                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-23-2004

Monaco v. Amer Gen Assurance
Precedential or Non-Precedential: Precedential

Docket No. 02-4190




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                    PRECEDENTIAL        Mark B. Watson
                                        Robert H. Jaffe & Associates
    UNITED STATES COURT OF              8 Mountain Avenue
           APPEALS                      Springfield, N.J. 07081
     FOR THE THIRD CIRCUIT
                                           Attorneys for Appellant

              No. 02-4190               Thomas J. Barton (argued)
                                        Patricia Proctor
                                        Kimberly M. Coffina
        ROBERT R. MONACO,               Drinker, Biddle & Reath
                                        105 College Road East
                            Appellant   P.O. Box 627, Suite 300
                                        Princeton, N.J. 08542
                   v.
                                           Attorneys for Appellees
AMERICAN GENERAL ASSURANCE
 COM PANY, an Illinois corporation;
       AMERICAN GENERAL                       OPINION OF THE COURT
         CORPORATION, a
Texas corporation; WILLIAM LEARY;
    JOHN DOE; RICHARD ROE               GREENBERG, Circuit Judge.

           _______________                I. FACTUAL AND PROCEDURAL
                                                    HISTORY
   On Appeal from the United States
             District Court
     for the District of New Jersey            This matter comes on before this
       (D.C. Civ. No. 01-03642)         court on Robert Monaco’s appeal from
    Honorable Mary Little Cooper,       an order entered by the district court on
             District Judge             October 25, 2002, granting appellees’
                                        motion for summary judgment. Monaco
                                        brought this action against his former
        Argued January 13, 2004         employer, its corporate parent, and
                                        certain of his former co-employees,
   BEFORE: MCKEE, SMITH, and            alleging that they discriminated against
    GREENBERG, Circuit Judges           him on the basis of his age when his
                                        employer laid him off as part of a
       (Filed: February 23, 2004)       company-wide reduction in force on June
                                        30, 1999. In addition, he asserted breach
                                        of contract claims against the corporate
Robert H. Jaffe (argued)                defendants.
        Monaco was born on March 9,               constituted a significant portion of the
1946. On June 2, 1975, he began                   sales volume in the Eastern Region,
working for United States Life Insurance          AGAC determined to cut expenses by
Company (“United States Life”) as a               consolidating its operations and reducing
sales representative for the New Jersey           its workforce.
area selling term life and medical
insurance. United States Life promoted                   When AGAC laid off Monaco on
him in 1979 to regional group manager             June 30, 1999, he was age 53. At that
in which position he was responsible for          time AGAC had two regional vice
opening the New Jersey regional office            presidents, Monaco, who was vice
in Chatham and oversaw the sales                  president of the Eastern Region, and
representatives and clerical staff in that        Robert Shaw (“Shaw”) age 55, who was
office. In 1988 United States Life                vice president of the Western Region.
promoted him again, this time to regional         Shaw and Monaco had identical
vice president in charge of the Eastern           responsibilities in the two different
Region, a position in which he                    regions. In June 1999, AGAC had eight
coordinated insurance sales in several            sales vice presidents/branch managers
states along the eastern seaboard. During         who reported directly to Monaco: (1)
his tenure as regional vice president his         Edward M cDonald in Danbury,
employer expanded his territory to                Connecticut, approximately age 45; (2)
include several additional states.                Walter Schroeder for the New England
                                                  Region, approximately age 47; (3) Ted
        In 1997, American General                 Makuch in New York, in his mid-40s; (4)
Assurance Company (“AGAC”)                        Richard Gawlak in the Philadelphia area,
purchased United States Life. After the           approximately age 50; (5) Joseph
AGAC acquisition, Monaco remained                 Ficorilli in the Cincinnati area,
the vice president in charge of the               approximately age 62; (6) Paul Bouchard
Eastern Region. Prior to April 1999, J.           in the Florida area, in his early 40s; (7)
Hugh Bailey (“Bailey”), senior vice               Dale Brockman in New Jersey,
president of sales and marketing, then            approximately age 50; and (8) Michael
age 62, was Monaco’s immediate                    Lombardi in charge of double override
supervisor, but in May 1999, William              agencies, approximately age 64.
Leary (“Leary”), age 50, replaced Bailey,
who was retiring, in that capacity. In late              On June 14, 1999, when Leary
1998, AGAC determined that its medical            informed Monaco that AGAC was laying
insurance line of business was incurring          him off effective June 30, 1999, he
large losses, a circumstance which led it         explained that it was doing so because it
to decide to exit this product line.              was eliminating his position of vice
Notwithstanding its unprofitably,                 president for the Eastern Region as it was
inasmuch as sales of medical insurance            consolidating its Eastern and W estern

                                              2
Regions under Shaw’s control. At the            In addition, he asserted claims against
time of Monaco’s layoff, AGAC also              the corporate defendants for breach of
laid off several other employees as part        contract. Defendants removed the case
of a company-wide reduction in force.           to the district court on the basis of
Following Monaco’s layoff, Shaw                 diversity of citizenship and subsequently
assumed the day-to-day management of            moved for summary judgment. On
the Eastern Regional sales office but           October 25, 2002, the district court
Leary also provided oversight of the            granted the defendants’ motion,
Eastern Region.                                 concluding with respect to his age
                                                discrimination claim that while Monaco
       In April 2000, AGAC hired Tom            could satisfy the first three elements of
McKellar, who was born on April 26,             the McDonnell Douglas (McDonnell
1948, and is approximately two years            Douglas Corp. v. Green, 411 U.S. 792,
younger than Monaco, as national vice           93 S.Ct. 1817 (1973)) prima facie case
president of sales. McKellar worked out         test, he could not satisfy the fourth
of the New Jersey office and was                element. It also granted summary
responsible for national sales and other        judgment to the corporate defendants on
senior management duties in addition to         Monaco’s breach of contract claim.
overseeing the Eastern Regional sales           Monaco then brought this appeal.
offices.

       On June 11, 2001, Monaco
brought this action in the Superior Court                  II. JURISDICTION
of New Jersey against his former
employer, AGAC, and its parent                         The district court had jurisdiction
corporation, American General                   pursuant to 28 U.S.C. § 1332 inasmuch
Corporation, as well as his supervisor,         as the parties are of diverse citizenship
Leary, and two unnamed AGAC                     and the amount in controversy exceeds
employees, John Doe and Richard Roe,            $75,000, exclusive of interest and costs.2
charging all defendants with age
discrimination, directly or as aiders and
abettors, under the New Jersey Law              claims made against them. See Garvin v.
Against Discrimination, N.J. Stat. Ann. §       City of Philadelphia, 354 F.3d 215 (3d Cir.
10:5-1 et seq. (West 2002) (“NJLAD”).1          2003).
                                                     2
                                                      When we reviewed this case we
                                                questioned whether the parties were of
  1
    Inasmuch as Monaco never sought to          diverse citizenship and thus we directed
replace the John Doe and Richard Roe            them to make submissions on this point.
defendants with the names of actual             We now are satisfied that the parties are of
AGAC employees we will not address any          diverse citizenship and there is diversity of

                                            3
We have jurisdiction pursuant to 28                for him to establish a prima facie case,
U.S.C. § 1291.                                     though an action under the ADEA would
                                                   have required that he make such a
                                                   showing. Appellees contend, however,
                                                   that Monaco has waived this argument
            III. DISCUSSION                        because in his brief in opposition to their
                                                   motion for summary judgment he stated
       A. STANDARD OF REVIEW                       that to determine if the fourth element of
                                                   the prima facie case step of the
        We exercise plenary review of the          McDonnell Douglas burden shifting
district court's order granting summary            framework had been satisfied the court
judgment to defendants. See Fakete v.              should look to “whether the plaintiff is
AETNA, Inc., 308 F.3d 335, 337 (3d Cir.            discharged while the defendant retained
2002) (citing Fogleman v. Mercy Hosp.,             similarly situated sufficiently younger
Inc., 283 F.3d 561, 566 n.3 (3d Cir.               persons in comparable job positions,”
2002)).                                            J.A. at 293-94, seemingly relying on a
                                                   McDonald Douglas formulation of that
       B. THE REQUIREMENTS OF                      element. Appellees’ br. at 11 n.3. But it
          THE NEW JERSEY LAW                       does not matter whether Monaco waived
          AGAINST                                  his argument that he has a lesser burden
          DISCRIMINATION                           under the NJLAD than he would have
          COMPARED TO THOSE OF                     had under the ADEA with respect to the
          THE AGE                                  fourth element of the McDonnell
          DISCRIMINATION IN                        Douglas test as we conclude that the two
          EMPLOYMENT ACT                           statutes contain similar requirements for
                                                   proving the fourth element of a
        Monaco asserts that the                    plaintiff’s prima facie case.3 Thus, his
requirements to set forth a prima facie            argument is to no avail.
case under the NJLAD are less stringent
than those required in similar cases under                 Under the ADEA, it is “unlawful
the Age Discrimination in Employment               for an employer . . . to fail or refuse to
Act, 29 U.S.C. § 621 et seq. (“ADEA”),             hire or to discharge any individual or
a statute not involved directly in this case       otherwise discriminate against any
brought solely under New Jersey law. In            individual with respect to his
particular, he contends that he does not           compensation, terms, conditions, or
have to make a showing that AGAC                   privileges of employment, because of
retained a sufficiently younger employee

                                                      3
                                                      We doubt that he in fact made such a
citizenship jurisdiction in this case.             waiver.

                                               4
such individual’s age.” 29 U.S.C. §               1775, 1796 (1989),5 or (2) presenting
623(a)(1). The protection against age             indirect evidence of discrimination that
discrimination in the ADEA is “limited            satisfies the familiar three-step burden
to individuals who are at least 40 years of       shifting framework identified in
age.” Id. § 631(a). When, as here, a              McDonnell Douglas. Fakete, 308 F.3d at
plaintiff alleges that he has suffered age        337-38; Sisler, 723 A.2d at 954.
discrimination predicated on disparate            Inasmuch as Monaco attempted to prove
treatment, liability under the ADEA               his case solely through the use of indirect
depends on whether age “actually                  evidence, our analysis will focus on the
motivated the employer’s decision.”               burden shifting framework of McDonnell
Hazen Paper Co. v. Biggins, 507 U.S.              Douglas as applied under the NJLAD.
604, 610, 113 S.Ct. 1701, 1706 (1993);
see also Raytheon Co. v. Hernandez, 124                   The Supreme Court of New Jersey
S.Ct. 513, 519 (2003).4 The NJLAD,                has explained the three-step burden
though worded differently, similarly              shifting analysis “as a starting point” for
makes age discrimination unlawful but             analysis of claims under the NJLAD.
does not limit its protections to persons         Sisler, 723 A.2d at 955. Under this
at least 40 years of age. In cases brought        analysis a plaintiff first must establish a
under either the ADEA or the NJLAD,               prima facie case, the step at which
the plaintiff’s age actually must have            Monaco lost his case in the district court.
played a role in the employer’s                   If the plaintiff does so the burden shifts
decisionmaking process and had a                  to the defendant to articulate a legitimate
determinative influence on the outcome            non-discriminatory reason for the
of that process. Reeves v. Sanderson              adverse employment action. Mogull v.
Plumbing Prods., Inc., 530 U.S. 133,              CB Commercial Real Estate Group, Inc.,
141, 120 S.Ct. 2097, 2105 (2000);                 744 A.2d 1186, 1197-98 (N.J. 2000).
Bergen Commercial Bank v. Sisler, 723             Then, if the defendant meets this rather
A.2d 944, 953 (N.J. 1999).                        light burden, the plaintiff must discredit
                                                  the defendant’s proferred reason for its
       Under both the ADEA and the                action or adduce evidence that
NJLAD, a plaintiff may meet his or her            discrimination was more likely than not a
burden by (1) presenting direct evidence
of discrimination that meets the
requirements of Justice O’Connor’s                  5
                                                     We have regarded Justice O’Connor’s
concurring opinion in Price Waterhouse
                                                  opinion as controlling, see Fakete, 308
v. Hopkins, 490 U.S. 228, 261, 109 S.Ct.
                                                  F.3d at 337 n.2, but we note that in Desert
                                                  Palace, Inc. v. Costa, 123 S.Ct. 2148, 2153
                                                  (2003), the Court declined an opportunity
  4
   Monaco does not attempt to advance a           to indicate which opinion in Price
disparate impact argument.                        Waterhouse was controlling.

                                              5
motivating or determinative cause of the          Monaco cites Sisler, 723 A.2d at 956,
adverse employment action. See Potence            Petrusky v. Maxfli Dunlop Sports Corp.,
v. Hazleton Area Sch. Dist., No. 03-              775 A.2d 723 (N.J. Super. Ct. App. Div.
1535,    F.3d , 2004 WL 188083, at                2001), and Reynolds v. Palnut Co., 748
*2 (3d Cir. Feb. 2, 2004) (ADEA case).            A.2d 1216 (N.J. Super. Ct. App. Div.
                                                  2000).
        In an ordinary employment
termination case under the ADEA to                         The NJLAD provides, in pertinent
establish a prima facie case of age               part, that “[a]ll persons shall have the
discrimination at the first step of the           opportunity to obtain employment . . .
McDonnell Douglas burden shifting                 without discrimination because of . . .
framework a plaintiff must show that he           age . . . . This opportunity is recognized
or she: (1) was a member of the protected         as and declared to be a civil right.” N.J.
class, i.e., was over 40, (2) was qualified       Stat. Ann. § 10:5-4 (West 2002). It
for the position, (3) suffered an adverse         further states, in relevant part that:
employment decision, and (4) ultimately
was replaced by a person sufficiently                    It shall be an unlawful
younger to permit an inference of age                    employment practice, or, as
discrimination. Duffy v. Paper Magic                     the case may be, an
Group, Inc., 265 F.3d 163, 167 (3d Cir.                  unlawful discrimination:
2001). In the context of a reduction in
force, in order to satisfy the fourth                    a. For an employer,
element of a prima facie case under the                  because of the . . . age . . .
ADEA, a plaintiff must show that the                     of any individual . . . to
employer retained a sufficiently younger                 refuse to hire or employ or
similarly situated employee. Anderson v.                 to bar or to discharge or
Consol. Rail Corp., 297 F.3d 242, 249-50                 require to retire, unless
(3d Cir. 2002).                                          justified by lawful
                                                         considerations other than
       As we have indicated, however,                    age, from employment
Monaco maintains that the NJLAD does                     such individual or to
not require him to show that AGAC                        discriminate against such
retained a sufficiently younger employee                 individual in compensation
in order for him to make out a prima                     or in terms, conditions or
facie case of age discrimination in a                    privileges of employment .
reduction-in-force case and thus it differs              ...
from the ADEA. His failure to make this
showing led the district court to grant the       Id. § 10:5-12.
appellees’ motion for a summary
judgment. In support of this argument                    In general, to establish a prima

                                              6
facie case under the NJLAD for unlawful                  legally forbidden ground.’
termination, and thus satisfy the first step             Thus, under the [NJ]LAD,
of the burden shifting analysis, a plaintiff             which specifies no
must demonstrate that he or she: (1)                     qualifying age, courts have
belongs to a protected class, (2) was                    modified the fourth
qualified for the position held, (3) was                 element to require a
terminated despite adequate                              showing that the plaintiff
qualifications, and (4) after termination                was replaced with ‘a
the position remained open and the                       candidate sufficiently
employer continued to seek applications.                 younger to permit an
See Sisler, 723 A.2d at 955 (citations                   inference of age
omitted). Of course, the NJLAD makes                     discrimination.’
it unlawful for an employer to terminate
an employee for numerous reasons in                Id. at 956 (citations omitted) (emphasis
addition to age and thus is much more              added). Obviously the reference to a
than an age discrimination statute.                younger replacement could not have been
                                                   intended to apply when an employee is
       In Sisler, a bank vice president            discharged on account of his or her youth
brought a claim of age discrimination              because in that situation his or her
under the NJLAD, alleging that his                 burden to establish a prima facie case
employer wrongfully discharged him                 quite logically is to show that the
because of his youth, an unusual action            replacement employee was “sufficiently
that conceptually was possible because,            older to permit an inference of age
as we have indicated, in contrast to the           discrimination.” Id. at 959. It is
ADEA, the NJLAD does not limit the                 apparent that the court in Sisler refined
individuals protected from age                     the fourth element of the requirements
discrimination to persons over the age of          for a prima facie case in age
40. Id. at 950. In Sisler the Supreme              discrimination situations that it had set
Court of New Jersey stated that under the          forth for application in NJLAD cases in
NJLAD in an age discrimination case,               general.
the fourth element of the McDonnell
Douglas prima facie case analysis:                        We recognize, however, that the
                                                   court’s focus in Sisler was not on the
       properly focuses not on                     fourth element of the McDonnell
       whether the replacement is                  Douglas framework, but on the first
       a member of the protected                   element, i.e., how to modify the
       class but on ‘whether the                   requirement that an individual belong to
       plaintiff has established a                 a protected class when the claimant
       logical reason to believe                   brings a charge of age discrimination on
       that the decision rests on a                the basis of youth. Id. at 956-57. The

                                               7
Sisler court held that in order to satisfy         the Supreme Court of New Jersey’s
the first element, claimants such as Sisler        analysis in that case was limited to cases
must show background circumstances                 involving allegations of reverse
supporting the suspicion that the                  discrimination. Petrusky, 775 A.2d at
defendant is “the unusual employer who             725; Reynolds, 748 A.2d at 1219. The
discriminates against the majority.” Id.           court in Reynolds held that in cases
at 957.6 Nevertheless we are not at                involving a “traditional age
liberty to ignore Sisler’s language                discrimination claim” a plaintiff:
recognizing the necessity of a sufficient
age differential between the terminated                   need not show that he was
and replacement employees for the                         replaced by someone
plaintiff to establish a prima facie case of              sufficiently younger.
age discrimination demonstrating the                      Rather, plaintiff must show
presence of its fourth element.                           that he was a member of a
                                                          protected class, that he was
        In Petrusky, 775 A.2d at 725-26,                  performing the job at a
and Reynolds, 748 A.2d at 1219-20, on                     satisfactory level; that he
which Monaco relies, the Appellate                        was discharged, and that
Division of the Superior Court of New                     the employer sought others
Jersey, the intermediate state court of                   to perform the work after
appeals, addressed the application of                     the complainant had been
Sisler to cases involving allegations of                  removed.
traditional age discrimination brought by
older employees. In both cases the                 Id. The court in Petrusky adopted the
Appellate Division declined to adopt the           Reynolds court’s interpretation of Sisler.
formulation of the fourth element of the           See Petrusky, 775 A.2d at 725 (“We
prima facie case in the language we have           adhere to that view and regard it as
quoted from Sisler regarding age                   governing until the Supreme Court
discrimination cases, holding instead that         declares otherwise.”).
                                                           Two cases in the district court
                                                   have espoused divergent views on
         6
          Notwithstanding opinions so              whether to follow the interpretation of
suggesting it may not be so unusual for            Sisler that Reynolds and Petrusky set
employers to discriminate against the              forth. In Wright v. L-3 Communications
majority because an employer might do              Corp., 227 F. Supp. 2d 293, 294-95
exactly that to satisfy demands for                (D.N.J. 2002), the court held that in order
diversity in its work force, to promote            to satisfy the fourth element of a prima
affirmative action, or because the                 facie case of age discrimination under
employer for other reasons prefers to hire         the NJLAD, a plaintiff “must only show
an individual who is not in the majority.

                                               8
that his employer sought others to               725). Thus, we have given careful
perform the same work after he was               consideration to Petrusky and Reynolds.
terminated from his position.” On the            Nevertheless, after analyzing these
other hand, earlier, in Swider v. Ha-Lo          Appellate Division cases, we conclude
Indus., Inc., 134 F. Supp. 2d 607, 625           that the district court in Swider was
(D.N.J. 2001), the court held that under         correct and agree with it “that the
the NJLAD, “in order to satisfy the              Reynolds court misconstrued the
fourth prong of the McDonnell Douglas            standard in Sisler.” Swider, 134 F. Supp.
prima facie case, plaintiff must show that       2d at 623.7 To us it is clear from Sisler
he was replaced by someone sufficiently          that when the Supreme Court of New
younger to create an inference of                Jersey set out the fourth element of the
unlawful age discrimination.” We are             McDonnell Douglas prima facie case
impressed with the comprehensive                 framework in an age discrimination case
analysis in Swider which points out that         it regarded that standard as applicable in
the Appellate Division itself has not            both traditional and reverse age
interpreted Sisler consistently. In this         discrimination cases, the difference being
regard, Swider cites Williams v.                 that in a traditional case the replacement
Pemberton Township Pub. Schs., 733               employee must be sufficiently younger
A.2d 571, 577 (N.J. Super. Ct. App. Div.         than the replaced employee and in a
1999), in which the court quoted Sisler          Sisler reverse discrimination situation the
for the point that under the NJLAD the           replacement employee must be
fourth element of a prima facie case             sufficiently older than the replaced
requires a showing that the plaintiff was        employee.
replaced with “a candidate sufficiently
                                                        When the Sisler court explained
younger to permit an inference of age
                                                 the fourth element it was following the
discrimination.”
                                                 analysis of prior cases as to what was
       Of course, in light of the                required to establish a prima facie case in
circumstance that we are applying state          an age discrimination context. As set
law we recognize that we are bound by            forth above, the Supreme Court of New
the opinions of the state’s highest court,       Jersey in Sisler specifically stated that,
Gares v. Willingboro Township, 90 F.3d           “under the [NJ]LAD, which specifies no
720, 725 (3d Cir. 1996), though “[i]n the        qualifying age, courts have modified the
absence of guidance from [it], we are to         fourth element to require a showing that
consider decisions of the state’s                the plaintiff was replaced with ‘a
intermediate appellate courts for                candidate sufficiently younger to permit
assistance in predicting how the state’s
highest court would rule.” Werwinski v.
                                                      7
Ford Motor Co., 286 F.3d 661, 670 (3d                 The district court decided Swider
Cir. 2002) (quoting Gares, 90 F.3d at            before the Appellate Division decided
                                                 Petrusky.

                                             9
an inference of age discrimination.’”               discrimination that he or she was a
723 A.2d at 956 (citation omitted)                  member of the protected class, performed
(emphasis added).8 Nothing in Sisler                satisfactorily, but was discharged
suggests that the principles underlying             following which the employer sought a
this modest modification are applicable             replacement employee then, in view of
only in cases involving reverse age                 the circumstance that the NJLAD does
discrimination and we see no reason to              not include a 40-year old age threshold,
limit the holding of the Supreme Court of           practically every terminated employee
New Jersey to those cases as it would not           would be able to establish a prima facie
be logical to do so. See Swider, 134 F.             case of age discrimination.9 Thus,
Supp. 2d at 624 (stating that under Sisler          Reynolds and Petrusky require that a
“[t]he fourth prong remains unchanged in            court find that a plaintiff has established
age discrimination cases, whether they be           a prima facie case of age discrimination
traditional or reverse”). Indeed, the               even though none of the four elements of
modification, as literally stated, could not        his or her prima facie case in any way
be applicable in a case in which the                relates to the plaintiff’s age.
employer is terminating the employee by
                                                            Such a result would fly in the face
reason of youth as in such a case it would
                                                    of the requirement set forth in O’Connor
be inconsistent with the discriminatory
                                                    v. Consolidated Coin Caterers Corp.,
act for an employer to hire an even
                                                    517 U.S. 308, 311-12, 116 S.Ct. 1307,
younger replacement. Thus, we are at a
                                                    1310 (1996) (citation omitted), that
loss to understand how the Appellate
                                                    “there must be a least a logical
Division limited Sisler’s articulation of
                                                    connection between each element of the
the fourth element of a prima facie case
                                                    prima facie case and the illegal
to cases involving reverse age
                                                    discrimination for which it establishes a
discrimination.
                                                    ‘legally mandatory, rebuttable
       In declining to follow Reynolds              presumption.’” M oreover, the result
and Petrusky we point out that they lead            would be at odds with the recognition in
to an absurd result. If a plaintiff only            Sisler that a prima facie case analysis
need show, as these cases indicate, to              focuses “on whether the plaintiff has
make out a prima facie case of age                  established a logical reason to believe
                                                    that the decision rests on a legally
                                                    forbidden ground.” Sisler, 723 A.2d at
  8
    In fact, as we have indicated, in cases         956 (internal quotation marks and
involving allegations of reverse age                citation omitted). Furthermore, the
discrimination under the NJLAD, a                   presumed age discrimination would be
plaintiff would be required to show that
the individual who replaced him or her
                                                     9
was sufficiently older in order to infer               There are some limited exceptions. See
discrimination on the basis of youth.               Sisler, 723 A.2d at 952.

                                               10
generic because the plaintiff under Sisler         convinced that Sisler compels this result.
could be either too young or too old.10            Of course, as we explain below, we
                                                   apply this element in a way to make it
        Overall we are satisfied that we
                                                   relevant in this reduction-in-force
should apply the same standard for the
                                                   situation.
fourth element of Monaco’s prima facie
case under the NJLAD as we would have                     C. “SIMILARLY SITUATED”
applied under the ADEA if he had
                                                           Frequently courts apply the
brought his case under that statute. Thus,
                                                   McDonnell Douglas burden shifting
we look to the ages of the remaining
                                                   analysis when an employer replaces an
similarly situated employees to compare
                                                   employee. But here we deal with that
them to Monaco to see if he has
                                                   analysis in the different context of a
established the existence of that element.
                                                   reduction in force. In Anderson, 297
See Anderson, 297 F.3d at 249-50;
                                                   F.3d at 250, we explained that in the first
Sisler, 723 A.2d at 956.11 We are
                                                   step of the burden shifting analysis in a
                                                   reduction-in-force case brought under the
   10
                                                   ADEA, “the plaintiff must show, as part
     Under Reynolds and Petrusky a 35-             of the fourth element, that the employer
year old terminated individual usually             retained someone similarly situated to
could demonstrate a prima facie case of            him who was sufficiently younger.” We
age discrimination under the NJLAD even            reasoned that unless the fourth element
though he or she is so young that the              required the individual retained to be
ADEA would be inapplicable in the case             similarly situated to the one who was
but so old that it would be bizarre to             terminated we would be construing the
believe that the employer discriminated            ADEA as a bumping statute guaranteeing
against the individual by reason of youth.         employment to a protected worker at the
        11                                         expense of a sufficiently younger
          It is conceivable that in an
                                                   employee. Id.
employment discrimination case under the
ADEA or other applicable law in which                     In the absence of divergent
there was compelling direct evidence of            language between the NJLAD and
discrimination by reason of age, race, or          federal discrimination laws, the Supreme
some other interdicted factor that the mere        Court of New Jersey has applied federal
fact that a replacement worker is in the           standards in NJLAD cases “in the
same protected class as the terminated
employee would not mean that the
employer could not be liable under the             was in the same protected class and thus
statute involved. See Williams, 733 A.2d           hire that replacement employee. In that
at 578. After all, the employer after              event it would be difficult to conclude that
discharging the employee might find that           the employer should not be liable for the
the only suitable replacement employee             wrongful discharge.

                                              11
interest of achieving a degree of                NJLAD.12 In accord with Anderson, we
uniformity in the discrimination laws.”          will not compare an individual such as
Sisler, 723 A.2d at 950; see Lawrence v.         Monaco, a vice president in charge of the
Nat’l Westminster Bank N.J., 98 F.3d 61,         Eastern Region, with lower-level
65 (3d Cir. 1996) (“[a]ge discrimination         employees without evidence of routine
claims under the ADEA and [NJ]LAD                job shuffling which does not exist. See
are governed by the same standards and           id. However, an individual does not
allocation of burdens of proof”)                 need to be situated identically to satisfy
(citations omitted). Inasmuch as there is        the fourth element of a plaintiff’s prima
no applicable divergent statutory                facie case under the NJLAD. In order to
language in this case, and taking into           determine who might qualify as a
consideration the references in Sisler to        similarly situated employee we must look
the age of replacement employees, we             to the job function, level of supervisory
believe that if faced with a case of age         responsibility and salary, as well as other
discrimination in the context of a               factors relevant to the particular
reduction in force, the Supreme Court of         workplace. This determination requires a
New Jersey would adopt the similarly             court to undertake a fact-intensive
situated requirement of Anderson.                inquiry on a case-by-case basis rather
                                                 than in a mechanistic and inflexible
        In Anderson, 297 F.3d at 250, we
                                                 manner. See Pivirotto v. Innovative Sys.,
held that non-union employees were not
                                                 Inc., 191 F.3d 344, 357 (3d Cir. 1999).
similarly situated to “entry-level
positions or other low-level positions                  Thus, we must determine which
without providing any evidence of                employees at AGAC were similarly
[routine job] shuffling.” We affirmed the        situated to Monaco. AGAC maintains
decision of the district court granting          that Shaw, the vice president for the
summary judgment to the defendants as            Western Region, who was two years
to certain plaintiffs “because the               older than Monaco, was the only
employees retained were either not               individual it employed similarly situated
sufficiently younger or the evidence             to Monaco. Of course, there is no doubt
failed to show that the duties were              but that Monaco and Shaw were
comparable or that they were otherwise           similarly situated as they had the same
similarly situated.” Id.                         job responsibilities, though for different
                                                 regions, and Monaco does not contend
        In this case we are required to
articulate further who is “similarly
situated” for purposes of making out the            12
                                                      We do not suggest that the standard
fourth element of a prima facie case in a
                                                 would be different under the ADEA.
reduction-in-force situation under the
                                                 Rather, we merely recognize that this case
                                                 insofar as it claims age discrimination is
                                                 solely under the NJLAD.

                                            12
otherwise. He does counter AGAC’s                 Monaco does maintain that he had the
argument, however, by contending that             qualifications to serve in one of these
we should read the similarly situated             positions, and clearly he was so qualified
requirement more broadly and also                 as he had held such a position prior to
consider the eight sales vice                     being promoted to vice president of the
presidents/branch managers whom he                Eastern Region in 1988. But, as the
directly supervised to be similarly               district court in Anderson explained,
situated. The district court rejected             “[m]erely because a plaintiff has met the
Monaco’s argument, finding that there             standards for a particular position . . .
was no evidence to suggest that sales             does not mean that the plaintiff and the
vice presidents/branch managers were              person who occupied that position were
similarly situated. We agree with the             similarly situated for purposes of a prima
district court.                                   facie age discrimination claim.”
                                                  Anderson v. Consol. Rail Corp., No. Civ.
         Under Federal Rule of Civil
                                                  A. 98-6043, 2000 WL 1201534, at *5
Procedure 56(e), when a party has filed a
                                                  (E.D. Pa. Aug. 9, 2000).
motion for summary judgment, “an
adverse party may not rest upon the mere                 Monaco contends that if we adopt
allegations or denials of the adverse             a narrow reading of the similarly situated
party’s pleading, but the adverse party’s         requirement we will be inviting
response, by affidavits or as otherwise           “mischief” by employers. Appellant’s
provided in this rule, must set forth
specific facts showing that there is a
genuine issue for trial.” Monaco states           brokers.       However, Monaco had
in his brief that he “should have been            supervisory responsibility over all of the
given an equal employment opportunity             offices in the eastern United States while
to fill a branch manager or district sales        each of the eight vice president/branch
position in which he had previously been          managers was responsible for his
employed.” Appellant’s br. at 20.                 individual office. If we were to focus on
However, in this litigation he has not            the job responsibilities of Monaco’s
produced any evidence to show that his            position at the level of abstraction which
position of vice president of the Eastern         he suggests is appropriate, his position
Region was similarly situated to that of          would be similarly situated to many entry-
the eight vice presidents/branch                  level employees who solicited insurance.
managers whom he directly supervised.13           As we explained in Anderson, 297 F.3d at
                                                  250, this approach, if applied under the
                                                  ADEA, would cause that statute, and, if
  13
    At oral argument, Monaco argued that          applied under the NJLAD, would cause it
the focus of his position as well as the          as well, to require the “bumping” of lower-
eight vice president/branch managers was          level sufficiently younger employees in
to solicit insurance through independent          order to retain protected workers.

                                             13
br. at 17. He argues that employers will         under the NJLAD cannot be successful.
manipulate reductions in force by first          In O’Connor, 517 U.S. at 312-13, 116
placing older workers into “dead-end”            S.Ct. at 1310, the Supreme Court
positions for a few months where there           explained that under the ADEA an
are no similarly situated individuals and        individual cannot make out a prima facie
then later terminating or laying off the         case such that a court will infer unlawful
older employees, thereby, according to           age discrimination if the employee is
Monaco’s reasoning, avoiding liability           replaced with another worker who is
for age discrimination.                          “insignificantly younger.” We
                                                 subsequently have explained that in order
       We disagree. First, Monaco’s
                                                 to satisfy the sufficiently younger
case fails to present such a factual
                                                 standard, “there is no particular age
scenario. AGAC laid off Monaco after
                                                 difference that must be shown, but while
he had been employed as vice president
                                                 different courts have held . . . that a five
of sales for the Eastern Region for many
                                                 year difference can be sufficient, . . . a
years and certainly it did not “shuffle”
                                                 one year difference cannot.” Showalter
him into a dead-end position prior to the
                                                 v. Univ. of Pittsburgh Med. Ctr., 190
reduction in force. Second, as explained
                                                 F.3d 231, 236 (3d Cir. 1999) (internal
above, a determination of whether an
                                                 citation marks and citation omitted).
individual can satisfy the “similarly
situated” requirement triggers a fact-                   In fact Shaw, the vice president of
intensive inquiry based on a whole               the Western Region, is two years older
constellation of factors facing that             than Monaco. Therefore, in the light of
individual employee. Certainly if there          O’Connor, Showalter, and Sisler, Shaw’s
was evidence that an employer                    retention in this reduction-in-force
transferred an older worker from his             situation cannot help Monaco establish
position to a new one which happens to           the fourth element of his prima facie
have few similarly situated individuals          case. Indeed, the exact opposite is true.
soon before his termination, a court             Furthermore, even if we make the
would be able to consider that                   unfounded assumption that Monaco was
circumstance in determining whether the          similarly situated to his supervisor Leary
employee established the fourth element          and to McKellar, the national vice
of his or her prima facie case of age            president of sales who was hired ten
discrimination. See Marzano v.                   months after Monaco’s layoff, this
Computer Science Corp., 91 F.3d 497,             assumption would not help him set forth
511 (3d Cir. 1996). But we reiterate that        a prima facie case.14 Leary and McKellar
here there was no such transfer.
       In view of the circumstance that             14
                                                      Significantly Monaco does not even
Shaw was the only employee at AGAC
                                                 ask us to make this assumption for in his
similarly situated to him, Monaco’s case
                                                 brief, though he points out that Leary took

                                            14
respectively were only three and two               summary judgment as to Monaco’s claim
years younger than M onaco, a                      under the NJLAD.15
differential which does not satisfy the
                                                            D. CONTRACT CLAIM
sufficiently younger standard O’Connor
and Showalter set forth. Moreover, as                      The AGAC employee handbook
Monaco acknowledged at his deposition,             provides, in relevant part, that the
their levels within the company differed           company complies with “all applicable
from his. Inasmuch as we agree with the            laws regarding equal employment
district court that M onaco has failed to          opportunities without regard to . . . age . .
establish the fourth element of his prima          . .” J.A. at 206. It further states that
facie case, we will affirm its grant of            “[n]othing in this manual or in the
                                                   company’s policies, practices, or
                                                   procedures should be read as a guarantee
over a portion of Monaco’s supervisory
functions for the Eastern Region, he
                                                       15
indicates “the comparison sought is                      In his complaint, Monaco asserted
between the plaintiff who held an                  individual claims against Leary and the
executive sales vice president position            John Doe and Richard Roe defendants
with other employees who held executive            under N.J. Stat. Ann. § 10:5-12(e) (West
sales vice president/branch manager                2002). He claimed that the individual
positions, the very same job position the          defendants did “aid, abet, incite, compel or
plaintiff previously held before he had            coerce the doing of any of the acts
been promoted to Vice President of the             forbidden under [the NJLAD], or to
Eastern Region.” Appellant’s br. at 16. In         attempt to do so.” Id.; see J.A. at 54. In
his reply brief he adheres to this approach        granting summary judgment in this case to
as he recites that he “should have been            all defendants the district court did not
given the opportunity to compare his skills        discuss this claim. However, inasmuch as
and work experience to employees holding           we hold that the district court correctly
executive sales position/branch manager at         granted summary judgment to the
a level he had previously performed prior          corporate defendants, any claim he brought
to being promoted to Regional Vice                 against the individual defendants for
President.” Appellant’s reply br. at 2.            aiding and abetting fails as well.
Monaco’s contention in his briefs, to the
extent that he does not claim that Leary                   Our disposition makes it
and McKellar were similarly situated with          unnecessary for us to consider appellees’
him, is consistent with his deposition             contention that they asserted a legitimate
testimony which was that, besides himself,         non-discriminatory basis for Monaco’s
Shaw was the only person “on the same              termination which Monaco did not rebut
level . . . within the company.” J.A. at           and that for this independent reason are
125.                                               entitled to summary judgment.

                                              15
of employment, a commitment to provide            company’s employment manual
employment, or a promise to continue              contractually can bind the company
any terms or conditions of existing               notwithstanding its inclusion of a
employment.” J.A. at 206. The                     disclaimer of a creation of enforceable
handbook also makes clear that “[e]xcept          rights. Geldreich v. Am. Cyanamid Co.,
where mandated by law, these policies             691 A.2d 423, 426 (N.J. Super. Ct. App.
and programs may be changed or                    Div. 1997). In order not to create a
discontinued at any time at the discretion        binding obligation on the company, the
of the company.” Id.                              language in the manual “must be such
                                                  that no one could reasonably have
        Monaco maintains that the
                                                  thought it was intended to create legally
provision stating that AGAC complies
                                                  binding obligations.” Id. at 427.
with all applicable equal opportunity
laws without regard to age created a                      The only statement in the
binding contractual obligation between            employee handbook to which Monaco
him and AGAC which it breached when               points as creating a binding contractual
it terminated him allegedly on the basis          obligation between him and AGAC is the
of age. The district court rejected this          general language on the same page as the
argument as it held that the language             table of contents that the company
contained in the handbook “was no more            “complies with all applicable laws
than the language necessary to meet the           regarding equal employment
statutory requirements of the NJLAD.”             opportunities without regard to . . . age . .
J.A. at 8.                                        . .” J.A. at 206; appellant’s br. at 21.
                                                  But this statement merely sets forth that
        Under New Jersey law, the
                                                  AGAC strives to comply with its legal
employment-at-will doctrine provides
                                                  obligations, nothing more, and “no one
that “an employer may fire an employee
                                                  could reasonably have thought it was
for good reason, bad reason, or no reason
                                                  intended to create legally binding
at all” unless prohibited by law or public
                                                  obligations,” beyond those the law
policy. Witkowski v. Thomas J. Lipton,
                                                  already imposed. Geldreich, 691 A.2d at
Inc., 643 A.2d 546, 552 (N.J. 1994); see
                                                  427.
also Silvestri v. Optus Software, Inc.,
814 A.2d 602, 607 (N.J. 2003). Either                     If we were to agree with Monaco
party may terminate an employment                 that the quoted provision could be the
relationship at will unless an agreement          predicate for a breach of contract claim,
exists between the parties that provides          individuals bringing employment
otherwise. Varrallo v. Hammond Inc.,              discrimination cases in New Jersey
94 F.3d 842, 845 (3d Cir. 1996)                   where an employment manual contained
(applying New Jersey law).                        such a provision could as a matter of
                                                  course assert both statutory
       In certain circumstances, a
                                                  discrimination and breach of contract

                                             16
claims based on the employer’s same                breach of contract claim.17
underlying conduct. In order to prove
the breach of contract claim the plaintiff
would be required to prove the                                IV. CONCLUSION
underlying discrimination claim by
                                                          In reaching our conclusion we
showing how the employer’s actions
                                                   point out that the facts of this case
violated the anti-discrimination laws.
                                                   demonstrate why a terminated plaintiff
We reject M onaco’s attempt to create
                                                   should not be able in a McDonnell
two causes of action where he is only
                                                   Douglas burden shifting case to
able to assert one. We are satisfied that
                                                   demonstrate a prima facie case of age
New Jersey law does not provide a
separate breach of contract cause of
action on the basis of generalized anti-                 17
                                                             The district court held in the
discrimination language in an employee
                                                   alternative that even if the language of the
handbook where the alleged
                                                   handbook could create a binding
discrimination would be in violation of
                                                   contractual obligation, two disclaimers in
the NJLAD.16 Such a breach of contract
                                                   the handbook would have prevented
cause of action would add nothing to the
                                                   Monaco from being able successfully to
statutory cause of action. Moreover,
                                                   assert a breach of contract cause of action.
even if such a cause of action could exist,
                                                   However, as stated above, the only
Monaco’s case would fail because he
                                                   statement to which Monaco points as
cannot demonstrate that AGAC was
                                                   creating a contractual obligation between
guilty of age discrimination. We
                                                   him and AGAC is the statement in the
therefore will affirm the district court’s
                                                   handbook that AGAC “complies with all
grant of summary judgment on Monaco’s
                                                   a p plicab le la ws r e ga rding e q u a l
                                                   employment opportunities without regard
                                                   to . . . age . . . .” J.A. at 206. Clearly,
                                                   AGAC could not disclaim its legal duty to
    16
       If the AGAC employee handbook               comply with the NJLAD. Therefore, to
stated that the company does not                   the extent the district court relied on the
discriminate on the basis of some                  disclaimer language in the AGAC
characteristic not covered by the NJLAD,           handbook in granting summary judgment
then an individual might be able to assert         against Monaco on his breach of contract
a breach of contract claim on that basis.          cause of action, it erred. But the error is
However, that is not the case here as the          harmless for, as stated above, the language
N J L A D p r o h i b i t s t h e ty p e of        in the AGAC handbook tracked the
discrimination Monaco claims exists in             requirements of the NJLAD and did not
this case and the language of the handbook         create any binding legal obligations
merely states that AGAC complies with all          beyond those already established under the
applicable anti-discrimination laws.               NJLAD.

                                              17
discrimination without showing a
difference in age between him or her and
the replacement employee sufficient to
support an inference of age
discrimination or, in the circumstance
that he or she was discharged in a
reduction in force, showing that the
employer retained someone similarly
situated to him or her sufficiently
younger to permit the drawing of such an
inference. While we can understand
Monaco’s frustration after losing his
position after so many years, the fact is
that nothing in the record could support
drawing an inference that age played any
factor in AGAC’s decision to terminate
his employment. In view of all the
reasons we have set forth, we will affirm
the order of the district court granting
summary judgment entered October 25,
2002.




                                            18
