Robert R. Monaco v. American General Assurance Company, an Illinois corporation

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 02-4190
ROBERT R. MONACO,
Appellant
v.
AMERICAN GENERAL ASSURANCE
COMPANY, an Illinois corporation;
AMERICAN GENERAL
CORPORATION, a
Texas corporation; WILLIAM LEARY;
JOHN DOE; RICHARD ROE
_______________
On Appeal from the United States
District Court
for the District of New Jersey
(D.C. Civ. No. 01-03642)
Honorable Mary Little Cooper,
District Judge
Argued January 13, 2004
BEFORE: MCKEE, SMITH, and
GREENBERG, Circuit Judges
(Filed: February 23, 2004)
Robert H. Jaffe (argued)
Mark B. Watson
Robert H. Jaffe & Associates
8 Mountain Avenue
Springfield, N.J. 07081
Attorneys for Appellant
Thomas J. Barton (argued)
Patricia Proctor
Kimberly M. Coffina
Drinker, Biddle & Reath
105 College Road East
P.O. Box 627, Suite 300
Princeton, N.J. 08542
Attorneys for Appellees
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. FACTUAL AND PROCEDURAL
HISTORY
This matter comes on before this
court on Robert Monaco’s appeal from
an order entered by the district court on
October 25, 2002, granting appellees’
motion for summary judgment. Monaco
brought this action against his former
employer, its corporate parent, and
certain of his former co-employees,
alleging that they discriminated against
him on the basis of his age when his
employer laid him off as part of a
company-wide reduction in force on June
30, 1999. In addition, he asserted breach
of contract claims against the corporate
defendants.

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Monaco was born on March 9,
1946. On June 2, 1975, he began
working for United States Life Insurance
Company (“United States Life”) as a
sales representative for the New Jersey
area selling term life and medical
insurance. United States Life promoted
him in 1979 to regional group manager
in which position he was responsible for
opening the New Jersey regional office
in Chatham and oversaw the sales
representatives and clerical staff in that
office. In 1988 United States Life
promoted him again, this time to regional
vice president in charge of the Eastern
Region, a position in which he
coordinated insurance sales in several
states along the eastern seaboard. During
his tenure as regional vice president his
employer expanded his territory to
include several additional states.
In 1997, American General
Assurance Company (“AGAC”)
purchased United States Life. After the
AGAC acquisition, Monaco remained
the vice president in charge of the
Eastern Region. Prior to April 1999, J.
Hugh Bailey (“Bailey”), senior vice
president of sales and marketing, then
age 62, was Monaco’s immediate
supervisor, but in May 1999, William
Leary (“Leary”), age 50, replaced Bailey,
who was retiring, in that capacity. In late
1998, AGAC determined that its medical
insurance line of business was incurring
large losses, a circumstance which led it
to decide to exit this product line.
Notwithstanding its unprofitably,
inasmuch as sales of medical insurance
constituted a significant portion of the
sales volume in the Eastern Region,
AGAC determined to cut expenses by
consolidating its operations and reducing
its workforce.
When AGAC laid off Monaco on
June 30, 1999, he was age 53. At that
time AGAC had two regional vice
presidents, Monaco, who was vice
president of the Eastern Region, and
Robert Shaw (“Shaw”) age 55, who was
vice president of the Western Region.
Shaw and Monaco had identical
responsibilities in the two different
regions. In June 1999, AGAC had eight
sales vice presidents/branch managers
who reported directly to Monaco: (1)
Edward McDonald in Danbury,
Connecticut, approximately age 45; (2)
Walter Schroeder for the New England
Region, approximately age 47; (3) Ted
Makuch in New York, in his mid-40s; (4)
Richard Gawlak in the Philadelphia area,
approximately age 50; (5) Joseph
Ficorilli in the Cincinnati area,
approximately age 62; (6) Paul Bouchard
in the Florida area, in his early 40s; (7)
Dale Brockman in New Jersey,
approximately age 50; and (8) Michael
Lombardi in charge of double override
agencies, approximately age 64.
On June 14, 1999, when Leary
informed Monaco that AGAC was laying
him off effective June 30, 1999, he
explained that it was doing so because it
was eliminating his position of vice
president for the Eastern Region as it was
consolidating its Eastern and W estern

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Regions under Shaw’s control. At the
time of Monaco’s layoff, AGAC also
laid off several other employees as part
of a company-wide reduction in force.
Following Monaco’s layoff, Shaw
assumed the day-to-day management of
the Eastern Regional sales office but
Leary also provided oversight of the
Eastern Region.
In April 2000, AGAC hired Tom
McKellar, who was born on April 26,
1948, and is approximately two years
younger than Monaco, as national vice
president of sales. McKellar worked out
of the New Jersey office and was
responsible for national sales and other
senior management duties in addition to
overseeing the Eastern Regional sales
offices.
On June 11, 2001, Monaco
brought this action in the Superior Court
of New Jersey against his former
employer, AGAC, and its parent
corporation, American General
Corporation, as well as his supervisor,
Leary, and two unnamed AGAC
employees, John Doe and Richard Roe,
charging all defendants with age
discrimination, directly or as aiders and
abettors, under the New Jersey Law
Against Discrimination, N.J. Stat. Ann. §
10:5-1 et seq. (West 2002) (“NJLAD”).1
In addition, he asserted claims against
the corporate defendants for breach of
contract. Defendants removed the case
to the district court on the basis of
diversity of citizenship and subsequently
moved for summary judgment. On
October 25, 2002, the district court
granted the defendants’ motion,
concluding with respect to his age
discrimination claim that while Monaco
could satisfy the first three elements of
the McDonnell Douglas (McDonnell
Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817 (1973)) prima facie case
test, he could not satisfy the fourth
element. It also granted summary
judgment to the corporate defendants on
Monaco’s breach of contract claim.
Monaco then brought this appeal.
II. JURISDICTION
The district court had jurisdiction
pursuant to 28 U.S.C. § 1332 inasmuch
as the parties are of diverse citizenship
and the amount in controversy exceeds
$75,000, exclusive of interest and costs.2
1Inasmuch as Monaco never sought to
replace the John Doe and Richard Roe
defendants with the names of actual
AGAC employees we will not address any
claims made against them. See Garvin v.
City of Philadelphia, 354 F.3d 215 (3d Cir.
2003).
2When we reviewed this case we
questioned whether the parties were of
diverse citizenship and thus we directed
them to make submissions on this point.
We now are satisfied that the parties are of
diverse citizenship and there is diversity of

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We have jurisdiction pursuant to 28
U.S.C. § 1291.
III. DISCUSSION
A. STANDARD OF REVIEW
We exercise plenary review of the
district court's order granting summary
judgment to defendants. See Fakete v.
AETNA, Inc., 308 F.3d 335, 337 (3d Cir.
2002) (citing Fogleman v. Mercy Hosp.,
Inc., 283 F.3d 561, 566 n.3 (3d Cir.
2002)).
B. THE REQUIREMENTS OF
THE NEW JERSEY LAW
AGAINST
DISCRIMINATION
COMPARED TO THOSE OF
THE AGE
DISCRIMINATION IN
EMPLOYMENT ACT
Monaco asserts that the
requirements to set forth a prima facie
case under the NJLAD are less stringent
than those required in similar cases under
the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et seq. (“ADEA”),
a statute not involved directly in this case
brought solely under New Jersey law. In
particular, he contends that he does not
have to make a showing that AGAC
retained a sufficiently younger employee
for him to establish a prima facie case,
though an action under the ADEA would
have required that he make such a
showing. Appellees contend, however,
that Monaco has waived this argument
because in his brief in opposition to their
motion for summary judgment he stated
that to determine if the fourth element of
the prima facie case step of the
McDonnell Douglas burden shifting
framework had been satisfied the court
should look to “whether the plaintiff is
discharged while the defendant retained
similarly situated sufficiently younger
persons in comparable job positions,”
J.A. at 293-94, seemingly relying on a
McDonald Douglas formulation of that
element. Appellees’ br. at 11 n.3. But it
does not matter whether Monaco waived
his argument that he has a lesser burden
under the NJLAD than he would have
had under the ADEA with respect to the
fourth element of the McDonnell
Douglas test as we conclude that the two
statutes contain similar requirements for
proving the fourth element of a
plaintiff’s prima facie case.3 Thus, his
argument is to no avail.
Under the ADEA, it is “unlawful
for an employer . . . to fail or refuse to
hire or to discharge any individual or
otherwise discriminate against any
individual with respect to his
compensation, terms, conditions, or
privileges of employment, because of
citizenship jurisdiction in this case.
3We doubt that he in fact made such a
waiver.

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such individual’s age.” 29 U.S.C. §
623(a)(1). The protection against age
discrimination in the ADEA is “limited
to individuals who are at least 40 years of
age.” Id. § 631(a). When, as here, a
plaintiff alleges that he has suffered age
discrimination predicated on disparate
treatment, liability under the ADEA
depends on whether age “actually
motivated the employer’s decision.”
Hazen Paper Co. v. Biggins, 507 U.S.
604, 610, 113 S.Ct. 1701, 1706 (1993);
see also Raytheon Co. v. Hernandez, 124
S.Ct. 513, 519 (2003).4 The NJLAD,
though worded differently, similarly
makes age discrimination unlawful but
does not limit its protections to persons
at least 40 years of age. In cases brought
under either the ADEA or the NJLAD,
the plaintiff’s age actually must have
played a role in the employer’s
decisionmaking process and had a
determinative influence on the outcome
of that process. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133,
141, 120 S.Ct. 2097, 2105 (2000);
Bergen Commercial Bank v. Sisler, 723
A.2d 944, 953 (N.J. 1999).
Under both the ADEA and the
NJLAD, a plaintiff may meet his or her
burden by (1) presenting direct evidence
of discrimination that meets the
requirements of Justice O’Connor’s
concurring opinion in Price Waterhouse
v. Hopkins, 490 U.S. 228, 261, 109 S.Ct.
1775, 1796 (1989),5 or (2) presenting
indirect evidence of discrimination that
satisfies the familiar three-step burden
shifting framework identified in
McDonnell Douglas. Fakete, 308 F.3d at
337-38; Sisler, 723 A.2d at 954.
Inasmuch as Monaco attempted to prove
his case solely through the use of indirect
evidence, our analysis will focus on the
burden shifting framework of McDonnell
Douglas as applied under the NJLAD.
The Supreme Court of New Jersey
has explained the three-step burden
shifting analysis “as a starting point” for
analysis of claims under the NJLAD.
Sisler, 723 A.2d at 955. Under this
analysis a plaintiff first must establish a
prima facie case, the step at which
Monaco lost his case in the district court.
If the plaintiff does so the burden shifts
to the defendant to articulate a legitimate
non-discriminatory reason for the
adverse employment action. Mogull v.
CB Commercial Real Estate Group, Inc.,
744 A.2d 1186, 1197-98 (N.J. 2000).
Then, if the defendant meets this rather
light burden, the plaintiff must discredit
the defendant’s proferred reason for its
action or adduce evidence that
discrimination was more likely than not a
4Monaco does not attempt to advance a
disparate impact argument.
5We have regarded Justice O’Connor’s
opinion as controlling, see Fakete, 308
F.3d at 337 n.2, but we note that in Desert
Palace, Inc. v. Costa, 123 S.Ct. 2148, 2153
(2003), the Court declined an opportunity
to indicate which opinion in Price
Waterhouse was controlling.

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6
motivating or determinative cause of the
adverse employment action. See Potence
v. Hazleton Area Sch. Dist., No. 03-
1535, F.3d , 2004 WL 188083, at
*2 (3d Cir. Feb. 2, 2004) (ADEA case).
In an ordinary employment
termination case under the ADEA to
establish a prima facie case of age
discrimination at the first step of the
McDonnell Douglas burden shifting
framework a plaintiff must show that he
or she: (1) was a member of the protected
class, i.e., was over 40, (2) was qualified
for the position, (3) suffered an adverse
employment decision, and (4) ultimately
was replaced by a person sufficiently
younger to permit an inference of age
discrimination. Duffy v. Paper Magic
Group, Inc., 265 F.3d 163, 167 (3d Cir.
2001). In the context of a reduction in
force, in order to satisfy the fourth
element of a prima facie case under the
ADEA, a plaintiff must show that the
employer retained a sufficiently younger
similarly situated employee. Anderson v.
Consol. Rail Corp., 297 F.3d 242, 249-50
(3d Cir. 2002).
As we have indicated, however,
Monaco maintains that the NJLAD does
not require him to show that AGAC
retained a sufficiently younger employee
in order for him to make out a prima
facie case of age discrimination in a
reduction-in-force case and thus it differs
from the ADEA. His failure to make this
showing led the district court to grant the
appellees’ motion for a summary
judgment. In support of this argument
Monaco cites Sisler, 723 A.2d at 956,
Petrusky v. Maxfli Dunlop Sports Corp.,
775 A.2d 723 (N.J. Super. Ct. App. Div.
2001), and Reynolds v. Palnut Co., 748
A.2d 1216 (N.J. Super. Ct. App. Div.
2000).
The NJLAD provides, in pertinent
part, that “[a]ll persons shall have the
opportunity to obtain employment . . .
without discrimination because of . . .
age . . . . This opportunity is recognized
as and declared to be a civil right.” N.J.
Stat. Ann. § 10:5-4 (West 2002). It
further states, in relevant part that:
It shall be an unlawful
employment practice, or, as
the case may be, an
unlawful discrimination:
a. For an employer,
because of the . . . age . . .
of any individual . . . to
refuse to hire or employ or
to bar or to discharge or
require to retire, unless
justified by lawful
considerations other than
age, from employment
such individual or to
discriminate against such
individual in compensation
or in terms, conditions or
privileges of employment .
. . .
Id. § 10:5-12.
In general, to establish a prima

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facie case under the NJLAD for unlawful
termination, and thus satisfy the first step
of the burden shifting analysis, a plaintiff
must demonstrate that he or she: (1)
belongs to a protected class, (2) was
qualified for the position held, (3) was
terminated despite adequate
qualifications, and (4) after termination
the position remained open and the
employer continued to seek applications.
See Sisler, 723 A.2d at 955 (citations
omitted). Of course, the NJLAD makes
it unlawful for an employer to terminate
an employee for numerous reasons in
addition to age and thus is much more
than an age discrimination statute.
In Sisler, a bank vice president
brought a claim of age discrimination
under the NJLAD, alleging that his
employer wrongfully discharged him
because of his youth, an unusual action
that conceptually was possible because,
as we have indicated, in contrast to the
ADEA, the NJLAD does not limit the
individuals protected from age
discrimination to persons over the age of
40. Id. at 950. In Sisler the Supreme
Court of New Jersey stated that under the
NJLAD in an age discrimination case,
the fourth element of the McDonnell
Douglas prima facie case analysis:
properly focuses not on
whether the replacement is
a member of the protected
class but on ‘whether the
plaintiff has established a
logical reason to believe
that the decision rests on a
legally forbidden ground.’
Thus, under the [NJ]LAD,
which specifies no
qualifying age, courts have
modified the fourth
element to require a
showing that the plaintiff
was replaced with ‘a
candidate sufficiently
younger to permit an
inference of age
discrimination.’
Id. at 956 (citations omitted) (emphasis
added). Obviously the reference to a
younger replacement could not have been
intended to apply when an employee is
discharged on account of his or her youth
because in that situation his or her
burden to establish a prima facie case
quite logically is to show that the
replacement employee was “sufficiently
older to permit an inference of age
discrimination.” Id. at 959. It is
apparent that the court in Sisler refined
the fourth element of the requirements
for a prima facie case in age
discrimination situations that it had set
forth for application in NJLAD cases in
general.
We recognize, however, that the
court’s focus in Sisler was not on the
fourth element of the McDonnell
Douglas framework, but on the first
element, i.e., how to modify the
requirement that an individual belong to
a protected class when the claimant
brings a charge of age discrimination on
the basis of youth. Id. at 956-57. The

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Sisler court held that in order to satisfy
the first element, claimants such as Sisler
must show background circumstances
supporting the suspicion that the
defendant is “the unusual employer who
discriminates against the majority.” Id.
at 957.6 Nevertheless we are not at
liberty to ignore Sisler’s language
recognizing the necessity of a sufficient
age differential between the terminated
and replacement employees for the
plaintiff to establish a prima facie case of
age discrimination demonstrating the
presence of its fourth element.
In Petrusky, 775 A.2d at 725-26,
and Reynolds, 748 A.2d at 1219-20, on
which Monaco relies, the Appellate
Division of the Superior Court of New
Jersey, the intermediate state court of
appeals, addressed the application of
Sisler to cases involving allegations of
traditional age discrimination brought by
older employees. In both cases the
Appellate Division declined to adopt the
formulation of the fourth element of the
prima facie case in the language we have
quoted from Sisler regarding age
discrimination cases, holding instead that
the Supreme Court of New Jersey’s
analysis in that case was limited to cases
involving allegations of reverse
discrimination. Petrusky, 775 A.2d at
725; Reynolds, 748 A.2d at 1219. The
court in Reynolds held that in cases
involving a “traditional age
discrimination claim” a plaintiff:
need not show that he was
replaced by someone
sufficiently younger.
Rather, plaintiff must show
that he was a member of a
protected class, that he was
performing the job at a
satisfactory level; that he
was discharged, and that
the employer sought others
to perform the work after
the complainant had been
removed.
Id. The court in Petrusky adopted the
Reynolds court’s interpretation of Sisler.
See Petrusky, 775 A.2d at 725 (“We
adhere to that view and regard it as
governing until the Supreme Court
declares otherwise.”).
Two cases in the district court
have espoused divergent views on
whether to follow the interpretation of
Sisler that Reynolds and Petrusky set
forth. In Wright v. L-3 Communications
Corp., 227 F. Supp. 2d 293, 294-95
(D.N.J. 2002), the court held that in order
to satisfy the fourth element of a prima
facie case of age discrimination under
the NJLAD, a plaintiff “must only show
6Notwithstanding opinions so
suggesting it may not be so unusual for
employers to discriminate against the
majority because an employer might do
exactly that to satisfy demands for
diversity in its work force, to promote
affirmative action, or because the
employer for other reasons prefers to hire
an individual who is not in the majority.

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that his employer sought others to
perform the same work after he was
terminated from his position.” On the
other hand, earlier, in Swider v. Ha-Lo
Indus., Inc., 134 F. Supp. 2d 607, 625
(D.N.J. 2001), the court held that under
the NJLAD, “in order to satisfy the
fourth prong of the McDonnell Douglas
prima facie case, plaintiff must show that
he was replaced by someone sufficiently
younger to create an inference of
unlawful age discrimination.” We are
impressed with the comprehensive
analysis in Swider which points out that
the Appellate Division itself has not
interpreted Sisler consistently. In this
regard, Swider cites Williams v.
Pemberton Township Pub. Schs., 733
A.2d 571, 577 (N.J. Super. Ct. App. Div.
1999), in which the court quoted Sisler
for the point that under the NJLAD the
fourth element of a prima facie case
requires a showing that the plaintiff was
replaced with “a candidate sufficiently
younger to permit an inference of age
discrimination.”
Of course, in light of the
circumstance that we are applying state
law we recognize that we are bound by
the opinions of the state’s highest court,
Gares v. Willingboro Township, 90 F.3d
720, 725 (3d Cir. 1996), though “[i]n the
absence of guidance from [it], we are to
consider decisions of the state’s
intermediate appellate courts for
assistance in predicting how the state’s
highest court would rule.” Werwinski v.
Ford Motor Co., 286 F.3d 661, 670 (3d
Cir. 2002) (quoting Gares, 90 F.3d at
725). Thus, we have given careful
consideration to Petrusky and Reynolds.
Nevertheless, after analyzing these
Appellate Division cases, we conclude
that the district court in Swider was
correct and agree with it “that the
Reynolds court misconstrued the
standard in Sisler.” Swider, 134 F. Supp.
2d at 623.7 To us it is clear from Sisler
that when the Supreme Court of New
Jersey set out the fourth element of the
McDonnell Douglas prima facie case
framework in an age discrimination case
it regarded that standard as applicable in
both traditional and reverse age
discrimination cases, the difference being
that in a traditional case the replacement
employee must be sufficiently younger
than the replaced employee and in a
Sisler reverse discrimination situation the
replacement employee must be
sufficiently older than the replaced
employee.
When the Sisler court explained
the fourth element it was following the
analysis of prior cases as to what was
required to establish a prima facie case in
an age discrimination context. As set
forth above, the Supreme Court of New
Jersey in Sisler specifically stated that,
“under the [NJ]LAD, which specifies no
qualifying age, courts have modified the
fourth element to require a showing that
the plaintiff was replaced with ‘a
candidate sufficiently younger to permit
7The district court decided Swider
before the Appellate Division decided
Petrusky.

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10
an inference of age discrimination.’”
723 A.2d at 956 (citation omitted)
(emphasis added).8 Nothing in Sisler
suggests that the principles underlying
this modest modification are applicable
only in cases involving reverse age
discrimination and we see no reason to
limit the holding of the Supreme Court of
New Jersey to those cases as it would not
be logical to do so. See Swider, 134 F.
Supp. 2d at 624 (stating that under Sisler
“[t]he fourth prong remains unchanged in
age discrimination cases, whether they be
traditional or reverse”). Indeed, the
modification, as literally stated, could not
be applicable in a case in which the
employer is terminating the employee by
reason of youth as in such a case it would
be inconsistent with the discriminatory
act for an employer to hire an even
younger replacement. Thus, we are at a
loss to understand how the Appellate
Division limited Sisler’s articulation of
the fourth element of a prima facie case
to cases involving reverse age
discrimination.
In declining to follow Reynolds
and Petrusky we point out that they lead
to an absurd result. If a plaintiff only
need show, as these cases indicate, to
make out a prima facie case of age
discrimination that he or she was a
member of the protected class, performed
satisfactorily, but was discharged
following which the employer sought a
replacement employee then, in view of
the circumstance that the NJLAD does
not include a 40-year old age threshold,
practically every terminated employee
would be able to establish a prima facie
case of age discrimination.9 Thus,
Reynolds and Petrusky require that a
court find that a plaintiff has established
a prima facie case of age discrimination
even though none of the four elements of
his or her prima facie case in any way
relates to the plaintiff’s age.
Such a result would fly in the face
of the requirement set forth in O’Connor
v. Consolidated Coin Caterers Corp.,
517 U.S. 308, 311-12, 116 S.Ct. 1307,
1310 (1996) (citation omitted), that
“there must be a least a logical
connection between each element of the
prima facie case and the illegal
discrimination for which it establishes a
‘legally mandatory, rebuttable
presumption.’” M oreover, the result
would be at odds with the recognition in
Sisler that a prima facie case analysis
focuses “on whether the plaintiff has
established a logical reason to believe
that the decision rests on a legally
forbidden ground.” Sisler, 723 A.2d at
956 (internal quotation marks and
citation omitted). Furthermore, the
presumed age discrimination would be
8In fact, as we have indicated, in cases
involving allegations of reverse age
discrimination under the NJLAD, a
plaintiff would be required to show that
the individual who replaced him or her
was sufficiently older in order to infer
discrimination on the basis of youth.
9There are some limited exceptions. See
Sisler, 723 A.2d at 952.

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generic because the plaintiff under Sisler
could be either too young or too old.10
Overall we are satisfied that we
should apply the same standard for the
fourth element of Monaco’s prima facie
case under the NJLAD as we would have
applied under the ADEA if he had
brought his case under that statute. Thus,
we look to the ages of the remaining
similarly situated employees to compare
them to Monaco to see if he has
established the existence of that element.
See Anderson, 297 F.3d at 249-50;
Sisler, 723 A.2d at 956.11 We are
convinced that Sisler compels this result.
Of course, as we explain below, we
apply this element in a way to make it
relevant in this reduction-in-force
situation.
C. “SIMILARLY SITUATED”
Frequently courts apply the
McDonnell Douglas burden shifting
analysis when an employer replaces an
employee. But here we deal with that
analysis in the different context of a
reduction in force. In Anderson, 297
F.3d at 250, we explained that in the first
step of the burden shifting analysis in a
reduction-in-force case brought under the
ADEA, “the plaintiff must show, as part
of the fourth element, that the employer
retained someone similarly situated to
him who was sufficiently younger.” We
reasoned that unless the fourth element
required the individual retained to be
similarly situated to the one who was
terminated we would be construing the
ADEA as a bumping statute guaranteeing
employment to a protected worker at the
expense of a sufficiently younger
employee. Id.
In the absence of divergent
language between the NJLAD and
federal discrimination laws, the Supreme
Court of New Jersey has applied federal
standards in NJLAD cases “in the
10Under Reynolds and Petrusky a 35-
year old terminated individual usually
could demonstrate a prima facie case of
age discrimination under the NJLAD even
though he or she is so young that the
ADEA would be inapplicable in the case
but so old that it would be bizarre to
believe that the employer discriminated
against the individual by reason of youth.
11It is conceivable that in an
employment discrimination case under the
ADEA or other applicable law in which
there was compelling direct evidence of
discrimination by reason of age, race, or
some other interdicted factor that the mere
fact that a replacement worker is in the
same protected class as the terminated
employee would not mean that the
employer could not be liable under the
statute involved. See Williams, 733 A.2d
at 578. After all, the employer after
discharging the employee might find that
the only suitable replacement employee
was in the same protected class and thus
hire that replacement employee. In that
event it would be difficult to conclude that
the employer should not be liable for the
wrongful discharge.

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12
interest of achieving a degree of
uniformity in the discrimination laws.”
Sisler, 723 A.2d at 950; see Lawrence v.
Nat’l Westminster Bank N.J., 98 F.3d 61,
65 (3d Cir. 1996) (“[a]ge discrimination
claims under the ADEA and [NJ]LAD
are governed by the same standards and
allocation of burdens of proof”)
(citations omitted). Inasmuch as there is
no applicable divergent statutory
language in this case, and taking into
consideration the references in Sisler to
the age of replacement employees, we
believe that if faced with a case of age
discrimination in the context of a
reduction in force, the Supreme Court of
New Jersey would adopt the similarly
situated requirement of Anderson.
In Anderson, 297 F.3d at 250, we
held that non-union employees were not
similarly situated to “entry-level
positions or other low-level positions
without providing any evidence of
[routine job] shuffling.” We affirmed the
decision of the district court granting
summary judgment to the defendants as
to certain plaintiffs “because the
employees retained were either not
sufficiently younger or the evidence
failed to show that the duties were
comparable or that they were otherwise
similarly situated.” Id.
In this case we are required to
articulate further who is “similarly
situated” for purposes of making out the
fourth element of a prima facie case in a
reduction-in-force situation under the
NJLAD.12 In accord with Anderson, we
will not compare an individual such as
Monaco, a vice president in charge of the
Eastern Region, with lower-level
employees without evidence of routine
job shuffling which does not exist. See
id. However, an individual does not
need to be situated identically to satisfy
the fourth element of a plaintiff’s prima
facie case under the NJLAD. In order to
determine who might qualify as a
similarly situated employee we must look
to the job function, level of supervisory
responsibility and salary, as well as other
factors relevant to the particular
workplace. This determination requires a
court to undertake a fact-intensive
inquiry on a case-by-case basis rather
than in a mechanistic and inflexible
manner. See Pivirotto v. Innovative Sys.,
Inc., 191 F.3d 344, 357 (3d Cir. 1999).
Thus, we must determine which
employees at AGAC were similarly
situated to Monaco. AGAC maintains
that Shaw, the vice president for the
Western Region, who was two years
older than Monaco, was the only
individual it employed similarly situated
to Monaco. Of course, there is no doubt
but that Monaco and Shaw were
similarly situated as they had the same
job responsibilities, though for different
regions, and Monaco does not contend
12We do not suggest that the standard
would be different under the ADEA.
Rather, we merely recognize that this case
insofar as it claims age discrimination is
solely under the NJLAD.

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13
otherwise. He does counter AGAC’s
argument, however, by contending that
we should read the similarly situated
requirement more broadly and also
consider the eight sales vice
presidents/branch managers whom he
directly supervised to be similarly
situated. The district court rejected
Monaco’s argument, finding that there
was no evidence to suggest that sales
vice presidents/branch managers were
similarly situated. We agree with the
district court.
Under Federal Rule of Civil
Procedure 56(e), when a party has filed a
motion for summary judgment, “an
adverse party may not rest upon the mere
allegations or denials of the adverse
party’s pleading, but the adverse party’s
response, by affidavits or as otherwise
provided in this rule, must set forth
specific facts showing that there is a
genuine issue for trial.” Monaco states
in his brief that he “should have been
given an equal employment opportunity
to fill a branch manager or district sales
position in which he had previously been
employed.” Appellant’s br. at 20.
However, in this litigation he has not
produced any evidence to show that his
position of vice president of the Eastern
Region was similarly situated to that of
the eight vice presidents/branch
managers whom he directly supervised.13
Monaco does maintain that he had the
qualifications to serve in one of these
positions, and clearly he was so qualified
as he had held such a position prior to
being promoted to vice president of the
Eastern Region in 1988. But, as the
district court in Anderson explained,
“[m]erely because a plaintiff has met the
standards for a particular position . . .
does not mean that the plaintiff and the
person who occupied that position were
similarly situated for purposes of a prima
facie age discrimination claim.”
Anderson v. Consol. Rail Corp., No. Civ.
A. 98-6043, 2000 WL 1201534, at *5
(E.D. Pa. Aug. 9, 2000).
Monaco contends that if we adopt
a narrow reading of the similarly situated
requirement we will be inviting
“mischief” by employers. Appellant’s
13At oral argument, Monaco argued that
the focus of his position as well as the
eight vice president/branch managers was
to solicit insurance through independent
brokers. However, Monaco had
supervisory responsibility over all of the
offices in the eastern United States while
each of the eight vice president/branch
managers was responsible for his
individual office. If we were to focus on
the job responsibilities of Monaco’s
position at the level of abstraction which
he suggests is appropriate, his position
would be similarly situated to many entry-
level employees who solicited insurance.
As we explained in Anderson, 297 F.3d at
250, this approach, if applied under the
ADEA, would cause that statute, and, if
applied under the NJLAD, would cause it
as well, to require the “bumping” of lower-
level sufficiently younger employees in
order to retain protected workers.

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14
br. at 17. He argues that employers will
manipulate reductions in force by first
placing older workers into “dead-end”
positions for a few months where there
are no similarly situated individuals and
then later terminating or laying off the
older employees, thereby, according to
Monaco’s reasoning, avoiding liability
for age discrimination.
We disagree. First, Monaco’s
case fails to present such a factual
scenario. AGAC laid off Monaco after
he had been employed as vice president
of sales for the Eastern Region for many
years and certainly it did not “shuffle”
him into a dead-end position prior to the
reduction in force. Second, as explained
above, a determination of whether an
individual can satisfy the “similarly
situated” requirement triggers a fact-
intensive inquiry based on a whole
constellation of factors facing that
individual employee. Certainly if there
was evidence that an employer
transferred an older worker from his
position to a new one which happens to
have few similarly situated individuals
soon before his termination, a court
would be able to consider that
circumstance in determining whether the
employee established the fourth element
of his or her prima facie case of age
discrimination. See Marzano v.
Computer Science Corp., 91 F.3d 497,
511 (3d Cir. 1996). But we reiterate that
here there was no such transfer.
In view of the circumstance that
Shaw was the only employee at AGAC
similarly situated to him, Monaco’s case
under the NJLAD cannot be successful.
In O’Connor, 517 U.S. at 312-13, 116
S.Ct. at 1310, the Supreme Court
explained that under the ADEA an
individual cannot make out a prima facie
case such that a court will infer unlawful
age discrimination if the employee is
replaced with another worker who is
“insignificantly younger.” We
subsequently have explained that in order
to satisfy the sufficiently younger
standard, “there is no particular age
difference that must be shown, but while
different courts have held . . . that a five
year difference can be sufficient, . . . a
one year difference cannot.” Showalter
v. Univ. of Pittsburgh Med. Ctr., 190
F.3d 231, 236 (3d Cir. 1999) (internal
citation marks and citation omitted).
In fact Shaw, the vice president of
the Western Region, is two years older
than Monaco. Therefore, in the light of
O’Connor, Showalter, and Sisler, Shaw’s
retention in this reduction-in-force
situation cannot help Monaco establish
the fourth element of his prima facie
case. Indeed, the exact opposite is true.
Furthermore, even if we make the
unfounded assumption that Monaco was
similarly situated to his supervisor Leary
and to McKellar, the national vice
president of sales who was hired ten
months after Monaco’s layoff, this
assumption would not help him set forth
a prima facie case.14 Leary and McKellar
14Significantly Monaco does not even
ask us to make this assumption for in his
brief, though he points out that Leary took

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15
respectively were only three and two
years younger than M onaco, a
differential which does not satisfy the
sufficiently younger standard O’Connor
and Showalter set forth. Moreover, as
Monaco acknowledged at his deposition,
their levels within the company differed
from his. Inasmuch as we agree with the
district court that M onaco has failed to
establish the fourth element of his prima
facie case, we will affirm its grant of
summary judgment as to Monaco’s claim
under the NJLAD.15
D. CONTRACT CLAIM
The AGAC employee handbook
provides, in relevant part, that the
company complies with “all applicable
laws regarding equal employment
opportunities without regard to . . . age . .
. .” J.A. at 206. It further states that
“[n]othing in this manual or in the
company’s policies, practices, or
procedures should be read as a guarantee
over a portion of Monaco’s supervisory
functions for the Eastern Region, he
indicates “the comparison sought is
between the plaintiff who held an
executive sales vice president position
with other employees who held executive
sales vice president/branch manager
positions, the very same job position the
plaintiff previously held before he had
been promoted to Vice President of the
Eastern Region.” Appellant’s br. at 16. In
his reply brief he adheres to this approach
as he recites that he “should have been
given the opportunity to compare his skills
and work experience to employees holding
executive sales position/branch manager at
a level he had previously performed prior
to being promoted to Regional Vice
President.” Appellant’s reply br. at 2.
Monaco’s contention in his briefs, to the
extent that he does not claim that Leary
and McKellar were similarly situated with
him, is consistent with his deposition
testimony which was that, besides himself,
Shaw was the only person “on the same
level . . . within the company.” J.A. at
125.
15In his complaint, Monaco asserted
individual claims against Leary and the
John Doe and Richard Roe defendants
under N.J. Stat. Ann. § 10:5-12(e) (West
2002). He claimed that the individual
defendants did “aid, abet, incite, compel or
coerce the doing of any of the acts
forbidden under [the NJLAD], or to
attempt to do so.” Id.; see J.A. at 54. In
granting summary judgment in this case to
all defendants the district court did not
discuss this claim. However, inasmuch as
we hold that the district court correctly
granted summary judgment to the
corporate defendants, any claim he brought
against the individual defendants for
aiding and abetting fails as well.
Our disposition makes it
unnecessary for us to consider appellees’
contention that they asserted a legitimate
non-discriminatory basis for Monaco’s
termination which Monaco did not rebut
and that for this independent reason are
entitled to summary judgment.

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16
of employment, a commitment to provide
employment, or a promise to continue
any terms or conditions of existing
employment.” J.A. at 206. The
handbook also makes clear that “[e]xcept
where mandated by law, these policies
and programs may be changed or
discontinued at any time at the discretion
of the company.” Id.
Monaco maintains that the
provision stating that AGAC complies
with all applicable equal opportunity
laws without regard to age created a
binding contractual obligation between
him and AGAC which it breached when
it terminated him allegedly on the basis
of age. The district court rejected this
argument as it held that the language
contained in the handbook “was no more
than the language necessary to meet the
statutory requirements of the NJLAD.”
J.A. at 8.
Under New Jersey law, the
employment-at-will doctrine provides
that “an employer may fire an employee
for good reason, bad reason, or no reason
at all” unless prohibited by law or public
policy. Witkowski v. Thomas J. Lipton,
Inc., 643 A.2d 546, 552 (N.J. 1994); see
also Silvestri v. Optus Software, Inc.,
814 A.2d 602, 607 (N.J. 2003). Either
party may terminate an employment
relationship at will unless an agreement
exists between the parties that provides
otherwise. Varrallo v. Hammond Inc.,
94 F.3d 842, 845 (3d Cir. 1996)
(applying New Jersey law).
In certain circumstances, a
company’s employment manual
contractually can bind the company
notwithstanding its inclusion of a
disclaimer of a creation of enforceable
rights. Geldreich v. Am. Cyanamid Co.,
691 A.2d 423, 426 (N.J. Super. Ct. App.
Div. 1997). In order not to create a
binding obligation on the company, the
language in the manual “must be such
that no one could reasonably have
thought it was intended to create legally
binding obligations.” Id. at 427.
The only statement in the
employee handbook to which Monaco
points as creating a binding contractual
obligation between him and AGAC is the
general language on the same page as the
table of contents that the company
“complies with all applicable laws
regarding equal employment
opportunities without regard to . . . age . .
. .” J.A. at 206; appellant’s br. at 21.
But this statement merely sets forth that
AGAC strives to comply with its legal
obligations, nothing more, and “no one
could reasonably have thought it was
intended to create legally binding
obligations,” beyond those the law
already imposed. Geldreich, 691 A.2d at
427.
If we were to agree with Monaco
that the quoted provision could be the
predicate for a breach of contract claim,
individuals bringing employment
discrimination cases in New Jersey
where an employment manual contained
such a provision could as a matter of
course assert both statutory
discrimination and breach of contract

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17
claims based on the employer’s same
underlying conduct. In order to prove
the breach of contract claim the plaintiff
would be required to prove the
underlying discrimination claim by
showing how the employer’s actions
violated the anti-discrimination laws.
We reject Monaco’s attempt to create
two causes of action where he is only
able to assert one. We are satisfied that
New Jersey law does not provide a
separate breach of contract cause of
action on the basis of generalized anti-
discrimination language in an employee
handbook where the alleged
discrimination would be in violation of
the NJLAD.16 Such a breach of contract
cause of action would add nothing to the
statutory cause of action. Moreover,
even if such a cause of action could exist,
Monaco’s case would fail because he
cannot demonstrate that AGAC was
guilty of age discrimination. We
therefore will affirm the district court’s
grant of summary judgment on Monaco’s
breach of contract claim.17
IV. CONCLUSION
In reaching our conclusion we
point out that the facts of this case
demonstrate why a terminated plaintiff
should not be able in a McDonnell
Douglas burden shifting case to
demonstrate a prima facie case of age
16If the AGAC employee handbook
stated that the company does not
discriminate on the basis of some
characteristic not covered by the NJLAD,
then an individual might be able to assert
a breach of contract claim on that basis.
However, that is not the case here as the
N J L A D p r o h i b i t s t h e ty p e of
discrimination Monaco claims exists in
this case and the language of the handbook
merely states that AGAC complies with all
applicable anti-discrimination laws.
17The district court held in the
alternative that even if the language of the
handbook could create a binding
contractual obligation, two disclaimers in
the handbook would have prevented
Monaco from being able successfully to
assert a breach of contract cause of action.
However, as stated above, the only
statement to which Monaco points as
creating a contractual obligation between
him and AGAC is the statement in the
handbook that AGAC “complies with all
a p plicab le laws regarding e q u al
employment opportunities without regard
to . . . age . . . .” J.A. at 206. Clearly,
AGAC could not disclaim its legal duty to
comply with the NJLAD. Therefore, to
the extent the district court relied on the
disclaimer language in the AGAC
handbook in granting summary judgment
against Monaco on his breach of contract
cause of action, it erred. But the error is
harmless for, as stated above, the language
in the AGAC handbook tracked the
requirements of the NJLAD and did not
create any binding legal obligations
beyond those already established under the
NJLAD.

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18
discrimination without showing a
difference in age between him or her and
the replacement employee sufficient to
support an inference of age
discrimination or, in the circumstance
that he or she was discharged in a
reduction in force, showing that the
employer retained someone similarly
situated to him or her sufficiently
younger to permit the drawing of such an
inference. While we can understand
Monaco’s frustration after losing his
position after so many years, the fact is
that nothing in the record could support
drawing an inference that age played any
factor in AGAC’s decision to terminate
his employment. In view of all the
reasons we have set forth, we will affirm
the order of the district court granting
summary judgment entered October 25,
2002.

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