NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2928-21
ANDREW J. KRASSOWSKI,
Plaintiff-Appellant,
v.
BLOOMBERG L.P.,
Defendant-Respondent. ________________________
Argued September 14, 2023 – Decided January 9, 2024
Before Judges Vernoia, Gummer, and Walcott- Henderson.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-0364-20.
Charles Z. Schalk argued the cause for appellant (Savo, Schalk, Corsini, Warner, Gillespie, O'Grodnick & Fisher, attorneys; Charles Z. Schalk, of counsel and on the briefs).
David Wayne Garland argued the cause for respondent (Epstein Becker & Green, PC, attorneys; David Wayne Garland, of counsel and on the brief; Jiri Janko, on the brief). PER CURIAM
Plaintiff Andrew J. Krassowski contends his employer, defendant
Bloomberg L.P., wrongfully terminated him based on his age in violation of the
New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.
Plaintiff claims his termination was part of a scheme to replace older workers
with younger and lower-paid recent hires. Plaintiff appeals an April 21, 2022
order in which the motion judge granted defendant's summary-judgment motion
and dismissed the complaint with prejudice based on his determination plaintiff
had failed to demonstrate the circumstances surrounding his discharge supported
an inference of age discrimination. We agree and affirm.
I.
We discern the material facts from the summary-judgment record, viewing
them in a light most favorable to plaintiff, the non-moving party. See Memudu
v. Gonzalez, 475 N.J. Super. 15, 18-19 (App. Div. 2023).
Plaintiff was fifty-three years old when defendant hired him in the summer
of 2014 to work as a "Software Engineer-Senior" in its Research & Development
(R&D) department. Plaintiff initially reported to Raju Dantuluri, an
Engineering Team Leader who was then forty-three-years old and had
interviewed plaintiff and had recommended defendant hire him. In February
A-2928-21 2 2018, plaintiff began reporting to Neeraj Jain, an Engineering Team Leader, and
Dantuluri became plaintiff's "skip-level" manager, meaning Dantuluri was one
level above Jain. Plaintiff reported directly to Jain for the duration of his
employment, and Jain continued to report to Dantuluri.
Plaintiff initially worked on developing and testing various vendor-related
functions of defendant's databases in the R&D ISYS Supply Chain Department.
In plaintiff's 2015 interim review, which was his first review, Dantuluri wrote
plaintiff could "accomplish some of [his] tasks faster" and that he "expected him
[to] . . . be able to deliver faster." He rated plaintiff's overall performance as
"Meets Expectations." Plaintiff received an overall numerical rating of "3.5"
out of "6," a rating that fell between "Good – Occasionally Exceeds
Expectations" and "Meets Expectations."
In plaintiff's 2015 year-end performance evaluation, Dantuluri wrote that
"[a]lthough, overall [plaintiff] has met expectations of his business sponsor, the
timeframe for his deliverables [was] longer than expected for someone with his
experience and knowledge." Dantuluri wrote that on another project, "business
was satisfied with the benefits obtained . . . but the quality of the initial release
[of the project] was below [Dantuluri's] expectations where we had to do
multiple patches in order to get it right. [His] expectations [for plaintiff were]
A-2928-21 3 higher due to his level of experience." For the year 2015, plaintiff received an
overall rating of "3.4," which meant he had been rated "Above Expectations,"
with "1" being the highest and best rating and "6" being the lowest.
In plaintiff's 2016 performance evaluation, Dantuluri wrote plaintiff had
been "hired with high expectations . . . . Although he has contributed more on
the process front, he is also expected to be able to handle multiple projects in
parallel and also be more aggressive in delivering solutions while maintaining
the quality of the deliverables." Dantuluri also noted "occasions where
[plaintiff's] estimates were significantly higher than th[ose] expect[ed from] a
senior developer." Plaintiff received a "3.4" rating for the year; however,
defendant had changed from a six-point to a five-point rating scale, and
plaintiff's score meant he had "achieve[d] results in line with expectations and
exceed[ed] expectations in a limited area." Plaintiff did not receive any base
salary raises after 2016.
In 2017, plaintiff moved to the Travel and Expense (TNE) subteam. The
TNE system had a much larger user base and was highly visible within
Bloomberg. Plaintiff was expected to work closely with other team members,
deliver solutions in an aggressive timeframe, and be able to work on multiple
A-2928-21 4 initiatives and tasks simultaneously. Plaintiff was the oldest member of the
team.
In plaintiff's 2017 performance evaluation, Dantuluri again rated plaintiff
"3.4," which was the lowest score of all the employees in the TNE subteam.
Dantuluri wrote in the performance review that "[b]eing a senior developer,
[plaintiff] is expected to independently partner with business, manage bigger
[and] complex projects and also be able to handle multiple projects at a time.
[Plaintiff] fell short on expectations to demonstrate these skills adequately while
working on [the] above mentioned projects." Dantuluri wrote that plaintiff
"struggled to understand" certain concepts, "kept trying to investigate without
reaching out to another team which . . . could have helped him on resolving those
technical challenges," and "did not meet [certain] expectation[s] and this along
with some other factors resulted in a few weeks delay." With respect to
"implementation of agreed upon processes," Dantuluri found plaintiff "does not
always follow them" even though he was "expected to follow and champion
them." Dantuluri wrote plaintiff "has to be more aggressive in delivering
solutions while maintaining the quality of the deliverables. There are occasions
where his estimates were significantly higher than the expectation of a senior
developer."
A-2928-21 5 For 2018, Jain rated plaintiff "4.0," which meant he had "achieve[d] some
results but d[id] not meet all expectations." Plaintiff was again the lowe st rated
employee on the TNE subteam. In plaintiff's performance evaluation, Jain wrote
that "[o]verall, he did a good job completing his tasks on time and his efforts
towards reducing the file size were well appreciated." However, "[b]eing a
senior engineer, [plaintiff] is expected to be more thorough and diligent" with
certain projects and that with another project, "he struggled to deliver it on time
and went back and forth with other team members to understand the
functionality and the design." According to Jain, plaintiff had been "expected
to research the existing functionality and also understand the new design prior
to starting the development." Jain indicated plaintiff had not "clearly
underst[oo]d the design" of a component and stated "[e]xpectation from a senior
engineer like [plaintiff] is to not just build software but also understand the
capabilities and limitations of the software and be able to explain them to
others."
In 2018, Bloomberg retained two contractors: John Saponara and
Sudhanshu Kumar. In April 2019, they were hired as "regular" employees.
When Bloomberg terminated plaintiff's employment the following year,
Saponara was fifty-seven years old, and Kumar was thirty-three years old.
A-2928-21 6 Plaintiff received an interim performance evaluation in 2019. According
to Jain, an employee received a mid-year review if the employee was new or if
there were "serious concerns" about the employee's performance. According to
Dantuluri, plaintiff received an interim performance evaluation in 2019 because
he was "[n]ot performing up to expectations." Jain prepared the written
evaluation, and Dantuluri reviewed it. Jain wrote:
There are areas where [plaintiff] is not meeting expectations. These areas have been highlighted during year-end evaluations for [a] couple of years as well as during one-on-one meetings. [Plaintiff] has not made any significant progress in these areas towards meeting expectations and is expected to work on these areas immediately . . . .
While acknowledging plaintiff had done "a good job" on certain aspects
of some projects, Jain wrote plaintiff on one project had been "unable to explain
[the implementation plan] and it was apparent that he didn't understand the
design. As a result, his manager had to re-explain the design workflow and
monitor closely to keep him focused on the remaining tasks to ensure success of
the project." Regarding another project, Jain wrote that plaintiff "started coding
based on the sample file," which was "different than the specification, . . . instead
of escalating to raise [an] issue with the vendor about the mismatch. He also
didn't actively follow up with other Bloomberg teams until reminded," which
A-2928-21 7 "resulted in delay . . . ." Regarding another project, Jain faulted plaintiff for
having "started coding without validating the design and thinking through how
it should be done" and for not "following the principles and guidelines agreed
to by the team . . . . It is expected from a senior engineer like [plaintiff] to
remember and follow agreed upon processes and get the design reviewed prior
to start coding to save his and others time."
Plaintiff received a "4.0" score for that evaluation, which again meant he
had "achieve[d] some results but d[id] not meet all expectations." The
evaluation provided that plaintiff was expected in the remaining year to focus
on being "more aggressive in software development" and in "[w]ork[ing] more
independently," among other things.
In an October 9, 2019 email, Yelena Naginsky, the human resources
business partner supporting plaintiff's team, reported to Brenda Clark, an
employee relations and compliance specialist, that she had met with Jain
regarding "performance concerns" about plaintiff. Naginsky advised Clark that
based on plaintiff's "history of underperformance," citing the "4.0" scores in his
last two evaluations, "and the lack of improvement following the [i]nterim and
subsequent conversations," she was "comfortable with moving forward to the
[m]utual [separation] or [written warning] option at this point" and asked for
A-2928-21 8 Clark's "take on the situation and if [she] agree[d] that we should move forward
with those options." Clark responded that she had met with Jain and Dantuluri
the previous week and "agree[d] because [plaintiff's] been getting the feedback
but no change." Jain and Dantuluri told her they "had been giving plaintiff
feedback about the performance deficiencies" but had not seen the improvement
they needed to see and, consequently, wanted to give plaintiff a written warning.
Clark read plaintiff's performance evaluations, obtaining a sense of what
feedback previously had been provided to plaintiff, and advised Jain and
Dantuluri she was comfortable issuing a written warning.
In an October 28, 2019 email, Clark asked her supervisor Deborah Barker
to review the request for the mutual separation package for plaintiff, which
would give plaintiff the option to leave Bloomberg with a separation package or
to remain employed with a written warning. In response, Barker wrote:
The interim doesn't have a lot of info and there are no eval notes that I can see. There is no verbal that's really documented anywhere that I can find. . . . I am sure you both have had tons of chats with the managers to validate this, but . . . do you think this guy is at [the written warning] stage (assuming he doesn't take a mutual)? Unless there has been a lot of conversations that took place undocumented, there does not look like he's had much direct feedback. Just double checking because of risk factors.
A-2928-21 9 According to Barker, one of the risk factors associated with terminating plaintiff
was plaintiff's age. Clark explained to Barker she was comfortable with issuing
a written warning if plaintiff declined the mutual separation package because
plaintiff had received a verbal warning during his 2019 interim revi ew, the
interim performance evaluation indicated plaintiff was not meeting expectations
in certain areas and had not been making any progress in those areas despite
having been given the same feedback over several evaluation periods, and his
managers had told her the "conversation with plaintiff at that time was very clear
and they have since discussed concerns with missing deadlines and not working
independently." Barker ultimately approved the request for a mutual separation
package.
On October 31, 2019, Jain, Dantuluri, and Clark met with plaintiff and
told him that he "could either leave the company then or start a performance
improvement program." They explained "there was an opportunity [for him] to
go through a formal performance review to demonstrate that [he] was making
progress and contributing to the level that they thought was appropriate for a
senior member of the team." The next day, plaintiff told Dantuluri he "wanted
to try and go through this performance improvement session" but also "want[ed]
to hear that there was a possibility of a positive outcome." Dantuluri "assured
A-2928-21 10 [him] that this was done in good faith and that this was an opportunity for [him]
to demonstrate improvement and continue [his] career at Bloomberg." Plaintiff
then advised Clark he would continue at Bloomberg.
On November 22, 2019, Dantuluri, Jain, and Clark met with plaintiff to
present the written warning to him. His managers made clear to him they were
not satisfied with his performance. The warning outlined "continuing areas of
serious concern with [plaintiff's] performance," identifying special concern with
plaintiff's purported inability to "complete the tasks assigned to [him] in a timely
manner," "demonstrate an understanding of the functionality [he] own[ed]," and
"follow coding processes discussed and agreed [on] by the team." The warning
advised plaintiff that "fail[ure] to follow the procedures outlined in this
memorandum . . . [or] to meet the expected levels of performance" might result
in his termination. Plaintiff signed the document, acknowledging that he had
received and discussed it.
After giving him the written warning, Jain met with plaintiff about every
two weeks, coinciding with the conclusion of a "sprint," meaning an assignment.
During those meetings, Jain conveyed his dissatisfaction with some aspects of
plaintiff's performance. Plaintiff testified that at those meetings Jain had
"agreed that performance had been improved, transparency and communication
A-2928-21 11 w[ere] better," but "there's room for further improvement. . . . if there were a
letter grade [he] was probably getting a B and [he] should be getting an A." For
example, during a December 6, 2019 meeting, Jain told plaintiff that out of three
tasks assigned to him, plaintiff had completed one successfully and in excess of
expectations but had not completed the other two timely. Plaintiff met
expectations in the next sprint; Jain gave him additional assignments and
continued to monitor him. In his 2019 year-end review, plaintiff received a "4.5"
rating, once again the lowest of his team. Plaintiff did not receive a bonus for
2019; in prior years, he had received a bonus of $28,500.
On January 17, 2020, Jain and Dantuluri met with Clark to discuss
plaintiff's progress. They told her he had been "meeting the tasks in the sprints
for the most part," but he had not used the correct approach in a more complex
assignment. Jain and Dantuluri agreed to meet with plaintiff again to "explain
that while on the surface, it might look like he's making some progress, they are
seeing him still struggle with one of the [three] deficiencies addressed in his
written warning, independent problem solving" and that "they can't sustain
having someone unable to navigate through ambiguity." They planned to "give
him a new sprint that w[ould] require him to do so on his own and if [he] isn't
able to, term[ination] w[ould] be the next step."
A-2928-21 12 At their meeting that day with plaintiff, Dantuluri advised plaintiff they
had seen "improvement in some areas but [they] also [had seen] a pattern where
some complex tasks require[d] additional help and/or t[ook] longer to finish."
Dantuluri told plaintiff he would "have a task of this nature" in the "upcoming
sprint" and that it was "critical that [he] complete this [assignment in a] timely
manner without much additional help."
In a January 31, 2020 email, Jain wrote to Dantuluri that plaintiff had
completed one task as expected, one task was partially completed and delayed
for reasons apparently unrelated to plaintiff, and plaintiff failed to complete a
third task timely even though plaintiff had worked "both weekends and long
hours on weekdays. My concerns are on his ability to complete the bigger [and]
complex task in [a] timely manner while maintaining the same quality." Jain
also wrote to Clark that day, stating that with plaintiff, "some complex tasks
require additional help and/or take[] longer to finish. As mentioned before, this
is not sustainable and as a result, we recommend terminat[ing] his employment."
In a February 6, 2020 email, Dantuluri told Clark, "I don't want to wait until the
following week as it would be around three weeks from the time he failed on the
task. Also, if he delivers his next task on time, it would make it more difficult."
A-2928-21 13 Clark created a request for termination for plaintiff and wrote that plaintiff
had been receiving repeated feedback since 2017 "that he needs to work more
independently and on more complex projects." She wrote that while working
on the performance goals for his warning,
he wasn't able to complete the more complex work on time. . . . [Plaintiff's] managers feel termination is appropriate in this case because [plaintiff], despite his best efforts, is unable to contribute the way they need him to. Because he needs so much support on complex work, he's monopolizing time and resources from others and slowing deliverables which is no longer sustainable.
On February 11, 2020, Barker approved the termination request.
During a February 12, 2020 meeting Clark also attended, Dantuluri
presented plaintiff with a termination package and advised him that although he
had made some progress, "it was not sufficient progress fast enough."
Bloomberg offered plaintiff a $25,615 severance payment in exchange for
releasing claims he might have; plaintiff rejected the offer.
When he was terminated, plaintiff was fifty-eight-years old; the other
team members were thirty-three, thirty-seven, forty-five, fifty-five, and fifty-
seven years old. After terminating plaintiff, Bloomberg did not hire anyone new
to replace him, and his unfinished work was assigned to other team members.
A-2928-21 14 Plaintiff filed a complaint, alleging defendant had engaged in unlawful
age discrimination and unlawful employment practices in violation of the LAD.
After the close of discovery, defendant moved for summary judgment. After
hearing argument, the motion judge granted the motion in an order and written
statement of reasons. The judge found plaintiff had not satisfied the fourth
element of a prima facie age discrimination claim; defendant had articulated a
legitimate, nondiscriminatory reason for terminating plaintiff's employment;
and plaintiff had failed to demonstrate defendant's legitimate reason for
terminating his employment was a pretext for age discrimination.
On appeal, plaintiff argues the judge erred in granting defendant's motion
because defendant wrongfully had replaced plaintiff with younger employees
before his termination, plaintiff had demonstrated sufficient evidence of pretext,
and genuine issues of material fact existed. Unpersuaded by those arguments,
we affirm.
II.
We review a grant or denial of summary judgment de novo, applying the
same standard as the trial court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022).
That standard requires us to "determine whether 'the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
A-2928-21 15 any, show that there is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment or order as a matter of law.'"
Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-
2(c)). "Summary judgment should be granted . . . 'against a party who fails to
make a showing sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden of proof at trial.'"
Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the trial court's legal
analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).
The LAD prohibits employment discrimination based on an employee's
age. N.J.S.A. 10:5-4 & -12. Specifically, N.J.S.A. 10:5-12(a) provides:
It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination . . . [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 justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment[.]
In assessing an age-discrimination claim based on circumstantial
evidence, New Jersey courts rely on the burden-shifting test articulated in
A-2928-21 16 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), and adopted
by our Supreme Court in Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-15 (2002).
See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). Thus, a plaintiff
claiming age discrimination must first present evidence establishing a prima
facie case of discrimination. Victor v. State, 203 N.J. 383, 408 (2010). "[T]o
successfully assert a prima facie claim of age discrimination under the LAD,
plaintiff must show that: (1) [he] was a member of a protected group; (2) [his]
job performance met the 'employer's legitimate expectations'; (3) [he] was
terminated; and (4) the employer replaced, or sought to replace, [him]." Nini v.
Mercer Cnty. Cmty. Coll., 406 N.J. Super. 547, 554 (App. Div. 2009) (quoting
Zive, 182 N.J. at 450).
Satisfaction of the fourth element "require[s] a showing that the plaintiff
was replaced with 'a candidate sufficiently younger to permit an inference of age
discrimination.'" Bergen Com. Bank v. Sisler, 157 N.J. 188, 213 (1999) (quoting
Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 429 (App. Div. 1995)); see
also Smith v. Millville Rescue Squad, 225 N.J. 373, 395 (2016) (finding that to
satisfy the fourth element, a plaintiff alleging a discriminatory discharge "must
show . . . the employer thereafter sought similarly qualified individuals for that
job") (quoting Victor, 203 N.J. at 409); Young v. Hobart West Grp., 385 N.J.
A-2928-21 17 Super. 448, 459 (App. Div. 2005) (same). However, it is not enough for the
replacement to merely be younger; "'[t]he focal question is . . . whether the
claimant's age, in any significant way, "made a difference" in the treatment he
was accorded by his employer.'" Ibid. (quoting Petrusky v. Maxfli Dunlop
Sports Corp., 342 N.J. Super. 77, 82 (App. Div. 2001)). To prove age
discrimination, a plaintiff must demonstrate age "played a role in the decision
making process and that it had a determinative influence on the outcome of that
process." Garnes v. Passaic Cnty., 437 N.J. Super. 520, 530 (App. Div. 2014)
(quoting Bergen Com. Bank, 157 N.J. at 207).
If the plaintiff demonstrates a prima facie case of age discrimination, the
burden shifts to the employer to articulate a legitimate non-discriminatory
reason for the adverse employment action. Bergen Com. Bank, 157 N.J. at 209-
10. If the employer shows a legitimate non-discriminatory reason for the
adverse action, the burden shifts back to the plaintiff to show the employer's
proffered reasons were pretextual. Id. at 210-11; see also Spinks v. Twp. of
Clinton, 402 N.J. Super. 465, 482 (App. Div. 2008) (same). "To prove pretext,
a plaintiff may not simply show that the employer's reason was false but must
also demonstrate that the employer was motivated by discriminatory intent."
A-2928-21 18 Zive, 182 N.J. at 449. The plaintiff must persuade the court "he was subjected
to intentional discrimination." Ibid.
We are satisfied plaintiff did not demonstrate that age played a significant
role in his termination and, thus, did not establish a prima facie case of age
discrimination. In Smith, 225 N.J. at 398, the plaintiff supported a
circumstantial case of discrimination by "testif[ying] at length about his
employment history, including promotions, regular pay increases, and the lack
of any criticism or poor performance evaluations." In contrast, plaintiff had not
had any promotions, had not received an increase in his base salary since 2016,
had consistently in his evaluations received criticism for, among other things,
having "timeframe[s] for his deliverables [which] were longer than expected for
someone with his experience and knowledge," and had been the lowest rated
person on his subteam in the three years before his termination. 1
1 Plaintiff's reliance on Saffos v. Avaya Inc., 419 N.J. Super. 244 (App. Div. 2011), is misplaced. That case was decided not on a summary-judgment motion but after a jury trial, which included evidence that the plaintiff had been terminated after twenty years and replaced by a woman fourteen years younger than him who did not have comparable experience in plaintiff's field, several other older employees had been terminated and replaced by significantly younger people, and the supervisor at issue had engaged in "favored treatment of his younger, mostly female, new hires." Id. at 252-57. In addition, the focus of the decision was on the punitive-damage and counsel-fee awards, not on any underlying liability issues. Id. at 259. A-2928-21 19 Plaintiff was fifty-three-years old when he was hired and fifty-eight-years
old when he was terminated. "Courts have rejected age discrimination claims
when a plaintiff was both hired and fired while a member of the protected age
group." Young, 385 N.J. Super. at 461. Dantuluri, who had recommended
defendant hire plaintiff, was forty-eight-years old and Jain was forty-one-years
old when plaintiff was terminated. "Courts have found discriminatory intent
lacking where the decision-makers are over forty when the employment decision
was made." Ibid.; see also ibid. (that the same person promoted the plaintiff and
later recommended the elimination of her position "counters against an inference
of age discrimination").
Specifically as to the fourth element of a prima facie discrimination case,
plaintiff failed to establish that, having terminated plaintiff, defendant
"thereafter sought similarly qualified individuals for that job." Smith, 225 N.J.
at 395 (quoting Victor, 203 N.J. at 409). Plaintiff does not dispute that after his
termination, defendant did not hire anyone to replace him and his workload was
distributed to existing subteam members. Instead, plaintiff claims defendant's
hiring of Kumar and Saponara, who were retained as contractors in 2018, was
"an excuse to push him out." But arguments based on assumptions or
speculation are not enough to defeat a summary judgment motion. See Dickson
A-2928-21 20 v. Cmty. Bus Lines, Inc., 458 N.J. Super. 522, 529 (App. Div. 2019)
("'[C]onclusory and self-serving assertions by one of the parties are insufficient
to overcome' summary judgment motions." (quoting Puder v. Buechel, 183 N.J.
428, 440-41 (2005))); Hoffman v. AsSeenOnTV.com, Inc., 404 N.J. Super. 415,
426 (App. Div. 2009) ("Competent opposition [to a summary judgment motion]
requires 'competent evidential material' beyond mere 'speculation' . . . ." (quoting
Merchs. Express Money Ord. Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563
(App. Div. 2005))). And the distribution of plaintiff's work among existing
employees, some of whom were younger, does not by itself rise to the level of
showing his termination was due to his age and, thus, was unlawful. See Young,
385 N.J. Super. at 459-60 (finding the plaintiff's duties had been assumed by co-
workers, court concluded the plaintiff had not established that age played a
significant role in her termination).
Even if plaintiff had established his age was a factor in defendant's
decision to terminate him, he failed to demonstrate defendant's proffered
legitimate business reason for the termination was a pretext for discrimination.
The record does not support plaintiff's assertions that he had had "excellent
reviews" and "year after year of excellent performance." The evidence in the
record includes written evaluations by two different supervisors, including one
A-2928-21 21 who had recommended defendant hire plaintiff, and the testimony of those
supervisors. Their evaluations demonstrate, among other issues, a consistent
concern about plaintiff's ability to handle multiple projects and complete them
timely with an appropriate level of supervision.
Plaintiff contends his evaluations, including his 2018 year-end rating of
"4.0," compared to those of his colleagues was "arbitrary" and that younger
members of his subteam had received "the same critiques" but were not
terminated. Plaintiff's subjective view of the evaluations is not supported by the
record, and his conclusory assertion of arbitrariness is not sufficient to
demonstrate discriminatory intent or to defeat summary judgment. See Zive,
182 N.J. at 449 (holding that to prove pretext, a plaintiff must demonstrate the
employer's proffered reason was false and that "the employer was motivated by
discriminatory intent").
Because plaintiff failed to present evidence establishing a prima facie case
of age discrimination and that defendant's legitimate non-discriminatory reason
for terminating his employment was a pretext for unlawful age discrimination,
plaintiff failed to sustain his burden to support his claim under the LAD. See
Young, 385 N.J. Super. at 458-63 (affirming summary judgment because the
plaintiff did not establish a prima facie case of age discrimination and did not
A-2928-21 22 present sufficient evidence to discredit as pretext the defendant's legitimate
reasons for the plaintiff's termination). Accordingly, we affirm the order
granting defendant's summary-judgment motion.
Affirmed.
A-2928-21 23