ROLAND HOFFMAN v. BASF CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5335-04T25335-04T2

ROLAND HOFFMAN,

Plaintiff-Appellant,

v.

BASF CORPORATION,

Defendant-Respondent.

________________________________________

 

Argued: September 20, 2006 - Decided November 27, 2006

Before Judges Stern, A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1364-03.

Charles Z. Schalk argued the cause for appellant (Mauro, Savo, Camerino & Grant, attorneys; Mr. Schalk, of counsel and on the brief).

Michael T. Bissinger argued the cause for respondent (Pitney Hardin, attorneys; Mr. Bissinger and Kristine J. Feher, on the brief).

PER CURIAM

Plaintiff, Roland Hoffman, appeals from the April 15, 2005 summary judgment dismissing his complaint against his employer, defendant, BASF Corporation (BASF), for age discrimination pursuant to the New Jersey Law Against Discrimination. N.J.S.A. 10:5-1 to -49 (LAD). Hoffman also appeals from the May 31, 2005 order denying reconsideration. Judge Catherine Langlois found that Hoffman had failed to establish a prima facie case of age discrimination, and that the reasons advanced by BASF for the termination were pretextual. We agree and affirm.

These are the proofs presented to the judge. Hoffman was an "at-will" employee of BASF for twenty-four years. At the time of the termination, Hoffman held the position of Safety Manager at BASF's Washington Township facility in Warren County, with a yearly salary of $94,500, receiving annual bonuses averaging between $4,000 and $8,000. At the time of the termination, he was fifty-five years old; three and one-half years from full pension eligibility. According to Hoffman, his record at BASF was spotless. He received many commendations and accolades on his job performance. Hoffman contends that he was terminated because he was an older employee with a high salary and that BASF decided to save funds by firing him and replace him with a younger employee. Hoffman alleged that BASF exaggerated a trivial infraction to justify the termination.

According to BASF, Hoffman was fired for cause due to the following infraction. Because BASF is a manufacturer of a broad range of products made from chemicals, fibers, polymers, and similar substances, it is subject to various federal and state safety regulations. In late November or December 2002, John Notta, an inspector for the New Jersey Department of Environmental Protection (DEP), performed an annual inspection of BASF's Washington site. Notta noticed that inspection tags on a "self-contained breathing apparatus" (SCBA) showed no entries for September and October 2002. The SCBA is a piece of equipment used for breathing in case of an emergency, such as the accidental discharge of a hazardous substance. A BASF employee under Hoffman's supervision, Eric Whitmore, was responsible for performing monthly checks of the SCBAs, to ensure they were in working condition. The tag is dated and signed to show that the SCBA has been checked. However, Whitmore had difficulty performing that duty in a timely fashion. There were times when Whitmore would do the SCBA checks but not turn in his report. Whitmore would turn in the reports for three or four months of SCBA checks all at once.

In response to Notta's inquiry, Hoffman indicated that the SCBAs had been checked, although the tags did not reflect this. Hoffman said that he would confirm that they had been checked and report back to Notta. However, Hoffman does not dispute that he filled in the tags for the missing months and signed Whitmore's name. He explained that because he had checked the SCBAs himself, he had acted properly. He admitted that this gave the impression that Whitmore had done the inspections. However, he did not believe this created a conflict pursuant to BASF's Code of Conduct.

Notta told Michael Laidlaw, the Site Manager for BASF's Washington facility and Hoffman's supervisor, that he had asked Hoffman for some forms, but that Hoffman had not produced them. Edward Dalton, the Operations Manager at the Washington facility, informed Laidlaw that Hoffman had not performed the inspections for October and November 2002. Dalton testified at a deposition that shortly after the inspection, Hoffman told him that Notta asked about the missing inspection reports. Hoffman asked Dalton what he should do. Dalton recommended that Hoffman simply tell Notta that the inspections had not been done. Hoffman did not follow Dalton's advice. Dalton also informed Deborah Halbfoster, an HR representative at BASF's corporate office, of the incident. Halbfoster began an internal investigation.

On January 6, 2003, Hoffman returned to work after a vacation. At a meeting with Laidlaw and Halbfoster, Hoffman was fired, reportedly because of the SCBA incident. He sued BASF alleging an LAD violation, seeking compensatory and punitive damages, as well as attorney's fees and costs. BASF answered and denied the allegations. Following a period of discovery, BASF moved for summary judgment. In opposition to the summary judgment motion, Hoffman presented the following evidence. At the time of his termination, Hoffman was the second highest paid employee at the Washington site. Hoffman held a Bachelor of Science Degree from Florida Institute of Technology, majoring in management science. Prior to working at the Washington site, Hoffman worked twenty-one years at the BASF site in Belvidere. During his tenure in Belvidere, that site held one of the best safety performance records of all of the BASF sites. It was never cited with a single OSHA violation. The Belvidere site received the New Jersey's Governor's award for safety excellence every year that Hoffman was its Safety Manager.

Hoffman had excellent performance reviews and received awards from BASF for his ability to an be an effective manager. He was recognized by the company in his personnel file for exceptional performance. Hoffman was lauded for his actions during emergent situations with BASF and was consistently recognized for his ability to prevent accidents at BASF facilities.

Hoffman had consistently received excellent performance reviews throughout his career at BASF. There were no negative items in his record. Moreover, within four years after coming to the Washington site, Hoffman raised the corporate safety audit rating from a "needs improvement" to "excellent." The most recent audit conducted in March 2002, resulted in no actionable items. According to Hoffman, this "is virtually unheard of within the corporation." During this time, Hoffman upgraded all BASF's safety programs to meet OSHA standards.

Although Hoffman alleged that he was replaced by a younger employee, there was no proof of this. The evidence presented showed that Hoffman's responsibilities were distributed among numerous employees ranging in ages from thirty-eight to fifty-eight. There was a lack of circumstantial evidence pointing to age discrimination as a factor in Hoffman's termination.

In an oral decision, Judge Langlois granted the motion. She found that Hoffman had failed to show a prima facie claim. She also denied Hoffman's motion for reconsideration.

On appeal, Hoffman contends that the judge erred by: (1) dismissing the age discrimination claim; (2) granting summary judgment because there were genuine issues of material facts in a number of critical areas; and (3) reviewing the evidence in a light most favorable to BASF rather than Hoffman. We disagree.

The LAD makes it an unlawful employment practice, or discrimination for an employer "to refuse to hire or employ or to bar or to discharge or require to retire," an employee based on age "unless justified by lawful considerations other than age." N.J.S.A. 10:5-12(a). In an age discrimination case pursuant to the LAD, a claimant must first prove a prima facie case of discrimination. Viscik v. Fowler Equipment Co., 173 N.J. 1, 13-14 (2002).

In evaluating the claim, the court uses the "burden shifting" framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Bergen Commercial Bank v. Sisler, 157 N.J. 188 (1999). The establishment of a prima facie claim gives rise to a presumption of discrimination. Id. at 210. To prove a prima facie case, the plaintiff must demonstrate that: "1) [he] belongs to a protected class; 2) [he] performed his job at a level that satisfied [his employer's] legitimate expectations; 3) [he] was discharged; and 4) [he] was replaced by a candidate sufficiently younger to permit an inference of age discrimination." Young v. The Hobart West Group, 385 N.J. Super. 448, 458 (App. Div. 2005) (citing Sisler, supra, 157 N.J. at 210-13) (internal quotations and citations omitted).

With respect to the fourth prong, "the 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 [or she] was accorded by his employer." Petrusky v. Maxfli Dunlop Sports, 342 N.J. Super. 77, 82 (App. Div. 2001) (internal quotations and citations omitted). In Petrusky, we noted:

[I]t is erroneous, in an ordinary case of age discrimination in employment, to use reference to a particular replacement employee as the only means for satisfying the customary fourth element of a prima facie showing.

[Id. at 82.]

If the claimant makes a prima facie showing, the employer must then produce admissible evidence of "a legitimate, non-discriminatory reason for its rejection of the employee." Sisler, supra, 157 N.J. at 210-13. If the employer shows this non-discriminatory reason, then the burden shifts back to the claimant to show, by a preponderance of the evidence, that "the legitimate, non-discriminatory reason articulated by the [employer] was not the true reason for the employment decision but was merely a pretext for discrimination." Id. at 211 (citing Anderson v. Exxon Co. of U.S.A., 89 N.J. 483, 493 (1982)). "To prove pretext, a [claimant] may not simply show that the employer's reason was false but must also demonstrate that the employer was motivated by discriminatory intent." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005). This burden may be satisfied either by directly showing that a discriminatory reason motivated the employer or indirectly proving that the employer's explanation is incredible. Sisler, supra, 157 N.J. at 211.

Summary judgment must be granted if the proofs presented to the judge "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." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We apply the same standard. Prudential Property Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Here, Hoffman established that he was a member of a protected class because he was fifty-three years old at the time he was terminated. See, e.g., Young, supra, 385 N.J. Super. at 458 (holding that claimant is a member of protected class because she was forty-eight at time of termination); Greenberg v. Camden Voc. Schools, 310 N.J. Super. 189, 201 (App. Div. 1998) (holding that a forty-eight year old is a member of protected class). Hoffman also established that, up until the SCBA inspection incident, he was performing his job to his employer's expectations. He met the third prong by proof of his termination. However, he failed to show that a younger person took his place. After Hoffman ceased employment at BASF, his job responsibilities were distributed among several employees of varying ages. We must evaluate whether Hoffman offered any evidence that age played a substantial reason in his termination. He first highlights that BASF employees have committed more serious offenses in the past and were disciplined rather than terminated. He argues that he too was entitled to progressive discipline. Assuming, as we must, the truth of this version of the facts; there is no evidence in the record that BASF had any obligation to offer Hoffman progressive discipline in lieu of termination. The employee manual states that the employment relationship may be terminated at will.

Hoffman also points to the other age discrimination lawsuits that have been initiated against BASF as evidence of a pattern of discrimination. The ultimate outcome of each case is unknown. Hoffman does not contend that these cases have preclusive effect, but merely that they are further evidence of BASF's alleged discriminatory actions. Moreover, these cases are unrelated to the reasons for which Hoffman was terminated.

Finally, Hoffman alleged that he was fired because he was an older, highly compensated employee and that the management of BASF was creating an excuse to terminate him to save money. Laidlaw admitted that he sought to remove as many people as possible to run the organization efficiently. However, that is not enough to establish age discrimination claims. We have held that the termination of an employee as a cost reduction method is a legitimate, non-discriminatory reason. Young, supra, 385 N.J. Super. at 460.

In short, we concur with Judge Langlois's finding that Hoffman did not show that his age factored into the decision by Laidlaw and Halbfoster. Based on our review of the record, we conclude that the judge's finding that BASF's reason for terminating Hoffman was not pretextual is adequately supported by the evidence. R. 2:11-3(e)(1)(A), Rova Farms Resorts, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). The facts underlying BASF's reason were admitted by Hoffman and relate to a safety issue.

Affirmed.

 

This evidence is contained in Hoffman's appendix. We note a deficiency in this appendix which unnecessarily burdened our appellate review. Specifically, the appendix's table of contents does not "indicate the initial page of each document, exhibit or other paper included." R. 2:6-1(c). The rule requires that "attachments to a document by way of affidavits, exhibits or otherwise shall each be separately identified in the table of contents and the initial page of each such attachment noted therein." Ibid.

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A-5335-04T2

November 27, 2006