Before setting forth the facts of the case, we address

defendants' claims that present questions of law independent of

the evidence presented at trial.      On such matters, a reviewing

court owes no deference to the trial court's determinations and


1
   Defendants' argument on the adequacy of the evidence includes
a reference to the verdict being "against the weight" of the
evidence. The record on appeal does not include the transcript
of defendants' post-trial motion, but it appears from the notice
of motion and the form of order defendants submitted that they
moved for a judgment notwithstanding the verdict, R. 4:40-2, and
remittitur, not for a new trial on liability on the ground that
the verdict on liability was against the weight of the evidence,
R. 4:49-1(a). We note that the judge used the form order
defendants submitted to memorialize his denials of those two
types of relief, and he indicated on the order that he had
stated his findings on the record on July 13, 2012. Because we
do not have that transcript and because a claim that the verdict
was against the weight of the evidence cannot be raised on
appeal if it was not raised by way of motion for a new trial in
the trial court, R. 2:10-1, we do not address defendants' remark
about the verdict on liability being against the weight of the
evidence.



                                  4                          A-2186-12T3
decides the question de novo.   State v. Coles, 218 N.J. 322, 342

(2014).

                                A.

    Defendants argue that plaintiffs should not have been

permitted to maintain this action following their dismissal of

their claims against the sheriff.    They contend that because

sheriff's investigators serve at the pleasure of the county

sheriff, who is a constitutional officer with the exclusive

statutory authority to hire and fire sheriff's investigators,

the County cannot be held vicariously liable even if the sheriff

unlawfully and intentionally terminated plaintiffs' employment

because of their age.

    The Federal Court of Appeals for the Third Circuit,

applying New Jersey law, rejected a claim similar to defendants'

in Coleman v. Kaye, 87 F.3d 1491, 1495 (3d Cir. 1996), cert.

denied, 519 U.S. 1084, 117 S. Ct. 754, 136 L. Ed. 2d 691 (1997),

a case in which a county argued that it could not be held

vicariously liable for the county prosecutor's violation of the

LAD in deciding whether to promote one of his investigators.

Coleman is instructive because county prosecutors and county

sheriffs both have exclusive authority to hire and terminate




                                5                           A-2186-12T3
their investigators.    Id. at 1502; see N.J.S.A. 2A:157-10;

N.J.S.A. 40A:9-117a.2

     In Coleman, the "district court found that the County of

Monmouth could not be held liable under the New Jersey LAD

premised upon a theory of respondeat superior for the actions

of" the county prosecutor, because "there was no master/servant

relationship between the County of Monmouth and" its prosecutor.

Id. at 1496.    The Third Circuit, applying New Jersey law,

reversed that determination.

     Applying New Jersey law, the Court of Appeals determined

that the prosecutor "was acting as a local, county official when

he denied [the plaintiff's] applications for promotion," and

held "that the discriminatory acts of [the prosecutor] and his

subordinates may be imputed to the County of Monmouth since [the

prosecutor] was the final policymaking authority acting on

behalf of Monmouth County in the prosecutor's office."    Id. at

1506.

        We see no basis for reaching a different conclusion in

this case.    For all practical and pertinent purposes, a county

sheriff's and a county prosecutor's statutory authority over

employment decisions involving investigators is the same,


2
   Both county prosecutors and county sheriffs have terms fixed
in the constitution. N.J. Const. art. VII, § II, ¶¶ 1 & 2.



                                 6                            A-2186-12T3
exclusive and independent of the county.   Moreover, the New

Jersey Supreme Court has followed the reasoning in Coleman twice

— most recently in Lavezzi v. State, 219 N.J. 163 (2014), and a

decade earlier in Wright v. State, 169 N.J. 422, 441-42 (2001).

    We recognize that Lavezzi, Wright and Coleman all involved

a separate question of the State's vicarious liability in

matters related to law enforcement that is not at issue here,

but our Supreme Court has agreed with the Third Circuit that a

county prosecutor performs his or her administrative functions

"'on behalf of the county.'"   Lavezzi, supra, 219 N.J. at 175

(quoting Coleman, supra, 87 F.3d at 1499); accord Wright, supra,

169 N.J. at 442.   And, in discussing Coleman and decisions of

our courts, the Supreme Court has concluded that a county

prosecutor's "liability derived from the prosecutor's

administrative functions . . . is deemed to be the county's

responsibility."   Lavezzi, supra, 219 N.J. at 178.

    On the foregoing authority, we conclude that neither the

exclusivity of the sheriff's authority over employment of

sheriff's investigators nor plaintiffs' dismissal of their

claims against the sheriff himself had any bearing on the

County's liability for any violation of the LAD by the PCSD

through the conduct of the sheriff's subordinates who terminated




                                7                           A-2186-12T3
plaintiffs' employment.    The liability of the sheriff's

subordinate employees may be imputed to the County.

                                B.

       Defendants also argue that the United States Supreme

Court's interpretation of the ADEA, 81 Stat. 602, as amended 29

U.S.C. §§ 621 to 634, in Gross, supra, 557 U.S. at 173-79, 129

S. Ct. at 2348-52, 174 L. Ed. 2d at 126-30, requires a special

interpretation of the LAD where discrimination based on age is

alleged.    Both statutes require a plaintiff to prove that an

adverse employment action was taken "because of" the plaintiff's

age.   29 U.S.C. § 623(a)(1); N.J.S.A. 10:5-12(a).

       The Court's decision in Gross rests on its interpretation

of the plain language of the ADEA which prohibits employment

discrimination "because of [the] individual's age,"

29 U.S.C. § 623(a)(1).    The Court determined that "the ordinary

meaning of the ADEA's requirement that an employer took adverse

action 'because of' age is that age was the 'reason' that the

employer decided to act."    Id. at 176, 129 S. Ct. at 2350, 174

L. Ed. 2d at 128.    As defendants in this case correctly note,

the LAD also makes it unlawful "[f]or an employer, because of

the . . . age . . . of any individual . . . to refuse to hire or

employ or to bar or to discharge or require to retire, unless




                                 8                            A-2186-12T3
justified by lawful considerations other than" age.   N.J.S.A.

10:5-12a.

    In Gross, the Court cited its decision in Hazen Paper Co.

v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 1706, 123 L. Ed.

2d 338, 347 (1993), a case based on disparate treatment

attributable to age.    The Court described Hazen Paper Co. as

holding that such a claim "cannot succeed unless the employee's

protected trait actually played a role in [the employer's

decision making] process and had a determinative influence on

the outcome."   Gross, supra, 557 U.S. at 176, 129 S. Ct. at

2350, 174 L. Ed. 2d at 128.

    We discern no significant difference between the Court's

description of the essential showing in Gross, and our Supreme

Court's description of what a plaintiff must prove to establish

a claim of age discrimination in employment under the LAD.

Under New Jersey law, "an employee must 'show that the

prohibited consideration[, age,] played a role in the decision

making process and that it had a determinative influence on the

outcome of that process.'"    Bergen Commercial Bank v. Sisler,

157 N.J. 188, 207 (1999) (quoting Maiorino v. Schering-Plough

Corp., 302 N.J. Super. 323, 344 (App. Div.) (quoting Miller v.

CIGNA Corp., 47 F.3d 586, 597 (3d Cir. 1995)), certif. denied,

152 N.J. 189 (1997)).




                                 9                          A-2186-12T3
    "Although the discrimination must be intentional, an

employee may attempt to prove employment discrimination by using

either direct or circumstantial evidence."   Id. at 208 (internal

citation omitted); see O'Brien v. Telcordia Technologies, Inc.,

420 N.J. Super. 256, 262 (App. Div. 2011) (noting that a

"plaintiff must present either circumstantial or direct evidence

of age discrimination").   Pursuant to Gross, "the burden of

persuasion necessary to establish employer liability is the same

in alleged mixed-motives cases as in any other ADEA disparate-

treatment action.   A plaintiff must prove by a preponderance of

the evidence (which may be direct or circumstantial) that age

was the 'but-for' cause of the challenged employer decision."

557 U.S. at 177-78, 129 S. Ct. at 2351, 174 L. Ed. 2d at 129.

And as previously noted, the showing required is that "the

plaintiff's age must have 'actually played a role in [the

employer's decision making] process and had a determinative

influence on the outcome.'"   Reeves v. Sanderson Plumbing

Prods., 530 U.S. 133, 141, 120 S. Ct. 2097, 2105, 147 L. Ed. 2d

105, 116 (2000) (quoting Hazen Paper Co., supra, 507 U.S. at

610, 113 S. Ct. at 1706, 123 L. Ed. 2d at 347); accord Gross,

supra, 557 U.S. at 177-78, 129 S. Ct. at 2351, 174 L. Ed. 2d at

129 (citing Reeves).




                                10                           A-2186-12T3
    The Court's decision in Gross raises a separate issue about

proof of age discrimination claims that is not implicated in

this case.    In Gross, based on differences in the language

Congress used in the ADEA and Title VII, the Court held that the

shift in burden of persuasion to the defendant in a mixed-motive

discrimination case under Title VII of the Civil Rights Act of

1964 described in Price Waterhouse v. Hopkins, 490 U.S. 228, 109

S. Ct. 1775, 104 L. Ed. 2d 268 (1989), has no application in an

ADEA case.    There is no reason for us to consider whether our

courts should or would follow that aspect of Gross in addressing

age discrimination claims under the LAD because the trial court

did not give this jury an instruction on the shifting burden of

persuasion.   As we did in O'Brien v. Telecordia Technologies,

Inc., we leave that "thorny" question for a case in which it is

necessary to decide it.   420 N.J. Super. at 270; see McDevitt v.

Bill Good Builders, Inc., 175 N.J. 519 (2003) (discussing Price

Waterhouse in a case with a claim based on the ADEA).

    It is worth noting, however, that the Court's decision in

Gross casts no significant doubt on the applicability of the

burden of production framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), to

claims of age discrimination under the LAD.   Defendants do not

argue otherwise.   In Gross, the Court consistently and




                                 11                        A-2186-12T3
unambiguously disapproved a shift of the "burden of persuasion."

See Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009)

(concluding that its prior decisions applying the McDonnell

Douglas framework, which shifts only the burden of production,

to ADEA claims were not irreconcilable with Gross and following

its precedent).    Our courts have applied the McDonnell Douglas

framework to age discrimination claims under the ADEA and the

LAD.   McDevitt, supra, 175 N.J. at 523 (ADEA); Sisler, supra,

157 N.J. at 209-13 (LAD).    The Court recently stated, "All LAD

claims are evaluated in accordance with the United States

Supreme Court's burden-shifting mechanism."    Battaglia v. United

Parcel Serv., Inc., 214 N.J. 518, 546 (2013) (citing McDonnell

Douglas, supra, 411 U.S. at 802-04, 93 S. Ct. at 1824-25, 36 L.

Ed. 2d at 677-79).

       Based on the foregoing, we conclude that Gross has no

impact on our review of the adequacy of evidence supporting the

jury's verdict in favor of Klein.

                                C.

       Defendants also claim that Klein is not entitled to damages

because, as an "at will" employee, he had no expectation of

continued employment.    That claim has insufficient merit to

warrant any discussion beyond the brief remarks that follow.       R.

2:11-3(e)(1)(E).    The LAD prohibits an employer from basing "any




                                 12                         A-2186-12T3
employment decisions on discriminatory reasons."      Nini v. Mercer

Cnty. Cmty. Coll., 202 N.J. 98, 107 (2010).   "'[T]he overarching

goal' of the LAD, reflecting the clear public policy of this

State, '"is nothing less than the eradication 'of the cancer of

discrimination'"' in the workplace."   Sisler, supra, 157 N.J. at

199 (quoting Fuchilla v. Layman, 109 N.J. 319, 334 (quoting

Jackson v. Concord Co., 54 N.J. 113, 124 (1969)), cert. denied,

488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988)).      It

provides a remedy for violation of civil rights that is

independent of private or public contract.    Ibid.   Accordingly,

relief is not dependent upon a contractual right or any

expectation other than freedom from unlawful discrimination.

    Having addressed these foregoing preliminary legal

questions, we turn to address the evidence.

                                II

    This controversy was born of a budget crisis.      In 2007, the

Freeholders for Passaic County informed the sheriff that the

PCSD budget would be cut significantly.   Although the projected

reduction in PCSD's budget varied between the initial disclosure

and the development of PCSD's plan to address it, cuts as high

as thirty percent — $20 to $12 million of a $70,000,000 budget —

were forecast.   Because ninety percent of the PCSD's budget was

spent on personnel, the PCSD considered a reduction in force.




                                13                           A-2186-12T3
    The sheriff assigned Charles Myers, Director of

Administration, to develop and implement a plan.   Myers

explained that he had no "selection criteria" for identifying

sheriff's investigators for removal but that his recommendations

were "[m]ore or less based on the staffing needs of the agency

and the need to cut a certain amount from the budget."     In his

words, "[i]t was a constant balancing act between what do we

need, what can we cut, and where are we at with the number at

this point."   Myers did not recall why Garnes and Klein were on

the list of investigators whose service would be terminated

while others in the same position were not, but he did recall

that seniority played no role in his decision and that the need

to "meet a certain number" — the amount that had to be cut and

the minimum staffing levels required — did play a role.    Myers,

however, did not know what Klein's assignment as a sheriff's

investigator was.   Further, he explained that the duties a

particular sheriff's investigator was then performing "[b]ore no

relevance to the layoffs."   He looked at the cost of having the

investigator work — a matter of salary, pension and social

security contributions.

    Using Garnes as an example, Myers explained: "I don't

recall how we may have selected him out [of] the group of 25

other investigators.   But that's just what worked.   The final




                                14                          A-2186-12T3
list was the final list."    Myers also recalled that the first

investigator he placed on the removal list was his stepson, a

man much younger than Garnes and Klein.3

     At trial, Myers testified that he did a staffing levels

study that consisted of identifying the number of officers or

investigators needed in the corrections positions and court

positions.    In addition, he made decisions about sheriff's

investigators based on N.J.S.A. 40A:9-117a, which limits the

number of appointments to those unclassified positions to no

more than fifteen percent of the total number of officers

employed.    According to Meyers, to meet the statutory limit and

the overall reduction in personnel costs, eight investigators

had to be removed.

     Myers explained that the reduction in staff was

necessitated by the cuts to the PCSD's budget and done for the

purposes of efficiency and economy.    He noted that there was an

additional cost savings when sheriff's investigators, as opposed

to sheriff's officers, were removed.    Myers explained that

because the investigators serve at the pleasure of the sheriff

and do not have civil service protections enjoyed by other

officers, they can be laid off more promptly than their

3
  Myers disclosed the information in the text during his
deposition, and plaintiffs' attorney presented selected portions
of the deposition transcript as part of plaintiffs' case.



                                 15                         A-2186-12T3
colleagues who have civil service protection and must be laid

off in conformity with a civil process that can take as long as

ninety days.   For that reason, the PCSD discontinued the service

of sheriff's investigators so that its budget could be reduced

by the cost of keeping the employee as early as January 1, 2008.

    Although the sheriff had met with his investigators and

warned of the budget cut and the staff reductions earlier,

formal notice was first sent to Klein and Garnes on December 10,

2007.   The notices were given by memo from the sheriff.    The

memos advised the recipient that for "reasons of economy and

efficiency," he would be "separated from duty effective January

1, 2008."   The memo did not mention any reemployment

opportunities within the PCSD, but it did advise the

investigators of their ability to apply for civil service

positions in other jurisdictions pursuant to N.J.S.A. 40A:14-180

and offer assistance to them in that endeavor.

    Klein and Garnes were two of eight investigators separated

from employment effective January 1, 2008.   There was no

evidence that either of these investigators was tendering

substandard or less than quality performance.

    Garnes, born in November, was forty-nine years old on

January 1, 2008.   He had worked as a PCSD sheriff's investigator

since his initial appointment in 1990.   Among the investigators




                                16                          A-2186-12T3
employed by the PCSD in December 2007, Garnes was one of the

highest paid.   According to information provided by the PCSD

listing base salary and total earnings as of September 28, 2007,

Garnes's salary was $79,568 and with longevity and a stipend for

education he had been paid $89,025.   Garnes did not claim to

have earned less.    Indeed, at trial he testified that his

earnings in 2006 and 2007 respectively, were $101,331.45 and

$94,584.95.

     Klein was older than Garnes, and his earnings were lower.

Klein, appointed in December 2003, was fifty-seven years old by

January 1, 2008.    His base salary was $60,561 in 2007, and the

PCSD records do not reflect that he had any additional earnings

as of September 28, 2007.

     The ages and salaries of the other six investigators whose

service was discontinued effective January 1, 2008 were as

follows4: a fifty-nine year old with a base salary of $79,568; a

twenty-seven year old with a base salary of $46,739 and earnings

of $52,913; a thirty-six year old with a base salary of $46,739;

a thirty-six year old with a base salary of $46,739 and earnings

of $48,239; a twenty-six year old with a base salary of $66,284

4
   In stating the age of these investigators we have been less
than precise, in that we have used the age each would be as of
December 31, 2008. The earnings stated are based on information
provided by the PCSD that purports to state earnings as of
September 28, 2007.



                                 17                           A-2186-12T3
and total earnings of $69,817; and a twenty-five year old with a

base salary of $46,739.

    At trial, defendants relied upon the mixed ages of this

group of eight investigators and their asserted purposes of

efficiency and economy to defeat Garnes' and Klein's allegations

of age discrimination.    The jurors determined that Garnes, who

was ten years younger than and paid more than the eldest

investigator discharged who had the same base salary, failed to

prove that he was terminated because of his age.   As previously

noted, Garnes did not appeal.

    The jurors reached a different conclusion with respect to

Klein.   Klein was several years older than Garnes — fifty-seven

— and earned less than Garnes — $60,561.    The only investigator

working at the time older than Klein was the fifty-nine year old

whose base salary was $79,568 and whose service was discontinued

with Klein's, effective January 1, 2008.

    Several investigators younger than Klein and with base

salaries and earnings as high or higher than his on September

28, 2007, continued their employment as investigators beyond

January 1, 2008.   Identified by the age they would reach by

December 2008 and stating their earnings as of September 28,

2007, they include: a thirty-six year old earning $60,561, whose

employment was discontinued in December 2010; a thirty-one year




                                 18                        A-2186-12T3
old earning $89,116, whose employment was discontinued in March

2009; a forty-nine year old earning $92,208, whose employment

was discontinued in March 2008; a thirty-six year old earning

$84,342, whose employment was discontinued in March 2008; a

forty-three year old earning $66,264, whose employment was

discontinued in March 2008; a forty-six year old earning

$66,264, whose employment was discontinued in April 2010; and a

forty-six year old earning $72,890, whose employment was

discontinued in March 2008.

    In addition, several younger sheriff's investigators with

base salaries as high or higher than Klein's were still employed

as sheriff's investigators in the PCSD at the time of trial,

which was in May 2012.   They include5:   a thirty-eight year old

investigator in 2008 earning $88,229; a twenty-eight year old in

2008 earning $60,561; a thirty-nine year old in 2008 earning

$72,890; a thirty-nine year old in 2008 earning $62,061; and a

thirty-three year old in 2008 earning $72,890.

    In addition to the foregoing, there is evidence that

numerous sheriff's investigators, all of them younger than

Klein, were hired from January 1, 2008 through December 23,

5
  Once again, in stating the age of these investigators we have
been less than precise, in that we have used the age each would
be as of December 31, 2008. The earnings stated are based on
information provided by the PCSD that purports to state earnings
as of September 28, 2007.



                                19                         A-2186-12T3
2009.    During that period, eleven sheriff's investigators who

were younger than Klein was on January 1, 2008 were appointed as

sheriff's investigators.

    Neither plaintiff presented any direct evidence of

discrimination based on age.

    As previously noted, to establish a claim of age

discrimination in employment under the LAD, "an employee must

'show that the prohibited consideration[, age,] played a role in

the decision making process and that it had a determinative

influence on the outcome of that process.'"     Sisler, supra, 157

N.J. at 207 (quoting Maiorino, supra, 302 N.J. Super. at 344

(quoting Miller, supra, 47 F.3d at 597)).      Proof by a

preponderance of the evidence is required.      Id. at 210.

    Where, as here, a claim of age discrimination is supported

only by circumstantial evidence, the evidence is assessed under

the McDonnell Douglas framework.      Id. at 209.   If the plaintiff

establishes a prima facie case, a presumption of unlawful

discrimination arises.    Id. at 210.   The employer may obliterate

that presumption "with admissible evidence of a legitimate, non-

discriminatory reason" for taking the employment action at

issue.   Ibid.   At that point, the employee has an opportunity to

prove that the employer's asserted reason for the action is not




                                 20                           A-2186-12T3
true and is merely a pretext for discriminating among employees

on an impermissible basis.    Id. at 211.

    The elements of a LAD plaintiff's prima facie case vary

depending upon the discrimination alleged and the employment

action taken.   The McDonnell Douglas framework as stated by our

Supreme Court in Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 492

(1982), a case involving discriminatory hiring, is as follows:

         The plaintiff must demonstrate by a
         preponderance of the evidence that he or she
         (1) belongs to a protected class, (2)
         applied and was qualified for a position for
         which the employer was seeking applicants,
         (3) was rejected despite adequate
         qualifications, and (4) after rejection the
         position remained open and the employer
         continued to seek applications for persons
         of plaintiff's qualifications. 411 U.S. at
         802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677
         (footnote omitted).

    Modification to address the circumstances of the particular

case is obviously required.   Thus, where the plaintiff complains

of a discharge, evidence of qualification and discharge suffices

to establish the third element.    Sisler, supra, 157 N.J. at 212.

And evidence of replacement efforts may substitute for evidence

of continued efforts to fill a vacant position.    Erickson v.

Marsh & McLennan Co., 117 N.J. 539, 551 (1990).    Similarly,

where the allegation is discrimination based on age under the

LAD, which, unlike the ADEA that protects only those over forty,

does not limit the protection to persons who have reached a



                                  21                       A-2186-12T3
certain age, evidence of membership in a specified age group is

not required.   See Sisler, supra, 157 N.J. at 212-14 (noting the

need for refocusing the first and fourth elements that hinge

respectively on membership and non-membership in a protected

class).   Instead, the third and fourth elements can be shown by

evidence giving rise to an inference that an older employee has

been treated less favorably than his or her younger

counterparts.   Sisler, supra, 157 N.J. at 212-13, 217-18.

   In the context of an age discrimination claim based on a

reduction in force, the Third Circuit described the prima facie

case as follows:   "To establish a prima facie case under the

McDonnell Douglas/Burdine pretext framework in a RIF case, the

plaintiff must show he was in the protected class, he was

qualified, he was laid off and other unprotected workers were

retained."    Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d

Cir. 1994).   Adapting that case to account for the fact that the

LAD does not identify a protected age group, we conclude that

Klein, a fifty-seven year old and of an age sufficient to

warrant an inference that his age was relevant, had to show that

he was laid off while other younger employees earning as much or

more than he were carried.   See Murray v. Newark Hous. Auth.,

311 N.J. Super. 163, 172-74 (Law Div. 1998) (restating the prima

facie case articulated in Armbruster).   Judge Payne's reasoning




                                 22                          A-2186-12T3
in Murray was cited with approval by our Supreme Court in

Sisler.   157 N.J. at 201, 210, 211, 217.

    In this regard, it is important to note that the reasons

the employer offers for selections of employees to be among

those let go in a reduction in force are pertinent to an

evaluation of the plaintiff's proofs of age discrimination in

that context.   "An employee may meet this burden either by

persuading the court 'directly "that a discriminatory reason

more likely motivated the employer or indirectly by showing that

the employer's proffered explanation is unworthy of credence."'"

Sisler, supra, 157 N.J. at 211 (quoting Murray, supra, 311 N.J.

Super. at 173 (quoting Texas Dep't of Cmty. Affairs v. Burdine,

450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 217

(1981))).

    Klein clearly made the essential prima facie showing and

overcame the evidence defendants offered to prove that Klein was

selected to be among the investigators terminated for reasons of

economy and efficiency.   The evidence showing that younger and

higher paid investigators who also served at will were retained

gave rise to a reasonable inference that the reasons the PCSD

asserted for terminating him were simply a pretext for the

employer's preference to retain younger investigators.     There is

no question that defendants established a budget crisis




                                23                          A-2186-12T3
requiring terminations, but they did not establish a

justification for addressing that budget crisis by leaving

investigators who were younger and higher paid on the job while

terminating Klein who was older and paid less.

    Accepting "as true all evidence supporting" Klein's claim

and according him "the benefit of all legitimate inferences

which can be deduced [from the evidence]," we cannot conclude

that defendants were entitled to a judgment notwithstanding the

verdict.   Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l

Sch. Dist., 201 N.J. 544, 572 (2010).     Accordingly, we affirm.

                                III

    A trial judge's fee determinations are "disturbed only on

the rarest occasions, and then only because of a clear abuse of

discretion."    Rendine v. Pantzer, 141 N.J. 292, 317 (1995).      We

have considered the record and the findings and reasons for the

award the judge placed on the record on September 14, 2012, in

light of that deferential standard of review.     In the end, we

have determined that no argument defendants raise to establish

that this award is excessive has sufficient merit to warrant

discussion in a written opinion.      R. 2:11-3(e)(1)(E).

    Affirmed.




                                 24                         A-2186-12T3
