JOSE YEPEZ v. CUSTOM CHEMICALS CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2010-08T32010-08T3

JOSE YEPEZ, LUIS BARBOSA, and

JORGE E. GAMARRA,

Plaintiffs-Appellants,

v.

CUSTOM CHEMICALS CORPORATION,

Defendant-Respondent,

and

PRODUCTION MAINTENANCE AND

ALLIED WORKERS-LOCAL UNION NO.

418,

Defendant.

_______________________________

 

Submitted August 25, 2009 - Decided

Before Judges Sabatino and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket Nos. L-4801-06 and L-0162-07.

Aslan T. Soobzokov, attorney for appellants.

Daly, Lamastra & Cunningham, attorneys for respondent (M. Elizabeth Duffy, on the brief).

PER CURIAM

This is an age discrimination case brought under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -42, by three former employees of a manufacturing company that laid them off as part of a seniority-based reduction in force. The Law Division granted the employer summary judgment. The employees appeal, and we affirm.

These are the salient facts. Defendant, Custom Chemicals Corporation, is a company that manufactures color products used in the vinyl industry. As of January 2005, defendant had thirty-six employees within a collective bargaining unit represented by Local 418 of the Teamsters labor union.

The three plaintiffs in this matter were all employees of defendant and members of the union. Plaintiff Jose Yepez worked for the company in its "Tank Room" in a position known as a "batcher" or a "batchmaker." In that job function, Yepez and other batchers weighed and loaded batches of material, recorded information on batch cards, and maintained the batching equipment. Plaintiff Luis Barbosa was also a batcher. The third plaintiff, Jorge Gamarra, operated equipment known as a "Pulverizer."

Due to a decline in production, in the early part of 2005, defendant underwent a major layoff of its workforce. The layoff resulted in termination of about thirty percent of the union members. In making those layoffs, the company was bound to follow seniority-based "bumping" procedures specified in its collective bargaining agreement with Local 418. In particular, the agreement required that if layoffs became necessary, "the reduction in force shall be initiated with the job classification in which there are surplus employees, in reverse seniority." (Emphasis added). Additionally, a union member identified for layoff had the right, upon certain conditions, to "bump" a less senior employee. Specifically, a more senior employee about to be laid off "shall be entitled to exercise his [or her] seniority in any other [job] classification for the same pay level or lower pay level, provided he/she has the present ability and willingness to perform the work of his/her new classification with normal efficiency." (Emphasis added).

Consistent with these provisions, on March 4, 2005, defendant's plant manager notified all three plaintiffs that they were being laid off. In response, Yepez attempted to exercise his bumping rights by trying to displace a less-senior employee who operated the blending equipment in the so-called "Chip Room." However, when he attempted to perform those duties in the Chip Room "with normal efficiency" in the presence of the plant manager and his union shop steward, Yepez was unable to do so. Similarly, Barbosa tried to bump a less-senior batcher on a different shift, but he failed to demonstrate that he could perform that employee's duties, which included the operation of a forklift. Gamarra, meanwhile, declined the opportunity to try to bump a less-senior worker. All three plaintiffs were paid retirement benefits.

Yepez, Barbosa, and Gamarra all perceived that they had been singled out for discharge because of their ages. At the time of their layoffs, Yepez was age 62, Barbosa was age 67, and Gamarra was age 57. Plaintiffs also were under the impression that the company eventually back-filled their respective positions with younger workers, several months after they were laid off.

All three plaintiffs filed grievances with their union seeking redress. When the union declined to take action on their behalf, plaintiffs retained common counsel and filed a joint action against the company in the Law Division. Their complaint alleged that they had been selected for layoff based upon their ages, in violation of the LAD. The company, in defending the lawsuit, argued that the layoffs had been necessitated by economic factors, and that it simply had followed the seniority-based layoff procedures prescribed by the collective bargaining agreement.

Discovery ensued and plaintiffs were deposed. During their depositions, plaintiffs were unable to identify the names or ages of any younger workers who had allegedly filled their positions, or who were otherwise treated more favorably. Although Yepez and Barbosa admitted that they were afforded a chance to demonstrate an ability to perform the job functions of a less senior employee, they contended that the bumping process was a "sham" because they were not trained on how to perform those alternative functions.

Following discovery, defendant moved for summary judgment, arguing that there is no genuine issue that the manner in which it conducted the layoffs violated the LAD. The motion judge agreed, and entered an order dismissing the claims of all three plaintiffs.

Plaintiffs appeal, arguing that summary judgment was improvidently granted and that the trial court's order represents a miscarriage of justice.

Viewing the record, as we must, in a light most favorable to plaintiffs, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (applying the same summary judgment standards on appeal as in the trial court), we agree with the Law Division that there is no genuine issue of material fact raised here as to defendant's potential liability for age discrimination under the LAD. Consequently, we affirm the order appealed from, substantially for the cogent reasons set forth in Judge Garry Rothstadt's letter opinion of November 21, 2008.

Only a few comments are in order. We recognize that, where a proper factual showing is made, a New Jersey employer may be held liable under the LAD for discriminatory treatment of employees based upon their ages. See, e.g., Erickson v. Marsh & McLennan Co., 117 N.J. 539, 551 (1990). However, our Supreme Court has also recognized that job actions with allegedly discriminatory impacts, which are predicated upon a bona fide seniority system, do not violate the LAD. See Bergen Commercial Bank v. Sisler, 157 N.J. 188, 220 (1999) (citing State v. State Supervisory Emp. Ass'n, 78 N.J. 54, 84-86 (1978)); N.J.S.A. 10:5-2.1). In fact, in State Supervisory Emp. Ass'n, supra, the Court acknowledged the validity of civil service laws that included "bumping" rights as part of the written layoff procedures. 78 N.J. at 84-86.

Here, plaintiffs raised no genuine issue of material fact to establish age discrimination by defendant in utilizing a reverse seniority-based sequence for designating workers to be laid off. Indeed, the seniority system would generally operate to the advantage of older workers such as plaintiffs. In this case, the financially-driven layoffs were so deep, at a magnitude of thirty percent of the unionized workforce, that even older employees such as plaintiffs unfortunately could not be spared.

Plaintiffs have failed to demonstrate that the company did anything but follow the letter of its collective bargaining agreement in making the layoffs. Moreover, their allegations that the company eventually replaced them with younger workers were not substantiated with any names, ages or other necessary details. A litigant cannot forestall summary judgment based upon mere conjecture or "ipse dixit" accusations lacking evidentiary support. Heljon Management Corp. v. Dileo, 55 N.J. Super. 306, 313 (App. Div. 1959).

Lastly, with respect to the issue of lack of training, there is no proof that, unlike their older counterparts, younger workers seeking to bump a less-senior employee were provided by the company with special training that would help them attain competency in a new position. The record contains no evidence that training was provided or withheld in a preferential manner tied to age.

Although we appreciate the personal hardships that these layoffs undoubtedly produced, we discern no basis to set aside the trial court's dismissal of plaintiffs' LAD claims.

 
Affirmed.

(continued)

(continued)

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A-2010-08T3

September 1, 2009