Massarsky v. General Motors Corp.

706 F.2d 111, 31 Fair Empl. Prac. Cas. (BNA) 832, 1983 U.S. App. LEXIS 28809, 31 Empl. Prac. Dec. (CCH) 33,516

• Court: Court of Appeals for the Third Circuit
• Decided: April 14, 1983
• Docket: Nos. 82-5176, 82-5177
• Status: Published

Opinions

OPINION OF THE COURT

ROSENN, Circuit Judge.

This complex age discrimination case had its genesis in a decision by General Motors Corporation (the Company) to lay off plaintiff William Massarsky in February 1971 as part of its reduction of the plant workforce. At that time, the Company retained a younger employee who was junior in service to Massarsky. Complaining that the Company discriminated on the basis of age in violation of the Age Discrimination in Employment Act of 1967 (ADEA or the Act), 29 U.S.C. §§ 621 et seq. (1976 & Supp. V 1981), Massarsky brought suit in 1976 in the United States District Court for the District of New Jersey.¹ After a long series of complicated procedural disputes, the case was tried and, based on the jury’s answers to special interrogatories, the court entered judgment on all claims in the defendant’s favor. Massarsky appeals from the denial of his post-trial motions for judgment notwithstanding the verdict and for a new trial. We. affirm.²

I. FACTS AND BACKGROUND

General Motors hired William Massarsky on September 30, 1963, when he was 40 years old. He was assigned on a full-time basis to the process engineering department of the New Departure-Hyatt Bearings Division of the Company at its facility in Clark, New Jersey. On February 28, 1971, after more than seven years of service to the Company, he was laid off from his job as a senior process engineer during a division-wide reduction in force due to an economic downturn.

The system used by General Motors to select employees for layoff was set forth in the company handbook entitled “Working with General Motors.” The handbook described the Company’s layoff policy as based on the length of the employee’s service with the Company, ability, merit, and capacity being equal.³ Massarsky established at trial (and the Company did not dispute) that employee Joseph Biondo, age 25, was retained during the Company’s reduction in force in February 1971. At the time, Biondo was a fifth-year student enrolled in the General Motors Institute (GMI) under a work cooperative program with less than five years of Company service.⁴ Notwithstanding that Massarsky had over two years more service than Biondo, the Company furloughed Massarsky but retained Biondo on the basis of an unpublicized company policy exempting GMI students from layoffs.⁵

General Motors recalled Massarsky to employment on February 27,1976. During the five years of his layoff, several openings developed in the process engineering department which the Company filled by transfers and promotions of employees in active service with the Company. This comported with the Company’s usual practice of filling vacancies, if possible, by transfers of active employees on the payroll. If no active employee were available, the Company would recall to employment a qualified laid-off employee to fill the vacancy. Three of the active employees who were transferred into the process engineering department during Massarsky’s layoff were young GMI students with less service than Massarsky.⁶

In his complaint,⁷ Massarsky alleged that General Motors had violated the federal Age Discrimination in Employment Act by selecting Massarsky for layoff and by its failure to recall him before 1976.⁸ Massarsky proceeded on the theory that General Motors’ policy of insulating GMI students from layoff during a reduction in work force at the expense of Massarsky and other older workers with longer service to the Company constituted a per se violation of the ADEA. Plaintiff also contended that the Company’s internal policy of assigning GMI students to fill openings in a department while a senior employee was on layoff status also constituted a per se violation of the ADEA. Plaintiff’s motions for directed verdict, for judgment notwithstanding the verdict, and for a new trial were all denied. On appeal, plaintiff has limited the issues for review to his ADEA claims and his pendent jurisdiction claim under the New Jersey statute.

II. THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

The Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (1976 & Supp. V 1981), was intended

to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.

29 U.S.C. § 621(b). Although section 623(a) of the Act in fairly broad terms proscribes discrimination against “any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age,”⁹ this broad prohibition is modified by section 631(a), which limits the protections of the Act to those between the ages of 40 and 70.¹⁰ See 29 U.S.C. § 631(a). Thus, it is not unlawful for an employer intentionally to discriminate against employees under 40 years of age.

Four exceptions to the ADEA are set forth in section 623(f) of the statute. First, discrimination on the basis of age is allowed “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” 29 U.S.C. § 623(f)(1). Second, the Act permits covered entities to “observe the terms of a bona fide seniority system or any bona fide employee benefit plan.” Id. § 623(f)(2). Third, it is not unlawful for an employer to “discharge or otherwise discipline an individual for good cause.” Id. § 623(f)(3). Finally, the Act permits employers to discriminate “based on reasonable factors other than age.” Id. § 623(f)(1).¹¹

The United States Supreme Court has said little about the elements of a cause of action under the ADEA. However, because in many respects the provisions of the ADEA parallel those of Title VII, many courts have adapted to issues of age discrimination the principles of law applicable to cases arising under Title VII of the Civil Rights Act.¹² See Douglas v. Anderson, 656 F.2d 528, 531-32 (9th Cir.1981); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979); Schwager v. Sun Oil Co., supra, 591 F.2d at 60-61; Rodriguez v. Taylor, 569 F.2d 1231, 1239 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978). A Title VII plaintiff may prosecute his claim under either of two distinct legal theories. First, he may allege that he is the victim of intentional discrimination, i.e., that his employer applied an expressly race-based or sex-based standard in its treatment of the plaintiff. This “disparate treatment” theory traces its roots to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Alternatively, he may rely upon the so-called “disparate impact” theory of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). This theory applies when the employer’s adverse action resulted not from any discriminatory motive but simply from application of facially neutral criteria that are alleged to have a disproportionate impact on members of the protected class and which cannot be justified by business necessity. See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1979); Albemarle Paper Co. v. Moody, 422 U.S. 405,425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). See also Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); Croker v. Boeing Co., 662 F.2d 975, 991 (3d Cir.1981).

From what we can determine, the plaintiff in the instant case apparently has attempted to straddle these two theories of discrimination. Massarsky argues simply that General Motors failed to present a legally sufficient defense to the plaintiff’s prima facie case under the ADEA. We therefore analyze his claim under both the disparate treatment and disparate impact theories. In so doing, we are required to view the evidence and all reasonable inferences therefrom in the light most favorable to the Company, the prevailing party in the trial court. Schwager v. Sun Oil Co., supra, 591 F.2d at 62; Fireman’s Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171, 1178 (3d Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977).

A. DISPARATE TREATMENT

A plaintiff alleging disparate treatment, whether under Title VII or under the ADEA, bears the ultimate burden of persuading the jury that his treatment was “caused by purposeful or intentional discrimination.” Smithers v. Bailar, 629 F.2d 892, 898 (3d Cir.1980). See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). But because it often will be difficult for the plaintiff to obtain direct evidence of the employer’s motive, the Supreme Court in McDonnell Douglas Corp. v. Green, supra, articulated a set of rules of proof that give the plaintiff the benefit of a presumption operating in his favor. Under the McDonnell Douglas approach, the plaintiff has the initial burden to establish a prima facie case of unlawful discrimination by a preponderance of the evidence. This prima facie case is easily made out: a plaintiff alleging a discriminatory layoff need show only that he is a member of the protected class and that he was laid off from a job for which he was qualified while others not in the protected class were treated more favorably.¹³ Cf. Smithers v. Bailar, supra, 629 F.2d at 894-95; Rodriguez v. Taylor, supra, 569 F.2d at 1239. If the plaintiff makes this showing, the employer then bears the burden to “dispel the adverse inference from a prima facie showing under McDonnell Douglas," Smithers, supra, 629 F.2d at 894-95, by articulating “some legitimate, non-discriminatory reason” for its treatment of the employee. McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824.

Once the employer presents evidence showing lawful justification for its treatment of the plaintiff, the plaintiff must then prove that the asserted reason was merely a pretext for unlawful discrimination. The ultimate burden of persuasion remains on the plaintiff at all times; the defendant’s burden is only to introduce sufficient evidence to create a genuine factual issue concerning the existence of a legitimate justification for the action. Croker v. Boeing Co., supra, 662 F.2d at 991. See Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 253-55, 101 S.Ct. at 1093-94. Nevertheless, the McDonnell Douglas model eases the plaintiff’s burden considerably by compelling the employer to justify its conduct. This circuit has expressly applied the McDonnell Douglas approach to cases arising under the ADEA. See Rodriguez v. Taylor, supra; Smithers v. Bailar, supra.

In the instant case, Massarsky established á prima facie case of discriminatory treatment under the ADEA by showing that he was within the protected age class and was laid off from his job as a process engineer even though he was undisputably qualified for that position. It is also undisputed that a person considerably younger in age and with less seniority was retained. This placed on the Company the burden of producing some non-age justification for its employment action. General Motors countered by asserting that Massarsky’s layoff was pursuant to company policy to lay off the employee with the least Company-wide service, except that under that policy GMI students were immune from layoff.

Massarsky claims that the policy of immunizing GMI students from layoff was not a “legitimate justification” for the Company’s action because the Company thereby extended favorable treatment to a group predominantly composed of young employees (recent high school graduates). But any disproportionate effect of the Company’s policy is irrelevant to a claim of “disparate treatment” so long as the personnel action was not motivated by any discriminatory animus.¹⁴ To prevail on this aspect of his claim — intentional discrimination — Massarsky had to show that the Company’s policy of insulating GMI students from adverse personnel actions, though age-neutral on its face, was a mere “pretext” for unlawful discrimination on the basis of age. For example, this conclusion would have been warranted had Massarsky established that the Company’s purported policy was merely a post-hoc rationalization or a policy that had been adopted specifically for the purpose of concealing discrimination on the basis of age.

There was evidence, although offered by plaintiff as pre-trial admissions, that the Company had adopted a five page internal document containing guidelines for use inter alia by the Divisional Personnel Departments in connection with reductions in salaried work force. The guidelines document referred to “special considerations,” among which was the following:

GMI students. GMI students should not be laid off. A division has a considerable investment in these students which should be protected. The GMI cooperative program should be continued.

The guidelines apparently were discussed at an administrative personnel conference on May 6, 1970. In addition, the Company offered evidence that the GMI institute is considerably more than a mere in-plant training program. GMI is a fully accredited five-year college in engineering and management. It operates degree programs in mechanical, electrical, and industrial engineering, and industrial administration. At the time of trial, it had a student body of 2,350 with approximately 20 percent minority students and as much as 35 percent women. Each student pays tuition. This evidence established that the Company policy with respect to GMI student immunity from layoff was in place sometime prior to Massarsky’s furlough and that it was not pretextual or a coverup for intentional discrimination. The evidence was sufficient to rebut Massarsky’s prima facie case of intentional discrimination.

After considering all the evidence, the jury returned a verdict for General Motors. The jury by special interrogatory determined that Massarsky failed to carry his burden of persuasion to establish that he was the victim of intentional discrimination because of age. This conclusion had a reasonable basis, given the paucity of evidence of motive presented in this case.

On motions for a directed verdict and for judgment notwithstanding the verdict, the movant must meet a strict test. These motions require the judge “to test the body of evidence not for its insufficiency to support a finding, but rather for its overwhelming effect. He must be able to say not only that there is sufficient evidence to support the finding, even though other evidence could support as well a contrary finding, but additionally that, there is insufficient evidence for permitting any different finding.” Fireman’s Fund Insurance Co. v. Videfreeze Corp., supra, 540 F.2d at 1177 (quoting Mihalchak v. American Dredging Co., 266 F.2d 875, 877 (3d Cir.), cert. denied, 361 U.S. 901, 80 S.Ct. 209, 4 L.Ed.2d 157 (1959)).

Of course, as the dissent observes, see infra at 127-28, where an employer’s policy or practice is discriminatory on its face, it is unnecessary for the plaintiff to make a separate showing of intent to discriminate. Naturally, if General Motors’ policy had been to select employees for layoff on the basis of their age, there would be no jury issue of intent. In that situation, the discriminatory treatment would be apparent from the terms of the policy. But here General Motors’ policy is not facially discriminatory because it is not expressed in terms of age. The employees who were insulated from layoff received this favorable treatment on the basis of their status as GMI students, not their age. There is nothing to indicate that older persons were precluded from becoming GMI students, or that General Motors was not acting in good faith in operating the General Motors Institute. We simply cannot infer that the Company was using student status as nothing more than a proxy for age merely because the GMI student population contained primarily younger individuals.¹⁵ In short, there is a vast difference between a shoddy policy framed in terms of age and a well-intentioned policy framed in terms of student status. To hold now that the intent to discriminate may be presumed from the circumstances of this case, in the face of the jury’s finding that the policy favoring GMI students was not discriminatorily motivated, would be utterly incomprehensible.

The district court therefore acted correctly in denying the plaintiff’s motions for a directed verdict and for judgment notwithstanding the verdict with respect to his layoff under a disparate treatment theory of the ADEA.

B. DISPARATE IMPACT

In his appellate briefs, Massarsky primarily characterizes this case as one involving the alleged disparate impact of a facially neutral rule.¹⁶ He contends that General Motors’ policy of insulating GMI students from layoff during a reduction in force, in conjunction with the policy of laying off the employee with the least seniority, operated to the detriment of members of the protected age group.

Initially, it should be remembered that Griggs v. Duke Power Co., the landmark case in which the Supreme Court held that a showing of disparate impact alone is sufficient to establish unlawful discrimination, involved race discrimination under Title VII. Although the Second Circuit has expressly recognized the disparate impact doctrine in the ADEA context, see Geller v. Markham, 635 F.2d 1027 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981), this court has never ruled on whether a plaintiff can establish a violation of the Act by showing disparate impact alone.¹⁷ But even assuming, without deciding, that the disparate impact theory does apply to age discrimination suits, the district .court correctly ruled that Mas-sarsky is not entitled to any relief. The plaintiff had failed to make out a prima facie case under this doctrine.

The plaintiff’s initial burden with respect to a disparate impact claim is heavier than it is when disparate treatment is alleged. To establish a prima facie case under the disparate impact model, the plaintiff must show “that the facially neutral employment practice had a significantly discriminatory impact.” Connecticut v. Teal,-U.S.-, ——, 102 S.Ct. 2525, 2531, 73 L.Ed.2d 130 (1982). See Albemarle Paper Co. v. Moody, supra, 422 U.S. at 425, 95 S.Ct. at 2375. “If that showing is made, the employer must then demonstrate that ‘any given requirement [has] a manifest relationship to the employment in question,’ in order to avoid a finding of discrimination .... Even in such a case, however, the [employee] may prevail, if he shows that employer was using the practice as a mere pretext for discrimination.” Connecticut v. Teal, supra,-U.S. at-, 102 S.Ct. at 2531 (quoting Griggs v. Duke Power Co., supra, 401 U.S. at 432, 91 S.Ct. at 854). It is apparent, however, that the employer’s burden of justifying the employment practice does not arise until after the plaintiff has made out a prima facie case. See Albe-marle Paper, supra, 422 U.S. at 425,95 S.Ct. at 2375.

To establish his prima facie case of discriminatory impact, the plaintiff must show that the employer’s selection process results in unfavorable treatment of a disproportionate number of members of the protected group to which the plaintiff belongs. See Dothard v. Rawlinson, supra, 433 U.S. at 329, 97 S.Ct. at 2726. Thus, an essential element of a disparate impact claim is a disparate impact on the protected group.

In the instant case, it is inescapable that Massarsky failed to establish this necessary element of his claim. Because the ADEA only prohibits discrimination against employees between the ages of 40 and 70, Massarsky had to show a disproportionate effect on individuals in that age group. He did, of course, show that the challenged employment practices of General Motors had a pernicious effect on him. But he offered no evidence to show that other similarly situated employees were likewise affected. An adverse effect on a single employee, or even a few employees, is not sufficient to establish disparate impact. See Whack v. Peabody & Wind Engineering Co., 595 F.2d 190, 194 (3d Cir.1979); Harper v. Trans World Airlines, Inc., 525 F.2d 409 (8th Cir.1976); Robinson v. City of Dallas, 514 F.2d 1271 (5th Cir.1975) (Title VII cases). We cannot simply assume that a disproportionate number of older employees were adversely affected by the Company’s policy of insulating GMI students from layoff. Because General Motors’ practice was to lay off the person with the least service to the Company (assuming that merit, capacity, and ability were equal), whenever a short-service employee was insulated from layoff because of his status as a GMI student, the layoff inevitably would fall on some other employee with slightly more seniority. But it was always only those employees with the least service to the Company who were in danger of layoff. Absent statistical proof, it is pure conjecture to believe that protected older individuals predominated among these short-service employees. Indeed, it is plausible that Massarsky was, as the Company maintains, “an anomaly” because he was a short-service employee in the protected age group.

We recognize that the GMI students who were insulated from layoffs because of the Company’s policy may generally have been younger than the employees who were laid off in their place. But this possibility does not help the plaintiff. The ADEA is only implicated when a policy has a differential impact on those within the protected class, i.e., those between 40 and 70 years of age. Even if all laid off employees were older than the GMI students who received special treatment, the Act would not be violated unless those age 40 to 70 were disproportionately represented among the laid off employees. And the plaintiff has proffered no evidence to show that the Company’s policy actually had this differential impact.¹⁸

The Supreme Court’s recent decision in Connecticut v. Teal, supra, is fully consistent with this analysis. Teal involved a challenge to an examination used to select state employees for promotion to supervisory positions. Because plaintiff Teal failed the examination, the State excluded her from further consideration for permanent supervisory positions. Although the examination was racially discriminatory because it excluded a disproportionate number of black candidates, the State attempted to compensate for the effects of this discrimination by promoting a higher proportion of eligible blacks than whites in order to reach a nondiscriminatory “bottom line.” The Supreme Court held that the examination had a disparate impact on plaintiff Teal because of her race, an impact that could not be cured by the State’s extension of favorable treatment to others in the plaintiff’s group. Thus, Teal stands for the proposition that an employment practice must be analyzed at “the first step in the employment process that produces an adverse impact on a [protected group], not the end result of the employment process as a whole.” Costa v. Markey, 694 F.2d 876, 880 (1st Cir.1982).

Judge Sloviter apparently believes that the point at which General Motors’ policy had a “disparate impact” occurred when the Company insulated GMI students from layoff. We fail to see how this action alone had any real impact on Massarsky or any employee. The insulation of GMI students from layoff was merely an administrative matter that, at the very most, increased to some small degree the potential that other employees, regardless of their age, might someday be furloughed in the event of operational cutbacks. But there was no tangible impact until it actually became necessary for the Company to lay off a process engineer, and it was then — and only then— that Massarsky was adversely affected. The reason Massarsky was selected for layoff was that he possessed the least seniority of all employees eligible for layoff. Thus, unlike Teal, where the plaintiff was affected by the discriminatory practice at the moment she was excluded from further consideration for promotion, Massarsky was not adversely affected until his low seniority identified him for layoff when in-plant force reductions became necessary.

The plaintiff maintains that General Motors offered no business justification for its discriminatory policy under the “reasonable factor other than age” exception set forth in section 623(b) of the ADEA. But because the plaintiff failed to make the prima facie showing of discrimination necessary to establish a violation of the ADEA under the disparate impact theory, the Company never became obligated to defend its practice. The ADEA does not preclude employers from adopting arbitrary or unreasonable employment practices, except when such practices involve discrimination against protected older individuals. The practices in the instant case were not shown to have any discriminatory impact, thus there was no need to justify them.¹⁹ See EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 191 (3d Cir.1980).

Thus, Massarsky’s contention that he was entitled to judgment as a matter of law on his claim of discriminatory layoff is not correct. He has not shown that the district court erred in denying his post-trial motions.

C. THE FAILURE TO RECALL

Massarsky also contends that General Motors violated the ADEA by its conduct in assigning GMI students to openings in the process engineering department rather than recalling Massarsky, who had a greater length of service with the Company than the GMI students.

On this issue too, Massarsky had the burden to prove a prima facie case of age discrimination in not recalling him. The district court held that the plaintiff met his initial burden with proof that between 1971 and 1976 four younger persons (Biondo, Glass, Mihelc, and Schultz) were promoted to open positions in the process engineering department and Massarsky was not recalled to fill one of those positions. The Company’s explanation for its failure to recall Massarsky between 1971 and 1976 was that there were no openings in the process engineering department for which a laid-off employee was eligible before the Company recalled Massarsky. This was due to General Motors’ policy requiring that it first fill available positions by transferring or promoting an active employee already on the payroll. According to the Company, Mas-sarsky was not recalled to employment before 1976 simply because of his status as an “inactive employee” during that time. Every opening that became available after Massarsky’s layoff was filled by the transfer of an active employee, although of less seniority than Massarsky, pursuant to company policy.

Some of the active employees who were transferred into the department during Massarsky’s five-year layoff happened to be GMI students who were considerably younger than Massarsky and enjoyed less seniority but had never been laid off because of the protective treatment accorded GMI students. Massarsky’s argument is that “[designation of GMI student/management trainees as active employees who are entitled to fill openings over inactive employees with greater length of service patently results in a classification which adversely affected Massarsky’s employment opportunities at [General Motors] because of age.”

At first blush, Massarsky’s argument has a logical and reasonable appeal. There is some authority within this circuit supporting the view that when an employer fills a vacant position without recalling a laid off employee who is qualified for the job, the employer commits a new violation of the Act if the failure to recall is because of age. See Cutright v. General Motors Corp., 486 F.Supp. 590, 593 (W.D.Pa.1980). See also Franci v. Avco Corp., 538 F.Supp. 250, 260-61 (D.Conn.1982). But whether Massarsky’s complaint is analyzed as a claim of disparate treatment or of disparate impact, he has not established any grounds for relief with respect to the failure to recall. As with the discriminatory layoff charge, the jury evidently determined that the Company’s employment practices were not a pretext for intentional discrimination on the basis of age. The jury had a reasonable basis in the Company’s established policy on GMI students for its conclusion that there was no unlawful discriminatory motive behind the Company’s actions in not recalling Massarsky until 1976.

Nor did Massarsky carry his burden of establishing that the Company’s facially neutral recall policies had a disparate impact on employees in the protected age class. Although the GMI students had a job preference over Massarsky, this was due not to Massarsky’s age but entirely to his inactive status resulting from his low seniority. On this record, there is no reason to believe that individuals between 40-70 years of age predominated among employees on inactive status. Massarsky has shown only that certain company policies unfortunately had an adverse effect on him; this does not establish any unlawful conduct on the Company’s part.²⁰

Accordingly, we perceive no error in the district court’s denial of Massarsky’s motions for a directed verdict or a judgment notwithstanding the verdict.

III. THE MOTION FOR A NEW TRIAL

Massarsky also claims that the district court erred in denying his motion for a new trial. He asserts that the district court committed several errors during the course of the trial proceedings.

The plaintiff primarily contends that the trial court erred in several respects in its instructions to the jury, including the following instruction:

The plaintiff must prove that the reason stated by the defendant, General Motors Corporation, for laying off the plaintiff, [namely] that there was an economic necessity to reduce the number of Process Engineers at the Clark facility ... and on the basis of the plaintiff’s short length of service and merit, capacity and ability, the plaintiff was a Process Engineer without whom defendant could best function, is a pretext.... In other words, the plaintiff must prove that the reason given by the defendant for laying off Mr. Massarsky was a pretext, but that the real reason or the determinative reason was age.

Massarsky challenges this instruction on the ground that it is erroneous because it fails to make any reference to the Company’s internal policy insulating GMI student trainees from layoff and includes a prejudicial reference to his “short length of service” when in fact he had a longer length of service than Biondo. He also complains that the reference to the plaintiff as “a process engineer without whom defendant could best function” constituted a misleading comparison with Biondo’s work skills when in fact no such comparison was made. These errors, plaintiff asserts, virtually amounted to a directed verdict for the defendant on the layoff issue.

We do not believe this instruction was improper. General Motors did indeed maintain that Massarsky was laid off solely on the basis of his seniority, pursuant to established company policy. The district court accurately summarized in its instructions the plaintiff’s burden in a disparate treatment case to show that the employer’s explanation for the employment decision is a mere pretext, and that age was a determinative factor in the decision.²¹

The failure to include in the instruction any reference to the Company’s practice of exempting GMI students from layoff was not erroneous. Evidence of the existence of this policy was relevant primarily to a disparate impact claim, and because Massarsky failed to make out a prima facie case under this theory, it would have been wholly improper for the district court to instruct the jury concerning disparate impact.²² Moreover, to the extent that the existence of a policy favoring GMI students may provide some circumstantial evidence of the employer’s alleged pretext under a disparate treatment theory, we believe the district court acted sensibly in declining to single out for the jury any particular item of evidence, preferring that the jury assess on its own the evidence bearing on the Company’s intent.

Similarly, with respect to the claim of a discriminatory failure to recall, plaintiff argues that the trial judge should not have instructed the jury to determine whether General Motors’ explanation that prior to February 1976 “there was no open position in the Clark facility for which the plaintiff as an employee on layoff was eligible or qualified, is a pretext and that a determinative reason that he was not recalled until February 1976 was his age.” But this instruction correctly summarized both the relevant law and the Company’s articulated explanation for its action. It was within the district court’s discretion to omit reference to the GMI student program and thereby avoid giving the jurors the impression that this evidence was particularly probative on the issue of motive.

Plaintiff also objects to the trial court’s instruction that intent was a necessary element in Massarsky’s case. But in a disparate treatment case — the theory on which the court submitted this case to the jury — the plaintiff must demonstrate that he has been the victim of intentional discrimination. See Texas Department of Community Affairs v. Burdine, supra. As for the disparate impact theory, where intent is not required, the court was correct, as we have shown, in not submitting this case to the jury on that theory.

Finally, Massarsky contends that it was error not to instruct the jury specifically that the existence of internal corporate policies which discriminate against protected individuals provided evidence of discrimination in the layoff of Mássarsky and the subsequent failure to recall him. Such a charge, however, would have had no basis in the evidence, because Massarsky did not establish that General Motors’ layoff policy discriminated against protected individuals. More important, the court did not err in concluding that it would be unwise for it to propose particular inferences that the jury might draw from the evidence. As a whole, we believe the charge to the jury was fair and free from error.²³

IV. THE MOTION TO AMEND THE COMPLAINT

Finally, plaintiff appeals from the district court’s denial on several occasions of his motions to amend his pleadings to assert a pendent state law claim under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. §§ 10:5-1 et seq. (1976). This allegation focuses on the district court’s interpretation of the time limits contained in the New Jersey statute and the retroactive effect of a recent amendment to that provision.

Amendments, although liberally granted, rest within the sound discretion of the trial court under Fed.R.Civ.P. 15. The trial court may properly deny leave to amend where the amendment would not withstand a motion to dismiss. The Company contends that the inclusion of a claim under NJLAD would have been futile because the claim under that Act would have been subject to dismissal as time-barred. We need not decide that question, however, because the trial judge believed, as stated in his bench opinion denying plaintiff’s post-trial motions, that “[t]he elements of the NJLAD are the same as for ADEA” and the court “cannot conceive that the jury would have found for plaintiff on this claim in view of its findings on the federal claim.” We perceive no error in the construction of the New Jersey statute and in the court’s denial of the motions to amend.

V.

The judgment of the district court will be affirmed.

1 . Federal courts have jurisdiction under 28 U.S.C. §.1337 over violations of the ADEA. Massarsky later sought to amend his complaint to assert a pendent claim under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. §§ 10:5-1 et seq. (1976). Jurisdiction over this state law claim is invoked under 28 U.S.C. § 1332.

2 . General Motors has filed a cross-appeal, even though the district court entered judgment in its favor on all issues. In view of our disposition of the case, we do not address the cross-appeal.

3 . The handbook states:

If it becomes necessary to reduce the number of employees in any classification of work within a department, where ability, merit and capacity are equal, the employee with the least service working in such classification in that department shall be laid off.

4 . General Motors presented evidence showing that GMI is a fully-accredited college that awards degrees in various engineering subjects upon the successful completion of a five-year program. Applicants for GMI are primarily high school students, and the typical beginning student is from 18-20 years of age. During their first four years in the program, GMI students spend part of their time in classes at the GMI campus in Michigan and part of their time in the work-experience program at the General Motors plant sponsoring the student. During the fifth year, the student is assigned on a full-time basis to the sponsoring plant. General Motors guarantees that all GMI students will be given the opportunity to complete their degree requirements (absent academic deficiencies) but does not guarantee employment with General Motors upon graduation. According . to the testimony of GMI President Dr. William Cottingham, the purpose of the GMI program is to train future engineering and managerial personnel.

5 . Internal guidelines for reduction in work force distributed to company executives and personnel officials did mention this policy. The relevant portion of the guidelines is set forth at page 12 infra.

6 . Although the General Motors employee handbook stated that laid-off employees were to be “given the opportunity to fill openings in the plant or office from which they were laid off,” the handbook did not make clear that all active employees, regardless of length of service, were given preference over laid-off employees in filing available jobs. The handbook described General Motors’ policy on recall of laid-off employees in the following terms:

Laid-off salaried employees whose periods of recall preference have not expired shall be given the opportunity to fill openings in the plant or office from which they were laid off, providing they are qualified to perform the work available. Consideration shall be given to merit, ability, capacity and length of service.

7 . Initially, Massarsky also claimed that the layoff and failure to recall constituted a breach of his employment contract, a malicious discharge, and religious discrimination. He eventually abandoned the religious discrimination claim and the district court dismissed the breach of contract claim in August 1977. In March 1977 Massarsky amended his complaint to assert state common law claims for fraud and negligent misrepresentations, and to add his wife as a plaintiff who alleged loss of consortium. None of these other claims are involved in this appeal.

8 . On November 20, 1979, the district court dismissed all of Massarsky’s age discrimination claims on the ground that he had failed to file with the Department of Labor a timely notice of intent to sue, as required by the ADEA. In addition, the court suggested that Massarsky had abandoned the claim that his layoff violated the ADEA. The court reinstated Massarsky’s age discrimination claims on October 31, 1980, based on this court’s interpretation in Davis v. Calgon Corp., 627 F.2d 674 (3d Cir. 1980), cert. denied, 449 U.S. 1101, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981), that in New Jersey an ADEA complainant has 300 days to file the notice of intent to sue.

9 . 29 U.S.C. § 623(a) provides in pertinent part:

(a) It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age;

10 . At the time Massarsky brought his action, the upper age limit of the ADEA was 65. Congress extended protection to employees up to 70 years of age in the Age Discrimination in Employment Act Amendments of 1978, Pub.L. No. 95-256, 92 Stat. 189.

11 . This last exception has enjoyed a two-fold interpretation. The concept of a “reasonable factor other than age” may connote the absence of a causal connection between the individual’s age and the adverse employment action. See Schwager v. Sun Oil Co. of Pennsylvania, 591 F.2d 58, 62 (10th Cir.1979). In this sense, the exception is unnecessary because if the discrimination resulted from a factor other than age, necessarily there was no discrimination “because of age” that would invoke the provisions of the ADEA. The “reasonable factors” exception has also been interpreted as a defense to discrimination under the ADEA when the employer has made decisions “based on factors that sometimes accompany advancing age such as declining health or diminished vigor and competence.” Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir.1979). See generally B. Schlei & P. Grossman, Employment Discrimination Law 403 (1976).

12 . 42 U.S.C. §§ 2000e et seq. (1976 & Supp. V 1981).

13 . Because Massarsky’s complaint concerned a reduction in force, it obviously was unnecessary for him to follow the literal terms of the McDonnell Douglas model and show that he was actually replaced by a younger employee. In McDonnell Douglas, the elements of the plaintiff’s prima facie case were articulated in the context of an alleged discriminatory failure to hire. The Supreme Court made clear that the nature of the required showing depends on the circumstances of the case. See 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. See also Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977); Williams v. General Motors Corp., 656 F.2d 120 (5th Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982); Jackson v. U.S. Steel Corp., 624 F.2d 436, 440 (3d Cir. 1980) (Title VII case).

14 . Of course, disproportionate impact of an employment policy may itself be circumstantial evidence of an intent to discriminate. See Hazelwood School District v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977); Teamsters v. United States, 431 U.S. 324, 336-39, 97 S.Ct. 1843, 1854-1856, 52 L.Ed.2d 396 (1977).

15 . We see nothing in this record to show that there were no older individuals in the GMI program, but see only that GMI students were predominantly recent high school graduates.

16 . During the course of the trial, the district court complained about the shifting nature of plaintiffs theory of recovery.

17 . For an argument that disparate impact analysis should not be applied in age discrimination cases, see Note, Age Discrimination and the Disparate Impact Doctrine, 34 Stan.L.Rev. 837 (1982).

18 . The dissenting opinion asserts that “virtually 100% of the protected class is in the disfavored group” and that “the fact that the policy may also disfavor laid off workers under 40 does not overcome the discriminatory impact on the protected class.” Diss. op., infra, at 130. This assertion, though quite possibly true, is not supported by the record. The evidence does not establish that no members of the protected age class are GMI students and thereby insulated from layoff, but shows only that GMI students are predominantly recent high school graduates. More important, the dissenting opinion assumes the very issue in this case — that the Company’s employment practices have a discriminatory impact on the protected class.

The dissent cites Geller v. Markham, 635 F.2d 1027 (2d Cir.1981), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981), but this case is inapposite. In Geiler, a hiring policy that made over 90 percent of the protected age class ineligible for appointment to teaching positions was deemed discriminatory as a matter of law, notwithstanding that a majority of teachers under 40 were also excluded from consideration. The court was apparently impressed by the extraordinarily high percentage of protected individuals who were disqualified by the employment practice. The instant case is vastly different. Concerned with layoff rather than hiring, Massarsky has shown at most that relatively few older individuals were insulated from layoff under the GMI program. But this has no significance, because only a very small percentage of the workforce as a whole was insulated from layoff. In addition, many older employees were undoubtedly protected from layoff by the Company’s seniority policy. In short, Massarsky’s case ignores an essential ingredient that was present in Geiler. a showing that the Company’s furlough practices had greater impact on protected individuals than on employees outside the protected age group.

19 . The dissent repeatedly criticizes the majority for failing to address the question whether General Motors’ policy could be justified under the statutory defense for “reasonable factors other than age.” Because, under the majority’s view of the case, there was no discrimination in the first instance, it is unnecessary to consider whether the policy could be “saved” by the statutory defense.

20 . Massarsky complains that the Company’s policy of preferring active employees over inactive employees with greater service in filling job vacancies was uncommunicated. It is true that this particular aspect of the Company’s employment practices was not explained in the employee handbook. But this has no significance here. Massarsky contends that because “the essential terms and conditions” of the Company’s seniority system have not been publicized, the Company’s discriminatory practice does not qualify for the exception in section 623(f)(2) of the ADEA for “bona fide seniority systems.” But this exception, like the “reasonable factor other than age” exception, only becomes relevant once a plaintiff has shown that the employer’s practices had a discriminatory impact. Massarsky has not met his burden of making such a showing.

21 . Massarsky complains that the district court’s instruction was subject to the misinterpretation that plaintiff was laid off on the basis of his merit, capacity and ability. The court’s instruction, however, was intended merely to list the factors that the Company maintains it considered in selecting employees for layoff, not to identify those that were determinative in the decision. Any misimpression that may unintentionally have been created was cleared up almost immediately when the court stated that “General Motors concedes that all those persons being considered for layoff were of equal merit, capacity and ability.”

22 . Although our dissenting colleague severely criticizes the district judge for failing to instruct the jury according to Massarsky’s wishes, we are completely sympathetic with the district court’s plight. The plaintiff presented his case in such a chameleonic manner that his theory of the case appears to have changed from day to day. It was only at a very late stage that Massarsky struck upon the disparate impact theory that he now presses upon this court. It is the plaintiff himself who is responsible for any confusion the district court may have felt in its conception of Massarsky’s claim.

23 . Massarsky also objects to numerous rulings by the district court excluding certain evidence dealing with the General Motors retirement program. The plaintiff has not met his burden of showing that the court’s evidentiary rulings were “inconsistent with substantial justice” under Fed.R.Civ.P. 61. As for Massarsky’s assertion that the jury’s verdict against him was against the weight of the evidence, we reject this contention as it is without merit.