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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICHARD KLINMAN, : CIVIL ACTION

Plaintiff, :

:

v. :

:

JDS UNIPHASE CORPORATION, :

Defendant : NO. 05-2066

MEMORANDUM and ORDER

PRATTER, DISTRICT JUDGE JULY 6, 2006

Plaintiff Richard Klinman filed a complaint in the Court of Common Pleas for Lancaster

County on March 28, 2005 alleging that his former employer, Defendant JDS Uniphase

Corporation (“JDSU”), violated the Age Discrimination in Employment Act of 1967 (“ADEA”),

29 U.S.C. § 621, et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 PA. CONS.

STAT. ANN. § 951, et seq., by terminating his employment allegedly based on his age. JDSU

timely removed the litigation to federal court and subsequently filed a Motion for Summary

Judgment, which Mr. Klinman opposed. The parties made well-presented oral argument on the

issues to the Court on May 4, 2006. For the following reasons, the Court will deny JDSU’s

Motion for Summary Judgment. 

I. FACTS AND PROCEDURAL HISTORY

JDSU designs and manufactures optical technology products for fiberoptic

communications and other various markets. In the fall of 2002, JDSU purchased the Trident line

of products from OptronX, a company located in Allentown, Pennsylvania. In September 2002,

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Mr. Klinman, an OptronX employee, then age 57, was offered a job with JDSU by Ronald

Genova, JDSU’s vice president for its telecommunications business. Mr. Klinman accepted the

position with JDSU as an electrical design engineer in the Transmission Products Group, one of

three groups within JDSU that made products for the tele-communications industry. Mr.

Klinman served as the senior design engineer for the Trident line and also performed various

other duties. The JDSU Transmission Products Group had three facilities in the United States

which fell under Mr. Genova’s management: the Allentown site where Mr. Klinman worked, a

site in Horsham, Pennsylvania, and a site in Melbourne, Florida. While at JDSU, Mr. Klinman’s

supervisor was Brian Owen. 

The parties agree that JDSU, in order to respond to industry-wide declining market

conditions, began a series of cost reductions, including significant reductions in personnel. In

May 2003, JDSU began downsizing its telecommunications research and development budget at

its Allentown facility. JDSU management, and specifically Mr. Genova, evidently reviewed

further ways to cut its budget, and determined that the Trident line, and Mr. Klinman’s position

in particular, were the logical project and corresponding position to eliminate.

 Specifically, according to JDSU, at the time it decided to eliminate it, the Trident

transponders line had already progressed from the research and development stage to production

and was being dismantled. The Trident line apparently produced revenues well below those

forecasted at the time of the acquisition. JDSU alleges that, because no new Trident modules

would be produced, Mr. Klinman, as lead engineer for those modules, would no longer be needed

as part of the workforce. Mr. Klinman alleges that Mr. Genova told him his termination was

partially based on Mr. Klinman’s high salary. Mr. Genova denies making such a statement to

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 JDSU eliminated the position of David Massengale, who was responsible for designing

the Trident circuit board, and of Chris Milne, who did software programming for new Trident

Products. At the time, Mr. Massengale was 38 years old, and Mr. Milne was also in his 30's. 

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Mr. Klinman. At the time Mr. Klinman was terminated, two other positions relating to the

Trident line, both filled by men in their 30's, were also eliminated.1 

On April 23, 2003, eight months after he was hired by JDSU, Mr. Klinman was notified

verbally that his position was at risk and that his employment would likely be terminated the next

month. Mr. Klinman received a May 23, 2003 letter from Mr. Genova stating that, due to

declining market conditions, Mr. Klinman’s termination date was set for June 27, 2003. Mr.

Klinman was officially terminated on that date, at which time he was 58-years-old.

Mr. Klinman initiated a charge with the Pennsylvania Human Relations Commission and

the Equal Employment Opportunity Commission on July 29, 2003, alleging that JDSU illegally

discriminated against him on the basis of his age. The EEOC subsequently issued Mr. Klinman a

right-to-sue letter. Mr. Klinman then timely filed this suit in the court of common pleas,

claiming that JDSU violated the ADEA and PHRA when it allegedly terminated him based on

his age. JDSU then removed the lawsuit to federal court. JDSU filed a motion for summary

judgment, which Mr. Klinman opposed. For the following reasons, the Court finds that there are

genuine issues of material fact and, thus, JDSU’s Motion for Summary Judgment must be

denied. 

II. DISCUSSION 

A. Summary Judgment Standard 

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

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genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” FED. R. CIV. P. 56(c). An issue is “genuine” if the evidence is such that a

reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it might affect the outcome of

the case under governing law. Id.

A party seeking summary judgment always bears the initial responsibility to inform the

district court of the basis for the motion and to identify those portions of the record that 

demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at

trial, the moving party’s initial burden can be met simply by “pointing out to the district court

that there is an absence of evidence to support the non-moving party’s case.” Id. at 325. After

the moving party has met its initial burden, “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.” FED. R. CIV. P. 56(e). Summary judgment is appropriate if the non-moving party fails

to rebut by making a factual showing “sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477

U.S. at 322. Under Rule 56, the Court must view the evidence presented in the motion in the

light most favorable to the opposing party. Anderson, 477 U.S. at 255; USX Corp v. Liberty

Mut. Ins. Co., Nos. 04-1277 & 04-1300, 2006 U.S. App. LEXIS 8702, at *12-13 (3d Cir. Apr.

10, 2006).

B. Age Discrimination Claims 

To succeed with an age discrimination claim under the ADEA or the PHRA, a plaintiff

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 The plaintiff in Monaco brought his claim under the New Jersey Law Against

Discrimination (“NJLAD”) and not under the ADEA, as in this case. In explaining the standard

for determining whether an employee is “similarly situated” under the NJLAD, the court of

appeals did “not suggest that the standard would be different under the ADEA,” but rather

“merely recognize[d]” that Monaco’s claims for age discrimination was solely under the NJLAD. 

Monaco, 359 F.3d at 305 n.12.

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using indirect evidence, as Mr. Klinman does here, must first establish a prima facie case of age

discrimination by showing that: (1) he is within the protected age group of 40 and over; (2) he

was qualified for the position in question; (3) he was the subject of an adverse employment

action; (4) under circumstances giving rise to an inference of discrimination. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Fasold v. Justice, 409 F.3d 178, 183-84 (3d

Cir. 2005). When an employee is terminated during a reduction in force (“RIF”), as is the case

here, the fourth element becomes whether the employee can show “that the employer retained

someone similarly situated to him who was sufficiently younger.” Anderson v. Conrail, 297 F.3d

242, 250 (3d Cir. 2002). 

In order to show that a retained employee was “similarly situated,” the plaintiff does not

have to show that the employee was identically situated. Monaco v. Am. Gen. Assurance Co.,

359 F.3d 296, 305 (3d Cir. 2004). Rather, in order to determine who might qualify as a similarly

situated employee, the Court must “look to the job function, level of supervisory responsibility

and salary, as well as other factors relevant to the particular workplace.”2 Id.; Larrison v. Lucent

Technologies Inc., No. 02-4082, 2004 U.S. Dist. LEXIS 27246, at *17 (D.N.J. Aug. 20, 2004). 

Such an evaluation “requires the court to undertake a fact-intensive inquiry on a case-by-case

basis rather than in a mechanistic and inflexible manner.” Monaco, 359 F.3d at 305. The Third

Circuit Court of Appeals has noted that, in order for the plaintiff to satisfy the “sufficiently

younger” standard, “there is no particular age difference that must be shown, but while different

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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 and quotations omitted). 

 Once the plaintiff has established a prima facie case of age discrimination, the burden

shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse

employment action. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). This burden is

“relatively light,” and the employer can meet the burden by “introducing evidence which, taken

as true, would permit the conclusion that there was a nondiscriminatory reason for the

unfavorable employment decision.” Id. After the employer satisfies its burden of production,

the plaintiff must respond by citing to evidence which shows that the proffered legitimate

explanation for the adverse action is actually pretextual. Id. 

Here, if JDSU can proffer a legitimate, non-discriminatory reason for Mr. Klinman’s

termination, in order for Mr. Klinman to create a genuine issue of material fact, he must “point to

some evidence, direct or circumstantial, from which a factfinder reasonably could either (1)

disbelieve the JDSU’s articulated legitimate reasons; or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or determinative cause of JDSU’s

action.” Id. at 764. Mr. Klinman “must do more than show that [JDSU] was ‘wrong or

mistaken’ in deciding to lay him off.” Tomasso v. Boeing Co., No. 04-4657, 2006 U.S. App.

LEXIS 9734, at *10 (3d Cir. Apr. 19, 2006). He must “demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy

of credence, and hence infer that the employer did not act for the asserted non-discriminatory

reasons.” Fuentes, 32 F.3d at 765. 

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It is not necessary for Mr. Klinman to offer evidence sufficient to discredit all of the

rationales advanced by JDSU. Id. at *11. Rather, if Mr. Klinman “manages to cast substantial

doubt on a fair number of them, [he] may not need to discredit the remainder.” Fuentes, 32 F.3d

at 764. That is, “the rejection of some explanations may so undermine the employer’s credibility

as to enable a rational factfinder to disbelieve the remaining rationales, even where the employee

fails to produce evidence particular to those rationales.” Id. at *12.

C. McDonnell Douglas Analysis

1. Prima Facie Evidence of Discrimination

JDSU argues that summary judgment is proper at this time because although Mr.

Klinman can establish the first three elements of a prima facie claim of discrimination, he cannot

show the fourth element (i.e., that JDSU retained sufficiently younger, similarly situated

employees). JDSU contends that no one was hired to fill Mr. Klinman’s former position, and

Mr. Klinman’s former duties were divided among a number of JDSU employees after his

departure. 

In contrast, Mr. Klinman argues that he can establish a prima facie claim of

discrimination because JDSU did in fact retain sufficiently younger, similarly situated

employees, namely Karen Glover and Matthew George. Specifically, Mr. Klinman alleges that

Matthew George, then age 34, who was also a former OptronX employee hired by JDSU to work

at the Allentown facility after the acquisition of the Trident line, was retained as an employee of

JDSU while Mr. Klinman was terminated. Mr. Klinman was 58-years-old at the time he was

terminated, 24 years older than Mr. George. This age differential satisfies the requirement for a

discrimination claim that the employer retain an employee who is “sufficiently younger” than the

terminated employee. Karen Glover was a JDSU employee who worked at the JDSU Melbourne,

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 Even if Mr. Klinman arguably has shown that Ms. Gover was sufficiently younger than

he was at the time of his termination, Mr. Klinman has not carried his burden with respect to

showing that Ms. Glover was a similarly-situated employee who was retained when he was

terminated. That is, although Mr. Klinman has offered minimal evidence regarding her job

duties – only that she worked with the JDSU documents and spec sheets and took over Mr.

Klinman’s duties which fit into that category – Mr. Klinman has offered no evidence regarding

Ms. Glover’s salary, job title, or supervisory responsibility. From this record, the Court cannot

conclude that there is a genuine issue of material fact as to whether Ms. Glover was similarly

situated to Mr. Klinman.

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Florida site and who, according to Mr. George’s deposition testimony, was “in her thirties” at the

time Mr. Klinman was laid off. Here, Mr. George’s supposition that Ms. Glover was “in her

thirties” at the time Mr. Klinman’s employment was terminated is insufficient to establish that

Ms. Glover was sufficiently younger than Mr. Klinman.

 Thus, the important examination becomes that related to Mr. George. As stated above,

the Court must look to the Monaco factors to determine whether Mr. George was “similarly

situated” to Mr. Klinman.3 

(1) Job Title: Mr. Klinman held the title of Hardware Development and Research

Engineer (Electrical Design) (Level 4), and Mr. George was a Product Applications Engineer.

(2) Salary: Mr. Klinman ($134,000) was paid $45,000 more per year than Mr. George

($89,000).

 (3) Job Function: Mr. Klinman and JDSU are in sharp disagreement as to the scope of

Mr. Klinman’s job duties as an employee of JDSU. Mr. Klinman states that he performed work

as a designer for 20% of his time, with applications work, customer interface/marketing and data

sheets taking up 70% of his time. Mr. George and Mr. Owen, Mr. Klinman’s direct supervisor,

both agree that part of Mr. Klinman’s duties was applications work, which was also performed

by Mr. George. In contrast, Mr. Genova, vice-president of JDSU and the JDSU representative

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who made the decision to terminate Mr. Klinman, only categorizes Mr. Klinman’s duties as

engineer for the design and development of Trident transponders. 

Both at oral argument and in JDSU’s responses to Mr. Klinman’s first set of

interrogatories, JDSU indicated that Mr. Klinman was a highly skilled engineer, but that only a

small portion of his duties required those skills. JDSU also asserts that the non-engineering,

time-filling tasks that Mr. Klinman was performing because there was a relative dearth of

engineering work were, in any event, not occupying Mr. Klinman’s time. 

With respect to Mr. George’s job duties, Messrs. Klinman, Owen, Genova, and George

himself agree that Mr. George was an applications engineer. According to Mr. George, his job

entailed such things as traveling, interfacing with clients, setting up and testing equipment and

resolving customer issues. Mr. Genova characterized Mr. George’s duties as being an

applications engineer who interfaced with customers on Trident modules, and then moved onto

other JDSU products.

There is some disagreement among the parties as to how Mr. Klinman’s duties were

divided after he was terminated. Mr. Klinman alleges that his duties were performed by Matthew

George and Karen Glover. Mr. George denies that he took over any of Mr. Klinman’s duties

once Mr. Klinman was terminated from JDSU. Mr. Owen, who, at least for sometime, was Mr.

George’s direct supervisor, expressed surprise that Mr. George denied taking over any of Mr.

Klinman’s job responsibilities, stating that Mr. George did take over certain responsibilities. 

Specifically, Mr. Owen stated that Mr. George took over interfacing with client, marketing, and

handling customer problems that Mr. Klinman had previously performed. JDSU also asserts that

some of Mr. Klinman’s engineering duties were subsumed by Clarence Williams, who was 57-

years-old at the time Mr. Klinman was terminated. 

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(3) Supervisory Responsibility: There is no indication on the record before the Court

that either Mr. Klinman or Mr. George had any supervisory responsibilities.

(4) Other Factors: The Court has not determined that there are any other factors – and

the parties have not directed the Court’s attention to any such factors – deserving of

consideration on the issue of whether Mr. George and Mr. Klinman were similarly situated.

Here, although Mr. George and Mr. Klinman were not identically situated at the time Mr.

Klinman left JDSU, Mr. Klinman does not have to make that showing. At this point, Mr.

Klinman simply has to show that he and Mr. George were similarly situated and that Mr. George

was retained while Mr. Klinman was terminated. Although Mr. George and Mr. Klinman did not

share the same job title, their job duties were similar. Specifically, although Mr. Genova goes to

lengths to categorize Mr. Klinman’s duties as strictly engineering and downplay his other duties,

Mr. Klinman and Mr. Owen agree that Mr. Klinman had varied duties and was an applications

engineer (as was Mr. George) in practice if not in title. Also, Mr. Owen also testified that Mr.

Klinman interfaced with the clients, and, specifically, one major client (Nortel) regarding the

Trident line. Mr. Genova stated that Mr. George also did client interface with the Trident line. 

Based on the available information, although Mr. Klinman’s duties were somewhat broader that

Mr. George’s, Mr. Klinman and Mr. George were similarly, albeit not identically, situated with

respect to their job duties at the time Mr. Klinman was terminated and Mr. George retained.

As stated above, the 24 year age difference between Mr. George and Mr. Klinman is

enough to satisfy the “sufficiently younger” prong. Although it is an admittedly close issue, the

Court finds that, taking the evidence in a light most favorable to Mr. Klinman, Mr. George is also

similarly situated to Mr. Klinman. Mr. George and Mr. Klinman had different job titles and

salaries, yet they were performing similar job duties. On balance, these considerations weigh

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heavily in favor of a finding that Mr. Klinman and Mr. George were similarly situated. 

2. Legitimate, Non-Discriminatory Reason for Termination

JDSU argues that, even if Mr. Klinman can show a prima facie case of discrimination,

JDSU can carry its burden of articulating legitimate, non-discriminatory reasons for laying off

Mr. Klinman. Specifically, JDSU asserts that it terminated Mr. Klinman for “economic and costcutting reasons.” The company needed to reduce its costs and the Trident line no longer needed

design engineers, according to JDSU. 

3. Evidence of Pretext

JDSU argues that, even if Mr. Klinman can make a prima facie showing of

discrimination, the record is devoid of any evidence of pretext. JDSU contends that all of the

evidence shows that the decision to terminate Mr. Klinman was based on purely economic

reasons, namely, the company needed to reduce costs and the Trident line no longer needed a

senior design engineer, and thus, Mr. Klinman, as the Trident senior design engineer was

terminated. JDSU directs the Court’s attention to the first RIF round, in which Mr. Klinman and

two other employees who worked on the Trident line, both in their 30's, were terminated (which

was followed by two other reductions in force and, ultimately, the closure of the Allentown

facility). JDSU also asserts that there is no evidence of pretext because Mr. George was one of a

number of individuals who may have performed some of Mr. Klinman’s duties in addition to

their own. JDSU argues that this evidence does not rise to the level of “demonstrating

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions.”

Mr. Klinman, in contrast, asserts that there is clear evidence of pretext because Mr.

Klinman had an excellent work history which went unconsidered by JDSU and also that JDSU’s

economic rationales were merely justifications triggered by the exigencies of this litigation. 

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Here, JDSU and, in particular, Mr. Genova, go to great lengths to narrowly categorize Mr.

Klinman’s position and duties at JDSU. JDSU argues strenuously that Mr. Klinman’s duties

were only to include those of a Trident senior design engineer, and any other job duties that Mr.

Klinman may have performed were simply “filler” which a man of Mr. Klinman’s expertise

should not have been performing. Mr. Klinman, on the other hand, has produced evidence

showing that his job duties were much broader, including, in addition to performing duties as the

Trident senior design engineer, working with data sheets, interfacing with customers, and small

design changes. Mr. Klinman also produced evidence which indicated that he performed some

work on expanding JDSU product lines as well as work with a particularly large client, Nortel. 

The parties do not disagree, however, that Mr. Klinman was a highly competent and valued

employee. 

Based on the above, taking all reasonable inferences in favor of Mr. Klinman, a

reasonable factfinder could disbelieve and find incoherencies and inconsistencies in JDSU’s

articulated reasons for the termination. JDSU alleges that it terminated Mr. Klinman for

economic reasons because the senior design engineer position for the Trident line was no longer

needed, yet Mr. Klinman has proffered evidence to show that his job was much broader than

simply a design engineer for the Trident line. Moreover, there is evidence that the Trident line

still required at least some design engineering because, as admitted by JDSU, when there was

advanced action, such as a design change, those issues were given to Mr. George or Mr.

Williams. A reasonable fact-finder could determine that doubt is visited upon JDSU’s proffered

non-discriminatory economic justifications by virtue of the fact that it would not make economic

sense to terminate a much-valued employee whose job included very little of the product line

which was eliminated. Thus, the Court finds that Mr. Klinman has carried his burden at this

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stage and the case must be tried to a jury. 

III. CONCLUSION

Based on the foregoing, the Court finds that Mr. Klinman has raised a genuine issue of

material fact as to whether JDSU’s proffered rational for firing Mr. Klinman was merely

pretextual for terminating him for discriminatory reasons, and JDSU’s Motion for Summary

Judgment must be denied. 

BY THE COURT:

 

GENE E.K. PRATTER

UNITED STATES DISTRICT JUDGE

Case 2:05-cv-02066-GEKP Document 28 Filed 07/07/06 Page 13 of 15
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICHARD KLINMAN, : CIVIL ACTION

Plaintiff, :

:

v. :

:

JDS UNIPHASE CORPORATION, :

Defendant : NO. 05-2066

ORDER

AND NOW, this 6th day of July, 2006, upon consideration of Defendant’s Motion for

Summary Judgment (Docket No. 18), Plaintiff’s Response thereto (Docket No. 19), and

Defendant’s Reply (Docket No. 25), it is hereby ORDERED that Defendant’s Motion is

DENIED.

IT IS FURTHER ORDERED that the case shall proceed in accordance with the practices

and procedures set forth in the Court’s August 1, 2005 Scheduling Order (Docket No. 8) and on

the following schedule:

1. All trial exhibits shall be marked and exchanged on or before September 27, 2006.

2. All parties are to prepare and file with the Clerk of Court their Pretrial

Memoranda, in accordance with this Order and Local Rule of Civil Procedure 16.1(c) as follows:

a. Plaintiff: on or before October 4, 2006.

 b. Defendant: on or before October 11, 2006.

One (1) copy of each Pretrial Memorandum shall be served on the Court (Chambers, Room

5118) when the original is filed.

 3. A final pretrial conference will be held with the Honorable Gene E.K. Pratter on

October 18, 2006, at 2:00 p.m. in Chambers, Room 5118, United States Courthouse. Lead trial

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counsel is required to appear at the conference. If trial counsel is on trial in another matter, an

attorney in his or her office who is thoroughly familiar with this case is required to appear at the

conference.

4. The case will be placed on the Court's trial pool list on October 24, 2006. The

case will be tried to a jury. The estimated trial time is four days (4) days, including the time

needed to select a jury.

BY THE COURT:

 S/Gene E.K.Pratter 

GENE E.K. PRATTER

UNITED STATES DISTRICT JUDGE

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