The United States District Court for the District of New Jersey denied defendants motion for summary judgment in favor of the employee. The court held that that the Plaintiff employee established a prima facie case of age discrimination under the New Jersey Law Against Discrimination (NJLAD) finding ambiguity in the terms of his termination and defendants different reason for termination in summary judgment raised genuine issues of material facts and potential pretext for discrimination. Although the Court concluded there was no direct evidence of age discrimination, the Court used the McDonnell Douglas burden shifting analysis to determine that defendant’s stated non-discriminatory reason for Plaintiff’s termination could be a pretext for age discrimination in violation of the NJLAD.
In Buchholz v. Victor Printing Inc., the Plaintiff, Mr. Richard Buchholz worked at Victor Printing Inc. as a pressman from June 1986 through 2006. In 2006, Victor Printing reduced Mr. Buchholz’ hours to three days a week claiming that there was less work available for Mr. Buchholz because he was not trained on the new multi-color press machines that Victor Printing had acquired. Following the reduction in hours, Plaintiff accepted a full time job as a driver and his compensation remained the same at $17.50 per hour. He was then 63 years old. In 2008, Mr. Buchholz survived a lay off in which eight other Victor Printing employees were terminated.
A series of incidents occurred in the five months preceding Mr. Buchholz’ termination involving complaints from individuals who came in contact with Mr. Buchholz while he was driving the Victor Printing van. An individual called Victor Printing and complained about an encounter he had with Mr. Buchholz where Mr. Buchholz confronted the driver about his driving and got out of the van to see if it had been hit. Another individual called and complained Mr. Buchholz had cut him off while exiting the New Jersey Turnpike nearly causing an accident. A customer also complained that Mr. Buchholz had inappropriately complained about Victor Printing when Mr. Buchholz told the customer the boxes were too heavy and Victor Printing never sent anyone to help him. On October 15, 2009, the day before Mr. Buchholz’ termination, Mr. Buchholz hit a parked truck belonging to a large client of Victor Printing, Edmunds Direct Mail. The truck and the Victor Printing van were damaged and Mr. Buchholz failed to report the incident to Victor Printing or to Edmunds Direct Mail.
On October 16, 2009, Mr. Buchholz was confronted about the damage to the Edmunds Direct Mail truck and he admitted to his failure to report the incident. At that time, Victor, the owner of Victor Printing informed him that he was being laid off. Victor Printing asserted that his termination was identified as a lay-off as an accommodation to allow for unemployment benefits and for future employment. Mr. Buchholz asserted he was told he was being laid off because there was not enough work and if work increased he could come back three days a week for a lower rate of pay. Mr. Buchholz was 65 years old. Immediately after Mr. Buchholz’ termination, three current employees took over his duties until a 22 year-old replacement driver was hired in April 2010.
About two weeks before Mr. Buchholz’ termination and on October 8, 2009, Mr. Buchholz was asked by Victor, the owner of Victor Printing Inc. about his retirement plans. Prior to these inquiries, Mr. Buchholz had switched his medical coverage from Victor Printing’s plan to a TD Bank medical plan. Also, on October 8, 2009, Mr. Buchholz withdrew his entire 401(k). Additionally, Mr. Buchholz began collecting social security in October 2009.
In denying defendants’ motion for summary judgment, the Court analyzed Plaintiff’s claim of age discrimination in violation of the New Jersey Law Against Discrimination through both direct and circumstantial evidence. The NJLAD prohibits employers from terminating an employee because of his/her age. See N.J.S.A. § 10:5-12(a). The court stated that to establish age discrimination under the NJLAD, the discrimination must be intentional however, either direct or circumstantial evidence may be used.
Here, the Plaintiff, Mr. Buchholz, presented both direct and circumstantial evidence. The Court determined Mr. Buchholz failed to present direct evidence that his age was a substantial factor in his termination however, found sufficient circumstantial evidence to establish a prima facie case of discrimination, and found that enough facts were present to support a reasonable inference that defendants did not act for its stated non-discriminatory reason.
In order to establish direct evidence age discrimination under the NJLAD it is the Plaintiff’s burden to prove that age was a substantial factor in an adverse employment decision. The Court cites to Getzler v. Virtua West Jersey Health Systems, 804 F. Supp. 2d 241, 250 (D.N.J. 2011), stating “stray remarks in the workplace, unrelated to the decisional process, [are] not sufficiently direct evidence of discrimination to justify requiring an employer to prove that its….decisions were based on legitimate criteria.” The court disagreed with Mr. Buchholz’ assertion that the two inquiries about his retirement plans constituted direct evidence of his termination. The Court highlighted the events surrounding the inquiries including Mr. Buchholz’ decision to withdraw his entire 401(k) and his receipt of social security benefits stating that Victor, as the owner of Victor Printing, has a legitimate interest in knowing if his employees are going to be leaving employment through retirement. See Glazman v. Metro. Mgmt. Corp., 391 F.3d 506, 513 (3d Cir. 2004).
After determining Mr. Buchholz did not meet his burden to make a claim for age discrimination using direct evidence, the Court then considered circumstantial evidence under the McDonnell Douglas burden-shifting analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prove a claim of age discrimination under the McDonnell Douglas burden-shifting analysis, Mr. Buchholz must establish a prima facie case of discrimination where he is required to demonstrate by a preponderance of the evidence that: (1) he was in a protected group; (2) he was performing his job at a level that met his employer’s legitimate expectations; (3) he nevertheless was fired; and (4) the employer sought someone to perform the same work after he left. Fischer, 974 F. Supp. at 805 (citing Erickson v. Marsh & McLennan Co., 117 N.J. 539 (1990)).
If all the elements of a prima facie case are met, the burden shifts to the employer, to provide a non-discriminatory reason for its employment decision. Then, the burden shifts back to the employee, Mr. Buchholz, to prove the non-discriminatory reason stated by Victor Printing was not the true reason for his termination but merely pretext for discrimination.
Mr. Buchholz met all four elements required to establish a prima facie case of age discrimination under the NJLAD. Victor Printing did not dispute Mr. Buchholz was a member of the protected group at 65 years-old, that he was terminated, and that they hired someone else to perform his job (elements one, three and four). As to the second element, the Court determined that despite the incidents that occurred while Mr. Buchholz was a driver, Mr. Buchholz performed his job and that those incidents go to his performance and should be considered not in the prima facie case determination, but instead when analyzing the employer’s stated non-discriminatory reason and the employee’s showing of pretext.
The Court found that Victor Printing met its burden to establish a sufficient non-discriminatory reason for Mr. Buchholz’ termination. Victor Printing stated that Mr. Buchholz was terminated because of two incidents where individuals called to complain about Mr. Buchholz and Mr. Buchholz’ failure to report damage to another company’s vehicle when he hit the vehicle while working. The Court found that these incidents, if true, would justify Mr. Buchholz’ termination for cause separate and apart from any alleged age discrimination.
However, the Court concluded that Mr. Buchholz raised a sufficiently genuine issue of material fact on the issue of pretext to preclude summary judgment. The disputed genuine issue of material fact was based upon the conversation that took place at the time of Mr. Buchholz’ termination. The Court stated “There exists a dispute of material fact concerning the conversation that occurred at the time of plaintiff’s termination.” Mr. Buchholz testified that he did not ask to be laid off, he was told that Victor Printing did not have any work for him and the best thing to do is to give him a lay off, and that he could return to work at a reduced rate if available work increased at a later date. Victor Printing testified that when Mr. Buchholz was told he was being let go, Mr. Buchholz asked to be laid off.
The Court ultimately determined that the ambiguity in the reason for Mr. Buchholz’ termination raised questions as to the legitimacy of Victor Printing’s stated non-discriminatory reason for Mr. Buchholz’ termination. Since now Victor Printing claimed Mr. Buchholz was terminated for his driving record, the court stated, “If plaintiff was being terminated for his driving record, why not say so, document the reason and its justification?” Instead, Victor Printing initially told Mr. Buchholz they did not have enough work for him but now state a different reason for his termination. The Court further stated that this “ambiguity raises the prospect that the stated reason – lack of work – was pretext or excuse for another prohibited reason, namely age. Thus, the context of Mr. Buchholz’ other evidence about inquiries into his retirement plans and the hiring of another, younger employee soon after his termination should be analyzed by a jury to determine whether “such weakness, implausibility, inconsistencies, incoherencies, or contradictions” prove pretext.
Even though summary judgment was denied, the Court noted that Mr. Buchholz did not present a very strong case of age discrimination and only offered enough factual evidence to survive summary judgment. Furthermore, whether Mr. Buchholz was actually offered a chance to be rehired or whether he was laid off as a concession due to his years of service to the company is a credibility determination that the Court could not make on summary judgment.