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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2730-17T4






                    Submitted February 11, 2019 – Decided June 10, 2019

                    Before Judges Sumners and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Morris County, Docket No. L-2562-15.

                    Law Office of David H. Kaplan, LLC, attorneys for
                    appellant (David H. Kaplan, of counsel; Jeffrey Zajac,
                    on the brief).

                    Fisher & Phillips LLP, attorneys for respondent (David
                    B. Lichtenberg, of counsel; David J. Treibman, on the

      Plaintiff Craig Shrader appeals from the trial court's order granting

summary judgment in favor of defendants DataMotion Inc. ("DataMotion") and

Robert Janacek (collectively "defendants") in an age discrimination claim

brought pursuant to the New Jersey Law Against Discrimination,  N.J.S.A. 10:5-

1 to -42 ("LAD").        In May 2015, plaintiff's position at DataMotion was

eliminated as part of a reduction-in-force ("RIF"). However, plaintiff contends

that the RIF was a pretext for discrimination and that he was actually fired due

to age bias. The trial court granted summary judgment to DataMotion. On

appeal, plaintiff argues there are several issues of material fact that would

support a jury finding DataMotion's claim that the decision to fire him was a

legitimate part of a RIF was, in fact, a pretext for discrimination on the basis of

age. In light of the competent evidence in the record, and the prevailing legal

principles, we affirm.

      We derive the following facts from the record. DataMotion is a privately

held corporation, which was founded by Mahesh Muchhala and defendant

Janacek in 1999.     DataMotion is in the business of moving sensitive data

securely between trading partners using encryption software. Muchhala is the

President of the company and during the relevant time, Janacek was Chief

Technology Officer ("CTO"). From 2008 through 2013, Robert Bales was a

shareholder and a member of the company's Board of Directors. In or about late

2012 or early 2013, Bales also became CEO.

        In December 2012, Muchhala, Bales, and Janacek decided to "staff ahead

of cash flow," expanding the company by hiring more employees in order to

enter the electronic medical records market.         As a result, during 2013,

DataMotion's workforce expanded from approximately twelve employees to

about thirty-five.

        Among those hired in the expansion was plaintiff, who on August 12,

2013, began his employment with DataMotion as Vice President of Technical

Operations and Support, reporting to Janacek. Plaintiff, who was born February

23, 1953, was sixty years old when Janacek hired him. 1 Janacek decided to

create plaintiff's position to facilitate the company’s attempt to obtain more

"enterprise customers" (i.e. large companies whose employees number in the

thousands and that have formal structures).

        Janacek interviewed and hired plaintiff because he had the skill set

Janacek was looking for:       significant enterprise, security, and compliance

experience, and the capability of overseeing support and operations. Prior to

    Janacek was forty-eight years old when he hired plaintiff.
hiring plaintiff, Janacek had performed those functions, except for compliance,

which had been handled by technical writer John Irwin.

      Plaintiff oversaw DataMotion's support and operations department.

Plaintiff's role was to support enterprise customers. He did not make the sales,

but could be involved in supporting the sales team. Plaintiff's job was not

technical, rather he had oversight of a team that included technical experts like

Matthew Signorello.

      Signorello, an employee in his thirties, began working for DataMotion in

April 2013, several months before plaintiff did. He took the "natural lead" of

both the operations and support aspects of plaintiff's department, having day-to-

day responsibility for both operations oversight and customer support. Plaintiff

noted that Signorello "gave his heart and soul for the company making

customers [and] addressing customer problems" in a timely and effective


      Signorello was "an architect engineer of the" software on which

DataMotion's business was based.      He oversaw the hardware and software

installations for both DataMotion and its customers and worked with around

seventy electronic health record companies, which constituted a "big part" of

DataMotion's growth.      Signorello also functioned as a "presales system

engineer," providing technical support to salespeople.

      DataMotion operated at a deficit beginning in 2008.         At that time,

Muchhala, Bales, and Janacek decided they wanted to "grow the company" with

the ultimate goal of selling it, and financed its growth with funds from outside

investors. They expected the company to operate at a deficit for about three

years, at which point revenues would exceed expenses; but by the end of 201 2

that had not happened.

      DataMotion's "staffing ahead" started in 2013 and continued throughout

plaintiff's employment. As a result of the financial situation, within two months

after plaintiff began working for DataMotion, the company imposed a salary

reduction, with plaintiff's starting salary of $150,000 being reduced twenty

percent. However, within a few weeks, plaintiff's full salary was restored, and

he was fully reimbursed for the short-lived reduction.

      In the middle of 2014, the company announced there would be a shortfall

in revenue, and that the salaries of employees at the Vice Presidential level and

above, including plaintiff and seven others, would be reduced. Plaintiff's salary

was again cut twenty percent, and this reduction lasted about three or four

months.   When salaries were restored, the company was unable to offer a


      The company's financial troubles continued into 2015. The management

team, Muchhala, Bales, and Janacek, were considering all options for reducing

expenses. Early in the year they implemented a hiring freeze, then another round

of twenty percent salary reductions, which affected "the entire executive team

and the sales team," including, among others, Muchhala, Bales, and Janacek, as

well as plaintiff. Bales and Janacek instructed plaintiff to "reduce expenses in

any way possible." In short, DataMotion "did just about everything we could to

reduce cost[s] short of letting people go," but "[w]e finally got to a point where

it was clear we needed to trim staff," and ultimately decided that a "downsizing"

was necessary.

      Muchhala, Bales, and Janacek decided that DataMotion needed to reduce

payroll by approximately $400,000 while still maintaining current operations.

Janacek, who had hired plaintiff, made the decision to include plaintiff's position

in the RIF upon being "asked by Mr. Bales to look at the department and see

how we can still run effectively and save cost."

      Plaintiff's position was chosen for the downsizing for several reasons:

First, plaintiff's position had been created primarily to facilitate DataMotion's

attempt to obtain and service enterprise customers. However, the anticipated

"enterprise sales didn't materialize." Plaintiff admitted that "we looked at a

professional services capability that would generate revenues, and unfortunately

the results of those efforts were not significant and did not come in a time that

would make a difference for the reduction in force."

      Second, before Janacek hired plaintiff, he had handled enterprise

customers, security, and the oversight of support and operations, and Irwin had

handled compliance. Thus, the two of them could reabsorb the functions of

plaintiff's position.

      Third, plaintiff, unlike the other three Vice Presidents, did not do any

hands-on work. He "was the only one that was doing primarily management

functions as opposed to doing management plus part of the job, so we felt like

we could replace him with existing people."

      Plaintiff acknowledges the reasoning in choosing his position for the

downsizing, testifying: "I believe there were two things at play. One is that I

was a highly paid senior person, and I believe they no longer needed my value -

added experience and background, and they felt that they could operate their

company with less qualified individuals."

      By mid-April 2015, Muchhala, Bales, and Janacek had decided that four

employees would be terminated in the downsizing: plaintiff; two salespeople,

Ali Kizar, aged forty-nine, and Tracy Huff, aged forty-seven; and a quality

assurance employee, Gregory Zuvich, aged forty-five.

      DataMotion's downsizing accomplished its objective of reducing payroll

by $400,000 per year. Based on their year-to-date earnings as of May 31, 2015, 2

plaintiff's salary was $136,400.04 per year, Kizar’s was $88,247.88 per year,

Huff’s was $81,733.80 per year, and Zuvich’s was $90,000 per year, for a total

of $396,381.72.

      After plaintiff's termination, he was not replaced.          Instead, his

responsibilities were primarily reabsorbed by Janacek and Irwin, with the

balance being distributed to other DataMotion employees in plaintiff's

department, including systems engineers Jeremy Kessous and Tom O'Reilly, and

operations and support employee Signorello.

      On October 26, 2015, plaintiff filed his complaint against defendants.

After defendants filed a motion for summary judgment, the trial court heard oral

argument and granted the motion.

 The effective date of the terminations of all except Zuvich was May 31, 2015.
Zuvich's last official day was May 29, 2015.
      The trial court's decision rested on the finding that plaintiff was unable to

state a prima facie claim of age discrimination under the LAD. The trial court

noted that nothing in the record supported plaintiff's contentions that the

decision to eliminate his position had anything to do with age. The trial court

further noted that plaintiff's opposition was based primarily on his own

deposition testimony and his counsel's certifications. The trial court further

found that even if plaintiff could establish a prima facie case, DataMotion

provided numerous legitimate, non-discriminatory reasons for the elimination

of plaintiff's position, which plaintiff failed to rebut.

      On appeal, plaintiff argues that the trial court erred by granting

DataMotion's motion for summary judgment because he established a prima

facie case of age discrimination. Although we agree that plaintiff established a

prima facie claim of age discrimination, on summary judgment, he was unable

to rebut DataMotion's legitimate, non-discriminatory business reasons for

eliminating his position.     Accordingly, we affirm the trial court's grant of

summary judgment to DataMotion.

      We review a grant of summary judgment de novo. Conley v. Guerrero,

 228 N.J. 339, 346 (2017) (citing Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh,  224 N.J. 189, 199 (2016)).

            [W]hen deciding a motion for summary judgment under
            Rule 4:46–2, the determination whether there exists a
            genuine issue with respect to a material fact challenged
            requires the motion judge to consider whether the
            competent evidential materials presented, when viewed
            in the light most favorable to the non-moving party in
            consideration of the applicable evidentiary standard,
            are sufficient to permit a rational factfinder to resolve
            the alleged disputed issue in favor of the non-moving

            [Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520,
            523 (1995).]

"[S]ummary judgment will be granted if there is no genuine issue of material

fact and 'the moving party is entitled to a judgment or order as a matter of law.'"

Conley,  228 N.J. at 346 (citing Templo Fuente,  224 N.J. at 199). We emphasize

that "conclusory and self-serving assertions by one of the parties are insufficient

to overcome [a summary judgment] motion[.]" Puder v. Buechel,  183 N.J. 428,

440-41 (2005) (citing Martin v. Rutgers Cas. Ins. Co.,  346 N.J. Super. 320, 323

(App. Div. 2002)).

      According to the LAD,

            It shall be an unlawful employment practice, or, as the
            case may be, an unlawful discrimination . . . [f]or an
            employer, because of the . . . age . . . of any individual
            . . . to discharge . . . or to discriminate against such
            individual in compensation or in terms, conditions or
            privileges of employment[.]

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

All workers over the age of eighteen are protected from age discrimination under

the LAD. Bergen Com. Bank v. Sisler,  157 N.J. 188, 214-15 (1999).

Prima Facie Case of Age Discrimination.

      "In a case alleging age discrimination under the LAD, an employee 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.'" Id. at 207 (alteration in original) (quoting Maiorino v. Schering-

Plough Corp.,  302 N.J. Super. 323, 344 (App. Div. 1997)). New Jersey courts

utilize the framework established in McDonnell Douglas Corp. v. Green,  411 U.S. 792 (1973) when a plaintiff attempts to "prove an employer's

discriminatory intent through circumstantial evidence."      Id. at 209.     "[T]o

successfully assert a prima facie claim of age discrimination under the LAD,

plaintiff must show that: (1) she was a member of a protected group; (2) her job

performance met the 'employer's legitimate expectations;' (3) she was

terminated; and (4) the employer replaced, or sought to replace, her." Nini v.

Mercer Cty. Comm. C.,  406 N.J. Super. 547, 554 (App. Div. 2009), aff'd  202 N.J. 98 (2010) (quoting Zive v. Stanley Roberts, Inc.,  182 N.J. 436, 450 (2005)).

      In RIF cases, such as the instant one, the prima facie elements are

modified. See Baker v. Nat'l State Bank,  312 N.J. Super. 268, 289 (App. Div.

1998). In Baker, the Appellate Division adopted the reasoning of Marzano v.

Comput. Sci. Corp., Inc.,  91 F.3d 497 (3d Cir. 1996) for age discrimination

claims under the LAD. Ibid.

            [In Marzano], the court noted that the Third Circuit
            Court of Appeals has relaxed the fourth prong of the
            prima facie case in the RIF situation, so that a plaintiff
            whose position was eliminated need not show that he or
            she was replaced, but must show that the employer
            retained someone outside the protected class. The court
            declined to impose the requirement of additional
            evidence because "[i]t would topple the complex
            evidentiary edifice constructed by the Supreme Court,
            and impose on plaintiff the very burden that McDonnell
            Douglas sought to avoid-that of uncovering a smoking
            gun," or producing direct evidence of discrimination.

            [Id. at 289-90 (citations omitted).]

      Unlike the trial court, we find that plaintiff has stated a prima facie case

of age discrimination. See Nini,  406 N.J. Super. at 554. It is undisputed that

plaintiff was a member of the protected class as he was sixty-two when his

position was eliminated. See ibid. It is also undisputed that plaintiff performed

his job adequately and was discharged from his employment. See ibid. Further,

plaintiff's job duties were split among the remaining employees in his former

department, including Signorello, who was outside the protected class, and the

Vice Presidents. See Baker,  312 N.J. Super. at 289-90. Accordingly, pursuant

to Marzano, plaintiff met his burden of establishing a prima facie case of age

discrimination. See ibid.

      However, this finding does not end our inquiry.

Legitimate Business Reason for Eliminating Plaintiff's Position.

      "Once an employee establishes a prima facie case, the employer must

'articulate some legitimate, non-discriminatory reason for the employee's

rejection.'" Erickson v. Marsh & McLennan Co.,  117 N.J. 539, 550 (1990);

Sisler,  157 N.J. at 210-11. "Where the employer produces such evidence, the

presumption of discrimination disappears." Sisler,  157 N.J. at 211 (citing St.

Mary's Honor Ctr. v. Hicks,  509 U.S. 502, 507-08 (1993)).

      Here, DataMotion established several legitimate, non-discriminatory

business reasons for eliminating plaintiff's position. See Erickson,  117 N.J. at
 550. When DataMotion was unsuccessful in utilizing hiring freezes and salary

reductions to increase profit, it decided to eliminate several positions that would

not require hiring or training new employees.

      Plaintiff's position was selected for several legitimate business reasons.

First, he did not deal with day-to-day operations of the company, unlike the other

Vice Presidents. Thus, plaintiff's job responsibilities were such that they could

be absorbed by other Vice Presidents or employees. In that regard, most of his

job responsibilities were reabsorbed by Janacek and Irwin, who performed the

job prior to plaintiff's hire. In addition, plaintiff was hired because DataMotion

wanted to gain new enterprise clients, but the attempt to gain to new clients was


      The record reveals that plaintiff denied several of DataMotion's stated

reasons for eliminating his position. However, plaintiff offers no evidence to

support his denials, and plaintiff's own deposition testimony confirms

DataMotion's motivations. Moreover, plaintiff acknowledged that there were

legitimate business reasons for eliminating his position, including that

DataMotion "no longer needed [his] value-added experience and background."

As "conclusory and self-serving assertions by one of the parties are insufficient

to overcome [a summary judgment] motion," plaintiff's bald denials are not

enough to rebut DataMotion's legitimate business reasons for eliminating his

position. See Puder,  183 N.J. at 440.

      Furthermore, plaintiff's contentions that Signorello was retained instead

of him because of plaintiff's age are without merit. Signorello was heavily

involved in DataMotion's day-to-day operations and was a large part of

DataMotion's growth. While plaintiff primarily possessed management skills,

and did not have hands-on day-to-day responsibilities, Signorello was a

"natural" leader within plaintiff's department.    Plaintiff also concedes that

Signorello "gave his heart and soul for the company."

      Thus, as plaintiff did not meet his burden in refuting defendants' stated

non-discriminatory, legitimate business reasons for eliminating his position, we

conclude that the trial court correctly granted summary judgment to defendants.

See Sisler,  157 N.J. at 210-11.

      To the extent any arguments are not addressed herein, they are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).



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