1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-17-1994

McKenna, et al. v. Pacific Rail Service

Precedential or Non-Precedential:

Docket 93-5253, 93-5277

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Recommended Citation

"McKenna, et al. v. Pacific Rail Service" (1994). 1994 Decisions. Paper 115.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 Nos. 93-5253, 93-5277, 

 93-5385 and 93-5386 

 ___________ 

PETER MCKENNA; GREG SPINA; JACK RICCIARDI; JOHN OLIVER; 

ANDREW HENNESSEY; AL ARMETTA; PINCUS COHEN; DAVE QUAID; 

ADAM LUKASWESKI; WILLIAM HARPER; DORRANCE A. LINDH; 

JOHN GUGLIOTTA; GEORGE WHITEHEAD; JOHN SHEA; ANTHONY 

NAZARE; ROBERT TIGHE; DENNIS MCCARTHY; RICHARD 

MONTACALVO; JEANETTE MCCAFFERTY; GEORGE MARTIN; RALPH 

FERNANDEZ; PAUL NOETHE; PATRICIA BURWITZ; MICHAEL 

DEMONE; EDDIE DECHERT; SALVATORE PETRUZZELLI; PHYLLIS 

LINDH; JOSEPH K. PFEIL, 

 vs. 

PACIFIC RAIL SERVICE, 

 Pacific Rail Service, 

 Appellant Nos. 93-5253

 and 93-5385. 

PETER MCKENNA; GREG SPINA; JACK RICCIARDI; JOHN OLIVER; 

ANDREW HENNESSEY; AL ARMETTA; PINCUS COHEN; DAVE QUAID; 

ADAM LUKASWESKI; WILLIAM HARPER; DORRANCE A. LINDH; 

JOHN GUGLIOTTA; GEORGE WHITEHEAD; JOHN SHEA; ANTHONY 

NAZARE; ROBERT TIGHE; DENNIS MCCARTHY; RICHARD 

MONTACALVO; JEANETTE MCCAFFERTY; GEORGE MARTIN; RALPH 

FERNANDEZ; PAUL NOETHE; PATRICIA BURWITZ; MICHAEL 

DEMONE; EDDIE DECHERT; SALVATORE PETRUZZELLI; PHYLLIS 

LINDH; JOSEPH K. PFEIL, 

 vs. 
PACIFIC RAIL SERVICE, 

 Peter McKenna; Greg Spina; Jack Ricciardi; John Oliver; 

Andrew Hennessey; Al Armetta; Pincus Cohen; Dave Quaid; 

Adam Lukasweski; William Harper; Dorrance A. Lindh; 

John Gugliotta; George Whitehead; John Shea; Anthony 

Nazare; Robert Tighe; Dennis McCarthy; Richard 

Montacalvo; Jeanette McCafferty; George Martin; Ralph 

Fernandez; Paul Noethe; Patricia Burwitz; Michael 

Demone; Eddie Dechert; Salvatore Petruzzelli; Phyllis 

Lindh; Joseph K. Pfeil, 

 Appellants Nos. 93-5277

 and 93-5386. 

 ___________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW JERSEY 

 (D.C. Civil No. 91-00693) 

 ___________ 

 ARGUED MARCH 10, 1994 

 BEFORE: MANSMANN and LEWIS, Circuit Judges, 

 and MCKELVIE, District Judge.

*

 (Filed August 11, 1994) 

 ___________ 

John W. Kyle 

Roger D. Meade 

Littler, Mendelson, Fastiff, Tichy, & Mathiason 

World Trade Center, Suite 1653 

Baltimore, MD 21202-3005 

 

* Honorable Roderick R. McKelvie, United States District Judge 

for the District of Delaware, sitting by designation. 
Gary P. Scholick (ARGUED) 

Littler, Mendelson, Fastiff, Tichy & Mathiason 

650 California Street, 20th Floor 

San Francisco, CA 94108 

Attorneys for Appellant/Cross-appellee, Pacific Rail Service

Louie D. Nikolaidis 

Thomas M. Kennedy (ARGUED) 

Lewis, Greenwald, Kennedy, Lewis, 

 Clifton & Schwartz 

355 Murray Hill Parkway 

East Rutherford, NJ 07073 

Attorneys for Appellees/Cross-appellants, McKenna, Spina, 

Ricciardi, Oliver, Hennessey, Armetta, Cohen, Quaid, 

Lukasweski Harper, Lindh, Gugliotta, Whitehead, Shea, 

Nazare, Tighe, McCarthy, Montacalvo, McCafferty, 

Martin, Fernandez, Noethe, Burwitz, Demone, Dechert, 

Petruzzelli, Lindh, and Pfeil

 ___________ 

 OPINION OF THE COURT 

 ___________ 

LEWIS, Circuit Judge. 

Appellees/cross-appellants are 23 of 28 former yard and clerical 

employees of Pennsylvania Truck Lines, Inc. ("PTL") who asserted 

that appellant/cross-appellee Pacific Rail Services ("Pacific 

Rail") engaged in age discrimination in violation of the New 

Jersey Law Against Discrimination (the "LAD") by failing to hire 

them in 1990. Since the trial in this case, the United States 

Supreme Court has issued a decision clarifying the standards by 

which federal employment discrimination cases are to be judged. 

St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993). Because 

we believe the New Jersey Supreme Court would adopt Hicks's 
clarification of the test to be applied in federal discrimination 

cases in interpreting the LAD, we will vacate the judgment that 

was entered and remand for a new trial. To assist the district 

court on remand, we will also decide several subsidiary issues 

relating to individual claims and plaintiffs. 

I. 

Because our resolution of the legal issues will require a new 

trial, it is not necessary to discuss the facts in great detail. 

The following, however, provides some background to the dispute. 

Beginning in 1960, PTL performed lift operations -- loading and 

unloading freight from flat bed railroad cars -- for Consolidated 

Rail Corporation ("Conrail") at its North Bergen, New Jersey, 

terminal. In July, 1990, however, after solicitation of bids by 

Conrail, Pacific Rail won the North Bergen contract, effective 

September 1, 1990. 

Upon learning that PTL had lost the North Bergen contract, PTL 

employees at the North Bergen terminal became interested in 

working for Pacific Rail at that site. Pacific Rail 

representatives testified at trial, however, that even before 

submitting its bid, Pacific Rail had decided not to simply hire 

all of the PTL/North Bergen yard and clerical workers 

"wholesale," because Pacific Rail was concerned about the 

attitudes and work habits of some of the workers.1

 

1. Plaintiffs at trial disputed both the sincerity of Pacific 

Rail's concern and the accuracy of Pacific Rail's 

characterization of the PTL employees at North Bergen. 
Instead, upon winning the North Bergen contract, Pacific Rail 

apparently undertook a three-step hiring process. First, Pacific 

Rail offered positions to its own employees at Conrail's 

Elizabeth, New Jersey ("E-Rail") terminal on a "promote from 

within" theory. (Pay rates at North Bergen were higher than at 

E-Rail, so a move to North Bergen was effectively a promotion, 

according to the Pacific Rail representatives.) Testimony 

indicated that one of the six yard and clerical employees 

transferred from E-Rail on this basis was over 40 years old. 

Pacific Rail next offered employment to three Conrail clerks and 

two PTL employees from the nearby Conrail/PTL terminal at Kearny, 

New Jersey. The three Conrail offerees (only two of whom 

accepted their offers) were over 40. The two PTL offerees (both 

of whom accepted) were under 40. 

Finally, Pacific Rail hired all 11 applicants referred by the 

union local that represented yard and clerical employees at ERail. Of these, one was over 40. 

As of September 1, only a limited number of positions in North 

Bergen remained open. Pacific Rail apparently offered employment 

to two former PTL/North Bergen yard employees who were over 40, 

but both refused the offer. Then a former PTL supervisor working 

for Pacific Rail recommended for hire four former PTL/North 

Bergen yard employees, two of whom were in their 20s and two of 

whom were over 40. Pacific Rail offered employment to the 

younger two, and they accepted. To fill a remaining clerk 

position, Pacific Rail made offers to two former PTL/North Bergen 

clerical employees, both over 40, but both declined. Ultimately, 
instead of simply filling the clerk position, Pacific Rail 

transferred a person who was over 40 from E-Rail to assist with 

clerical work and act as office manager. 

To summarize, prior to September 1, Pacific Rail had apparently 

hired 21 employees, none of whom came from the pool of PTL 

employees at North Bergen. Only four of these 21 individuals 

were over 40 years old. After September 1, Pacific Rail hired 

either three or four more employees, at least two of whom were 

under 40 and from PTL/North Bergen and at least one of whom was 

over 40 and formerly with E-Rail.2 Thus, of the 25 yard and 

clerical employees that the evidence showed Pacific Rail hired to 

work at North Bergen, either 19 or 20 were under 40 years old. 

The 28 former PTL/North Bergen yard and clerical employees who 

filed this lawsuit were over 40. They alleged that Pacific 

Rail's failure to hire them was due to age discrimination in 

violation of the LAD. A jury found in favor of 18 of the 28 

employees and awarded them a total of more than $7 million 

($1,448,000 in back pay and $5,743,500 in front pay). Both 

Pacific Rail and the 18 verdict winners, plus five plaintiffs 

whose claims were dismissed by the district court, appeal and 

cross-appeal several issues. 

 

2. Curiously, the record is somewhat ambiguous as to whether 

three or four additional employees were hired after 

September 1. Plaintiffs' Exhibit 10 indicates that Pacific 

Rail hired a total of 25 persons. The parties agree that 21 

were hired prior to September 1. That would leave four to 

be hired after September 1, but, as discussed in the text, 

the parties specifically discuss only three employees hired 

after that date. The discrepancy is immaterial for our 

purposes, as we are certain it will be clarified on remand. 
II. 

The primary issue presented involves the delicate task of 

predicting how the New Jersey Supreme Court would interpret and 

apply the LAD in the aftermath of the United States Supreme 

Court's decision in St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 

2742 (1993). As a federal court sitting in diversity, the 

district court was, and we are, obliged to apply state 

substantive law. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); 

Colantuno v. Aetna Ins. Co., 980 F.2d 908, 909 (3d Cir. 1992). 

In so doing, we are not free to impose our own view of what state 

law should be; we are to apply state law as interpreted by the 

state's highest court. Id. In the absence of guidance from that 

court we are to refer to decisions of the state's intermediate 

appellate courts for assistance in determining how the highest 

court would rule. Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 

113 (3d Cir. 1992); Fisher v. USAA Casualty Ins. Co., 973 F.2d 

1103, 1105 (3d Cir. 1992). In cases such as this, where neither 

the state supreme court nor any intermediate appellate courts 

have spoken to the issue at hand, our task of predicting state 

law becomes even more complicated. Nevertheless, we must proceed 

into these uncharted waters, using pronouncements from the New 

Jersey Supreme Court on analogous issues as our compass. 

A. 

In Hicks, the Supreme Court considered "whether, in a suit 

against an employer alleging intentional racial discrimination in 

violation of [Title VII], the trier of fact's rejection of the 

employer's asserted reasons for its actions mandates a finding 
for the plaintiff." Hicks, 113 S. Ct. at 2746. Under the 

familiar McDonnell Douglas shifting-burden analysis applicable to 

federal employment discrimination cases involving indirect proof 

of discrimination, the plaintiff bears the burden of proving a 

relatively simple prima facie case, which the employer must rebut 

by articulating a legitimate, non-discriminatory reason for its 

actions. See generally Chipollini v. Spencer Gifts, Inc., 814 

F.2d 893, 897 (3d Cir. 1987).3 Prior to Hicks, we had held that 

a finding that a defendant employer had articulated false reasons 

mandated entry of judgment for plaintiff. See Chipollini, 814 

F.2d at 898; Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 

1393, 1395-96 (3d Cir. 1984). Hicks changed that: the Court 

ruled definitively that a finding that an employer had 

articulated a pretextual reason for its actions does not mandate 

judgment for a plaintiff. Instead, "a reason cannot be proved to 

be `a pretext for discrimination' unless it is shown both that 

the reason was false, and that discrimination was the real 

reason." Hicks, 113 S. Ct. at 2752. Thus, "[t]hat the 

 

3. The McDonnell Douglas analysis was derived from McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973). See also

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 

(1981). Although McDonnell Douglas itself involved 

allegations of intentional (disparate treatment) 

discrimination in violation of Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. § 2000e, the shifting burden 

analysis with which the case name is now synonymous also 

has been applied in section 1983 cases, section 1981 cases 

and age discrimination cases. See Hicks, 113 S. Ct. at 

2746-47 n.1; Seman v. Coplay Cement Co., slip op. at 8 n.7 

No. 93-3544 (3d Cir. June 8, 1994); Geary v. Visitation of 

the Blessed Virgin Mary Parish Sch., 7 F.3d 324, 329 & n.4 

(3d Cir. 1993). 
employer's proffered reason [for its actions] is unpersuasive, or 

even obviously contrived, does not necessarily establish that the 

plaintiff's proffered reason of race is correct." Id. at 2756 

(emphasis added). In our most recent decisions addressing this 

issue, we have followed this teaching that a finding of pretext 

may lead to a reasonable inference of discriminatory motives, but 

it does not automatically compel a finding of discrimination. 

See Miller v. CIGNA Corp., slip op. at 19-20, No. 93-1773 (3d 

Cir. June 28, 1994); Seman v. Coplay Cement Co., slip op. at 9, 

No. 93-3544 (3d Cir. June 8, 1994); Geary v. Visitation of the 

Blessed Virgin Mary Parish Sch., 7 F.3d 324, 329 n.4 (3d Cir. 

1993). 

B. 

In this LAD case, the district court instructed the jury several 

times that the plaintiffs bore the burden of proving that they 

were not hired because of their age. See App. at 91-93. The 

court also instructed the jury that in evaluating Pacific Rail's 

asserted legitimate business reasons for its actions, they were 

to decide whether those reasons were its true reasons or whether 

they "ha[d] been presented to hide or avoid disclosure of the 

true reason, namely: age discrimination." App. at 94. In 

summarizing the charge, the court said: 

If I may recap for you, if you find that plaintiff has 

established . . . either, one, that his/her age was a 

determining factor "but for" which he/she would have 

been hired; or two, that the reasons advanced by the 

defendant for not hiring plaintiff were a pretext, a 

reason or reasons unworthy of credence, then plaintiff 

will have established his/her claim of intentional age 

discrimination and you must return a verdict in his/her 

favor. If, however, he/she has failed to establish 
either of those two propositions, then your verdict 

must be in favor of the defendant. 

App. at 94-95 (emphasis added). Clearly, these instructions 

would be an incorrect statement of federal law after Hicks.

4

C. 

The question, however, is whether the New Jersey courts would 

apply Hicks in an LAD case.5 Hicks, of course, involved the 

United States Supreme Court's interpretation of federal antidiscrimination statutes and case law. Whether the New Jersey 

Supreme Court will decide that the same principles apply in cases 

brought under the LAD is another question. 

 

4. Pacific Rail requested a jury instruction explaining that 

even if the jury rejected Pacific Rail's rationale as 

unsupported by the evidence or false, the jury would 

nevertheless still need to find that the plaintiffs met 

their burden of proving wrongful discrimination. Suppl. 

App. at 2799. The district court did not give this 

instruction. 

5. Pacific Rail contends that plaintiffs are estopped from 

arguing that Hicks does not apply because the plaintiffs 

contended throughout this litigation that New Jersey courts 

generally follow federal law in this area. Plaintiffs 

certainly have consistently taken the position that the 

standards and allocations of proof applicable to federal 

Title VII cases apply in cases involving the LAD. But on 

these facts we cannot say plaintiffs are estopped from 

arguing that Hicks does not apply. Trial took place in 

September, 1992, and post-trial motions were decided in 

March and April, 1993. Hicks was not decided until June, 

1993. Until then, our position on this issue, which the 

district court was bound to follow, was one the plaintiffs 

believed the New Jersey Supreme Court would also follow. 

The fact that the United States Supreme Court has since 

disavowed our position should not foreclose the plaintiffs 

from arguing that the New Jersey Supreme Court might 

nonetheless decide to adopt the approach taken in Title VII 

cases in this circuit before Hicks. 
The LAD provides: 

 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, 

affectional or sexual orientation, sex or atypical 

hereditary cellular or blood trait of any individual, 

or because of the liability for service in the Armed 

Forces of the United States or the nationality 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 . . . . 

N.J. Stat. Ann. 10:5-12(a). First enacted in 1945, well before 

federal legislative attempts to eliminate discrimination in the 

workplace, the LAD was intended by the New Jersey legislature to 

eradicate "the cancer of discrimination." Jackson v. Concord 

Co., 54 N.J. 113, 124, 253 A.2d 793, 799 (1969); see Lehmann v. 

Toys `R' Us, Inc., 132 N.J. 587, 600, 626 A.2d 445, 451 (1993).6 

 

6. The New Jersey legislature has provided: 

 All persons shall have the opportunity to obtain 

employment . . . without discrimination because of 

race, creed, color, national origin, ancestry, 

age, marital status, affectional or sexual 

orientation, familial status, or sex, subject only 

to conditions and limitations applicable alike to 

all persons. This opportunity is recognized and 

declared to be a civil right. 

 N.J. Stat. Ann. 10:5-4. It has clearly stated the intent 

behind the LAD within the statute itself: 

 The Legislature finds and declares that 

practices of discrimination against any of its 

inhabitants, because of race, creed, color, 

national origin, ancestry, age, sex, affectional 

or sexual orientation, marital status, familial 

status, liability for service in the Armed Forces 
The New Jersey Supreme Court has generally looked to standards 

developed under federal anti-discrimination law for guidance in 

construing the LAD. Lehmann, 132 N.J. at 600, 626 A.2d at 452. 

The New Jersey Court has adopted the McDonnell Douglas framework, 

(..continued) 

of the United States, or nationality, are matters 

of concern to the government of the State, and 

that such discrimination threatens not only the 

rights and proper privileges of the inhabitants of 

the State but menaces the institutions and 

foundation of a free democratic State; provided, 

however, that nothing in this expression of policy 

prevents the making of legitimate distinctions 

between citizens and aliens when required by 

federal law or otherwise necessary to promote the 

national interest. 

 The Legislature further declares its 

opposition to such practices of discrimination 

. . . in order that the economic prosperity and 

general welfare of the inhabitants of the State 

may be protected and ensured. 

 The Legislature further finds that because of 

discrimination, people suffer personal hardships, 

and the State suffers a grievous harm. The 

personal hardships include: economic loss; time 

loss; physical and emotional stress; and in some 

cases severe emotional trauma, illness, 

homelessness or other irreparable harm resulting 

from the strain of employment controversies; 

relocation, search and moving difficulties; 

anxiety caused by lack of information, 

uncertainty, and resultant planning difficulty; 

career, education, family and social disruptions; 

and adjustment problems, which particularly impact 

on those protected by this act. Such harms have, 

under the common law, given rise to legal 

remedies, including compensatory and punitive 

damages. The Legislature intends that such 

damages be available to all persons protected by 

this act and that this act shall be liberally 

construed in combination with other protections 

available under the laws of this State. 

 N.J. Stat. Ann. 10:5-3. 
although it has noted that it has never "embraced the McDonnell 

Douglas test literally, invariably, or inflexibly." Grigoletti 

v. Ortho Pharm. Corp., 118 N.J. 89, 97-98, 570 A.2d 903, 907 

(1990). Instead, the New Jersey Supreme Court has demonstrated a 

marked willingness, and has instructed New Jersey courts in 

general, to treat the McDonnell Douglas test as "only a general 

framework for analyzing unlawful discrimination claims" which 

"must be modified where appropriate." Erickson v. Marsh & 

McLennan Co., Inc., 117 N.J. 539, 550, 569 A.2d 793, 799 (1990); 

see generally Carrington v. RCA Global Commun., Inc., 762 F. 

Supp. 632, 644-45 (D. N.J. 1991) (noting that "[t]here is little 

reason to believe that New Jersey courts will exhibit slavish 

devotion to federal law in interpreting the NJLAD"). 

Thus, the New Jersey Supreme Court has refused to apply the 

McDonnell Douglas framework in LAD cases alleging gender 

discrimination in the form of unequal pay, Grigoletti, supra; 

modified the elements of the McDonnell Douglas prima facie case 

in the context of reverse discrimination failure-to-hire cases, 

Erickson, supra; and shifted to employers the burden of proving 

the validity of their decisions in some handicap discrimination 

cases. Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 

541 A.2d 682 (1988). See also Jamison v. Rockaway Twp. Bd. of 

Educ., 242 N.J. Super. 436, 445-47, 577 A.2d 177, 183 (1990) 

(establishing a variation of the McDonnell Douglas framework to 

apply in cases alleging a retaliatory failure to promote). 

Plaintiffs point to this willingness to modify the McDonnell 

Douglas framework as evidence that the New Jersey Supreme Court 
would disregard Hicks and instead hold that a plaintiff asserting 

a claim of employment discrimination pursuant to the LAD is 

entitled to judgment as a matter of law if he or she has proven a 

prima facie case and has demonstrated that the reason or reasons 

the employer gave for the challenged employment action were 

false. 

 It is true that the New Jersey Supreme Court has taken to heart 

the legislature's expressed intention that the LAD is to be 

construed liberally. See supra note 6. It is also true, 

however, that the legislature has admonished New Jersey courts to 

construe the provisions of the LAD "fairly and justly with due 

regard to the interests of all parties," N.J. Stat. Ann. 10:5-27, 

as the New Jersey Supreme Court itself recognized in Andersen v. 

Exxon Co., 89 N.J. 483, 496, 446 A.2d 486, 492 (1982). Read 

together, these admonitions are not inconsistent with one another 

and are both significant to and instructive in our search for 

guidance. As we explain more fully below, because the New Jersey 

legislature intended to protect and compensate victims of 

discrimination but not to relieve them of the burden of proving 

unlawful discrimination, and because the New Jersey rule 

regarding presumptions parallels the federal rule on presumptions 

upon which the Hicks Court based its decision, we predict that 

the New Jersey Supreme Court would endorse Hicks's view that a 

plaintiff in a discrimination case is not entitled to judgment as 

a matter of law simply because he or she proves a prima facie

case and that the reason or reasons asserted by his or her 

employer for the challenged action were false. 
Our decision is informed by a number of observations concerning 

New Jersey law. First, under New Jersey law, as under federal 

law, plaintiffs have always retained the ultimate burden of 

demonstrating that the actions they challenged were due to 

discrimination. See, e.g., Peper v. Princeton Univ. Bd. of 

Trustees, 77 N.J. 55, 87, 389 A.2d 465, 478 (1978); Kearny 

Generating Sys. v. Roper, 184 N.J. Super. 253, 445 A.2d 1159 

(1982).7 Our understanding of the McDonnell Douglas framework 

 

7. We acknowledge that the New Jersey Supreme Court has not 

always been entirely clear on this point. In Peper, the 

case in which it decided to adopt the McDonnell Douglas

shifting burden scheme, the court stated in dicta that it 

agreed with the statements of a federal judge who described 

the McDonnell Douglas scheme as shifting the burden of 

proof, rather than simply of production, to the defendant 

once a prima facie case has been made out. Peper, 77 N.J. 

at 84, 389 A.2d at 480. The focus of Peper, however, was 

on the plaintiff's inability to establish a prima facie

case. That and numerous statements since by the New Jersey 

Supreme Court and superior courts confirming that the 

burden of proof does not shift (e.g., Goodman v. London 

Metals Exch., Inc., 86 N.J. 19, 429 A.2d 341 (1981); 

Kearny, supra), convince us that this single statement in 

Peper cannot serve as a basis for concluding that the court 

would refuse to incorporate the principles of Hicks into 

the law of the LAD. 

 Similarly, statements in Jamison v. Rockaway Twp. Bd. of 

Educ., 242 N.J. Super. 436, 577 A.2d 177 (1990), do not 

sway our view of the burden placed on a plaintiff asserting 

a straightforward LAD claim. In that case, the New Jersey 

Superior Court referred extensively to a decision of the 

Court of Appeals for the Ninth Circuit, Wrighten v. Metro. 

Hosp., Inc., 726 F.2d 1346 (9th Cir. 1984), describing the 

McDonnell Douglas formulation applicable in retaliatory 

discharge cases. The Jamison court cited Wrighten as 

providing that an employee asserting a retaliatory 

discharge may "show by preponderating evidence that a 

discriminatory intent motivated the employer's action" by 

"proving that the articulated reason is a pretext for the 

retaliation or that a discriminatory reason more likely 

motivated the employer." Jamison, 242 N.J. Super. at 445, 
before Hicks similarly required that the plaintiff bear the 

ultimate burden of proving that the challenged employment action 

resulted from unlawful discrimination. See, e.g., Billet v. 

CIGNA Corp., 940 F.2d 812, 817 (3d Cir. 1991). Our decisions 

finding that this burden could be borne merely by demonstrating 

that the asserted legitimate, non-discriminatory reasons for the 

employer's actions were incredible were based on the weight given 

to the McDonnell Douglas prima facie case as a "presumption." In 

other words, our (and other courts') reasoning that proving 

pretext entitled plaintiff to judgment reflected a belief that 

the presumption of discrimination raised by the plaintiff's 

ability to make out a prima facie case had not been rebutted and 

was only strengthened by the proven falsity of the reasons the 

employer gave for its actions, thus mandating a decision that the 

employer's actions had been motivated by unlawful discrimination. 

See Hicks, 113 S. Ct. at 2762-63 (Souter, J., dissenting). Hicks

clarified that under federal law the presumption raised by 

establishment of the prima facie case no longer exists once an 

employer has articulated a legitimate, nondiscriminatory reason 

for its actions. It does not hold that proving that reason false 

(..continued) 

577 A.2d at 182 (emphasis added). Doing so, the court 

added, creates "a presumption . . . that the adverse 

employment action was the product of improper retaliatory 

intent. . . . Then, the employer must prove by the 

preponderance of the evidence that the adverse action would 

have been taken regardless of retaliatory intent." Id. at 

445-46, 577 A.2d at 182. The shifting of the ultimate 

burden in a retaliatory discrimination case does not 

necessarily imply that the New Jersey Supreme Court would 

advocate any shift or lessening of the burden in a 

straightforward failure-to-hire case. 
will never suffice to support a decision for a plaintiff; it 

merely establishes that the plaintiff does not merit judgment as 

a matter of law once falsity is proven. 

In thus clarifying the law, the Court in Hicks referred to and 

relied upon Federal Rule of Evidence 301, concerning 

presumptions.8 Hicks, 113 S. Ct. at 2747; see also id. at 2749 

("[T]he Court of Appeals' holding that rejection of the 

defendant's proffered reasons compels judgment for the plaintiff 

disregards the fundamental principle of Rule 301 that a 

presumption does not shift the burden of proof, and ignores our 

repeated admonition that the Title VII plaintiff at all times 

bears the `ultimate burden of persuasion.'"). The New Jersey 

Supreme Court has similarly interpreted the LAD, describing the 

prima facie stage of the McDonnell Douglas test as establishing a 

"rebuttable presumption" of discrimination. Erickson, 117 N.J. 

at 551, 569 A.2d at 799. It has also stated that when a 

defendant rebuts the presumption by articulating a legitimate 

nondiscriminatory reason for its actions, the inference of 

discrimination which literally arose from the plaintiff's 

evidence is destroyed. Goodman v. London Metals Exch., Inc., 86 

 

8. Rule 301 provides: 

 In all civil actions and proceedings not 

otherwise provided for by Act of Congress or by 

these rules, a presumption imposes on the party 

against whom it is directed the burden of going 

forward with evidence to rebut or meet the 

presumption, but does not shift to such party the 

burden of proof in the sense of the risk of 

nonpersuasion, which remains throughout the trial 

upon the party on whom it was originally cast. 
N.J. 19, 33, 429 A.2d at 341, 348 (1981). Therefore, 

corresponding reference to the New Jersey Rule of Evidence 

regarding presumptions seems appropriate, and our reference 

thereto provides further support for the conclusion that New 

Jersey would clarify the law of the LAD as the Court in Hicks

clarified Title VII jurisprudence. 

Like Federal Rule of Evidence 301, New Jersey Rule of Evidence 

3019 provides that the introduction of evidence to rebut a 

presumption destroys that presumption, leaving only that evidence 

and its inferences to be judged against the competing evidence 

and its inferences to determine the ultimate question at issue 

(in an LAD case, the question of whether the defendant illegally 

 

9. The rule provides: 

 Except as otherwise provided in Rule 303 or 

by other law, a presumption discharges the 

burden of producing evidence as to a fact 

(the presumed fact) when another fact (the 

basic fact) has been established. 

 If evidence is introduced tending to disprove 

the presumed fact, the issue shall be 

submitted to the trier of fact for 

determination unless the evidence is such 

that reasonable persons would not differ as 

to the existence or nonexistence of the 

presumed fact. If no evidence tending to 

disprove the presumed fact is presented, the 

presumed fact shall be deemed established if 

the basic fact is found or otherwise 

established. The burden of persuasion as to 

the proof or disproof of the presumed fact 

does not shift to the party against whom the 

presumption is directed unless otherwise 

required by law. Nothing in this rule shall 

preclude the judge from commenting on 

inferences that may be drawn from the 

evidence. 
discriminated against the plaintiff). Specifically, it states 

that "[i]f evidence is introduced tending to disprove the 

presumed fact, the issue shall be submitted to the trier of fact 

for determination unless the evidence is such that reasonable 

persons would not differ as to the existence or nonexistence of 

the presumed fact." The commentary to the rule provides that "a 

valid presumption can be used to establish a prima facie case, 

but the presumption normally disappears in the face of 

conflicting evidence. Nevertheless, any logical inference which 

can be drawn from the basic fact remains." N.J. R. Evid. 301, 

1994 supplemental comment.10 Therefore, the rule states with 

regard to state law exactly what Hicks has explained to be the 

operation of federal anti-discrimination law under the McDonnell 

Douglas shifting burden analysis. The New Jersey Supreme Court 

may choose, as a policy matter, to interpret the LAD even more 

broadly, so that the usual rules governing presumptions do not 

apply in LAD cases, cf. N.J. R. Evid. 301 (rule governs "[e]xcept 

as otherwise provided . . . by other law"), but in the face of 

this explicit explanation of the operation of presumptions under 

New Jersey law, we cannot make that state law policy decision for 

it. Compare Schweigert v. Provident Life Ins. Co., 503 N.W.2d 

225, 288-29 (N.D. 1993) (refusing to adopt Hicks formulation 

because of different state rule on presumptions). 

 

10. Rule 301 replaced N.J. R. Evid. 14, cited by the PTL 

employees, effective July 1, 1993. Commentary to it 

indicates that Rule 301 reflects established New Jersey 

law. 
This is particularly true in light of the New Jersey courts' 

general adoption of federal anti-discrimination law as their 

guidepost. Indeed, the courts' willingness to depart from 

federal precedent in the anti-discrimination area has occurred in 

only three contexts, involving either modification of the 

McDonnell Douglas framework to fit specific factual situations 

(e.g., Erickson and Jansen), departure from that framework in 

accordance with cases decided by various federal courts of 

appeals (Grigoletti), or departure from the standards we apply in 

favor of what it believes to be a more sensible interpretation of 

United States Supreme Court precedent (Lehmann). It has never 

rejected outright the United States Supreme Court's approach to 

federal anti-discrimination law; to the contrary, it has noted 

that there exists "an imputed but strong legislative intent to 

harmonize the State's anti-discrimination statutes with the 

dominant federal view to maximize the protections for the victims 

of discrimination and . . . to benefit all of society by these 

efforts." Grigoletti, 118 N.J. at 108, 570 A.2d at 913. 

Finally, the New Jersey Supreme Court's decision in Goodman

provides further support for our decision, if only by 

implication. In Goodman, the court considered a case in which a 

company and its principals argued that a hearing examiner in the 

New Jersey Division on Civil Rights had misapplied the burden of 

proof. The complainant, a female job applicant, established a 

prima facie case that she had not been hired because of her 

gender. The respondents contended that she was not granted an 

interview because her attitude had been unpleasant. The hearing 
examiner nevertheless ruled for the complainant, stating that the 

"`case ultimately turns on credibility'" and that he believed the 

complainant. Goodman, 86 N.J. at 33, 429 A.2d at 348. The New 

Jersey Supreme Court ruled that the hearing examiner had properly 

applied the McDonnell Douglas shifting burden scheme: 

 The explanation given by respondents for 

complainant's rejection was sufficient for the employer 

to meet its burden of articulating a legitimate 

nondiscriminatory reason for the rejection and thus 

destroy `the legally mandatory inference of 

discrimination arising from the plaintiff's initial 

evidence.' . . . However, the trier of fact may 

nevertheless be persuaded by that evidence and its 

inferences combined with that adduced from the 

respondents that the employer's proposed explanation is 

unworthy of belief and is nothing more than a mere 

pretext for unlawful discrimination. 

Goodman, 86 N.J. at 33, 429 A.2d at 348 (emphasis added). In 

explaining why it believed the hearing examiner had correctly 

applied McDonnell Douglas, the court stated not only that the 

hearing examiner had said he found the plaintiff and her witness 

to be truthful, but also that he had "concluded that the reason 

given by the employer for [the plaintiff's] rejection was 

pretextual and that the true reason for her rejection was 

`because she was a woman.'" Id. at 33-34, 429 A.2d at 349 

(emphasis added). Thus, the New Jersey Supreme Court did not 

find that mere disbelief of the employer would support a decision 

for the complainant; it affirmed the hearing examiner's decision 

because he had disbelieved the employer and had decided that the 

true reason for the employer's failure to hire the plaintiff was 

unlawful discrimination. This is consistent with Hicks and 
supports our belief that the New Jersey Supreme Court would 

follow Hicks in interpreting the LAD. 

In conclusion, we are persuaded that the New Jersey Supreme Court 

would ultimately determine that plaintiffs in employment 

discrimination cases under the LAD may not necessarily prevail 

merely by proving a prima facie case and rebutting an employer's 

asserted legitimate non-discriminatory reasons for its actions. 

That level of proof may suffice if the factfinder believes that 

the employer offered false reasons to conceal unlawful 

discrimination, but it does not mandate entry of judgment for the 

plaintiff. Instead, as provided in the New Jersey Rule of 

Evidence governing presumptions and their operation, the case 

must go to the factfinder for decision of the ultimate issue -- 

whether the employer had engaged in unlawful discrimination. 

Thus, the trial court erred in propounding jury instructions that 

would entitle the plaintiffs to judgment if they merely presented 

a prima facie case and demonstrated that the defendant's asserted 

grounds for decision were pretextual. 

III. 

Our conclusion that the New Jersey Supreme Court would 

incorporate the Hicks principles into its LAD jurisprudence 

requires that this case be retried. We do not believe that the 

New Jersey Supreme Court would choose to apply this clarification 

of New Jersey law only prospectively, as the PTL employees 
argue.11 Nor do we accept either side's contention that this 

case can be decided at the appellate level, without a remand. 

Plaintiffs argue that the trial court's charge to the jury, 

instructing that they at all times bore the burden of proving 

that they were not hired because of their age, cured any error 

that may have occurred when the court instructed that they would 

win if they had proven that the reasons Pacific Rail advanced for 

failing to hire them were false. We cannot agree, for while the 

trial court correctly placed the burden of proving illegal 

discrimination on the plaintiffs at all times, the statement 

rendered incorrect in light of Hicks was direct and explicit and 

served to summarize the charge for the jury. If there was any 

portion of the charge that guided the jury's deliberations, it 

was more than likely the portion we have held to be erroneous. 

On the other hand, Pacific Rail contends that we need not remand 

this case but instead may enter judgment for it because the 

evidence was insufficient to support a verdict in the plaintiffs' 

favor even under an appropriate charge. We cannot agree with 

 

11. The employees argue that, "[a]t a minimum, if the New 

Jersey Supreme Court were to follow Hicks it would only 

apply its holding prospectively." Appellees/CrossAppellants' Brief at 16. Unlike New Jersey law, 

"Prospective application is appropriate when a decision 

establishes a new principle of law by overruling past 

precedent or by deciding an issue of first impression." 

Montells v. Haynes, 133 N.J. 282, 295, 627 A.2d 654 (1993). 

As explained above, the New Jersey Supreme Court would not 

be overturning past precedent or deciding a new issue by 

following the Hicks approach; it would merely be clarifying 

prior decisions. There is no reason to believe that the 

New Jersey Supreme Court would choose to apply such a 

decision only prospectively. 
this contention, either. Undeniably, plaintiffs' evidence was 

aimed mainly at proving pretext, but that evidence, viewed in the 

light most favorable to the verdict winner (Billet, 940 F.2d at 

817), could conceivably have supported a decision for the 

plaintiffs under the correct charge. 

In light of our inability to divine whether the jury's verdict 

was premised on correct or erroneous portions of the charge, we 

will remand the case for retrial under the principles we have set 

forth above. 

IV. 

Some of the issues the parties have raised have been rendered 

moot by our decision thus far.12 Others, however, remain, for 

they determine whether certain claims are still properly at issue 

in this case and thus whether they should be addressed on remand. 

 

12. Specifically, given that the judgment will be vacated and 

the case retried, we see no reason to decide whether the 

trial court erred in (1) refusing to order remittitur of 

some plaintiffs' backpay awards, (2) awarding plaintiffs 

prejudgment interest, or (3) refusing to order 

reinstatement. 

 We may quickly dispose of one issue raised by Pacific Rail 

which still must be resolved. Pacific Rail argues that the 

district court erred in refusing to dismiss the cases of 

plaintiffs Phyllis Lindh, Sal Petruzzelli and Ed Dechert 

for failure to establish a prima facie case. After 

reviewing the record, we do not agree that the district 

court erred. Depending upon credibility judgments, which 

we are in no position to make, the evidence may be 

sufficient to support a verdict for each of these 

plaintiffs. 
A. 

Among these is a question which arose after trial as to whether 

the plaintiffs were entitled to front pay awards. Plaintiffs 

stated in their complaint that they sought "a judgment ordering 

defendant to offer them employment and to pay back wages, 

compensatory damages, punitive damages and attorneys' fees." 

App. at 14. They alleged that as a result of Pacific Rail's 

actions they had "lost income and otherwise suffered the effects 

of discrimination on account of their age," App. at 20, and 

sought judgment "[o]rdering defendant to offer employment to 

plaintiffs and make them whole for all wages and benefits lost by 

reason of defendant's unlawful discrimination; granting 

compensatory damages to plaintiffs; . . . and [g]ranting any 

further relief the Court deems just and proper." Id. at 21. The 

final pretrial order, upon which the parties collaborated and 

which the magistrate judge handling pretrial matters reviewed and 

entered, said only that "[a]s a result of defendant's actions, 

plaintiffs have lost income and otherwise suffered the effects of 

discrimination on account of their age." Id. at 42. They were 

ordered to quantify their damages by March 16, 1992 (id.), but 

they did not do so. The first mention of "front pay," or 

compensation for future lost earnings, surfaced two weeks prior 

to trial, when plaintiffs submitted proposed jury instructions 

requesting an instruction on front pay. Id. at 2689, 2702. Over 

an objection from Pacific Rail, the district court decided to 

charge on front pay, but after the jury returned a verdict of 
more than $5 million in front pay, the court granted a post-trial 

motion to strike the front pay award. 

 In light of the way this case developed, the district court did 

not abuse its discretion in striking the plaintiffs' front pay 

award as a sanction for having failed to claim front pay prior to 

two weeks before trial (and even then only to mention it in 

proposed jury instructions, which included many items not at 

issue). Plaintiffs argue that their request for "compensatory 

damages" encompasses an award of future lost earnings, but in the 

context of the pleadings filed in this case, we cannot say that 

their vague pleading style -- even under the lenient rules of 

notice pleading -- sufficed to put Pacific Rail on notice of a 

claim for front pay. Moreover, had there been any question, the 

plaintiffs had every opportunity to clarify the damages they 

sought in the pretrial order. When they failed to do so, the 

magistrate judge ordered quantification of their damages by a 

date certain -- an opportunity to put Pacific Rail on notice of 

their claims which the plaintiffs simply did not seize. 

In these circumstances, then, the district court did not abuse 

its discretion in striking the plaintiffs' front pay awards at 

the conclusion of the first trial. Rather than usurp the 

district court's role as presider over the second trial, we hold 

only that on remand it will be left to the sound discretion of 

the district court to determine in the interests of fairness and 

justice whether to allow any new claims. 
B. 

Although the plaintiffs cannot claim front pay on remand, they 

will be permitted to seek emotional distress damages, contrary to 

the rulings of the magistrate judge and district court. This 

case was originally bifurcated so that liability would be tried 

separately from damages. The parties initially prepared their 

pretrial order with that in mind, but for some reason, presumably 

discussed during a pretrial conference with the magistrate judge, 

it was decided that the case would not be bifurcated. App. at 

64. Because they had apparently only envisioned a trial on 

liability prior to this, plaintiffs then sought permission to 

list exhibits regarding damages and to amend the pretrial order 

to list additional witnesses, who happened to be doctors, to 

support their claims of emotional distress damages. App. at 

2746, 2761. The magistrate judge permitted plaintiffs to include 

additional exhibits to support their claims for pecuniary damages 

(to which Pacific Rail did not object), but denied plaintiffs' 

request to name the doctors as witnesses. In conjunction with 

that decision, the magistrate judge struck the plaintiffs' claims 

for emotional distress damages because he believed that 

"competent medical testimony of an expert nature . . . as to the 

causation of any emotional distress" was required.13 App. at 

 

13. Significantly, the plaintiffs were not offering the doctors 

as expert witnesses, for they had no expert reports from 

which the doctors could state expert opinions. App. at 

2759. Instead, they intended that the doctors would 

testify as lay witnesses describing what they had observed. 

Thus, this is not a case in which a denial of a motion to 

amend to add the doctors as witnesses resulted in the lack 

of evidence for which the claims were dismissed. Refusing 
2762. The district court affirmed this ruling when plaintiffs 

appealed. 

Plaintiffs argue that their claims for emotional distress damages 

should not have been stricken. In reviewing the magistrate 

judge's decision to this effect, the district court had to 

determine whether that decision was "clearly erroneous or 

contrary to law." 28 U.S.C. § 636(b)(1)(A); Cipollone v. Liggett 

Group, Inc., 785 F.2d 1108, 1120 (3d Cir. 1986). The question 

before the magistrate judge, the district court and us does not, 

as Pacific Rail argues, arise in the context of Rule 701 of the 

Federal Rules of Evidence (regarding opinion testimony by lay 

witnesses) but is instead a matter of New Jersey law concerning 

whether expert evidence is needed to prove emotional distress 

damages in this type of case. We will thus determine whether the 

magistrate judge's decision to strike plaintiffs' claims for 

emotional distress damages was contrary to law. Cf. Bolden v. 

Southeastern Pennsylvania Transp. Auth., 953 F.2d 807, 829 n.30 

(3d Cir. 1991) (whether district court properly dismissed 

punitive damages request is question of law subject to plenary 

review). 

"Emotional stress" damages may be recovered under the LAD. N.J. 

Stat. Ann. 10:5-3; Milazzo v. Exxon Corp., 243 N.J. Super. 573, 

580 A.2d 1107 (1990). New Jersey courts require expert testimony 

to prove the causal link between a claimed injury and the 

(..continued) 

to permit the doctors to testify merely lessened the number 

of lay witnesses who would be testifying for plaintiffs. 

It did not deprive them of expert testimony. 
tortious act alleged when the plaintiff is claiming that he or 

she suffered subjective injury (such as pain, humiliation, 

emotional distress) that is not obviously related to an 

identifiable injury. Kelly v. Borwegen, 95 N.J. Super. 240, 243-

44, 230 A.2d 532, 534 (1967). This requirement is based on a 

concern that "a jury should not be allowed to speculate on the 

issue of causation. If the question of causal relation is so 

esoteric that lay minds cannot form any intelligent judgment 

about it without expert aid an opinion from an expert may be 

required." Bushman v. Halm, 798 F.2d 651, 659 (3d Cir. 1986) 

(applying New Jersey law and citing 2 F. Harper & F. James, Jr. 

The Law of Torts § 20 at 15-16, § 21 at 1116-17 (1956)). 

The requirement is not without boundaries, however. In Bushman, 

for example, we held that a "plaintiff is not required under New 

Jersey law to submit expert medical opinion on the element of 

legal causation to establish a prima facie case of negligence." 

Bushman, 798 F.2d at 653. In that case, a plaintiff whose truck 

had collided with a United States Postal Service jeep sued the 

government under the Federal Tort Claims Act alleging negligence. 

The trial court granted summary judgment to the government 

because the plaintiff had alleged only "soft tissue injuries" 

(i.e., he was seeking recovery only for pain and suffering 

related to an injury to his knees, which had struck the dashboard 

in the accident), and his expert witness had not opined that his 

pain was caused by the accident. We reviewed Kelly and Menza and 

determined that New Jersey law requires a case-by-case analysis 

to determine when expert testimony is required to buttress 
subjective complaints of pain and suffering. The key question is 

whether there is evidence tending to show some objective basis 

for the pain. If there is, no expert testimony is needed because 

a jury is competent to decide whether there exists a causal 

connection. 

In Bushman, 

plaintiff testified that his legs were pain-free prior to 

the accident. However, he stated that he experienced 

recurrent pain in his knees and surrounding soft 

tissues after they contacted his truck's dashboard 

during the accident. . . . Plaintiff has adequately 

drawn into question the objective nature of his pain 

and suffering through his own sworn statements. The 

pain and suffering plaintiff experienced immediately 

after the accident is directly linked to objectively 

identifiable symptoms of soft tissue injury verified in 

the medical evidence. Thus, the lower court erred when 

it concluded that plaintiff's injuries were "not 

obviously related to an identifiable injury." 

Bushman, 798 F.2d at 660. 

Here, we are not apprised of any objective evidence supporting 

the plaintiffs' claims of emotional distress. Neither the 

magistrate judge, nor the district court, nor this court has been 

presented any evidence of "objectively identifiable symptoms" 

upon which the plaintiffs rely to support their claims. Absent 

such evidence, the alleged emotional distress in this case seems 

to resemble Menza and Kelly. (In Menza, the plaintiff claimed 

chest pain 21 months after a fall, and in Kelly, the plaintiff 

alleged permanent difficulty in sleeping, walking, climbing steps 

and breathing after a car accident.) Plaintiffs allege 

subjective claims of emotional distress, but we have no 
objectively identifiable, medically verified symptoms as the 

plaintiff had in Bushman. 

On the other hand, the magistrate judge's decision was made well 

before trial, when no evidence had yet been presented. Some of 

the plaintiffs may be able to establish objectively identifiable 

symptoms from which a jury could infer causation even in the 

absence of an expert witness. If, as to some or all plaintiffs, 

there exists other evidence tending to establish causation, such 

as objectively identifiable symptoms appearing close in time to 

Pacific Rail's takeover at North Bergen, then the plaintiffs who 

presented such evidence might not need to present expert evidence 

to reach the jury. Thus, the magistrate judge's wholesale 

dismissal of all the plaintiffs' claims for emotional distress 

damages without knowing anything more about each plaintiff's case 

was "contrary to law." 28 U.S.C. § 636(b)(1)(A). Plaintiffs' 

claims for emotional distress damages are to be reinstated on 

remand. 

C. 

To further assist the district court on remand, we will also 

review plaintiffs' allegations that the court erred in dismissing 

the cases of five former PTL workers. We will affirm its 

dismissal of all but one of those plaintiffs. On remand, that 

one plaintiff's claims are to be reinstated for consideration of 

whether his cause of action survived his death. 

1. 

Four of these plaintiffs' cases are easily addressed. The 

district court properly dismissed the cases of David Quaid, John 
Gugliotta, Andrew Hennessey and Adam Lukasweski because the 

evidence was insufficient to support judgment for them as a 

matter of law. 

Quaid's case falters because of insufficient evidence from which 

a jury could conclude that he was injured. Evidence at trial 

revealed that a Pacific Rail representative called Quaid three 

times to offer him a job, but Quaid did not accept. The first 

time, September 1, Quaid told the representative that he was 

"number ten" on the list (presumably the union's seniority list) 

and that Pacific Rail would have to ask the nine men or women 

above him on the list before he would accept a job. App. at 729-

30. The second time, September 3, Quaid reiterated this and told 

the Pacific Rail representative he would get back to him. App. 

at 730-31. The third time, in the third week in September, the 

representative again told Quaid that Pacific Rail would like 

Quaid to work for the company. Quaid said that he would work for 

Pacific Rail but did not accept the job because of ongoing union 

proceedings. Specifically, he stated that he did not want to 

"jump[] before [he] knew where [he] was going to land and then 

wind[] up in limbo." App. at 737. Quaid stated at trial that he 

"never, never refused employment," "[n]ever turned [Pacific Rail] 

down," that "[Pacific Rail understood] that I wanted the job," 

and that "[a]ll I did was to ask [Pacific Rail] for time. But 

there was [sic] never any refusals." App. at 728. Quaid's 

explanations, however, fail to negate the fact that he did not 

accept employment that was offered to him and cannot be 
considered to have been injured by Pacific Rail's actions when 

Pacific Rail actually offered him employment. 

Gugliotta, Hennessey and Lukasweski present similar situations. 

These three plaintiffs were receiving workers' compensation 

payments for medical conditions at the time Pacific Rail took 

over at North Bergen. They could not have been denied jobs 

because of their age; they were not available to occupy positions 

when Pacific Rail needed them. The only argument the plaintiffs 

advance in opposition to this reasoning is a contention that 

Pacific Rail would have offered them jobs even if they were 

injured but for age discrimination. As evidence for this 

proposition, they note that a Pacific Rail representative, upon 

seeing Gugliotta in early September, asked Gugliotta if he was 

ready to work, thus impliedly offering him a job. The 

representative's statement, however, was not exactly a job offer 

but was more in the nature of an inquiry about when Gugliotta 

might be ready to work. App. at 1356. Moreover, Gugliotta 

refused (id.), so even if it was a job offer, that merely 

transforms his particular case into one which resembles Quaid's 

more than Hennessey's and Lukasweski's. Dismissal of their cases 

was not error. 
2. 

Finally, we address the case of the estate of plaintiff Al 

Armetta, who passed away in December, 1991, after commencement of 

this lawsuit. Plaintiffs' attorneys apparently learned of 

Armetta's death in August, 1992, and defense counsel was notified 

either then or on the first day of trial in mid-September, 1992. 

Plaintiffs' counsel never filed a "suggestion of death" or served 

formal written notice of the death on defense counsel or the 

court. 

At trial, upon learning of Armetta's death, the district court 

ruled that Armetta should be stricken from the case. At the 

close of plaintiffs' case, in discussing directed verdict 

matters, plaintiffs' counsel argued that Armetta's estate should 

be considered a plaintiff for purposes of claiming damages until 

the time of his death. The court refused because "there ha[d] 

been no substitution of Mr. Armetta's estate in this matter." 

App. at 964. The district court judge stated that he did not 

"know that [Armetta's] estate has an interest in this matter," 

and pointed out that there was no "motion nunc pro tunc or . . . 

to relax the rules" about Armetta. App. at 1018. Plaintiffs' 

counsel stated that he had spoken with Armetta's widow, who had 

said she wanted to continue the lawsuit. Id. The court refused 

to accept this representation and, the next day, denied counsel's 

oral motion to substitute Mrs. Armetta for her husband, saying 

that plaintiffs had produced no proof that Mrs. Armetta was the 

executrix of Armetta's estate. It rejected plaintiffs' counsel's 

offer to supply such proof. Id. at 1023-26. Specifically, the 
district court denied the motion because (1) it questioned 

whether this cause of action survived Armetta's death, 

(2) "[t]here has been no showing of excusable neglect . . . [or] 

actions on the part of the defendant which would put the 

plaintiff in a prejudicial position," (3) there was no proof that 

Mrs. Armetta was the executrix of Armetta's estate, and (4) it 

was too late to move to substitute Armetta's estate as a 

plaintiff because the defendant had had no chance to conduct 

discovery concerning "whoever the estate is" or "to do anything 

that is necessary to prepare for trial." Id. at 1029-30. 

Rule 25(a)(1) provides: 

If a party dies and the claim is not thereby extinguished, 

the court may order substitution of the proper parties. 

The motion for substitution may be made by any party or 

by the successors or representatives of the deceased 

party and, together with the notice of hearing, shall 

be served on the parties as provided in Rule 5 and upon 

persons not parties in the manner provided in Rule 4 

for the service of a summons, and may be served in any 

judicial district. Unless the motion for substitution 

is made not later than 90 days after the death is 

suggested upon the record by service of a statement of 

the fact of the death as provided here for the service 

of the motion, the action shall be dismissed as to the 

deceased party. 

Fed. R. Civ. P. 25(a)(1). Thus, if a party dies, ideally his or 

her attorney will file a "suggestion of death" with the court and 

serve it upon all parties. After the suggestion of death is 

filed, a 90-day countdown begins. Within 90 days, some other 

party or the executor or administrator of the deceased must move 

for substitution of the estate for the deceased, or the 

deceased's case will be dismissed. Decisions on the motion for 

substitution are within the trial court's discretion. Fed. R. 
Civ. P. 25(a) ("the court may order substitution"); Advisory 

Committee Note to 1963 Amendments. 

Nothing was ideal here. Plaintiffs' counsel served neither a 

formal suggestion of death nor a formal motion for substitution. 

That does not mean, however, that the district court properly 

denied the motion made at trial to substitute Armetta's estate as 

the plaintiff claiming damages on his behalf. Nothing in Rule 25 

says that a suggestion of death must be made or sets forth a time 

frame for doing it. In circumstances in which the deceased's 

counsel only recently learned of the death, failure to file a 

suggestion of death within a particular period of time does not 

constitute sufficient grounds for refusing such a motion. 

Moreover, the district court's denial on the basis that the 

plaintiff did not make a formal motion, filed and served in 

accordance with Rule 25, also was, in our view, an overly strict 

interpretation of the rule. We have indicated a willingness to 

permit lesser attempts to suffice. See Anderson v. Republic 

Motor Inns, Inc., 444 F.2d 87 (3d Cir. 1971) (reversing a 

district court's dismissal of a case for failure to comply with 

Rule 25(a) because the plaintiff's attorney had noted in his 

pretrial memorandum that the wife, as executrix of the estate, 

intended to continue as substitute plaintiff). In doing so, we 

have emphasized that our lenient view would apply only in "an 

extraordinary case, and that departure from the requirements of 

the Federal Rules is not to be permitted routinely," Anderson, 

444 F.2d at 89, but this case strikes us as extraordinary. Here, 

the district court ruled that plaintiffs' counsel had failed to 
move for substitution within an appropriate time, yet the time 

period for so moving had not yet begun to run because death had 

not yet been suggested on the record. Cf. 7C C. Wright, A. 

Miller & M. Kane, Federal Practice and Procedure § 1955 at 544 

(2d ed. 1986) ("the time does not run until the death is 

suggested on the record"). Concerns about prejudice to the 

defendant are not well-placed in this instance, for the record 

reveals that defense counsel was notified of Armetta's death very 

shortly after plaintiffs' counsel became aware of it. And, 

contrary to the district court's view, Rule 25 contains no 

"excusable neglect" standard by which the district court is to 

gauge its exercise of discretion. We fully understand why the 

court might desire some written proof of Armetta's death and of 

the estate's desire to proceed with his case, but we see no 

reason not to permit plaintiff's counsel an opportunity to 

produce such proof before deciding the motion. 

Thus, we cannot find that the district court exercised sound 

discretion on this issue. Armetta's claims should be re-examined 

on remand, and plaintiffs' counsel is to be given an opportunity 

to provide written proof of Armetta's death, his widow's 

relationship to his estate and the estate's wishes with regard to 

proceeding in this lawsuit. Also on remand, however, the parties 

are to address the district court's first concern, namely whether 

Armetta's LAD claim survived his death. See Fed. R. Civ. P. 

25(a)(1) (substitution permitted "[i]f a party dies and the claim 

is not thereby extinguished"). This issue is a matter of state 

law, cf. Ransom v. Brennan, 437 F.2d 513, 520 (5th Cir. 1971); 
see N.J. Stat. Ann. 2A:15-3, which we decline to resolve at this 

stage because the parties have neither briefed nor argued it 

either here or before the district court. 

V. 

In conclusion, we predict that the New Jersey Supreme Court would 

accept the Supreme Court's decision in Hicks as clarifying LAD 

law, just as Hicks did federal anti-discrimination law. Our 

conclusion to that effect necessitates a remand of this case for 

retrial in accordance with this opinion. On remand, although 

plaintiffs may not seek front pay, they may assert claims for 

emotional distress damages. In addition, the claims of deceased 

plaintiff Al Armetta are to be reinstated so that the district 

court may consider whether Armetta's claims survived his death 

and, if so, so that his claims may be tried along with those of 

the other plaintiffs. 
Peter McKenna, et al. v. Pacific Rail Services, Nos. 93-5253, 

93-5277, 93-5375 and 93-5386 

MANSMANN, J., dissenting. 

I. 

 I agree with the majority that our role is to determine 

whether the New Jersey Supreme Court would adopt for the LAD the 

Supreme Court's analysis in Hicks. Commissioner v. Estate of 

Bosch, 387 U.S. 456, 465 (1966); McKenna v. Ortho Pharmaceutical 

Corp., 622 F.2d 657, 661-62 (3d Cir. 1980), cert. denied, 449 

U.S. 976 (1980). It is without doubt, as the majority holds, 

that were the New Jersey Supreme Court to apply the Hicks rule of 

law to the LAD, this case would require a new trial because the 

jury instructions did not provide the Hicks framework.14 See

 

14. Hicks settled conflicting decisions found among the 

courts of appeals regarding whether the jury's finding of 

employer pretext mandates the finding of illegal discrimination 

in Title VII cases. Hicks, 113 S. Ct. at 2750. The burdens of 

production and the order for the presentation of proof were set 

forth mainly in McDonald-Douglas Corp. v. Green, 411 U.S. 792 

(1973), and then revisited in Texas Dept. of Community Affairs v. 

Burdine, 450 U.S. 248 (1981). Contrary to what we stated in 

Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395-96 

(3d Cir. 1984), Hicks states that after a plaintiff makes a prima 

facie case of discrimination and the defendant rebuts that with 

legitimate non-discriminatory reasons, the presumption raised by 

the prima facie case drops from the case, and the plaintiff now 

must show that the defendant's proffered reasons were not the 

true reasons for the employment decision and that the 

discriminating characteristic was. Hicks, 113 S. Ct. at 2747. 

No longer is it sufficient for the plaintiff to show that the 

defendant's proffered reasons were pretextual. 

 Pacific Rail argues, first, that because the New Jersey 

courts have consistently applied the principles and analysis 

developed by the federal courts in Title VII age and sex 

discrimination claims, they would continue to do so in this 
Majority slip op. at 13. It is in the majority's prediction of 

what the New Jersey Supreme Court would hold that we part ways, 

and because I believe it will not adopt the Hicks analysis for 

the LAD, I respectfully dissent.15 

 We have, of course, previously articulated the proper 

standard to be used in predicting state law: 

 In attempting to forecast state law we "must 

consider relevant state precedents, analogous 

decisions, considered dicta, scholarly works, 

and any other reliable data tending 

convincingly to show how the highest court in 

the state would decide the issue at hand." 

McGowan v. University of Scranton, 759 F.2d 287, 291 (3d Cir. 

1985) (quoting McKenna, 622 F.2d at 663). See also Blum v. Witco 

Chemical Corp., 829 F.2d 367, 376 (3d Cir. 1987). 

II. 

 Historically, as the majority correctly points out, 

Majority slip op. at 15-16, New Jersey has generally followed 

Title VII federal precedent in interpreting the LAD. For a list 

of such cases, see Grigoletti v. Ortho Pharmaceutical Corp., 570 

(..continued) 

context. The error in this reasoning is simply that it fails to 

consider that a new interpretation of the burden of proof has 

been established. Second, Pacific Rail suggests that, because 

the plaintiffs originally argued that federal precedent should 

apply to this case, they are estopped now from changing their 

position before this court. Such a contention is meritless, for 

again it fails to consider that a new rule regarding the various 

burdens has been established in the interim. See Majority slip 

op. at 13 n.5. 

15. I join the court's analysis in Part IV. 
A.2d 903, 907 (N.J. 1990). Nonetheless, as the majority also 

agrees, Majority slip op. at 16-17, New Jersey is not wedded to 

federal precedent and applies it selectively. The New Jersey 

Supreme Court has stated: 

 In construing the terms of the LAD, the court 

has frequently looked to federal precedent 

governing Title VII of the Civil Rights Act 

of 1964, 42 U.S.C.A. § 2000e-2000e-17 ("Title 

VII"), as "a key source of interpretative 

authority." Although the "substantive and 

procedural standards that we have developed 

under the State's LAD have been markedly 

influenced by the federal experience," we 

have "applied the Title VII standards with 

flexibility" and "have not hesitated to 

depart" from federal precedent "if a rigid 

application of its standards is inappropriate 

under the circumstances." 

Lehmann v. Toys `R' Us, Inc., 626 A.2d 445, 452 (N.J. 1993) 

(citations to quotations omitted). Grigoletti, 570 A.2d at 907 

("[T]he court has never embraced the McDonnell Douglas test 

literally, invariably or inflexibly."); Erickson v. Marsh & 

Mclennan Co., 569 A.2d 793, 799 (N.J. 1990) ("We have recognized, 

however, that the criteria announced in Peper, Goodman, and 

Anderson provide only a general framework for analyzing unlawful 

discrimination claims and must be modified where appropriate."); 

Clowes v. Terminix Intern., Inc., 538 A.2d 794, 805 (N.J. 1988) 

("Under [certain] circumstances the McDonnell Douglas analysis 

should be used only to the extent that its application is 

appropriate."); Peper v. Princeton University Board of Trustees, 

389 A.2d 465, 479 (N.J. 1978) ("While we commend the McDonald-
Douglas standards to our trial courts as a starting point in 

actions brought under the Law Against Discrimination or any other 

State proscription against discrimination, it must be emphasized 

that these tests are to be used only where and to the extent that 

their application is appropriate."). 

 It is especially relevant that whenever federal 

precedent establishes a standard that makes it more difficult for 

the plaintiff to make its case, the New Jersey Supreme Court 

departs. Lehmann v. Toys `R' Us, Inc., 626 A.2d at 453 

(denouncing the Andrews test from this circuit and creating a new 

test for sexual harassment under the LAD); Montells v. Haynes, 

627 A.2d 654, 661 (N.J. 1993) (disregarding United States Supreme 

Court caselaw questioning prospective application of a new rule 

of law in a sexual harassment case under the New Jersey LAD); 

Grigoletti, 570 A.2d at 913 (adopting the EPA standard, which is 

more burdensome on the defendant, rather than the Title VII 

standard for gender discrimination claims); Anderson v. Exxon 

Co., 446 A.2d 486, 494 (N.J. 1982) (declining to follow the 

allocation of the burdens of proof established in McDonaldDouglas to LAD claims for handicap discrimination); Castellano v. 

Linden Board of Education, 386 A.2d 396, 402 (N.J. Super. Ct. 

App. Div. 1978), mod. on other grounds, 400 A.2d 1182 (N.J. 1979) 
(holding that pregnancy discrimination violated the LAD contrary 

to the Supreme Court's decision in Gilbert).16

 

16. Similarly, the district courts in New Jersey have also 

recognized the independence of New Jersey courts in interpreting 

the LAD. 

 There is little reason to believe that New 

Jersey courts will exhibit slavish devotion 

to federal law in interpreting the NJLAD. 

Quite the contrary, in construing New Jersey 

antidiscrimination law, enacted nearly twenty 

years before the analogous federal statute 

prohibiting employment discrimination, see, 

Shaner v. Horizon Bancorp., 116 N.J. 433, 

436, 561 A.2d 1130 (1989); Nolan v. Otis 

Elevator Co., 102 N.J. 30, 48, 505 A.2d 580, 

cert. denied, 479 U.S. 820, 107 S.Ct. 84, 93 

L.Ed. 2d 38 (1986), New Jersey courts have 

not considered themselves bound by federal 

caselaw, "even though [the NJLAD] relates 

essentially to the same subject matter as 

parallel federal civil rights law. We are 

free to apply our own concept of that which 

is right and proper in the circumstances. 

Castellano v. Linden Board of Education, 158 

N.J. Super. 350, 360, 386 A.2d 396 (App. Div. 

1978) (holding that pregnancy discrimination 

violated NJLAD despite contrary United States 

Supreme Court precedent), modified on other 

grounds, 79 N.J. 407, 400 A.2d 1182 (1979). 

Moreover, "mindful of the clear and positive 

policy of our state against discrimination," 

New Jersey courts have consistently held that 

"[e]ffectuation of that mandate calls for 

liberal interpretation of any legislative 

enactment designed to implement it." 

Castellano, 158 N.J. Super. at 361, 386 A.2d 

396. 

Carrington v. RCA Global Communications, Inc., 762 F. Supp. 632, 

644 (D.N.J. 1991). See also Abrams v. Lightolier, Inc., 841 F. 

Supp. 584, 590 (D.N.J. 1994) ("This court is not persuaded that 

the New Jersey State Supreme Court would disavow the standard 

enunciated in Slohoda [v. United Parcel Service, Inc., 504 A.2d 

53 (N.J. Super. Ct. App. Div. 1986)] to find that the NJLAD 
 In Castellano v. Linden Board of Education, 386 A.2d 

396 (N.J. Super. Ct. App. Div. 1978), the New Jersey Superior 

Court addressed whether requiring a pregnant female teacher to 

take a mandatory maternity leave and refusing to permit her to 

utilize accumulated sick leave during her childbirth absence 

constituted impermissible gender discrimination. Id. at 354. 

The United States Supreme Court, prior to the decision in 

Castellano, held that a disability plan provided by an employer 

for all its employees, which paid weekly non-occupational 

sickness and accident benefits, but excluded from coverage 

disabilities arising from pregnancy, did not violate Title VII of 

the Civil Rights Act of 1964. General Electric Co. v. Gilbert, 

429 U.S. 125 (1976). See also Nashville Gas Co. v. Satty, 434 

U.S. 136 (1977) (holding that an employer's policy of 

compensating employees for limited periods of time during which 

the employee missed work because of a non-job related illness or 

disability, but excluding sick leave paid to pregnant employees, 

was legally indistinguishable from the disability insurance 

(..continued) 

warrants application of the `sole motivating factor' test 

[announced in Griffiths v. CIGNA Corp., 988 F.2d 457 (3d Cir. 

1993)] in pretext cases."); United States v. Board of Educ. of 

the Township of Piscataway, 798 F. Supp. 1093, 1099 (D.N.J. 1992) 

("[T]here is nothing to indicate that the New Jersey Supreme 

Court would exhibit a `slavish devotion' to federal law."). 
program in Gilbert).17 In response to Gilbert and Satty the New 

Jersey Superior Court stated: 

 Clearly, we are not bound by those decisions 

in construing our own statute, even though it 

relates essentially to the same subject 

matter as the parallel federal civil rights 

law. We are free to apply our own concept of 

that which is right and proper in the 

circumstances. 

Id. at 401 (citing Oakwood at Madison, Inc. v. Madison Tp., 371 

A.2d 1192 (N.J. 1977); State v. Johnson, 346 A.2d 66 (N.J. 

1975)). Cf. Robinson v. Cahill, 303 A.2d 273 (N.J. 1973), cert. 

denied, 414 U.S. 976 (1973). 

 There have also been other areas where the New Jersey 

courts have departed from federal precedent. In Lehmann v. Toys 

"R" Us, Inc., 626 A.2d 445 (N.J. 1993), the New Jersey Supreme 

Court did not adopt the test we set forth in Andrews v. City of 

Philadelphia, 895 F.2d 1469 (3d Cir. 1990), for a sexual 

harassment claim under the LAD. There we set forth a five factor 

test to determine an actionable claim for sexual harassment under 

Title VII, creating a test with both subjective and objective 

standards. Andrews, 895 F.2d at 1482-83. The New Jersey Supreme 

Court disavowed the Andrews test and found its own elements of a 

 

17. Notably, on October 31, 1978, Title VII of the Civil 

Rights Act of 1964 was amended to include pregnancy-based 

discrimination in its prohibition of sex discrimination. See

California Fed. Sav. & Loan Ass'n v. Guerra, 478 U.S. 272, 284-85 

(1987). 
hostile work environment for a sexual harassment cause of action 

under the LAD. Lehmann, 626 A.2d at 451-54. The court stated: 

 We find that the standards expressed in the 

EEOC Guidelines, while helpful, are 

insufficiently structured to define the cause 

of action at this stage in the development of 

the law. However, we agree with the dissent 

below that the Third Circuit's Andrews test 

employed by the majority below contains too 

many analytical difficulties and deficiencies 

to be usefully employed here. 

 Rather than risking confusion by engrafting 

major revisions to the Andrews test, we 

announce a new test in the hope of creating a 

standard that both employees and employers 

will be able to understand and one that 

employers can realistically enforce. We 

cannot overstate the importance we place on a 

test that allows employees to know their 

rights in a given set of circumstances and 

that allows employers to set policies and 

procedures that comply with that test. 

Id. at 453.18

III. 

 In Lehman, the New Jersey Supreme Court also discussed 

the legislative intent and public policy behind the New Jersey 

LAD: 

 The New Jersey law against discrimination was 

first enacted in 1945. Its purpose is 

"nothing less than the eradication `of the 

cancer of discrimination.'" The opportunity 

to obtain employment "is recognized as and 

 

18. Notably, the United States Supreme Court has recently 

undertaken to define the elements of a sexual harassment claim 

under Title VII. Harris v. Forklift Systems, Inc., 114 S. Ct. 

367 (1993). 
declared to be a civil right." N.J.S.A. 

10:5-4. 

 The LAD was enacted to protect not only the 

civil rights of individual aggrieved 

employees but also to protect the public's 

strong interest in a discrimination-free 

workplace. Freedom from discrimination is 

one of the fundamental principles of our 

society. Discrimination based on gender is 

"peculiarly repugnant in a society which 

prides itself on judging each individual by 

his or her merits." 

Id. at 451-52 (case citations to quotations omitted). See also

Shaner v. Horizon Bancorp, 561 A.2d 1130, 1131-32 (N.J. 1989); 

Anderson v. Exxon Co., 446 A.2d 486, 490 (N.J. 1982) ("Our court 

has repeatedly emphasized the strong public policy of New Jersey 

against employment discrimination."). In Fuchilla v. Laman, the 

New Jersey Supreme Court engaged in a similar discussion of the 

public policy in New Jersey: 

 We begin by recognizing that the clear public 

policy of this state is to abolish 

discrimination in the workplace. Indeed, the 

overarching goal of the law is nothing less 

than the eradication "of the cancer of 

discrimination." Jackson v. Concord Co., 54 

N.J. 113, 124 (1969). As the Legislature has 

declared, "discrimination threatens not only 

the rights and proper privileges of the 

inhabitants of the State but menaces the 

institutions and functions of a free 

democratic state." N.J.S.A. 10:5-3. The day 

is long past when any employee need endure 

discrimination because of his or her race, 

religion, national origin, or gender. 

Employment discrimination is not just a 

matter between employer and employee. The 

public interest in a discrimination-free 

workplace infuses the inquiry. David v. 

Vesta Co., 45 N.J. 301, 327 (1965). 
Fuchilla v. Laman, 537 A.2d 652, 660 (N.J. 1988), cert. denied, 

University of Medicine and Dentistry of New Jersey v. Fuchilla, 

488 U.S. 826 (1988).19 These passages relied in part on the New 

Jersey Legislature's declaration that employment in New Jersey 

shall be free from discrimination. N.J. Stat. Ann. 10:5-3, 5-4. 

For the full text, see Majority slip op. at 15 n.6. I find this 

proclamation overwhelmingly persuasive. 

 I am cognizant of other New Jersey caselaw stating the 

contrary: 

 In a sex discrimination case arising under 

the N.J. L.A.D., our supreme court held that 

the test for prima facie showing was the same 

as that used in federal cases arising under 

Title VII of the Civil Rights Act of 1964. 

Because the provisions of the ADEA were 

modeled after Title VII and are nearly 

identical in wording and purpose, Title VII 

standards are applied to ADEA cases. We thus 

conclude, as did the judge below, that 

plaintiffs' contentions should appropriately 

be analyzed by examination of federal cases 

arising under Title VII and the ADEA. 

 

19. Additionally, the New Jersey Supreme Court has led the 

way in furthering the rights of employees in other areas. Shebar 

v. Sanyo Business Systems Corp., 544 A.2d 377 (N.J. 1988) (oral 

promise of discharge for cause only, even though employment was 

terminable at will, may be enforceable); Woolley v. HoffmannLaRoche, Inc., 491 A.2d 1257 (N.J. 1985) (a written implied 

promise of discharge for cause only, even though employment was 

terminable at will, may be enforceable); Pierce v. Ortho 

Pharmaceutical Corp., 417 A.2d 505 (N.J. 1980) (adopting a 

general public policy exception to employment at will recognizing 

that an at-will employee cannot be discharged for reasons 

contrary to public policy). 
Giammarino v. Trenton Bd. of Educ., 497 A.2d 199, 202 (N.J. 

Super. Ct. App. Div. 1985), cert. denied, 508 A.2d 212 (1985), 

cert. denied, 475 U.S. 1141 (1986) (citations omitted). However, 

in that case the court followed Supreme Court precedent because, 

at the time, the Supreme Court was consistent with New Jersey 

public policy. This does not lead to the conclusion that New 

Jersey will continue to follow the Supreme Court. The above 

passage was correct when stated, but is now doubtful. Cf. Clowes 

v. Terminix Intern, Inc., 538 A.2d 794, 802 (N.J. 1988) (holding 

that alcoholism is a handicap under the New Jersey LAD: "We 

begin our analysis from the perspective that because the [LAD] is 

remedial social legislation, it is deserving of a liberal 

construction."). 

IV. 

 The major premise of the majority's opinion is that the 

New Jersey rule regarding presumptions parallels the federal rule 

of presumptions upon which Hicks is based. Majority slip op. at 

18. I am not persuaded that the New Jersey rule so closely 

resembles the federal rule that it justifies serving as the basis 

of this decision, particularly in light of the liberal antidiscrimination policy adopted by both the New Jersey Legislature 

and the New Jersey Supreme Court. 

 The Federal Rule of Evidence on presumptions states: 

 In all civil actions and proceedings not 

otherwise provided for by Act of Congress or 

by these rules, a presumption imposes on the 
party against whom it is directed the burden 

of going forward with evidence to rebut or 

meet the presumption, but does not shift to 

such party the burden of proof in the sense 

of the risk of nonpersuasion, which remains 

throughout the trial upon the party on whom 

it was originally cast. 

Fed. R. Evid. 301. The New Jersey rule on presumptions states: 

 Except as otherwise provided in Rule 303 

or by other law, a presumption discharges the 

burden of producing evidence as to a fact 

(the presumed fact) when another fact (the 

basic fact) has been established. 

 If evidence is introduced tending to 

disprove the presumed fact, the issue shall 

be submitted to the trier of fact for 

determination unless the evidence is such 

that reasonable persons would not differ as 

to the existence or nonexistence of the 

presumed fact. If no evidence tending to 

disprove the presumed fact is presented, the 

presumed fact shall be deemed established if 

the basic fact is found or otherwise 

established. The burden of persuasion as to 

the proof or disproof of the presumed fact 

does not shift to the party against whom the 

presumption is directed unless otherwise 

required by law. Nothing in this rule shall 

preclude the judge from commenting on 

inferences that may be drawn from the 

evidence. 

N.J. R. Evid. 301. A comparison of the two rules reveals that 

the federal rule "bursts the bubble" of the presumption, while 

the New Jersey rule creates an issue for the jury. Although the 

New Jersey rule does not necessarily follow Morgan's theory of 

presumptions20 that the party resisting the presumption must 

 

20. See generally 9 Wigmore, Evidence § 2493c (Chadbourn 

rev. 1981). 
introduce sufficient evidence to overcome the presumption, it is 

certainly not an enactment of Thayer's "bursting bubble"21 -- it 

falls somewhere along the continuum between the two. One 

commentator has placed the New Jersey rule closer to Morgan's 

theory than Thayer's because in New Jersey the evidence 

supporting the presumption or possibly even the presumption 

itself remains. Ralph N. Del Deo & John H. Klock, 2B New Jersey 

Practice Ch. 3 at 334 (1987).22 Although the author was 

commenting on the former New Jersey rule on presumptions, Rule 

14, a comparison between Rule 14 and Rule 301 does not reveal any 

substantial change. The text of the first sentence of the second 

paragraph of Rule 301 is essentially the same as Rule 14. The 

added language does not change the effect of the rule. Rule 14 

states: 

 Except as provided by Rule 15, if 

evidence to the contrary of a presumed fact 

 

21. See generally 9 Wigmore, Evidence § 2490 (Chadbourn 

rev. 1981). 

22. The New Jersey Model Jury Charges - Civil (4th ed. 

1992) for employment cases supports this interpretation. In the 

section dealing with retaliation for a discrimination claim -- 

the only section that discusses the effect of the presumption -- 

the model charge cites to Jamison v. Rockaway Township Bd. of 

Educ., 577 A.2d 177, 182 (N.J. Super. Ct. App. Div. 1990) (citing 

Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1354 

(9th Cir. 1984)), for the proposition that once the plaintiff 

proves that the defendant's articulated reason for the alleged 

discriminatory action is false, a presumption is created that the 

adverse employment action was the product of improper retaliatory 

intent and the defendant is required to prove by a preponderance 

of the evidence that the adverse action would have been taken 

regardless of retaliatory intent. Model Jury Charges - Civil, 

Ch. 2 § 22C. 
is offered, the existence or nonexistence of 

such fact shall be for the trier of fact, 

unless the evidence is such that the minds of 

reasonable men would not differ as to the 

existence or nonexistence of the presumed 

fact. 

See also Majority slip op. at 23 n.10. Rule 14 and presently 

effective Rule 301 do not follow the previous rule, which was 

interpreted to be an enactment of Thayer's theory. In Dwyer v. 

Ford Motor Co., 178 A.2d 161, 171 (N.J. 1962), the court held 

that a presumption of fact is emptied of all probative force and 

disappears from the case upon introduction of any proof to the 

contrary. Cf. McGlynn v. Newark Parking Auth., 432 A. 2d 99, 105 

(N.J. 1981). When Rule 14 was enacted, the Commission Note 

accompanying the new rule explained it this way: 

 This rule changes existing law. The rule has 

been that if contrary evidence was 

introduced, the presumption was gone . . . . 

Under this rule a fact issue remains, with no 

distinction between "logical" and 

"artificial" presumptions. The effect of the 

rule is that (a) if there is no evidence to 

contradict either the underlying fact or the 

assumed fact, the assumed fact must be taken 

to exist and the jury should be so instructed 

. . .; and (b) if there is evidence to 

contradict either the underlying fact or the 

assumed fact . . ., the jury is to determine 

the existence of the assumed fact as on any 

other contest issue. 

Ralph N. Del Deo & John H. Klock, 2B New Jersey Practice Ch. 3 at 

334 (1987). 

 Although this interpretation has not been formally 

adopted by the New Jersey Supreme Court, its existence 
demonstrates that reasonable minds can differ on the issue. That 

being the case, I cannot conclude that the New Jersey Supreme 

Court would follow the Supreme Court's analysis in Hicks, 

particularly in light of New Jersey's public policy to eradicate 

discrimination from the workplace. At least one other state 

supreme court has chosen not follow Hicks because it has 

interpreted its own rule of evidence on presumptions differently. 

Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225 (N.D. 

1992). 

V. 

 Because New Jersey is clearly dedicated to preserving a 

low threshold for establishing a civil rights violation with 

regard to employment discrimination,23 I would hold that the New 

Jersey Supreme court will not adopt for the LAD the Supreme 

Court's analysis in Hicks. 

 

23. In sum, the LAD provides a distinctive cause 

of action arising from unlawful employment 

practices and unlawful discrimination in 

employment. The overarching goals of the LAD 

are not only vindication for aggrieved 

individuals victimized by discrimination. 

Protection for other persons similarly 

situated and the eradication of invidious 

discrimination in the exercise of civil 

rights are also paramount concerns of the 

LAD. The LAD confers broad and extensive 

remedial powers to fulfill these goals and to 

counteract the practices and effects of such 

unlawful practices and discrimination. 

 Shaner v. Horizon Bancorp, 561 A.2d 1130, 1136 (N.J. 1989).