1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-26-1995

Waldron v SL Industries, Inc.

Precedential or Non-Precedential:

Docket 94-5282

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Recommended Citation

"Waldron v SL Industries, Inc." (1995). 1995 Decisions. Paper 145.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 94-5282 

 ___________ 

 REED WALDRON 

 Appellant, 

 vs. 

 SL INDUSTRIES, INC.; SL-WABER, INC. 

 Appellees. 

 ___________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW JERSEY 

 (D.C. Civil No. 92-cv-05445) 

 ___________ 

 ARGUED JANUARY 25, 1995 

 BEFORE: BECKER, LEWIS and GARTH, Circuit Judges. 

 (Filed May 26, 1995) 

 ___________ 

Alice W. Ballard (ARGUED) 

Samuel & Ballard 

225 South 15th Street 

Suite 1700 

Philadelphia, PA 19102 

 Attorney for Appellant
David B. Mulvihill (ARGUED) 

Titus & McConomy 

Four Gateway Center 

20th Floor 

Pittsburgh, PA 15222 

 Attorney for Appellees

Barbara L. Sloan 

Equal Employment Opportunity Commission 

1801 L Street, N.W. 

Washington, DC 20507 

 Attorney for Amicus-appellant, Equal 

Employment Opportunity Commission

 ___________ 

 OPINION OF THE COURT 

 ___________ 

LEWIS, Circuit Judge. 

 The district court in this case predicted that, after 

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

require a plaintiff at summary judgment in a suit brought under 

the Age Discrimination in Employment Act, 29 U.S.C. § 621 et 

seq., and the New Jersey Law Against Discrimination, N.J.S.A. 

§ 10:5-1 et seq., to prove both that his employer's reasons for 

terminating him were false and that the real reason for 

termination was discrimination. Recent decisions of this court, 

including Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), Torre 

v. Casio, Inc., 42 F.3d 825 (3d Cir. 1994), and Sempier v. 

Johnson & Higgins, No. 94-5208 (3d Cir. Jan. 6, 1995), have 

established that this prediction was inaccurate. Because the 

district court's legal standard was thus in error, the principal 
question for our review is whether under the proper standard, the 

defendant was entitled to summary judgment. In other words, 

provided that the plaintiff produced sufficient evidence to 

establish a prima facie case, did he also provide sufficient 

evidence upon which a reasonable jury could determine that either

his employer's reasons for terminating him were false or that 

discrimination was more than likely the motivating factor? We 

find that the plaintiff, Reed Waldron, presented sufficient 

evidence to survive summary judgment, and therefore we will 

reverse. 

I. 

 SL Waber, Inc., a subsidiary of SL Industries, Inc., 

manufactures machinery designed to protect sensitive electrical 

and electronic equipment. Reed Waldron was employed at Waber 

from 1972 through 1986, but was laid off in 1986 because of a 

reorganization. In 1989, after two years of work at a competitor 

of Waber, he was rehired by Waber as a consultant. He was 61 

years old when he was rehired. 

 In July 1990, Waber found that the employee functioning 

as industrial market manager, Scott Hammill, was having 

difficulties. Thus, Waber decided to split the industrial market 

manager position into two positions separately devoted to 

marketing electronic equipment and electrical equipment. Hammill 

was given the electronic marketing manager's position, and 

Waldron was named electrical marketing manager. In spring of 

1991, Hammill voluntarily left Waber, the positions were 
reconsolidated, and Waldron was given the reconsolidated position 

of industrial market manager. 

 There is conflicting evidence about whether Waldron 

performed his tasks adequately in the industrial market manager 

position. Predictably, Waldron contended that he did a good job, 

but the company said that he did not vigorously pursue key 

accounts and performed poorly during a series of incidents 

related to preparation of and presentation to Waber's parent, SL 

Industries, of the fiscal year 1992 business plan. 

 In August 1991, just after the company adopted the 1992 

business plan, Waldron was discharged -- at the age of 63. Kevin 

Woznicki, vice-president of sales and marketing, apparently told 

Waldron that his job had been eliminated, that his former duties 

were being distributed between two new positions -- electronics 

market manager and electrical market manager -- and that Waldron 

was "not the best candidate" for either position, principally 

because he did not go after key accounts. Although Woznicki 

apparently told Waldron he was terminated (Joint Appendix 

("App.") 116), Woznicki first sought and received approval of the 

decision from Ronald Mazik, the company's president. 

 Shortly thereafter, Ed Brown, a telephone sales 

representative aged 32, was promoted to the electronics market 

manager's position -- that is, one half of Waldron's old job. 

The electrical market manager position (the other half) was never 

advertised or filled, and within a short time (five to six 

months) the company recombined the two positions with Brown in 
the consolidated post -- again called industrial market manager, 

the title of Waldron's old job. 

 Waldron sued Waber, claiming that he had been 

discharged because of his age in violation of the Age 

Discrimination in Employment Act, 29 U.S.C. § 621 et seq.,

1 and 

the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1 et 

seq. ("LAD").2 The company moved for summary judgment, arguing 

that, under the "pretext-plus" standard that it predicted we 

would adopt for dealing with summary judgment after Hicks, 

 

1. Section 623(a)(1) of Title 29 of the United States Code 

provides that "[i]t shall be unlawful for an employer . . . to 

fail or refuse to hire or to discharge any individual or 

otherwise discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, 

because of such individual's age." 29 U.S.C. § 623(a)(1). 

2. 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). 
Waldron did not have sufficient evidence upon which a jury could 

find both that Waber's reasons for firing him were pretextual and

that the real reason for the termination was age-related animus. 

The district court agreed, found that the ADEA and LAD claims 

were governed by the same standard, and rendered summary judgment 

in favor of the company. The district court had jurisdiction 

under 29 U.S.C. § 623(a) and 28 U.S.C. § 1331. We have 

jurisdiction under 28 U.S.C. § 1291. 

II. 

A. 

 In St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 

(1993), the Supreme Court addressed a pervasive split that had 

developed among the courts of appeals over the proper application 

of the scheme established in McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973), for allocating the burdens of production and 

presentation of proof in cases involving allegations of 

discrimination in violation of Title VII of the Civil Rights Act 

of 1964. Under the familiar shifting burdens analysis of 

McDonnell Douglas, a plaintiff must initially establish a minimal 

prima facie case -- essentially, that he or she is a member of a 

protected class and was qualified for an employment position, but 

that he or she was either not hired for that position or was 

fired from it "under circumstances that give rise to an inference 

of unlawful discrimination." Texas Dept. of Community Affairs v. 

Burdine, 450 U.S. 248, 253 (1981).3 Once the plaintiff 

 

3. As the Supreme Court made clear, the precise elements of a 

plaintiff's prima facie case may vary with the particular 
establishes his or her prima facie case, the burden shifts to the 

defendant to articulate one or more legitimate, nondiscriminatory reasons for its employment decision. If one or 

more such reasons are proffered, the presumption of 

discrimination created by establishment of the prima facie case 

is dispelled, and the plaintiff must prove that the employer's 

proffered reason or reasons were pretextual -- that is, that they 

are false and that the real reason for the employment decision 

was discriminatory. 

 It was the meaning of this last phase of the McDonnell 

Douglas scheme that had caused dissention among the courts of 

appeals: if a plaintiff proved that an employer's proffered 

reasons were unworthy of credence, must the jury return a verdict 

in his or her favor, or was it still required to find that 

discriminatory animus more than likely caused the employment 

decision? In Hicks, resolving a circuit conflict, the Court 

decided that although "[t]he factfinder's disbelief of the 

reasons put forward by the defendant . . . may, together with the 

elements of the prima facie case, suffice to show intentional 

discrimination," so that if an employer's proffered reasons for 

the employment decision are rejected, "no additional proof of 

(..continued) 

circumstances. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

802 n.14 (1973); Teamsters v. United States, 431 U.S. 324, 335-36 

& n.15 (1977); Texas Dept. of Community Affairs v. Burdine, 450 

U.S. 248, 253 n.5 (1981). See generally Torre v. Casio, Inc., 42 

F.3d 825, 830-31 (3d Cir. 1994) ("the nature of the required 

showing to establish a prima facie case of disparate treatment by 

indirect evidence depends on the circumstances of the case" 

(internal quotation omitted)). 
discrimination is required," nevertheless the ultimate burden of 

persuasion remains on the plaintiff throughout the case. Id. at 

2749. Thus, "a plaintiff's proof of his or her prima facie case 

and proof that the employer's proffered reasons are false does 

not compel a judgment in the plaintiff's favor." Id.

 Although Hicks resolved the issue of whether a 

plaintiff is entitled to judgment as a matter of law at trial if 

he or she establishes a prima facie case and discredits an 

employer's justifications for the employment decision, it did not 

address the standard by which summary judgment should be assessed 

in a pretext case under the ADEA.4 The district court in this 

case noted that we had not yet ruled on this issue, but predicted 

that we would side with those courts of appeals that had required 

plaintiffs at summary judgment to produce evidence of "pretextplus." Waldron v. SL Industries, Inc., 849 F. Supp. 996, 1004 

n.11 (D. N.J. 1994). That is, the district court predicted that 

at summary judgment we would require plaintiffs to demonstrate" 

both that the employer's reasons are false and that the real 

reasons were discriminatory . . . ." Id. 

 Contrary to the district court's prediction, however, 

in Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), we joined 

those of our sister circuits who have read Hicks to require at 

 

4. Although Hicks was a Title VII case, its analysis applies 

to ADEA cases, as well. See McKenna v. Pacific Rail Services, 

Inc., 32 F.3d 820, 825-26 & n.3 (3d Cir. 1994) (shifting burden 

analysis applicable to Title VII cases also applicable to cases 

under ADEA). 
summary judgment "pretext-only." Judge Becker noted in Fuentes

that, 

 [b]ecause the factfinder may infer from the 

combination of the plaintiff's prima facie 

case and its own rejection of the employer's 

proffered non-discriminatory reasons that the 

employer unlawfully discriminated against the 

plaintiff and was merely trying to conceal 

its illegal act with the articulated reasons, 

see Hicks, __ U.S. at __, 113 S. Ct. at 2749, 

a plaintiff who has made out a prima facie 

case may defeat a motion for summary judgment 

by either (i) discrediting the proffered 

reasons, either circumstantially or directly, 

or (ii) adducing evidence, whether 

circumstantial or direct, that discrimination 

was more likely than not a motivating or 

determinative cause of the adverse employment 

action. 

Fuentes, 32 F.3d at 764. 

 Thus, we clarified that "if the plaintiff has pointed 

to evidence sufficient[] to discredit the defendant's proffered 

reasons, to survive summary judgment the plaintiff need not also 

come forward with additional evidence of discrimination beyond 

his or her prima facie case." Fuentes, 32 F.3d at 764. This 

standard is obviously different from that imposed by the district 

court, and it will be our responsibility on appeal to assess 

whether, under this standard, plaintiff's claims should have 

survived summary judgment.5

 

5. Although Waber conceded at oral argument that the district 

court applied the incorrect legal standard under Fuentes and its 

progeny, the company sought in its brief to undercut the strength 

of Fuentes' precedential value by contending that it is 

inconsistent with two of our other recent decisions: Seman v. 

Coplay Cement Co., 26 F.3d 428 (3d Cir. 1994), decided two months 

before Fuentes, and Armbruster v. Unisys Corp., 32 F.3d 759 (3d 

Cir. 1994). Those decisions, however, are entirely consistent 

with Fuentes. See Seman, 26 F.3d at 433 (noting that, under 
B. 

 At summary judgment, the district court found that 

Waldron had established a prima facie case, and Waber does not 

contest that issue on appeal. However, the district court 

credited Waber with having established the following nondiscriminatory business justification for its decision to 

terminate Waldron. Because of economic hardship, Waber was 

forced to restructure its industrial marketing business, and one 

of the changes involved reverting to the organizational structure 

it had formerly used. That is, Waber decided to re-bifurcate the 

two segments of the industrial market -- electrical and 

electronics -- with each segment having its own manager. 

However, Waber decided that Waldron was not the best candidate 

for either of the two positions. Having had the chance to assess 

Waldron's performance as industrial market manager for more than 

a year, the company determined that he was not the best candidate 

for either new position primarily because Waldron had not 

sufficiently visited "key accounts." The company's conclusion 

was confirmed when it was preparing its fiscal 1992 business 

plan. Waldron's portion of the business plan was considered 

(..continued) 

Hicks, "rejection of the employer's proffered nondiscriminatory 

reason will permit the trier of fact to infer the ultimate fact 

of intentional discrimination, so long as there is a finding of 

discrimination. In other words, `[t]he factfinder's disbelief of 

the reasons put forward by the [employer] . . . may, together 

with the elements of the [employee's] prima facie case, suffice 

to show intentional discrimination.'"); Armbruster, 32 F.3d at 

783 (recognizing that disbelief in the employer's proffered 

explanations, combined with the plaintiff's prima facie case, may 

be sufficient to allow a jury to infer the "ultimate fact of 

intentional discrimination"). 
inadequate and needed a "massive overhaul," and when called upon 

at a meeting to rehearse his part of the presentation, he was 

unprepared. Furthermore, at the conclusion of the presentation 

to the management of Waber's parent, SL Industries, Waldron made 

comments about increasing sales by increasing sales reps' 

commissions that showed that he either did not know -- or did not 

agree with -- the direction Waber was pursuing, since Waber's 

plan was to increase sales by pursuing "key accounts" -- very 

large current or potential customers. Waldron, 849 F. Supp. at 

1002. 

 In reply, Waldron contends that he established both 

that Waber's putative justifications were false and that agerelated bias in fact motivated the decision to fire him. We 

evaluate Waldron's responses to Waber's explanation below. As we 

do, we recall that since this case is before us for review of a 

grant of summary judgment, we address the case as if we were the 

district court, exercising plenary review of both facts and law. 

Additionally, we must view the evidence in the light most 

favorable to the nonmovant, giving that party the benefit of all 

reasonable inferences derived from the evidence. Torre v. Casio, 

42 F.3d 825, 830 (3d Cir. 1994).6

 

6. Waber argued to the district court that it should apply the 

Fourth Circuit's reasoning in Proud v. Stone, 945 F.2d 796 (4th 

Cir. 1991), that because Waldron was 61 years old when hired by 

Waber and 63 1/2 years old when promoted prior to termination, a 

strong inference existed that discrimination was not a 

determining factor for the adverse action taken by the employer. 

Although the district court did not rely on Proud, it did "accept 

the logic that underlies the Proud inference." Waldron, 849 

F. Supp. at 1006 n.14. 
1. 

 Addressing first the company's reorganization plan, 

Waldron contends that the evidence at summary judgment would 

permit a jury to reasonably conclude that the reorganization was 

simply a way of getting rid of him in favor of a younger 

employee, Ed Brown (age 32). Waldron does not dispute that the 

company was experiencing economic difficulties during the period 

leading up to his dismissal. However, Waldron argues that the 

evidence of Waber's post-termination conduct belies the company's 

contention that a valid reorganization precipitated Waldron's 

termination. 

 Waldron begins by explaining that the evidence, viewed 

in his favor, shows that Waber split the industrial market 

manager position into two segments and named Brown to the post of 

electronics marketing manager, but it left the other position 

open and within one-half year of Waldron's termination, Waber 

recombined the two market segments under one title -- industrial 

market manager -- with Ed Brown in that position. Waber responds 

(..continued) 

 However, we agree with the position advanced by the Equal 

Employment Opportunity Commission as amicus curiae: "where, as 

in Proud, the hirer and firer are the same and the discharge 

occurred soon after the plaintiff was hired, the defendant may of 

course argue to the factfinder that it should not find 

discrimination. But this is simply evidence like any other and 

should not be accorded any presumptive value." EEOC Br. 22. 

Additionally, as the EEOC further notes, it was plausible under 

the evidence presented at summary judgment that Waber would hire 

Waldron, use his skills for a few years while a younger person 

was being "groomed" for his position, then fire Waldron because 

of his age. Id. at 22-23. Thus, even if we were inclined to 

apply Proud in some circumstances, this case would be an 

inappropriate candidate for the presumption. 
that Waldron's "facts and surmises" simply show that the company 

ultimately decided to adopt a "different organizational structure 

which was less expensive than the one it planned to implement at 

the time it decided to let him go -- and, as a result of this 

further restructuring, Mr. Waldron's former title was ultimately 

given to Ed Brown -- a younger employee (albeit one with many 

more years of continuous service with Waber)." Appellees' Br. 

27-28. But Waber does not provide any evidence in support of its 

contention that subsequent to Waldron's discharge the company 

adopted a new plan of reorganization. More significantly, 

however, Waber's response ignores the inference created by 

evidence demonstrating that Waber split Waldron's job, fired him, 

offered one-half of his former job to a younger person while the 

other half remained unadvertised, and then recombined the jobs 

and placed the younger employee in the recombined post. Although 

Waber may be able to explain this behavior at trial, a reasonable 

jury certainly could conclude that these actions cast sufficient 

doubt on the company's contention that Waldron was discharged as 

part of a plan of reorganization.7

 Waldron also notes with respect to the reorganization 

that Waber's business plan for fiscal year 1992, which was worked 

 

7. Waber conceded at oral argument that there was "no dispute" 

that Waber "vacillated" in the course of eighteen months, 

asserting that it went back and forth five times in splitting and 

recombining the Industrial Market Manager position during the 

period leading up to and immediately following Waldron's 

termination. The company also explained that Waldron himself was 

the beneficiary of many of the vacillations. That would not 

excuse, however, the use of a putative reorganization as a ruse 

to shunt Waldron out the door. 
on by both Woznicki and Mazik and presented to Waber's parent 

company just one month prior to Waldron's termination, did not 

show the industrial market manager position being split up into 

segments. App. 233-34 (Mazik deposition). Waber responds that 

the fact that the recently adopted business plan had Waldron's 

name in the industrial market manager spot is consistent with its 

explanation that it decided not to keep Waldron on in the 

reorganization. This shows, the company contends, that the 

decision to fire him did not come until his poor performance in 

preparing and rehearsing the fiscal 1992 business plan in July. 

Yet Waldron's evidence suggests that the company did not intend 

to have two positions -- or at least not for long. The 

permissible inference is that the reorganization was not planned, 

but rather pretextual. 

 Additionally, Waldron contends that there is evidence 

upon which the jury could conclude that the reorganization that 

cost Waldron his job demonstrated age-related prejudice by Waber. 

Waldron notes that when his predecessor at the industrial market 

manager position, Scott Hammill (twelve years his junior), had 

difficulties, Waber had found him help by splitting his position 

and giving him one half of the industrial market. By contrast, 

Waldron notes, when Waber determined to split up Waldron's job 

(the same post Hammill had held), Waldron was not offered either 

segment of the industrial market, but instead was terminated. 

 Surprisingly, Waber did not respond to this last 

argument in its briefing. Perhaps by way of partial response, 

however, Waber asserts the uncontroversial proposition that 
"barring an attempt to conceal discrimination," a company "`has 

the right to make business judgments on employee status, 

particularly when the decision involves subjective factors . . . 

that the [c]ompany deems essential' to the position" in question. 

Appellees' Br. 28, quoting Healy v. New York Life Insurance Co., 

860 F.2d 1209, 1220 (3d Cir. 1988). That argument begs the 

question, however, of whether the reorganization was an attempt 

to conceal discrimination. 

 Viewing all of the evidence in the light most favorable 

to Waldron and weighing the parties' arguments, we agree with 

Waldron that the evidence presented at summary judgment would 

permit a reasonable jury to conclude that Waber's reorganization 

was not the reason for Waldron's termination, but rather a 

pretext. The vacillations at Waber over whether to have a single 

industrial market manager or separate electrical and electronics 

managers may have been innocent, but under the evidence presented 

at summary judgment, a jury could reasonably question whether the 

"reorganization" that ostensibly precipitated Waldron's 

termination was in fact just a way of removing Waldron replacing 

him in the industrial market manager position with the younger Ed 

Brown. Additionally, Waldron's evidence concerning the business 

plan is not without force: a jury could reasonably conclude that 

Waber's failure to account for a split in the industrial market 

manager position in its carefully orchestrated business plan 

demonstrates that the reorganization came about because of 

Waber's desire to terminate Waldron's employment, rather than as 

a factor innocently leading to that result. Thus, there is 
sufficient evidence upon which a jury could reasonably determine 

that Waber's justification for terminating Waldron because of a 

reorganization was implausible and inconsistent. 

2. 

 We turn, therefore, to Waber's contention that its 

dissatisfaction with the way in which Waldron pursued key 

accounts during his tenure as industrial market manager was part 

of the reason why the company terminated Waldron in the 

reorganization. According to Waber, it grew frustrated by 

Waldron's alleged unwillingness or inability to pursue key 

accounts through face-to-face meetings at the headquarters of 

such customers and potential customers. Waldron, however, 

contends that he submitted substantial evidence at summary 

judgment upon which a jury could reasonably determine that 

Waber's justification was either a post hoc fabrication or actual 

evidence of discrimination. Again, we agree. 

 Initially, Waldron disputes whether in fact he failed 

to visit key accounts. The district court quoted from and relied 

upon the testimony of Mazik, in which he stated that Waldron 

"`couldn't or wouldn't visit major accounts in the electrical 

distribution market . . . .'" Waldron, 849 F. Supp. at 1002 

(quoting Mazik Dep.). Waldron testified, however, that he 

visited key accounts, and also testified that his requests for 

authorization to travel were sometimes rejected by Woznicki. 

App. 62-64, 66, 162 (visited accounts), 127, 153-57 (Woznicki 

rejected travel requests). 
 The district court did not address any of this 

testimony at summary judgment -- to the contrary, it stated that 

Waldron had "concede[d] that he disregarded the company policy of 

calling on key accounts . . . ." Waldron, 849 F. Supp. at 1005. 

As support, the district court cited a portion of Waldron's 

deposition that, in our view, simply does not support the theory 

that Waldron "conceded" anything. See id. (citing Waldron Dep. 

at 439); cf. App. at 158-59 (showing context of material quoted 

by district court), 162 (Waldron testifies that in year preceding 

termination he made between 12 and 14 key account visits to 

company headquarters in electrical market and between 4 and 5 in 

electronics market). 

 Nevertheless, this evidence is not ultimately probative 

of pretext. Waber submitted testimony suggesting that the 

company was dissatisfied with Waldron's efforts at contacting key 

accounts in face-to-face meetings at their business locations. 

E.g., App. 207, 211, 239. Thus, the fact that Waldron indeed 

made key account visits is not probative of whether Waber 

believed that he should be doing more in that effort. See Billet 

v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991) (plaintiff's 

"view of his performance is not at issue; what matters is the 

perception of the decision maker"). Of course, to the extent 

that Waldron's testimony tended to show that his supervisor 

hampered his efforts to make more key account visits, that 

evidence could lead to an inference that Waber intentionally set 

goals that Waldron could not meet. Yet Waldron's deposition 

testimony on this point was equivocal. When pressed by opposing 
counsel, Waldron stated that he had "no idea" where he had wanted 

to go on the three or four occasions on which he sought but was 

refused authorization to travel. App. 154. Thus, crediting 

Waldron's evidence that he was denied such authorization, that 

still does not prove that the contemplated travel was for faceto-face meetings with key accounts, as the company wanted. 

 Waldron's second thrust at the key account 

justification, however, is more powerful. Waldron notes that 

despite Waber's contention that focusing on key accounts was an 

"edict of the company, especially under Ron Mazik's tenure, and 

even prior to that" (App. 208 (Woznicki Dep.)), or alternatively 

the "major focus, and that wasn't just for Reed Waldron" (App. 

212), Waber replaced Waldron with Ed Brown, an employee who had 

performed only as a "back-up" to sales representatives and who 

did not have any significant experience making calls to key 

accounts. App. 191, 242-43. Additionally, according to Mazik, 

Waber did not expect Brown to make key account calls after 

replacing Waldron -- Mazik stated that "[w]e didn't think that Ed 

Brown had the capabilities to do that." App. 243. And, 

according to Mazik, in fact "nobody" performed the job of calling 

on key accounts after Waldron's departure. Id.

 This evidence points in one of two probative 

directions. On one hand, as Waldron argues, the evidence could 

lead a reasonable jury to reject Waber's explanation that the 

company fired Waldron because he failed to call sufficiently on 

key accounts. Given the evidence that despite Waber's ostensible 

focus on key accounts, the company elevated (in an admittedly 
roundabout way, see supra pp. 12-14) to industrial market manager 

an employee with no sales experience (whom it considered 

incapable of calling on key accounts), and that no one called 

upon key accounts after Waldron was fired, a jury could 

reasonably conclude that visiting key accounts was not nearly as 

important to Waber as it said it was -- and that Waber's 

explanation for firing Waldron was thus unworthy of credence. 

 Alternatively, as Waldron also argues, one could view 

the evidence on key accounts as suggestive of a double standard. 

For Waldron, the evidence suggests, visiting key accounts was an 

element of the industrial market manager position. For Brown, it 

was not. 

 Waber responds in two ways to Waldron's arguments. 

First, it asserts that the evidence, taken as true, would only 

support the inference that by the time Brown assumed the title of 

industrial market manager, that position had become a job lower 

on the organizational ladder with fewer responsibilities, and 

visiting key accounts was no longer among them. Appellees' Br. 

30. However, Waber provides no citation to the record to support 

the suggestion that Brown's job was lower on the organizational 

ladder, and we find both of the inferences suggested by Waldron 

-- that is, pretext or double standard -- to be at least equally 

as plausible as the one offered by Waber. 

 Second, Waber argues that Waldron's double-standard 

argument runs afoul of Fowle v. C & C Coal, a Div. of ITTContinental Baking Co., 868 F.2d 59 (3d Cir. 1989). In Fowle, 

the plaintiff alleged that he had not been hired as a company 
vice president because of his age. The company responded that 

Fowle did not satisfy one of the essential criteria of the job -- 

that is, he lacked the management skills necessary to possibly 

replace the president of the company within two to four years. 

Id. at 64. Fowle attempted to show that this justification was 

pretextual by demonstrating that this ostensible prerequisite was 

subsequently relaxed (from two to four years to five to ten 

years) as soon as the company found a candidate younger than 

Fowle that it wanted to hire. We rejected Fowle's argument, 

finding that Fowle's evidence suggested, at most, "an evolution 

of the position's specifications" over time. Id. at 66. Waber 

apparently believes that, in a similar manner, Waldron's evidence 

with respect to key account visits merely demonstrates that the 

industrial market manager position evolved over time, but creates 

no inference of pretext or discriminatory double standard. 

 Yet Fowle cannot be read so broadly. If, every time 

one candidate for a position was rejected based on some criterion 

and another was ultimately hired notwithstanding his or her 

failure to satisfy the same criterion we nevertheless permitted 

employers to escape liability with the explanation that the job 

specifications had simply changed, we would rip a great hole in 

the Congressional scheme for affording relief for the victims of 

discrimination. Indeed, Fowle itself makes this fact clear in a 

manner that distinguishes it from this case. We noted that, even 

though the precise contours of the job requirement at issue there 

may have changed over time, there was "no evidence that potential 

to replace the President -- in whatever time frame -- was not a 
requirement" of the successful candidate. Fowle, 868 F.2d at 66. 

By contrast, in the case before us, Waldron's evidence suggests 

that although visiting key accounts was a job requirement when he 

held the industrial market manager position, it promptly ceased 

to be one when he left. Thus Fowle does not insulate Waber in 

this case. 

 The district court rejected Waldron's double-standard 

evidence based upon a different theory. The district court found 

that whereas the typical double-standard case involves objective 

criteria, this case involved subjective criteria. Waldron, 849 

F. Supp. at 1007. Because the employment decision in this case 

involved subjective criteria, the district court reasoned, our 

decision in Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 

F.2d 509 (3d Cir. 1992), prohibited the court -- or a jury -- 

from intruding into and second-guessing Waber's business 

decision. 

 We disagree with this analysis on several grounds. 

First, we disagree with the district court's apparent premise 

that visiting key accounts was a "subjective" job criterion. The 

evidence at summary judgment indicated that it was an objective 

and readily assessable criterion. Furthermore, Ezold does not 

stand for the proposition that it is always impermissible to 

review employers' subjective decision making -- indeed, quite to 

the contrary, Ezold contemplates that courts and juries must do 

so. 

 In Ezold, a female associate had been denied 

partnership at a law firm because the firm had decided that she 
was deficient in legal analysis skills. She sued, alleging sex 

discrimination, and the district court agreed and found the firm 

liable. We reversed. We cautioned in the course of our opinion 

against "interfer[ing] in an otherwise valid management decision" 

without some evidence to "cast doubt" on the employer's proffered 

reasons. Ezold, 983 F.2d at 527. We focused, however, upon the 

district court's failure to stick to the criterion at issue in 

the employer's business justification. We found that instead of 

determining whether the criterion of "legal analysis skills" had 

been applied in a discriminatory manner -- i.e., whether male 

associates had been welcomed into the partnership notwithstanding 

the firm's belief that they lacked legal analysis skills -- the 

district court had impermissibly determined that the plaintiff's 

other strengths outweighed any deficiencies in legal analysis. 

Id. at 527-28. Thus, in disapproving the district court's 

analysis, we did not conclude that it would be impermissible for 

the district court to determine whether the criterion of "legal 

analysis skills" -- a standard with undeniably subjective 

elements -- had been applied differentially. Rather, we stated: 

 Where an employer produces evidence that the 

plaintiff was not promoted because of its 

view that the plaintiff lacked a particular 

qualification the employer deemed essential 

to the position sought, a district court 

should focus on the qualification the 

employer found lacking in determining whether 

non-members of the protected class were 

treated more favorably. 

Ezold, 983 F.2d at 528. Therefore, Ezold does not stand for the 

proposition that courts and juries are foreclosed from assessing 
whether an employer created a double standard using one or more 

subjective criteria, but instead stands for the opposite 

principle. 

 Thus, it is evident that Waldron also cast substantial 

doubt upon Waber's proffered justification that it decided to 

terminate Waldron because of his failure to visit key accounts 

with sufficient regularity. Indeed, viewed in the light most 

favorable to him, Waldron's evidence suggests either that failure 

to visit key accounts with regularity was not really a reason for 

Waldron's termination (that is, the reason is pretextual) or that 

Ed Brown was treated more favorably than Waldron, suggesting not 

just pretext, but in fact discriminatory bias. 

3. 

 As we have seen, Waber contended that economic hardship 

forced a restructuring of the industrial market manager position, 

and that the decision not to retain Waldron for either of the two 

positions was motivated largely by the fact that Waldron had 

failed to visit key accounts with sufficient regularity. 

Appellees' Br. 8-9. The company contends, however, that the 

decision to terminate Waldron "became inescapable during June 

1991 as Waber was preparing to present its business plan" for 

fiscal year 1992. Id. at 9. Waber contends that Waldron showed 

his weaknesses as an employee at this point in three areas: 

(a) drafting his portion of the business plan in an inadequate 

manner that required substantial rewriting by his supervisors; 

(b) failing to perform adequately at a dress rehearsal of the 

presentation of the business plan to corporate officers of 
Waber's parent; and (c) making stray comments at the actual 

presentation of the business plan that suggested that Waldron was 

either unaware of or disagreed with the direction in which the 

company was headed. 

 Initially, we note that none of these factors was 

presented to the district court or argued to us as an independent 

justification for Waber's decision to terminate Waldron. Rather, 

each was ostensibly a proverbial straw which, taken together, 

broke a back weakened by Waber's need to reorganize and Waldron's 

failure to serve key accounts in the manner desired by his 

superiors. Having produced evidence upon which a jury could 

reasonably conclude that both the reorganization and key account 

justifications were pretextual (and in the latter case possibly 

evidence of bias), Waldron thus has also undermined the vitality 

of the other proffered justifications that we turn to now. 

However, since Waldron does not rest merely upon his refutation 

of Waber's principal business justifications for the termination 

of his employment, but rather provides particularized responses 

to these "final straw" justifications, we address his evidence 

and arguments below. 

 (a) 

 At summary judgment in the district court, Waber relied 

upon the deposition testimony of Woznicki to support its 

contention that Waber was discouraged by Waldron's draft of his 

portion of the business plan for fiscal year 1992, which required 

a "massive overhaul" by Woznicki and Mazik to get it in shape to 

present to Waber's parent company. See Waldron, 849 F. Supp. at 
1002; see also App. 216. This dissatisfaction, Waber contended, 

helped to tilt the balance against retaining Waldron. 

 Waldron responds that he presented evidence by way of 

his own testimony that no changes were made his portion of the 

business plan. App. 173. Waber criticizes Waldron's testimony 

as "self-serving," but the Supreme Court has made it clear that 

self-serving testimony may be utilized by a party at summary 

judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 324 

(1986)(noting that plaintiff may create material issue of fact by 

proffering, inter alia, "her own affidavits"). Furthermore, it 

is obvious that the testimony is no more self-serving than 

Woznicki's was on behalf of Waber. Waldron's testimony was under 

oath and subject to cross examination, just as was Woznicki's. 

Since no other evidence was presented aside from the two 

deponents' competing recollections, we see little reason to 

credit one and reject the other. Instead, we see this as a 

disputed material fact issue to be resolved at trial. 

 Waber also states that the issue was not whether 

Waldron believed that he wrote his portion of the business plan 

adequately, but rather whether Woznicki and Mazik were satisfied 

with it. Yet Waldron's testimony, if believed, establishes that 

Woznicki and Mazik did not rewrite the business plan, which casts 

serious doubt on Waber's contention that it was dissatisfied with 

Waldron's efforts. 

(b) 

 With respect to the so-called "dress rehearsal" of 

Waber's fiscal 1992 business plan, Waldron concedes that he 
performed poorly -- "I . . . came off as being unprepared, which 

I was." App. 175. Waldron maintained at summary judgment, 

however, that evidence demonstrated that he was "tripped up" by 

Mazik and "singled out" at the meeting -- which he had not been 

told was a dress rehearsal -- as the only one forced to make his 

presentation. App. 173-75.8 Again, Waber contends that this 

evidence was "self-serving" deposition testimony, but we see no 

reason for not finding that it, too, creates a disputed issue of 

material fact. 

(c) 

 Finally, Waber, using the testimony of Woznicki, argued 

that Woznicki and Mazik also were dissatisfied with Waldron's 

performance at the actual presentation of the fiscal 1992 

business plan to Waber's parent company, SL Industries. 

Specifically, Woznicki stated that, after completing his 

presentation, Waldron mentioned that the way to expand Waber's 

business was "through [sales] rep[resentative] commission 

 

8. At oral argument, Waldron made an additional argument not 

present in his briefs: to the extent that the meeting at which 

he was forced to make his impromptu presentation was a dress 

rehearsal, a jury could reasonably infer that Waber's reaction to 

Waldron's mistakes were stereotypical. That is, dress rehearsals 

are meant to shake out the bugs and allow people to make 

mistakes, but Waber reacted in a manner that suggested that it 

believed that when an older employee makes a mistake, he cannot 

learn. Waldron's counsel might be able to make this argument to 

the jury, of course, but we refuse to rely upon it because it is 

premised on the theory that mistakes are expected at dress 

rehearsals and were tolerated when made by employees other than 

Waldron at the rehearsal in question, assuming that the meeting 

was in fact a dress rehearsal. Based on the record before us, 

that is speculation, not evidence. 
increases." App. 217 (Woznicki Dep.). This comment, Woznicki 

stated, made him and Mazik look bad because that was not what the 

company planned to do. Id. The comment was especially damaging 

because this was Mazik's first presentation to Waber's parent 

company, and he had wanted everything to go flawlessly. Id.

 Waldron responded at summary judgment, however, by 

pointing to his deposition testimony, in which, apparently 

reading from the business plan itself, he noted that "[r]evamping 

[sales representatives'] commissions to reward growth" was in the 

plan. App. 177. Waldron also notes that in the same memorandum 

to industrial sales representatives in which Woznicki announced 

Waldron's termination, Woznicki also announced an increase in 

sales representatives' commissions as a promotional effort (App. 

192), suggesting that increasing commissions was not inconsistent 

with Waber's growth strategy. This evidence could permit a jury 

to conclude that it was implausible that Woznicki and Mazik felt 

that Waldron's comments at the formal presentation concerning 

increased commissions showed that he was unaware of or in 

disagreement with the company's focus. 

4. 

 Finally, we note Waldron's additional argument that he 

has evidence of age-related animus or bias in the form of a 

comment made to him by Mazik. Waldron testified that five months 

prior to his termination, in a meeting in which Mazik promoted 

Waldron to industrial market manager, Mazik told him, "I want you 

to lose weight. He told me that it'll make you feel better. 

It'll make you look younger." App. 129. The district court 
found that "Mazik's comment that plaintiff might consider losing 

weight in no way indicates that plaintiff's termination was 

motivated by age." Waldron, 849 F. Supp. at 1008. Noting that 

the comment was five-months prior to Waldron's termination and in 

the context of a promotion, and also Waldron's concession that 

Mazik did not condition continued employment upon satisfying 

Mazik's desires, the court concluded that "we believe the comment 

to be a stray remark entitled to little if any weight . . . ." 

Id., citing Ezold, 983 F.2d at 545. 

 We disagree. Crediting the evidence, the comment was 

made by the person who, according to Waber itself (Appellees' Br. 

6), ultimately approved the decision to terminate Waldron. 

Furthermore, although the comment was made five months prior to 

Waldron's termination, it occurred at a time when, according to 

Mazik himself, Woznicki was already arguing to him that Waldron's 

employment should be terminated. App. 236.9 Thus, we believe 

that the comment may be entitled to some weight when considered 

by the jury, although standing on its own it would likely be 

insufficient to demonstrate age-related animus. In other words, 

the comment is not irrelevant, especially when coupled with 

Waldron's other evidence of discrimination, which demonstrates a 

double standard was applied vis-a-vis Brown as to visiting "key 

 

9. Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509 

(3d Cir. 1992), is distinguishable on both grounds mentioned in 

the text: the discriminatory comment in that case was made by a 

non-decisionmaker, five years prior to the decision to refuse the 

plaintiff in that case admission into the law firm partnership. 

Ezold, 983 F.2d at 545. 
accounts." A reasonable jury could conclude that this evidence 

of discrimination, coupled with Waldron's prima facie case, 

proved that age discrimination was more likely than not a 

determinative factor in Waber's decision to terminate Waldron's 

employment. 

C. 

 To summarize, Waldron provided sufficient evidence upon 

which a reasonable jury could determine that Waber's proffered 

justifications for its decision to terminate Waldron's employment 

were unworthy of credence. Waldron has cast doubt upon Waber's 

contention that the need for a business reorganization 

precipitated Waldron's firing, and he also has produced evidence 

upon which the jury could conclude that Waldron was not let go 

because of dissatisfaction about his alleged failure to visit key 

accounts with sufficient regularity. Indeed, a jury could 

permissibly infer from Waldron's evidence concerning key accounts 

that Waber applied a double standard with respect to Waldron and 

the much younger Ed Brown. By undercutting these principal 

justifications for terminating Waldron's employment, Waldron has 

also provided reasonable grounds upon which a jury could reject 

as weak and implausible Waber's three ostensible "final straws" 

-- Waldron's alleged poor draftsmanship on a portion of the 

business plan, his poor performance at a putative dress rehearsal 

of a presentation of that plan, and the dissonance ostensibly 

caused by Waldron's offhand comments after formal presentation of 

the plan. Additionally, however, as we have just discussed, 

Waldron has produced particularized evidence upon which a jury 
could reasonably conclude that each of these ostensible last 

straws is unworthy of credence. 

 Furthermore, this record is not without evidence which 

tends to support not just pretext, but pretext for 

discrimination. As we discussed at greater length above, a jury 

could reasonably infer that Waldron's evidence with respect to 

key accounts demonstrated that Waber imposed a double standard. 

Mazik's comment that he wanted Waldron to lose weight because it 

would make him look younger takes on a more suspicious cast when 

coupled with evidence that Woznicki was already pushing Mazik to 

fire Waldron when the comment was made. If a jury then reflected 

that Waldron was not kept on when the industrial market manager 

position was split in two because he failed to visit key 

accounts, but that young Ed Brown was elevated ultimately to a 

reconstituted industrial market manager position without having 

to call upon key accounts, the jury might reasonably infer that 

Brown's youth excused his inability to service the key accounts. 

Thus, even if we were permitted to ignore Fuentes and its progeny 

and apply a "pretext-plus" standard, we nevertheless would 

conclude that Waldron satisfied that standard, as well. 

 Because Waldron produced sufficient evidence to survive 

summary judgment on his ADEA claim, we will reverse the district 

court's judgment in favor of Waber on that claim. 

III. 

 The district court granted summary judgment not only on 

Waldron's ADEA claim, however, but also on his claim under the 

New Jersey Law Against Discrimination, reasoning that the LAD and 
ADEA "are governed by the same standards and burden of proof 

structures applicable under Title VII of the Civil Rights Act of 

1964, 42 U.S.C. § 2000e et seq." Waldron, 849 F. Supp. at 1000, 

citing Erickson v. Marsh & McLennan Co., 117 N.J. 539, 569 A.2d 

793 (1990), and Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 538 

A.2d 794 (1988). Thus, we must assess whether summary judgment 

in the LAD claim must be reversed as well. 

 Since the district court's opinion in this case, we 

have predicted in McKenna v. Pacific Rail Services, Inc., 32 F.3d 

820 (3d Cir. 1994), that the New Jersey Supreme Court would adopt 

Hicks's "clarification of the test to be applied in federal 

discrimination cases in interpreting the LAD . . . ." Id. at 

824. This is consistent with the district court's hypothesis 

about the similarities between federal and New Jersey law 

relating to age discrimination. McKenna, however, involved a 

jury trial under the LAD, and we reversed because the district 

court had not provided jury instructions consonant with Hicks. 

It did not involve the standard for summary judgment under the 

LAD, and the parties here did not brief the issue of whether the 

New Jersey Supreme Court would adopt Fuentes, just as we 

predicted in McKenna that it would adopt Hicks. 

 Largely for reasons discussed in McKenna, we believe 

that the New Jersey Supreme Court would adopt our reasoning in 

Fuentes as governing what evidence must be produced by a 

plaintiff to survive summary judgment in an indirect evidence 

case after Hicks. As we noted in McKenna, the New Jersey Supreme 

Court has not only adopted the McDonnell Douglas framework for 
evaluating discrimination cases based upon indirect evidence, but 

has consistently looked to federal courts for guidance about the 

application of the shifting-burdens analysis. McKenna, 32 F.3d 

at 827. Where the New Jersey Supreme Court has departed from 

federal precedent, it has often done so in order to lessen the 

burdens on plaintiffs. Id. at 827-28. And indeed, consistent 

with Fuentes, we stated in McKenna that a plaintiff's proof of a 

prima facie case and rebuttal of an employer's justifications 

"may suffice [to carry a plaintiff's ultimate burden of 

persuasion] if the factfinder believes that the employer offered 

false reasons to conceal unlawful discrimination. . . ." Id. at 

831.10 These considerations lead us to conclude that the New 

Jersey Supreme Court would adopt the more liberal "pretext-only" 

standard enunciated in Fuentes for determining a plaintiff's 

burden at summary judgment, rather than the more demanding 

"pretext-plus" standard adopted by some of our sister circuits. 

 Thus, what we said about Waldron's ADEA claims also 

applies here, and for the reasons provided in Section II, supra, 

 

10. Of course, in McKenna we predicted that the New Jersey 

Supreme Court would adopt Hicks, instead of some more lenient 

rule, because of the following: (1) in New Jersey, as in federal 

law, plaintiffs always retain the ultimate burden of persuasion 

with respect to claims of discrimination (McKenna v. Pacific Rail 

Service, 32 F.3d 820, 828 (3d Cir. 1994)); (2) New Jersey and 

federal rules relating to presumptions are similar (id. at 

829-30); and (3) the New Jersey Supreme Court's decision in 

Goodman v. London Metals Exch., Inc., 86 N.J. 19, 429 A.2d 341 

(1981), was consistent with the Hicks formulation of a 

plaintiff's burden at trial (McKenna, 32 F.3d at 830-31). Those 

factors in no way suggest that the New Jersey Supreme Court would 

refuse to adopt Fuentes. 
we find that Waldron's LAD claims should have survived summary 

judgment, as well. 

IV. 

 In conclusion, we find that Waldron proffered 

sufficient evidence to survive summary judgment on his ADEA 

claims under Fuentes. We also predict that the New Jersey 

Supreme Court would adopt Fuentes as a proper articulation of a 

plaintiff's burden at summary judgment for claims under the LAD. 

Thus, we will reverse the district court's judgment in its 
entirety and remand this case for further proceedings consistent 

with this opinion.