MARIE STONE v. PLAINFIELD COUNTRY CLUB


(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE APPROVAL

OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1629-07T3

FRANCINE ATTANASIO and

MARIE STONE,

Plaintiffs-Appellants,

v.

PLAINFIELD COUNTRY CLUB and

MANNY F. GUGLIUZZA, Manager

and Individually,

Defendants-Respondents.

_____________________________________


Argued November 17, 2008 - Decided

Before Judges Carchman, R. B. Coleman and

Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Civil Part, Middlesex County, L-5815-05.

Patricia Breuninger argued the cause for appellant (Breuninger & Fellman and Bramnick, Rodriguez, Mitterhoff, Grabas & Woodruff, attorneys; Ms. Breuninger, and Stephanie A. Mitterhoff, of counsel and on the briefs).

William T. Connell argued the cause for respondent Plainfield Country Club (Dwyer Connell & Lisbona, attorneys; Mr. Connell, on the brief).

Marion B. Johnson argued the cause for respondent Manny F. Gugliuzza (Drinker Biddle & Reath, L.L.P., attorneys; Ms. Johnson, on the brief).

PER CURIAM

Plaintiffs Francine Attanasio (Attanasio) and Marie Stone (Stone) appeal from the summary judgment dismissal of their age discrimination complaint against defendants Plainfield Country Club (PCC) and Manny F. Gugliuzza (Gugliuzza). We affirm.

The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). PCC is a private golf and country club located in Edison. Attanasio, born December 22, 1946, and Stone, born November 17, 1928, were at-will employees for many years.

Attanasio, was the Assistant Manager from 2002 until June 20, 2005. Her duties included booking and running banquets, parties and events, hiring and training staff, supervising food and beverage operations, and acting as a liaison with the kitchen staff. Attanasio earned approximately $82,000 per year at the time her employment terminated.

Stone was PCC's Executive Secretary from 1976 until April 13, 2005. Her duties included the General Manager's correspondence and typing, typing for the Board of Directors (Board) and committee members, and typing of banquet documents and contracts. She was also responsible for general office duties and filing. She earned approximately $47,000 at the time her employment terminated.

At all times relevant to this matter, Gugliuzza was PCC's General Manager and plaintiffs' direct supervisor. He was responsible for PCC's overall management and day-to-day operations. All department heads reported to him.

There is no dispute that throughout the 2003 golf season, PCC experienced a substantial loss of operating income due to inclement weather and a general economic downturn in the golf club industry. Also, from December 2003 to December 2004, PCC experienced a substantial loss in banquet revenues, for which Attanasio was responsible. Facing an economic crisis in 2004, the Board directed Gugliuzza to develop a proposal to restructure the club's organization and to reduce operating expenses. In connection with that undertaking, the Board ordered Gugliuzza to review personnel, salaries, expenses and general costs in all departments and to submit cost-cutting recommendations. Also, the Board decided to substantially increase dues and annual membership fees, locker room and locker fees, and driving and practice range fees.

Gugliuzza examined PCC's organizational structure and determined, among other things, that banquet revenues had to be increased. Thus, he determined that the Assistant Manager position would be eliminated and the duties of that position would be divided among two employees: a Banquet Manager and a Food and Beverage Manager. This division of duties would enable the Banquet Manager to focus solely on increasing banquet revenues. The Banquet Manager's duties would include some of the former Assistant Manager's banquet duties, except a la carte functions (meaning general member dining), supervising the ordering of food and beverages, and assigning personnel to banquet functions, which the Food and Beverage Manager would assume. Gugliuzza would also assume some of the former Assistant Manager duties.

After a lengthy review spanning several months, which included numerous meetings with the Board's Executive Committee, Gugliuzza recommended the following:

1. eliminate the Assistant Manager and Executive Secretary positions;

2. eliminate other positions and offer employees alternative, lower-paying positions.

3. reduce the overall head count in the kitchen;

4. eliminate kitchen positions by attrition;

5. reduce the hours assigned to the wait staff;

6. close the club for longer periods of time;

7. examine the overall full-time equivalents employed as wait staff;

8. carefully monitor the costs of greens and greens staff;

9. lease certain pieces of equipment rather than purchasing them; and

Gugliuzza recommended eliminating Stone's position because PCC could function without an Executive Secretary. Evidence indicated that over the course of her employment, Stone's ability to perform her job duties became limited. Although PCC provided her specific training to become adept at computer and e-mail use, she allegedly was unable to acquire the requisite skills. As a result, in 2001, PCC hired an Administrative Assistant, Dina Werb-Picchione (Werb-Picchione), to assume some of Stone's typing duties and other functions. After initially assuming Stone's typing duties, Werb-Picchione eventually assumed work from every department. By 2005, many employees gave all their typing work to Werb-Picchione, who was then forty years old.

The Board approved Gugliuzza's recommendations, recognizing that they were the "result of an accumulation of study and investigation and the input of various members and committees throughout [PCC.]" As for Stone, because PCC did not need two secretaries, the Board decided to retain Werb-Picchione as Administrative Assistant because she was qualified to do the job, and gave her a hourly salary increase to $21.75. The Board eliminated Stone's position "for cost reduction purposes and not for performance reasons[,]" and "because [her position] was no longer economically feasible." It offered Stone a severance package or a demotion to part-time phone receptionist, a position PCC would create for her at a salary of $10 per hour.

Gugliuzza recommended eliminating Attanasio's position because other employees could assume that position's duties and responsibilities. He also recommended Attanasio's termination because he believed that she would become insubordinate if offered a lower-paying position. However, instead of terminating Attanasio, in recognition of her years of service, the Board offered her a severance package or the Banquet Manager position, with a $56,000 yearly salary. PCC would promote Matt Tolomeo, then age twenty-six, from Snack Bar Manager to Food and Beverage Manager, with a yearly salary increase to $54,000. The Board concluded that the combination of Tolomeo's degree in restaurant and hotel management from Johnson and Wales University, his country club management skills, and his stellar performance at PCC, along with Attanasio's practical knowledge and experience, would serve as a good concentration of efforts. Tolomeo would concentrate on food and beverages, and Attanasio would concentrate on banquets.

In her new position, Attanasio would now have to punch a time clock and report to Tolomeo about staffing needs for banquets. She also was no longer permitted to go home during working hours to feed her dog, which she had done for many years.

On or about April 12 and 13, 2005, Gugliuzza met separately with Attanasio and Stone and advised them that PCC was eliminating their respective positions for financial reasons. Attanasio was offered the Banquet Manager position; Stone was offered the phone receptionist position; both were offered the alternative severance package. In response, Attanasio said, "This is not business. This is personal." She then expressed her disapproval to the Board's Vice President. After deliberating extensively, the Board concluded that the offers to Attanasio and Stone were fair.

Attanasio accepted the Banquet Manager position. The Board understood that she did so voluntarily and would properly and professionally perform her job. However, problems with Attanasio's job performance and treatment of other employees, including Gugliuzza and Tolomeo, began almost immediately thereafter. A co-worker described her conduct as "venomous." As a result, on April 28, 2005, PCC's President, Stan Kosierowski, met with Attanasio and warned her that her conduct would not be tolerated. Kosierowski confirmed this warning in a May 6, 2005 letter to Attanasio as follows, in relevant part:

You have made it clear that you are upset regarding management's decision to eliminate your job. I informed you that this was not a personal issue; it was a part of a business decision we had to make. The Board of Trustees made cost discipline one of our primary objectives for 2005, and we could not continue to experience the shortfall of previous years. We set the expectation for management to reduce our overall G & A costs to the benchmark levels of other country clubs, while maintaining a high level of membership services.

[Gugliuzza] is responsible for managing the costs and making decisions how best to achieve our budget objectives. As a result, your job as Assistant Manager was eliminated. Even so, given your long service to the club, we wanted to provide you with an employment option, and accordingly we offered you the position of Banquet Manager.

You had a choice, to take the position we had made available to you, or leave, at which time you would receive a severance package that was additional to our established benefit program, again, in consideration of your service to the club.

You chose to take the position of Banquet Manager, and we were happy you chose to stay at [PCC].

Since you have returned there have been several instances in which you have demonstrated behavior that we cannot tolerate. These include not working together with other members of the staff, and making inappropriate comments about management. This is unacceptable behavior. At our meeting I told you I was not going to go back and investigate the incidents, rather I wanted to make clear our expectations moving forward, so you understood what was expected of you.

We expect you to work together with other employees, and not make inappropriate comments about employees, management, members, or board members. Any future incidents will result in your termination.

. . . .

[PCC] has always maintained a positive work environment for our employees, and we hold to our culture of being fair to everyone. Eliminating your former position was a difficult business decision, but it was one that had to be made.

Also, in a May 18, 2005 e-mail, Gugliuzza advised Attanasio that he needed to see immediate and major improvement in her job performance.

PCC held its Annual Member-Guest tournament in June 2005. By tradition, PCC provided a buffet upon completion of the Thursday practice round. Attanasio knew that PCC's policy permitted members to eat wherever they preferred. However, when a member asked her if he could eat in the men's grill room, she responded, "I'm really sorry. If it was up to me, I would let you but [Gugliuzza] is a fucking asshole and he said nobody can eat back here[.]" The member became irate and began screaming, cursing and yelling. Kathy Eskin, a floor supervisor, overheard Attanasio's comment and told the member, "that's not true. You absolutely can eat back here. That's always been policy here[.]" Attanasio said to Eskin, "Please don't say anything to [Gugliuzza]. Don't tell anybody what I said[.]" Eskin warned Attanasio that she would lose her job if she continued this behavior. Eskin reported the incident to Gugliuzza and told him to "[g]o back there and calm them down." Gugliuzza did so and informed the member that he could eat in the men's grill.

During this same event, Attanasio allegedly told two newly hired waitresses that if they wanted to make large tips in a particular room of the club, they needed to "[j]ust prance . . . around like a piece of meat[.]" The two waitresses complained to Tolomeo and told him what Attanasio had said. Tolomeo then informed Gugliuzza, who determined that Attanasio was insubordinate and had used unacceptable language.

On June 10, 2005, Attanasio was suspended indefinitely without pay. She was terminated for insubordination on or about June 20, 2005. Nevertheless, PCC offered her another severance package, which she declined. Instead, she filed a complaint, alleging age and gender discrimination. After Attanasio's termination, PCC continued to operate without an Assistant Manager. Tolomeo continued as Food and Beverage Manager.

As for Stone, she declined the phone receptionist position and the severance package and resigned. After she left PCC, other employees assumed some of her duties, and PCC implemented an automated telephone system to cover her phone duties. After Stone's resignation, PCC continued operating without an Executive Secretary. Stone filed a complaint alleging age discrimination based, in part, on Gugliuzza asking her several times when she was going to retire.

Plaintiffs alleged in their complaint that they were among the three oldest employees whose positions were eliminated and that after plaintiffs' terminations much younger employees assumed their job duties. Stone also claimed that Gugliuzza asked her several times when she was going to retire. Plaintiffs also alleged that Gugliuzza was an aider and abettor because he recommended eliminating their positions, which the Board accepted, and because he knew that plaintiffs were PCC's oldest employees when he made the recommendations.

Defendants filed summary judgment motions. The motion judge granted Gugliuzza's motion, finding that he did not violate the LAD. The judge also granted summary judgment to defendants as to Stone, finding that she failed to show that PCC's reasons for eliminating her position were pretext and that age was more likely than not the motivation or determinative cause.

The judge also granted summary judgment as to Attanasio's gender discrimination claim but denied it as to her age discrimination claim, finding sufficient indirect evidence indicating age discrimination. However, after reconsideration, the judge granted summary judgment as to Attanasio's age discrimination claim. In a written opinion, the judge concluded that:

There is no [direct or indirect] evidence here that Ms. Attanasio's age played any role in elimination of the Assistant Manager position, her hire as Banquet Manager, or her termination of employment. That ultimate termination is justified by defendant's reasonably held belief that Ms. Attanasio was being, at best, inefficient and, at worst insubordinate.

The question is not whether the reasonably held belief was right or wrong, but whether any evidence, direct or circumstantial, shows that the reason offered was a pretext for Ms. Attanasio's termination based on age. See Ezold v. Wolf, Block, Shorr and Solis-Cohen, 983 F.3d 509 (3d Cir. 1992). Nothing presented to the court shows either that the economic reasons articulated by the defendant were untrue or exaggerated, on the one hand, or that Ms. Attanasio's age was more likely than not a motivating or determinative factor in defendant's decision. Cf. El-Sioufi [v. St. Peter's University Hospital, 382 N.J. Super. 45, 173 (App. Div. 1995)]; Josey v. John R. Hollingsworth Co., 996 F.2d 632, 638 (3d Cir. 1993).

. . .

This court is not satisfied that Ms. Attanasio has shown that the reasons offered by defendant . . . are merely a pretext for discrimination. El-Sioufi, supra, [382 N.J. Super.] at 171.

We use the same standard as the trial court when reviewing a summary judgment motion. Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The motion judge must determine whether the evidence, "when viewed in the light most favorable to the non-moving party," is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Rule 4:46-2(c) requires a court to grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment as a matter of law." R. 4:46-2(c); Brill, supra, 142 N.J. at 528-29. If there is no genuine issue of fact, we must then decide whether the lower court's ruling on the law was correct. See Prudential, supra, 307 N.J. Super. at 167. Applying these standards, we continue our analysis.

In New Jersey, "[a]ll persons shall have the opportunity to obtain employment . . . without discrimination because of . . . age . . . subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right." N.J.S.A. 10:5-4. Furthermore:

It shall be an unlawful employment practice, or . . . an unlawful discrimination:

a. For an employer, because of . . . age . . . to refuse to hire or employ or to bar or to discharge or require to retire . . . from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment[.]

[N.J.S.A. 10:5-12a.]

Generally, "an employer can legally discharge an employee without violating employment discrimination statutes 'for good reason, bad reason, or no reason at all,' as long as there is no intentional discrimination." Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 345 (App. Div.) (quoting Walker v. A T & T Techs., 995 F.2d 846, 850 (8th Cir. 1993)), certif. denied, 152 N.J. 189 (1997). Employers thus may generally manage their business as they see fit, and "are entitled to consider the long-term potential of employees when making business decisions." Young v. Hobart W. Group, 385 N.J. Super. 448, 463 (2005); see also Viscik v. Fowler Equip. Co., 173 N.J. 1, 13 (2002). "Hence, '[t]here is no princip[le] of law that requires that a business' decision be popular with employees. As long as the decision is not based on unlawful age discrimination, 'the courts have no business telling [companies] . . . how to make personnel decisions, which may be objectively or subjectively based.'" Maiorino, supra, 302 N.J. Super. at 345-46 (quoting Walker v. AT&T Technologies, 995 F.2d 846, 850 (8th Cir. 1993)). An employee alleging discrimination must first establish a prima facie case. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447-50 (2005). In the absence of direct evidence of discrimination, the plaintiff's claims must be analyzed under the burden shifting paradigm established in McDonnell Douglas Corp. V. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 688 (1973). See also Zive, supra, 182 N.J. at 447; Bergen Commercial Bank v. Sisler, 157 N.J. 188, 209-10 (1999).

Where there is no direct evidence of discrimination, the plaintiff-employee must first establish a prima facie case by showing that: (1) she was in a protected class; (2) she was performing her job at a level that met the employer's legitimate expectations; (3) she was nevertheless discharged; and (4) the employer sought someone else to perform the same work after she left.

[DeWees v. RCN Corp., 380 N.J. Super. 511, 523 (App. Div. 2005) (citing Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 462 (2000)).]

See also Zive, supra, 182 N.J. at 450; Young, supra, 385 N.J. Super. at 458.

In an age discrimination case, "[t]he focal question is not necessarily how old or young the claimant or [her] replacement was, but rather whether the claimant's age, in any significant way, 'made a difference' in the treatment [s]he was accorded by his employer." Petrusky v. Maxfli Dunlop Sports Corp., 342 N.J. Super. 77, 82 (App. Div. 2001). Under the LAD, the plaintiff must "'show that the prohibited consideration[, age,] played a role in the decision making process and that it had a determinative influence on the outcome of that process.'" Bergen Commercial, supra, 157 N.J. at 207 (quoting Maiorino, 302 N.J. Super. at 344).

If the plaintiff can establish a prima facie case, that "creates a presumption of discrimination. The burden then shifts to the employer to produce evidence of a legitimate, nondiscriminatory reason for plaintiff's discharge." DeWees, supra, 380 N.J. Super. at 523 (citing Mogull, supra, 162 N.J. at 462; Bergen Commercial Bank, supra, 157 N.J. at 210); see also Zive, supra, 182 N.J. at 449. "[T]he 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." Massarsky v. Gen. Motors Corp., 706 F.2d 111, 118 (3d Cir.) (citing Croker v. Boeing Co., 622 F.2d 975, 991 (3d Cir. 1981)), cert. denied, 464 U.S. 937, 104 S. Ct. 348, 78 L. Ed.2d 314 (1983). The defendant-employer is not required to prove that the non-discriminatory reason it produces actually motivated its behavior because throughout the burden-shifting analysis, the ultimate burden of persuasion to prove intentional disparate treatment lies with the plaintiff-employee. Maiorino, supra, 302 N.J. Super. at 347. The employer's burden is one of production, not of persuasion. Greenberg v. Camden County Vocational & Tech. Schools, 310 N.J. Super. 189, 199 (App. Div. 1998).

"Once the employer produces evidence of a legitimate reason for the discharge, the presumption of discrimination disappears, and the burden shifts back to plaintiff to prove that the employer's reasons were a pretext for discrimination." DeWees, supra, 380 N.J. Super. at 523-24 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 133 S. Ct. 2742, 2751-52, 125 L. Ed.2d 407, 422 (1993)); see also Zive, supra, 182 N.J. at 449. It is important to note that the employee's personal disagreement with the employer's determination of its needs or assessment of the employee's performance is insufficient to prove pretext, as is the employee's subjective disagreement (or conclusory statement) in raising an issue regarding the employer's credibility. Pepe v. Rival Co., 85 F. Supp.2d 349, 379 (D.N.J. 1999), aff'd, 254 F.3d 1078 (3d. Cir. 2001); Retter v. Georgia Gulf Corp., 755 F. Supp. 637 (D.N.J. 1991), aff'd, 975 F.2d 1551 (3d Cir. 1992); Swider v. HA-LO Indus., 134 F. Supp.2d 607 (D.N.J. 2001). "The ultimate burden of proof always remains with the plaintiff." DeWees, supra, 380 N.J. Super. at 524 (citing St. Mary's, supra, 509 U.S. at 518, 113 S. Ct. at 2753, 125 L. Ed. 2d at 423).

"'[T]o prove pretext . . . a plaintiff must do more than simply show that the employer's [proffered legitimate, non-discriminatory] reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent.'" El-Sioufi, supra, 382 N.J. Super. at 173 (quoting Viscik, supra, 173 N.J. at 14 (2002)). The plaintiff

must submit evidence that either casts sufficient doubt upon the employer's proffered legitimate reason so that a factfinder could reasonably conclude it was fabricated, or that allows the factfinder to infer that discrimination was more likely than not the motivating or determinative cause of the termination decision.

[Ibid. (quoting Svarnas v. AT&T Commc'ns, 326 N.J. Super. 59, 82 (App. Div. 1999)).]

"To discredit the employer's proffered reason . . . the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). Rather, the plaintiff must submit evidence to "allow a factfinder to reasonably infer" that the employer's articulated, nondiscriminatory reason "was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext)." Id. at 764.

Here, plaintiffs contend that age was the reason PCC eliminated their positions. Defendants counter that economic necessity was the reason, and that PCC terminated Attanasio for insubordination. Citing Murray v. Newark Housing Authority, 311 N.J. Super. 163 (Law Div. 1998), plaintiffs respond that even if economic necessity was the reason, defendants failed to meet the additional requirement that they proffer a legitimate, nondiscriminatory reasons for selecting them instead of Tolomeo and Werb-Picchione, who assumed their duties.

Plaintiffs misapply Murray. There, budgetary considerations required the lay-off of provisional employees. Id. at 176. The employer randomly selected plaintiffs, who were three out of six provisional employees, without explaining the means by which it made the selection. Ibid. Here, PCC did not randomly select plaintiffs' positions for elimination. It made the selection only after reviewing and accepting Gugliuzza's long-term reorganization and cost-cutting study. Also, PCC fully explained the means by which it made its decision to eliminate plaintiffs' positions and to retain Tolomeo and Werb-Picchione. Accordingly, we are satisfied that defendants have met the additional requirement Murray imposed.

The question then is whether plaintiffs have created a genuine issue of material facts that defendants' proffered reason for eliminating their positions was pretext, and that age discrimination was more likely than not a motivating or determinative cause. Plaintiffs contend that their circumstantial evidence permits an inference that age motivated the decision to eliminate their positions. We disagree.

"The Third Circuit . . . established the standard, on a motion for summary judgment, for determining whether a plaintiff alleging discrimination has produced sufficient evidence to rebut the employer's alleged legitimate reason for its adverse action[,]" which New Jersey has "adopted and consistently applied[.]" DeWees, supra, 380 N.J. Super. at 527-28 (citing Feuntes, 32 F.3d 761-62). The Fuentes court held that a plaintiff may defeat a summary judgment motion "by either (1) discrediting the proffered reasons, either circumstantially or directly, or (2) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Fuentes, 32 F. 3d at 764.

As to the first means of proof, the Fuentes court explained that:

the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,' . . . and hence infer 'that the employer did not act for [the asserted] non-discriminatory reasons.'

[Id. at 765 (internal citations omitted).]

Even affording plaintiffs all favorable inferences, and considering their circumstantial evidence, based upon our careful review of the record we are satisfied that no rational juror could possibly infer discriminatory intent in the elimination of their positions. For instance, plaintiffs rely heavily on the fact that they were two of PCC's oldest employees when PCC eliminated their positions and were each replaced by persons significantly younger. Furthermore, Stone contends that questions about when she planned to retire circumstantially permit one to infer discriminatory intent and that management was looking to eventually terminate her for a younger employee. Also, plaintiffs believe that defendants' denial that the elimination of their positions was in any way related to job performance, and failure to undertake any comparison of job skills between Attanasio and Tolomeo, permit a jury to infer discriminatory intent.

These facts and plaintiffs' arguments would be persuasive had there been any indication of discriminatory intent prior to the elimination of their positions. However, in the absence of such facts, and in light of the overwhelming evidence of PCC's struggling business, conceded even by plaintiffs, combined with evidence of Attanasio's insubordination and Stone's inability to adequately perform her job duties, no rational juror could infer that plaintiffs were unfairly targeted simply because of their age. The inquiry "must concern pretext, and is not an independent assessment of how we might evaluate and treat a loyal employee." Healy v. N.Y. Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir. 1988) (citing Thornbrough v. Columbus and Greenville R.R. Co., 760 F.2d 633, 647 (5th Cir. 1985)), cert. denied, 490 U.S. 1098, 109 S. Ct. 2449, 104 L. Ed.2d 1085 (1989).

Further, even if it could be inferred that Gugliuzza was "grooming" Tolomeo to advance in the organization and to eventually take Attanasio's job, there is no evidence that he did so because of Attanasio's age. Rather, Gugliuzza was focusing on the position, not the person, in his decision to eliminate Attanasio's position, and on PCC's organizational and cost-cutting needs. If PCC truly sought to terminate Attanasio because of her age, it would have simply done so initially rather than offer her a new position.

Contrary to plaintiffs' belief, the trial judge did not "weigh" any evidence presented on the motion. Rather, he correctly determined that viewing the evidence in a light most favorable to them, no rational jury could infer discriminatory intent in light of the evidence presented. Other than Gugliuzza's comments made to Stone about when she planned to retire, she has proffered no evidence from which a rational juror could reasonably infer that defendants' proffered reason was pretext and that more likely than not age was a motivating factor behind the elimination of her position. Conversely, it is undisputed that PCC's serious financial crisis forced cost reductions.

Likewise, Attanasio has proffered no evidence of discriminatory intent prior to being offered the Banquet Manager position or the severance package. There is no evidence demonstrating discriminatory intent or animus relating to age on PCC's or Gugliuzza's part. At most, Attanasio has alleged circumstantial evidence of age discrimination because a significantly younger employee, Tolomeo, assumed some of her Assistant Manager duties. However, this is a weak inference in light of Tolomeo's background and experience in food and restaurant management and in light of defendants' initial decision to split Attanasio's duties between her and Tolomeo rather than terminate her. Evidence shows that prior to her the elimination of her Assistant manager position, Attanasio could not increase banquet revenues, for which she was responsible`. Finally, evidence of Attanasio's conduct following her acceptance of the Banquet Manager position could reasonably be viewed by a rational jury as insubordination, and thus, nondiscriminatory grounds upon which PCC terminated her. Plaintiffs have the burden to cast doubt on defendants' legitimate non-discriminatory reasons, and without having put forth some evidence to do so, we will not disturb an otherwise valid business decision. Ezold, supra, 983 F. 2d at 527.

Having concluded that summary judgment was properly granted, we need not address plaintiffs' remaining contention that the judge erroneously dismissed Gugliuzza as an aider and abettor under N.J.S.A. 10:5-12(e). R. 2:11-3(e)(1)(E).

Affirmed.


Attanasio began her employment with PCC in 1988 as a waitress. She received promotions and eventually became the Assistant Manager in 2002.

Tolomeo earned an hourly wage prior to his promotion.

Attanasio claims that one of the waitresses denied making the statement and would testify at trial. However, Rule 1:6-6 and Rule 4:46-5(a) required Attanasio to submit a certification from this witness, which she did not do.

Attanasio has abandoned her gender discrimination claim.

PCC also terminated Duke DeCarlo, an eighty-year-old, long-time greens worker.

(continued)

(continued)

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June 18, 2009