BRADEN v. LOCKHEED MARTIN CORPORATION
OPINION FILED, Re: 91 Letter, 90 Letter. Signed by Judge Renee Marie Bumb on 1/26/17. (js)
NOT FOR PUBLICATION
[Dkt. No. 90, 91]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 14-4215
LOCKHEED MARTIN CORP.,
BUMB, UNITED STATES DISTRICT JUDGE:
THIS MATTER comes before the Court upon briefs filed by
both parties concerning the issue of the proper jury instruction
to be given at the conclusion of the trial.
The Court outlines
below its analysis of the issue raised by the parties concerning
the proper causation standard under NJLAD claims.
The events giving rise to this case are known by the
parties, and the Court does not go into detail here.
Plaintiff Robert Braden (“Plaintiff”) asserts that Defendant
Lockheed Martin Corp. (“Defendant”) discriminated against him on
the basis of his age.
Defendant denies these allegations and
asserts that Plaintiff was selected for layoff in connection
with a reduction in force in 2012 that was based on legitimate
(Prop. Jt. Prelim. St. of Case [Dkt. No.
Plaintiff brings two causes of action for age
discrimination, one under the New Jersey Law Against
Discrimination (“NJLAD”) and one under the Age Discrimination in
Employment Act of 1967 (“ADEA”).
During a pre-trial conference held before the Court on
January 19, 2017, the parties informed the Court that they were
in general agreement on the proper charges to be read to the
jury, with the exception of a disagreement with regard to the
proper causation standard to be applied to the NJLAD claim.
Court instructed the parties to brief the issue.
consideration of the briefs, the Court’s resolution of the issue
identified by the parties is set forth below.
The parties ask the Court to resolve an issue that has not
received direct treatment by any court, as far as this Court is
able to determine.
To wit, the parties seek resolution of
whether the causation standard for age discrimination is the
same under both the ADEA and NJLAD after the Supreme Court’s
holding in Gross v. FBL Financial Services, 557 U.S. 167 (2009).
Specifically, Plaintiff contends that the NJLAD requires a
lower standard of causation than does the ADEA.
argues that the “jury must consider whether age ‘played a role’
or was a ‘motivating factor’ in Defendant’s decision to lay off
(Pl.’s Ltr. at 1).
In support of this argument,
Plaintiff argues that, notwithstanding the Supreme Court’s
ruling on the federal ADEA framework in Gross, the NJLAD still
requires what Plaintiff considers to be a lesser “motivating”
factor standard instead of the “but-for” standard for causation.
(Pl.’s Ltr. at 1 [Dkt. No. 90]).
Defendant responds that New
Jersey courts post-Gross have made clear that the but-for
causation standard applies to NJLAD claims.
[Dkt. No. 91-1]).
(Def.’s Ltr. at 1-2
Neither party disputes that the but-for
causation standard applies to the ADEA claim at issue.
The Court agrees with Defendant that a New Jersey court
after Gross would apply the but-for causation standard.
initial matter, NJLAD and ADEA are statutory frameworks that are
Abrams v. Lightolier, Inc., 50
general interpreted identically.
F.3d 1204, 1212 (3d Cir. 1995) (“New Jersey courts in applying
the NJLAD generally follow the standards of proof applicable
under the federal discrimination statutes . . . .”); Maidenbaum
v. Bally’s Park Place, Inc., 870 F. Supp. 1254 1258 (D.N.J.
1994), aff’d without op’n, 67 F.3d 291 (3d Cir. 1995).
Importantly, the interconnectedness of interpretation of the
NJLAD and ADEA has led the Third Circuit to import recentlydeveloped federal court interpretation of discrimination law to
the NJLAD, even in the absence of definitive resolution of the
issue by the New Jersey Supreme Court.
McKenna v. Pacific Rail
Service, 32 F.3d 820, 827 (3d Cir.1994) (predicting that the New
Jersey Supreme Court would adopt the clarification for proving a
federal pretext discrimination case set forth in St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d
407 (1993), to claims arising under the NJLAD).
The Court also
believes the New Jersey Supreme Court would apply a but-for
standard of causation to the NJLAD in this cae.
In addition to the parallel interpretation of the NJLAD and
ADEA, the determination that the New Jersey Supreme Court would
apply the but-for causation standard is compellingly supported
by the discussion of the Appellate Division for the Superior
Court of New Jersey post-Gross.
In Garnes v. Passaic County,
the case which has come closest to reaching the issue now before
this Court, the Appellate Division Court compared the causation
standard for the NJLAD and ADEA and found them functionally the
We discern no significant difference between the Court's
description of the essential showing in Gross, and our
Supreme Court’s description of what a plaintiff must
prove to establish a claim of age discrimination in
employment under the LAD. Under New Jersey law, “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.’” Bergen Commercial Bank v. Sisler, 157
N.J. 188, 207, 723 A.2d 944 (1999) (quoting Maiorino v.
Schering–Plough Corp., 302 N.J. Super. 323, 344, 695
A.2d 353 (App.Div.) (quoting Miller v. CIGNA Corp., 47
F.3d 586, 597 (3d Cir. 1995)), certif. denied, 152 N.J.
189, 704 A.2d 19 (1997)). . . . Pursuant to Gross, “the
burden of persuasion necessary to establish employer
liability is the same in alleged mixed-motives cases as
in any other ADEA disparate-treatment action. A
plaintiff must prove by a preponderance of the evidence
(which may be direct or circumstantial) that age was the
‘but-for’ cause of the challenged employer decision.”
557 U.S. at 177–78.
Garnes v. Passaic Cty., 437 N.J. Super. 520, 530, 100 A.3d 557,
563 (App. Div. 2014).
Likewise, the most recent ruling in this
District on the matter explicitly states that the standards are
functionally the same.
In Bals v. Trump Nat’l Golf Club Colts
Neck LLC, 2016 WL 7325475, at *6 (D.N.J. Dec. 16, 2016), the
court stated that “to succeed on a claim of age discrimination
under the ADEA and the NJLAD, the plaintiff bears the ultimate
burden of establishing that his or her age actually . . . played
a role in the employer’s decision-making process and had a
determinative influence on the outcome of that process.”
(internal quotation marks omitted).
Plaintiff’s reliance on previous rulings of this Court and
others continuing to use the term “motivating” does not alter
the Court’s analysis, particularly because no court has done so
while discussing the issue before this Court. For instance,
Plaintiff points to Brown-Marshall v. Roche Diagnostics Corp.,
No. 10-5984, 2013 WL 3793622, at *5 (D.N.J. July 19, 2013)
(“[T]he Plaintiff must point to some evidence upon which a
factfinder could reasonably believe that an improper motive was
more likely than not the motivating cause for the defendant’s
In Brown-Marshall, however, this Court was not asked
to compare the ADEA and NJLAD causation standard.1
The same is
true in Mazzagatti v. Morpho Detection, Inc., No. 13-2834, 2015
U.S. Dist. LEXIS 48723, at *15 (D.N.J. Apr. 14, 2015), Mann v.
Estate of Meyers, 61 F. Supp. 3d 508, 533 (D.N.J. 2014), and
Kremp v. Wachovia Bank, 451 F. App’x 151, 156 (3d Cir. 2011)
(“To satisfy his burden, Kremp must point to some evidence upon
which a factfinder could reasonably either disbelieve Wachovia’s
articulated motive or believe the age-based animus was more
likely than not a motivating cause for Wachovia’s action.”).2
Plaintiff’s final argument crystalizes the reason courts’
somewhat persistent use of the term “motivating factor” does not
change this Court’s determination that the “but-for” causation
standard here is proper.
Plaintiff points to the New Jersey
Model Civil Jury Charge for NJLAD claims, which purportedly make
no “reference to ‘but-for’ causation.”
(Pl.’s Ltr. at 2).
Specifically, Plaintiff cites to the model jury charge’s
instruction that a plaintiff may prove his case “directly by
proving that a discriminatory reason more likely than not
This is likewise true for the Court’s analysis in Mazzagatti v.
Morpho Detection, Inc., No. 13-2834, 2015 U.S. Dist. LEXIS
48723, at *15 (D.N.J. Apr. 14, 2015).
2 Likewise, in Vargas v. Piramal Glass LTd., No. 10-4314, 2012
U.S. Dist. LEXIS 89085, at *9 n.4 (D.N.J. June 27, 2012), the
Court noted that the “but-for” causation standard had not been
applied to NJLAD claims, the Court takes that statement to mean
simply that it has not been put before any court for explicit
motivated the defendant’s action, or indirectly, by proving that
the employer’s stated reason for its action is not the real
reason for the action.”
N.J. Model Civ. Jury Instruction 2.21A
Plaintiff, does not, however, address the gloss on the
term “motivated” provided in the next paragraph which indicates
that “[T]he plaintiff must only prove that his/her [insert the
protected category] played a role in the decision and that it
made an actual difference in the defendant’s decision.”
This exceeds the mere “playing a role” scope
that Plaintiff attributes to “motivating” and that was at issue
(Pl.’s Br. at 1); Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 171, 129 S. Ct. 2343, 2347, 174 L. Ed. 2d 119 (2009)
(“The jury was further instructed that Gross' age would qualify
as a “‘motivating factor,’ if [it] played a part or a role in
[FBL]'s decision to demote [him].”).
Thus, this model jury
instruction language, fully explained, not only requires that it
play a role in the general sense, but that the role the
protected activity played made an “actual difference.”
differently, the instruction requires that the role changed the
This is the very essence of “but-for” causation.3
This corresponds closely to the Third Circuit Model Jury
Instruction commentary’s reliance on Miller v. Cigna Corp., 47
F.3d 586 (3d Cir. 1995) (en banc). In that case, the Third
Circuit defined but-for causation in the ADA context as
requiring a showing that “age actually played a role in the
employer’s decisionmaking process and had a determinative
Burrage v. United States, 134 S. Ct. 881, 888, 187 L. Ed. 2d 715
(2014) (“Thus, if poison is administered to a man debilitated by
multiple diseases, it is a but-for cause of his death even if
those diseases played a part in his demise, so long as, without
the incremental effect of the poison, he would have lived.”).
For the reasons set forth above, to give separate
instructions to the jury as Plaintiff urges would suggest to the
jury there are different standards, when the standards are the
same but are expressed or worded differently.
Put another way,
the separate charges requested by Plaintiff contain distinctions
without material differences and would only lead to jury
Accordingly, the Court will instruct the jury on the
issue of causation under ADEA and NJLAD using only the “but-for”
DATED: January 26, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
influence on the outcome of that process.” Id. at 596-967; See
also Third Circuit Model jury Instructions 8.1.1 at 7.
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