SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1920-20

JANE ROCKS and

STEPHEN POLLOCK,

Plaintiffs-Appellants,

v.

PNC INVESTMENTS, LLC

and BRIAN D. DUNN,

Defendants-Respondents.

_____________________________

Submitted February 16, 2022 – Decided April 4, 2022

Before Judges Hoffman, Whipple, and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Docket No. L-0114-19.

Zarwin Baum DeVito Kaplan Schaer Toddy, PC, 

attorneys for appellants (Zachary A. Silverstein, on the 

briefs).

Seyfarth Shaw, LLP, attorneys for respondents

(Howard M. Wexler and Lisa L. Savadjian, of counsel

and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Plaintiffs Jane Rocks and Stephen Pollock appeal from the February 19, 

2021 Law Division order granting the summary judgment dismissal of their 

complaint alleging age discrimination. In their complaint, plaintiffs alleged that 

defendants, PNC Investments, LLC (PNC) and Brian D. Dunn (plaintiffs' 

supervisor), violated the New Jersey Law Against Discrimination, N.J.S.A. 

10:5-1 to -50 (LAD), by "engag[ing] in discriminatory treatment of plaintiffs 

because of their age," which "caused a hostile workplace" and their 

"constructive discharge." We affirm.

I.

We discern the following facts from the record, viewed in the light most 

favorable to plaintiffs, the non-moving parties. Davis v. Brickman Landscaping, 

Ltd., 219 N.J. 395, 405-06 (2014). Plaintiffs were employed by PNC as 

Financial Advisors (FAs). Part of the role of an FA is to get to know PNC branch 

bank employees so that the employees would refer customers to the FA to set up 

appointments. Because bank branch employees have many responsibilities, FAs 

are instructed to speak with them regularly, teaching employees how to identify 

a potential customer, how to introduce the customer to the FA, and how to 

overcome a customer's reluctance to meet with an FA. Defendant Dunn, 
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plaintiffs' regional sales manager, instituted a requirement that FAs meet with 

fifteen potential customers weekly. 

Dunn was in his mid-fifties when he served as plaintiffs' supervisor. 

Pollock was over the age of fifty when Dunn hired him. At his deposition, 

Pollock admitted that Dunn never took a branch away from him; in addition,

Pollock acknowledged that he voluntarily gave up the Moorestown branch.

Dunn did take one branch – the Springdale branch – from Rocks, in April 

2017, seventeen months before her resignation. One of the reasons Dunn took 

the branch from Rocks was criticism he received about Rocks from the 

Springdale branch manager, who reported that Rocks had not developed a good 

rapport with the employees and customers of that branch, and that her attitude 

was rather abrupt. The branch was reassigned to a new FA, Daniel Burns. 

Because PNC was creating a new territory for Burns, at the same exact time 

Dunn reassigned the Springdale branch to Burns, Dunn also reassigned the 

Lumberton branch from FA Phil Patragnoni to Burns; in addition, Dunn

reassigned the Cedar Hill branch from another FA, Dave Dougherty, to Burns. 

Patragnoni and Dougherty were twenty-five and twenty-three years younger 

than Rocks, respectively. Rocks voluntarily chose to give up two other 
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branches, the Meeting House branch and the Mount Laurel branch. Rocks 

admitted that Dunn had nothing to do with her loss of these two branches. 

Pollock regularly spoke of his intent to retire. Pollock announced to 

several PNC employees – including in a May 4, 2015 email to the President of 

PNC Investments – that he planned to retire in 2018, at the age of seventy, which 

is the year he ultimately resigned from PNC. Pollock spoke openly and 

frequently of his retirement plans with his fellow FAs, including Rocks, Thomas 

Becker, and Tanya Brown, and also with Dunn. In 2017, Pollock noted in a

communication to Becker that he was "going to try to make it one more year. 

[Seventy] is it." Pollock wrote to Becker that being fired and suing for age 

discrimination "would be the best thing that could happen!" Pollock boasted to 

another colleague that – while he had not scheduled his required fifteen

appointments – he and Rocks "had an advantage that you don't. We are at 

retirement age." 

Defendants established that plaintiffs failed to meet their revenue goals 

from 2016 to 2018. Pursuant to PNC policy, an underperforming employee is 

first placed on a "Performance Evaluation Plan." A verbal warning follows. The 

next step is a written warning. Probation is the last step in the process. Plaintiffs 

received verbal and written warnings regarding their performance. 
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In her 2017 evaluation, Rocks received a "meets some expectations"

rating. The evaluation noted that she missed her annual revenue goal by twentyone points, down ten percent from 2016. Although Rocks had missed her goals 

for several years, Dunn first issued a verbal warning to her on November 1, 

2017. At that point, Dunn informed her that she needed to schedule fifteen

weekly appointments and demonstrate regular client outreach. 

On April 12, 2018, Dunn issued a written warning to Rocks because she 

was not creating enough activity to meet her weekly appointment goal. Dunn 

further noted that Rocks added just one client from November 2017 to March 

2019. Beginning July 9, 2018, Dunn officially placed Rocks on probation, 

which was set to end October 7, 2018. The Probation Notice provided: 

Jane is not meeting expected performance behaviors 

and activities of a Financial Advisor. Specifically, Jane 

is not creating enough activity to meet a set 

appointment goal. The goal is [fifteen] per week and 

Jane has been averaging [ten] per week since her 

written warning. Planning in 2018 has been 

inconsistent overall. When it comes to coaching 

employees, providing quick starts, effectively 

participating in multi-channel appointments, and 

reviewing insights for opportunities[,] the outcomes 

have been inconsistent as it pertains to increased 

activity and business outcomes.
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Rocks admitted her revenue targets decreased yearly, rather than 

increased, until her resignation. Rocks resigned on September 28, 2018, just 

before the end of her probation period. 

As for Pollock, his 2017 year-end evaluation stated that he "meets some 

expectations," but noted that he was behind his revenue goal and flat versus his 

2016 pace. In his 2018 mid-year evaluation, Pollock was at sixty-four percent 

of his annual revenue goal, and rated as "does not meet expectations." Pollock 

explained that his sales of fixed annuities were not paying as well as they were 

previously, which he acknowledged was not Dunn's fault.

On November 1, 2017, Pollock received a verbal warning from Dunn, and 

they met twice to review certain expectations moving forward. These 

expectations included Pollock scheduling fifteen weekly appointments, keeping 

his manager apprised of his activities, weekly check-ins, participation in "branch 

call night," and coaching branch employees. Pollock said he assumed all these 

tasks were within the requirements of all FAs who reported to Dunn. 

Following the verbal warning, Dunn issued a written warning to Pollock, 

on April 11, 2018, stating that Pollock was not meeting expected performance

"of the PNC Investment Advisor position." The warning noted that Pollock was 

not creating enough activity with his clients, referrals, and branch customers to 
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meet his weekly appointment requirement. The warning stated that "immediate 

and sustained improvement is required." The warning further noted that Pollock

had "[zero] new clients" between November 1, 2017, and February 28, 2018.

On June 20, 2018, Dunn placed Pollock on probation. The notice stated 

under "Corrective Action Details":

Steve is not meeting the expected performance and 

behaviors of the Investment Advisor position.

Specifically, Steve is not creating enough activity 

between his clients, referrals, and prospects that come 

into the branch to meet the appointment expectation.

The goal is [fifteen] appointments weekly, however, 

since his written warning Steven has been averaging 

[six] per week.

Pollock's probation expired on September 20, 2018. After the probation 

period ended, Pollock voluntarily resigned on September 28, 2018. Plaintiffs

admitted that they have no information regarding who, if anybody, made the 

decisions relating to the activity or revenue goals set for them. Notably, Dunn 

testified that he did not set these goals, and that they were set by the Finance 

Department, after undertaking an analysis of the branches each FA served year 

to year.

The record does not indicate that Dunn instituted the weekly tracking

requirements to burden or single out Rocks or Pollock. Six other FAs, with ages 

ranging from thirty-one to fifty-nine, were also required to submit to Dunn 
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weekly appointment tracker reports because they were under ninety percent of 

their revenue goals. Of the six other FAs required to submit weekly tracking 

reports to Dunn, four were under the age of forty when plaintiffs resigned on 

September 28, 2018. 

Plaintiffs admitted that Dunn maintained the same expectations for

plaintiffs as he did for all FAs. Furthermore, plaintiffs admitted Dunn had no 

requirements for plaintiffs that were not also required from other FAs. Dunn 

required fourteen FAs to have weekly calls with him and submit weekly 

appointment trackers, including plaintiffs' witness, Litwin. Dunn's other FAs, 

many of whom who were under forty, all were required to schedule fifteen

appointments weekly. Dunn also had weekly calls with Litwin, required him to 

submit an appointment tracker, and to schedule fifteen weekly appointments. 

Dunn also issued both verbal and written warnings to Litwin for insufficient

business activity.

The record does not indicate anyone at PNC, including Dunn, ever 

singled out plaintiffs for discriminatory or derogatory comments regarding their 

age. While employed at PNC, Rocks reported to PNC that Dunn discussed 

retirement with her; however, she admitted she did not feel pressured to retire. 

Plaintiffs complain only of Dunn's comments regarding what he would do when 
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he retired. Pollock admitted Dunn merely relayed his own retirement plans 

during these conversations. Dunn acknowledged that he discussed his own 

hypothetical retirement plans with Pollock, recounting that he would say "my 

plans are . . . when I get to [sixty] or [sixty-five], . . . I'm going to be on a beach 

somewhere."

Pollock began looking for a job as soon as he received the verbal warning 

in 2017 and had been discussing leaving PNC with Litwin since that point and 

looking for a new job. Plaintiffs, along with Litwin, began working at LPL 

Financial the day after they resigned.

On January 10, 2019, Rocks and Pollock filed a complaint against 

defendants, asserting claims for 1) violation of the LAD; 2) defamation; and 3) 

tortious interference with prospective business relationship. Following 

discovery, defendants moved for summary judgment in January 2021, seeking 

dismissal of plaintiffs' complaint in its entirety. Plaintiffs filed opposition to 

defendants' motion as to their LAD claims; however, plaintiffs withdrew their 

claims for defamation and tortious interference. On February 19, 2021, 

following oral argument, the trial court granted defendants' motion for summary 

judgment, dismissing plaintiffs' LAD claims.
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II.

"We review de novo the trial court's grant of summary judgment, applying 

the same standard as the trial court." Abboud v. Nat'l Union Fire Ins., 450 N.J. 

Super. 400, 406 (App. Div. 2017) (citing Templo Fuente de Vida Corp. v. Nat'l 

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)). This standard 

mandates the grant of summary judgment "if 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 challenged and that 

the moving party is entitled to a judgment or order as a matter of law." R. 4:46-

2(c).

"An issue of fact is genuine only if, considering the burden of persuasion 

at trial, the evidence submitted by the parties on the motion, together with all 

legitimate inferences therefrom favoring the non-moving party, would require 

submission of the issue to the trier of fact." Ibid. The trial court should not 

hesitate to grant summary judgment "when the evidence 'is so one-sided that one 

party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am., 

142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 252 (1986)).

The LAD provides, in relevant part: 
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It shall be an unlawful employment practice, or, as the 

case may be, an unlawful discrimination:

a. For an employer, because of the race, 

creed, color, national origin, ancestry, age, 

marital status, civil union status, domestic 

partnership status, affectional or sexual 

orientation, genetic information, sex, 

gender identity or expression [or] 

disability...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 

 . . . .

[N.J.S.A. § 10:5–12(a).]

Prima Facie Case of Age Discrimination

To establish a prima facie case of age discrimination, "an employee must

'show that the prohibited consideration played a role in the decision-making 

process and that it had a determinative influence on the outcome of that 

process.'" Bergen Com. Bank v. Sisler, 157 N.J. 188, 207 (1999) (citations 

omitted). To prove employment discrimination under the LAD, New Jersey 

courts have adopted the burden-shifting analytical framework established in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Viscik v. Fowler 

Equip. Co., 173 N.J. 1, 13-14 (2002). 
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To successfully assert a prima facie case of age discrimination under the 

LAD, plaintiffs must show that: 1) they were members of a protected group; 2) 

their job performance met their employer's legitimate expectations; 3) they were

terminated; and 4) the employer replaced or sought to replace them. Nini v. 

Mercer Cnty. Cmty. Coll., 406 N.J. Super. 547, 554 (App. Div. 2009) (citing

Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005)) aff'd, 202 N.J. 98 

(2010). 

If a plaintiff presents such a prima facie case under the McDonnell

framework, the defendant must then offer a legitimate, nondiscriminatory reason 

for the action. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000); 

Barbera v. DiMartino, 305 N.J. Super. 617, 634 (App. Div. 1997), certif. denied, 

153 N.J. 213 (1998). Once the employer produces sufficient evidence to support 

a nondiscriminatory explanation for its decision, it becomes the plaintiff's 

burden under the McDonnell test to persuade the jury that the employer's 

asserted business reasons were only a pretext for discrimination. Reeves, 530 

U.S. at 143; see also DeWees v. RCN Corp., 380 N.J. Super. 511, 523-24 (App. 

Div. 2005). 
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Plaintiffs contend that Dunn discriminated against them because of their

age by speaking with plaintiffs about retirement and by subjecting plaintiffs to 

the weekly appointment requirements. This argument lacks merit.

Dunn's comments about retirement were about his personal plans and 

wishes for his own retirement. The record simply does not support plaintiffs'

contention that Dunn made these comments with an eye toward forcing plaintiffs 

to resign.

Subjecting plaintiffs to the weekly appointment requirement also did not 

constitute age discrimination. As noted by defendants, plaintiffs were not the 

only FAs subjected to the weekly appointment requirements, but several other 

younger FAs also had to satisfy the weekly appointment requirements. The 

record plainly does not support plaintiffs' contentions that the weekly 

appointment requirements constituted age discrimination in violation of the 

LAD.

Hostile Work Environment

"Our review of a hostile work environment claim requires us to consider 

the totality of the circumstances." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. 

Super. 145, 178 (App. Div. 2005) (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 

587, 603-04 (1993)). To establish a hostile work environment claim under the 
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LAD, a plaintiff must satisfy each prong of a four-part test. Shepherd v. 

Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002). The plaintiff must 

establish "the complained-of conduct 1) would not have occurred but for the 

employee's protected status, and was 2) severe or pervasive enough to make a 

3) reasonable person believe that 4) the conditions of employment have been 

altered and that the working environment is hostile or abusive." Ibid. (citing 

Lehmann, 132 N.J. at 603-04). 

The inquiry is whether a reasonable person in a plaintiff's position would 

consider the alleged discriminatory conduct "to be sufficiently severe or 

pervasive to alter the conditions of employment and create an intimidating, 

hostile or offensive working environment." Ibid. (quoting Heitzman v. 

Monmouth Cnty., 321 N.J. Super. 133, 147 (App. Div. 1999)). 

The test is strictly objective: whether a reasonable person in the plaintiff's 

position would consider the work environment hostile. Godfrey v. Princeton 

Theological Seminary, 196 N.J. 178, 197 (2008). A constructive discharge 

occurs when an employer engages in "severe or pervasive" conduct that is "so 

intolerable . . . a reasonable person would be forced to resign rather than 

continue to endure it." Shepherd, 174 N.J. at 28 (quoting Jones v. Aluminum 

Shapes, Inc., 339 N.J. Super. 412, 428 (App. Div. 2001)). "[T]he standard 
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envisions a 'sense of outrageous, coercive and unconscionable requirements.'" 

Ibid. The heightened standard demanded for proof of a constructive discharge 

claim recognizes an employee's "obligation to do what is necessary and 

reasonable to remain employed rather than" resign or retire. Ibid. (quoting 

Shepherd, 336 N.J. Super. at 420). The proofs required to establish a 

constructive discharge are objective, i.e., whether a "reasonable person" would 

have resigned. Ibid.; see also Muench v. Twp. of Haddon, 255 N.J. Super. 288, 

302 (App. Div. 1992). 

The record does not show that plaintiffs suffered from a hostile work 

environment. Dunn's statements to plaintiffs about retirement mostly concerned 

his own plans and wishes for retirement. Dunn's comments were innocuous and 

infrequent. Accordingly, we are satisfied that Dunn's comments about 

retirement were not "severe or pervasive enough to alter the conditions of 

employment and create an intimidating, hostile, or offensive work 

environment." El-Sioufi, 382 N.J. Super. at 178. 

The record clearly shows that plaintiffs did not suffer a constructive 

discharge as FAs at PNC Investments. The weekly appointment requirements 

may have been burdensome, but the requirements were based on plaintiffs' 

subpar performance. The weekly appointment requirements were imposed to 
16 A-1920-20

increase the performance of low-producing FAs. Indeed, the weekly 

appointment requirements could hardly be considered "outrageous, coercive, or 

unconscionable requirements." Shepherd, 174 N.J. at 28. 

We discern no indication the weekly appointment requirements were so 

burdensome that a reasonable person would rather resign than endure them. 

Ibid. The weekly appointment requirements were implemented to increase

business, rather than to punish under-performing FAs. Even if the weekly 

appointment requirements were perceived as punitive in nature, plaintiffs 

provided no evidence that the requirements were punitive as applied to plaintiffs 

because of their ages.

In sum, the evidence in the record before us, even when viewed in the 

light most favorable to plaintiffs, does not support either a prima facie case of 

age discrimination or a hostile work environment. Accordingly, we are satisfied 

the trial court properly granted summary judgment in defendants' favor. 

Any arguments not addressed lack sufficient merit to warrant discussion 

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.