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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2210-20






                   Submitted February 17, 2022 – Decided March 1, 2022

                   Before Judges Haas and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Somerset County, Docket No. L-0981-20.

                   Costello & Mains, LLC, attorneys for appellant
                   (Deborah L. Mains, on the brief).

                   Ogletree, Deakins, Nash, Smoak & Stewart, PC,
                   attorneys for respondent (Mark Diana and Jocelyn A.
                   Merced, on the brief).

        Plaintiff Charles Lacey appeals from the Law Division's March 5, 2021

order granting defendant PS&S's motion to dismiss his complaint for failure to

state a cause of action. We reverse.

        Defendant employed plaintiff for thirty-three years. During this time,

plaintiff worked in at least four different departments. On January 11, 2019,

defendant's president told plaintiff "there was no work and today was his last


        After defendant fired plaintiff, he filed a complaint alleging defendant

terminated him because of his age in violation of the Law Against

Discrimination (LAD),  N.J.S.A. 10:5-1 to -50. In order to adequately plead a

cause of action for age discrimination under the LAD, a plaintiff must assert he

(1) is in the protected class; (2) was performing the job at a level that met the

employer's legitimate expectations; and (3) was nevertheless discharged; and

that (4) the circumstances surrounding the discharge support an inference of

discrimination based on his age. See Young v. Hobart West Group,  385 N.J.

Super. 448, 463 (App. Div. 2005); Williams v. Pemberton Twp. Pub. Schs.,  323 N.J. Super. 490, 498 (App. Div. 1999).

        In his complaint, plaintiff asserted he was sixty-three years old; had

"worked up to or beyond [defendant's] reasonable expectations"; and was

terminated. As to the fourth element, plaintiff stated defendant's "reason for his

termination [was] pretext [to cover defendant's discriminatory intent] because

[d]efendant continued to hire younger individuals for various jobs after his"


      Defendant filed a motion to dismiss plaintiff's complaint under Rule 4:6-

2(e), and alleged plaintiff's complaint "contain[ed] no facts to suggest that his

age played any role whatsoever in his termination." The trial court agreed with

defendant and dismissed plaintiff's complaint without prejudice.

      The court found the complaint included sufficient facts to meet the first

three elements of a prima facie case of age discrimination. However, the court

found the pleading did not adequately explain plaintiff's assertion that the

circumstances surrounding the discharge supported an inference of age

discrimination. The court stated the complaint was deficient because "[p]laintiff

does not allege that [d]efendant made age-related remarks to him or others; that

[d]efendant has a pattern of discriminating against older workers; that he was

replaced by a substantially younger employee; or make any other allegations

that might suggest age discrimination occurred."

      In order to address these deficiencies, plaintiff filed an amended

complaint. In this pleading, plaintiff stated defendant sought employees to fill

"multiple" positions after it claimed it discharged plaintiff for lack of work.

Plaintiff asserted he "was qualified for the jobs indicated in the [job] postings"

and yet, defendant "hire[d] younger individuals" for these positions. Plaintiff

also alleged that after his dismissal, a co-worker told him that "a member of

[defendant's] upper management" stated "that the company wanted to go forward

with younger people."     Plaintiff asserted these circumstances supported an

inference of age discrimination.

      Defendant filed a motion to dismiss plaintiff's amended complaint and

again argued plaintiff failed to plead sufficient facts to satisfy the fourth prong

of a prima facie case of age discrimination. The trial court agreed and granted

defendant's motion, this time with prejudice.

      In its March 5, 2021 decision, the court ruled that plaintiff's statement that

the company "wanted to go forward with younger people" after terminating

defendant, did "not necessarily raise an inference of unlawful discrimination or

that age made a difference in [p]laintiff's treatment by [his] employer." In

addition, the court found that because plaintiff did not apply for any of the

positions that defendant sought to fill after his discharge, he could not use these

job postings to support his claim that defendant falsely claimed it had no work

for him.

      On appeal, plaintiff asserts he "stated a viable claim for relief under the"

LAD and that the trial court erred by dismissing his complaint. We agree.

      "The standard traditionally utilized by courts to determine whether to

dismiss a pleading for failure to state a claim on which relief may be granted is

a generous one."    Green v. Morgan Props.,  215 N.J. 431, 451 (2013). In

assessing a Rule 4:6-2(e) motion, courts should view the complaint indulgently,

assume the truthfulness of the allegations in the complaint, and afford the

complainant every reasonable inference. NCP Litig. Trust v. KPMG LLP,  187 N.J. 353, 365 (2006).

      A court's inquiry at such an early stage in the proceedings is limited to the

adequacy of the pleadings, not the complaining party's ability to prove its

allegations. See Printing Mart-Morristown v. Sharp Elecs. Corp.,  116 N.J. 739,

746 (1989). To this end, a court should search "the complaint in depth and with

liberality to ascertain whether a fundament of a cause of action may be gleaned

even from an obscure statement of claim . . . ." Ibid. (quoting Di Cristofaro v.

Laurel Grove Mem'l Park,  43 N.J. Super. 244, 252 (App. Div. 1957)).

      In reviewing a Rule 4:6-2(e) dismissal, we employ the same standard as

that applied by the trial court. Donato v. Moldow,  374 N.J. Super. 475, 483

(App. Div. 2005). We "assume the facts as asserted by plaintiff are true," and

we give the plaintiff "the benefit of all inferences that may be drawn." Banco

Popular N. Am. v. Gandi,  184 N.J. 161, 166 (2005) (quoting Velantzas v.

Colgate-Palmolive Co.,  109 N.J. 189, 192 (1988)). Dismissal is appropriate

only if "the complaint states no basis for relief and discovery would not provide

one." Ibid.

      Applying these principles, we are satisfied plaintiff pled sufficient facts

to withstand a motion to dismiss under Rule 4:6-2(e). Defendant conceded

plaintiff satisfied the first three elements of a prima facie case of age

discrimination under the LAD. Contrary to the trial court's determination,

plaintiff also clearly met the requirements of the fourth prong.

      In his amended complaint, plaintiff alleged one of defendant's leaders

commented "that the company wanted to go forward with younger people." The

executive made this remark shortly after defendant terminated plaintiff. At this

stage of the proceedings, we are required to accept this statement as true. In

addition, plaintiff alleged defendant hired younger people to fill "multiple"

positions after it fired plaintiff. Defendant's job actions belied its president's

claim "there was no work" at the company and supported plaintiff's allegation

that this claim was a pretext for age discrimination.

      In sum, plaintiff included facts in his amended complaint which cured the

deficiencies the trial court identified in his initial pleading. Viewed indulgently,

and assuming the truth of plaintiff's allegations, the additional circumstances

plaintiff laid out in the amended complaint were sufficient to support an

inference of age discrimination. Because plaintiff pled all four elements of a

prima facie case of age discrimination, the court should not have dismissed

plaintiff's complaint for failure to state a claim under Rule 4:6-2(e).

      Reversed and remanded for further proceedings.            We do not retain



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