NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 16

- 1854

_____________ MICHAEL CASERTA ,

Appellant

v. INTERCALL, INC.

________________ Appeal from the United States District Court for th e District of New Jersey (Case No. 1

- 13

- cv - 07790) District Judge: Honorable Noel L. Hillman

________________ Submitted Under Third Circuit LAR 34.1(a)

November 17, 2016 Before: AMBRO, SHWARTZ , and FUENTES , Circuit Judges

(Opinion fil ed : December 8, 2016 )

________________ OPINION *

________________ AMBRO, Circuit Judge

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding p recedent.2

Michael Caserta appeals the order of th e District Court granting InterCall, Inc.’s (“InterC all”) motion for summary judgment with respect t o this age

- discrimination claim under New Jersey State law. He contends that the District Court erred in its application of the burden

- shifting analysis of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973) , that is used by New Jersey courts

. We belie ve the District Court did not err and affirm its order.
I. Background InterC all , an international communications provider, hired Caserta as Vice
President of Sales in December 2011 at age 61 . He was terminated in May 2013 at the age of 63. InterC all’s b ases for terminating Caserta were his significantly low 2012 sales numbers, the restructuring of its pharmaceutical sales team , and its decision to eliminate
hi s position in order to create budgetary space for the hiring of a desirable candidate to fill th e company’s Vice President of Product Management position. Caserta sued for age discrimination under the New Jersey Law Against Discrimination (“ NJLAD”) , N.J. Stat

. Ann. § 10:5

- 12 , alleging that InterC all terminated him because of his age and replaced
him with a younger person. T he District Court granted InterC all’s motion for summary judgment, reasoning that Caserta failed to show that any of the business reasons for his termination were merely pretext based on his age. He appeals.

I I. Jurisdiction and Standard of Review The District Court had diversity jurisdiction per 28 U.S.C. § 1332 , and we have appellate jurisdiction under 28 U.S.C. § 1291. Our review of a district court’s grant of3

summary judgment is plenary

. Fed. Home Loan Mortg. Corp. v. Scotts dale Ins. Co. , 316 F.3d 431, 443 (3d Cir. 2003).
III . Discussion
To establish a prima facie case 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 t hat 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 position.” Maiorino v. Schering

- Plough Corp. , 695 A.2d 353, 364 ( N.J. Super . Ct. App. Div. 1997) (quoting Catalane v. Gilian Instrument Corp. , 638 A.2d 1341, 1351 ( N.J. Super. Ct. App. Div. 1994) )

. Once a plaintiff meets that preliminary hurdle, a presumption is created that the employer unlawfully discriminated against him on t he basis of age. The burden thus shifts to the employer to give a legitimate, nondiscriminatory reason for the termination. McDonnell Douglas , 411 U.S.
at 802

.
If the employee has successfully rebutted the presumption of discrimination by a legitimate , nondiscriminatory reason for hi s firing , he must show that the reason given by the employer was merely a cover

— legally called pretext

— for discrimination. Andersen v. Exxon Co., U.S.A. , 446 A.2d 486, 491 (1982)

. The employee can overcome this
burden by providing evidence from which a factfinder reasonably could (1) believe a discriminatory r eason was more likely than not a motivating or determinative fa ctor in the employment decision or (2) disbelieve the employer’s reason for termination. Keller4

v. Ori x Credit All., Inc. , 130 F.3d 1101, 1108 (3d Cir. 1997) (citing Fuentes v. Perskie , 32 F.3d 759, 764 (3d Cir. 1994) ) (interpreting New Jersey law).

Caserta argues that the District Court erred by not sh ifting the burden back to
InterC all to rebut a presump tion of discrimination after he made his prima facie case. This argument fails, as t he C ourt acknowledged that InterC all sufficiently met its burden by showing that Caserta’s 2012 sales numbers were low, that the pharmaceutical sales team was being restru ctured, and that it needed to create budget space to hire a new salesman. See Caserta v. Intercall, Inc. , No. CV 13

- 7790 , 2016 WL 1365993, at *4 (D.N.J. Apr. 6, 2016)

. At that point in the McDonnell Douglas analysis , Caserta needed to persuade the
C ourt that the three articulated reasons for his termination were no more than made

- up

reasons for discrimination

. Id

. He failed to carry that burden , as he did not present any evidence tend ing to show that InterC all ’s termination was age

- related or a ruse to disguise its intentional discriminatory motive. Accordingly, we affirm the District Court’s grant of InterC all’s motion for summary judgment.