CASERTA v. INTERCALL, INC.
OPINION. Signed by Judge Noel L. Hillman on 4/6/2016. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CIVIL NO. 13-7790(NLH)(KMW)
MATTHEW S. WOLF
MARISA JEAN HERMANOVICH
MATTHEW S. WOLF, ESQUIRE, LLC
B, 2ND FLOOR
1236 BRACE ROAD
CHERRY HILL, NJ 08034
On behalf of plaintiff
BRUCE S. ROSEN
MICHAEL ROBERT FUTTERMAN
MCCUSKER, ANSELMI, ROSEN & CARVELLI, PC
210 PARK AVENUE, SUITE 301
PO BOX 240
FLORHAM PARK, NJ 07932
JULIE SPRINGER (ADMITTED PRO HAE VICE)
TIMOTHY CLEVELAND (ADMITTED PRO HAE VICE)
WEISBART SPRINGER HAYES LLP
212 LAVACA STREET, SUITE 200
AUSTIN, TEXAS 78701
On behalf of defendant
HILLMAN, District Judge
This matter has come before the Court on defendant’s motion
for summary judgment on plaintiff’s claim that defendant violated
his rights under the New Jersey Law Against Discrimination when he
was terminated from employment due to his age. 1
For the reasons
set forth below, defendant’s motion will be granted.
In December 2011, plaintiff, Michael Caserta, was hired by
defendant, InterCall, Inc., as Vice President of Sales when
InterCall acquired plaintiff’s former employer, Stream57.
Plaintiff’s job as Vice President of Sales was to lead a newly
created pharmaceutical sales team in the events services branch.
Plaintiff was 61 years old when he was hired.
He was hired by
Michael Nessler, an Executive Vice President at InterCall, who was
52 years old.
In March 2012, plaintiff and his supervisor
promoted Brianna Elefant to Director of Event Services and Sales
as part of the same sales team.
Elefant was 30 years old.
By the end of 2012, sales were down significantly, and by
January 2013, Nessler decided to restructure the events services
Elefant, who has previously reported to plaintiff, was
moved to the “national account channel.”
Five other members of
the sales team who had been under plaintiff’s supervision were
transferred to the national account channel under Elefant’s
In March 2013, Nessler wanted to hire the former CEO of
Also pending is defendant’s motion to seal certain exhibits to
its motion. Because the Court finds that those documents meet
the requirements of Local Civil Rule 5.3(c)(2), defendant’s
motion to seal will be granted.
Stream57, and he determined that he needed the funds from
plaintiff’s position, as well as another employee’s position, in
order to pay the salary of the new hire.
Nessler determined that
he was going to eliminate plaintiff’s position, but he offered
plaintiff the option of staying with the company as a sales agent.
Plaintiff declined the sales agent role, and he was terminated
from InterCall on May 31, 2013.
Plaintiff was 63 years old.
Plaintiff claims that defendant terminated him from
employment and replaced him with Elefant, who was more than 30
years younger than him.
Defendant contends that the
pharmaceutical sales team was restructured, plaintiff’s entire
position was eliminated as a part of that restructuring, and
Elefant’s transfer to the national accounts channel was simply a
continuation of the same position she held in the events services
In response, plaintiff contends that defendant’s
“restructuring” argument is a ruse to cover up defendant’s desire
to replace plaintiff with a younger individual, which is evidenced
by the fact that Elefant assumed plaintiff’s role, including the
supervision of the same sales representatives that had been under
plaintiff’s supervision, and that Elefant’s “new” position was
never posted for other applicants as required by company policy.
Defendant has moved for summary judgment, arguing that no
material facts exist to disprove that (1) plaintiff was not
replaced by a younger person, and (2) age had no bearing on
defendant’s staffing decisions.
Plaintiff argues that disputed
material facts abound on these two issues.
Defendant removed this action from New Jersey state court to
this Court pursuant to 28 U.S.C. § 1441.
This Court has
jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because
there is complete diversity of citizenship between the parties and
the amount in controversy exceeds $75,000.
Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied
that “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ.
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A fact is “material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
In considering a motion for summary judgment, a
district court may not make credibility determinations or engage
in any weighing of the evidence; instead, the non-moving party's
evidence “is to be believed and all justifiable inferences are to
be drawn in his favor.”
Marino v. Industrial Crating Co., 358
F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp. v.
Once the moving party has met
this burden, the nonmoving party must identify, by affidavits or
otherwise, specific facts showing that there is a genuine issue
Thus, to withstand a properly supported motion
for summary judgment, the nonmoving party must identify specific
facts and affirmative evidence that contradict those offered by
the moving party.
Anderson, 477 U.S. at 256-57.
A party opposing
summary judgment must do more than just rest upon mere
allegations, general denials, or vague statements.
Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
In order to successfully assert a prima facie claim of age
discrimination under the NJLAD, a plaintiff must show that (1) he
was a member of the protected class; (2) he was performing the job
at the level that met the employer's legitimate expectations; (3)
he was discharged; and (4) the employer sought another to perform
the same work after the complainant had been removed from the
Maiorino v. Schering-Plough Corp., 695 A.2d 353, 364-65
(N.J. Super. App. Div.) cert. denied, 152 N.J. 189 (1997)
Once the plaintiff establishes a prima facie
case, a presumption is created that the employer unlawfully
discriminated against the applicant.
The burden then shifts to the defendant employer.
to rebut the presumption of discrimination, an employer must
articulate a legitimate, nondiscriminatory reason for the adverse
The defendant employer, however, only carries
the burden of production, rather than persuasion, to show a
legitimate, nondiscriminatory reason for its action: “It is
sufficient if the defendant's evidence raises a genuine issue of
fact as to whether it discriminated against the plaintiff.”
After the defendant employer has sufficiently set forth a
legitimate, nondiscriminatory reason for the adverse employment
action, the plaintiff then has the burden of persuasion to show
that the defendant's proffered reason is merely a pretext, i.e.
that it was not the true reason for the employment decision. Id.
A plaintiff may accomplish this by showing
that (1) a discriminatory reason more likely motivated the
employer than the employer's proffered legitimate reason, or (2)
the defendant's proffered explanation is “unworthy of credence.”
Id. (citation omitted).
In this case, the parties focus a great deal of their
attention on whether plaintiff was replaced in his position by
Elefant, or whether Elefant maintained her equivalent position
after her transfer and simply took on extra duties as a result of
the restructuring of the pharma team.
Plaintiff argues that
defendant is using semantics to mask its discriminatory motive:
that “restructuring” is really another term for “replacing.”
Defendant argues that both plaintiff and Elefant retained their
same titles and salaries after the dismantling of the pharma team,
and it was not until after the restructuring that plaintiff
continued to produce insufficient sales and Nessler sought to hire
a new employee to generate more business.
Defendant argues that
is therefore impossible for Elefant to have “replaced” plaintiff
in a position that plaintiff still held after the restructuring.
The answer to whether plaintiff was “replaced” or
“restructured” could go either way, and it would not affect
plaintiff’s ultimate burden of proof to prove his age
The focus instead must be on whether age,
as a prohibited consideration, played a role in the decisionmaking process and had a determinative influence on the outcome.
Reynolds v. The Palnut Company, 748 A.2d 1216 (N.J. App. Div.
A New Jersey Appellate Division case explains the proper
focus in an age discrimination case similar to the one here:
Consistent with our case law, we can certainly conceive of
circumstances in evaluating an age discrimination claim where
the fourth prong can be satisfied when an employer eliminates
an employee's position, discharges that employee, and then
redistributes that employee's work among existing younger
employees. However, the simple distribution of a terminated
employee's work among existing employees, who may be younger,
by itself, does not rise to the level of a prima facie
showing that the discharge was because of age, and thus
unlawful. That is so because the issue is not whether the
protected individual is replaced by a new employee, or
whether existing employees assume the work following his or
her departure; rather, the issue to be decided in evaluating
the fourth prong requirement of a prima facie case is whether
the adverse employment action took place under circumstances
that give rise to an inference of unlawful discrimination. In
addressing that issue, the motion court must review, evaluate
and weigh the entire record presented to determine whether an
inference of unlawful discrimination exists.
Winkel v. Spencer Gifts, L.L.C., No. A-1343-08T1, 2010 WL
6090, at *8 (N.J. Super. Ct. App. Div. Jan. 4, 2010) (citation
omitted) (finding that “[t]ermination at age fifty-seven by itself
is an insufficient basis to formulate an inference of
discriminatory intent. There must be some showing that the
prohibited consideration of age played a role in the employment
Thus, even accepting as true that defendant “replaced”
plaintiff with Elefant, a person more than 30 years younger, in
order to survive summary judgment plaintiff must provide facts,
beyond Elefant’s age, to show that defendant’s actions were
motivated by his age.
In short, plaintiff must provide facts to
show that they replaced him because he was 63 years old. 2
Plaintiff has failed to do so.
The entirety of plaintiff’s proof regarding his age
discrimination claim is: (1) he was replaced by a 30 year old, (2)
his belief that the InterCall employees conspired to contrive the
“restructuring” and poor performance story as a cover-up, and (3)
Nessler and Human Resources employee, Daniel Veytsman, discussed
plaintiff’s age in the context of “risk” during the restructuring.
Defendant does not instantly win if plaintiff had not been
replaced by a younger person, although that finding would be
placed on the side of the scale that suggests lack of
discriminatory motive. See Williams v. Pemberton Twp. Pub. Sch.,
733 A.2d 571, 578 (N.J. Super. App. Div. 1999) (“Under this
approach, a showing that a plaintiff was replaced by an individual
outside the protected class could support an inference of unlawful
discrimination. Similarly, a plaintiff who was replaced by an
individual within the protected class but could show other
circumstances indicating unlawful discrimination would not be
unfairly precluded from presenting a case.”).
None of these arguments rebuts defendant’s business reasons for
Plaintiff has not provided any proof to refute that the
entire pharma team was restructured, or that plaintiff’s sales
were more than 50% off target, or that a new hire required funds
from plaintiff’s and another co-worker’s positions.
had been 63 years old, these three events would still have
Moreover, when HR noted plaintiff’s age to assess
“risk,” the HR employee stated that plaintiff’s age was discussed
in the context of ensuring that decisions were made for strictly
business purposes and not for any discriminatory purpose, such as
race, sex, or age.
(Veytsman Dep. at 38.)
It would be unfairly
ironic that a business could not discuss the protected status of
an employee to prevent discrimination in the workplace for fear of
a discrimination lawsuit based on the fact that the employee’s
protected status was discussed.
To carry his ultimate burden of persuasion, plaintiff must
show that (1) a discriminatory reason more likely motivated the
employer than the employer's proffered legitimate reason, or (2)
the defendant's proffered explanation is unworthy of credence.
Plaintiff has failed to make either showing.
Overall, there is
nothing in the record that shows that defendant exhibited
hostility towards plaintiff’s age.
claim for age discrimination in violation of the NJLAD fails, and
summary judgment must be entered in defendant’s favor.
For the foregoing reasons, defendant is entitled to summary
judgment in its favor on plaintiff’s age discrimination claim.
appropriate Order will be entered.
Date: April 6, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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