Both the Age Discrimination in Employment Act (ADEA) and the New Jersey Law Against Discrimination (LAD) ban employment discrimination on the basis of age, although the ADEA limits the protected class to those forty and older

Law Lessons from Venegas v. Cosmetic Essence LLC, App. Div., No. A-4634-13T1, February 13, 2015:

In order to prove a discriminatory discharge claim by indirect evidence under the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973), a plaintiff’s prima facie case consists generally of demonstrating:

(1) he is in the protected group;
(2) he was performing his job at the time of the discharge;
(3) he nevertheless was fired; and
(4) the employer sought someone to perform the same work after he left.

Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450, 454 (2005).

Once plaintiff establishes his prima facie case, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the discharge. Id. at 449. If the employer does so, thus overcoming the presumption of discrimination, the burden shifts back to plaintiff to prove that the employer’s proffered reason for the termination was merely a pretext for discrimination. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999). “Although the burden of production shifts throughout the process, the employee at all phases retains the burden of proof that the adverse employment action was caused by purposeful or intentional discrimination.” Ibid.

There is no single prima facie case for all the varied types of employment discrimination claims. Although generally similar, the elements vary depending on the type of claim alleged. Victor v. State, 203 N.J. 383, 408-09 (2010). In an age case, the fourth element has generated the most controversy.

Both the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. § 623(a) and § 631(a), and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to-49, ban employment discrimination on the basis of age, although the ADEA limits the protected class to those forty and older. Sisler, supra, 157 N.J. at 215. The United States Supreme Court has explained, however, that because the ADEA bans discrimination on the basis of age, and not discrimination against those forty and older, “there can be no greater inference of age discrimination (as opposed to `40 or over’ discrimination) when a 40-year-old is replaced by a 39-year-old than when a 56-year-old is replaced by a 40-year-old.” O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S. Ct. 1307, 1310, 134 L. Ed. 2d 433, 438 (1996). Accordingly, the Court has held that “[b]ecause it lacks probative value, the fact that an ADEA plaintiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case.” Ibid.

Our Supreme Court quoted that language with approval in noting that “[t]he fourth element of a prima facie case in an age-discrimination case properly focuses not on whether the replacement is a member of the protected class but on `whether the plaintiff has established a logical reason to believe that the decision rests on a legally forbidden ground.'” Sisler, supra, 157 N.J. at 213 (quoting Murphy v. Milwaukee Area Technical College, 976 F. Supp. 1212, 1217 (E.D. Wis. 1997)). The Sisler Court concluded, “[t]hus, under the LAD, which specifies no qualifying age, courts have modified the fourth element to require a showing that the plaintiff was replaced with `a candidate sufficiently younger to permit an inference of age discrimination.'” Ibid. (quoting Kelly v. Bally’s Grand, Inc., 285 N.J. Super. 422, 429 (App. Div. 1995)).

In a reduction in force case, a plaintiff who failed to establish that the company retained a sufficiently younger worker in the same position as plaintiff failed to establish the fourth element of his prima facie case. See McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 523, 526 (2003). Although we have held in a discharge case that a plaintiff unable to show that he was replaced by a sufficiently younger worker could still establish the fourth element of his prima facie case, see, e.g., Reynolds v. Palnut Co., 330 N.J. Super. 162, 168 (App. Div. 2000), that is only possible where the prima facie case otherwise creates an inference of age discrimination. Ibid.; see also Petrusky v. Maxfli Dunlop Sports Corp., 342 N.J. Super. 77, 82 (App. Div.) (explaining “[t]he focal question is not necessarily how old or young the claimant or his replacement was, but rather whether the claimant’s age, in any significant way, `made a difference’ in the treatment he was accorded by his employer”), certif. denied, 170 N.J. 388 (2001).

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