NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2186-12T3

LAMONT W. GARNES,

Plaintiff,

and

ROBERT A. KLEIN,

Plaintiff-Respondent,

v.

PASSAIC COUNTY and the PASSAIC

COUNTY SHERIFF'S DEPARTMENT,

Defendants-Appellants,

and

JERRY SPEZIALE, SHERIFF,

Defendant.

_________________________________

Submitted May 29, 2014 – Decided

Before Judges Grall, Waugh and Nugent.

On appeal from Superior Court of New Jersey, 

Law Division, Passaic County, Docket No. L56-10.

Florio Perrucci Steinhardt & Fader, L.L.C., 

attorneys for appellants (J. Andrew Kinsey, 

of counsel; Veronica P. Hallett, on the 

brief).

APPROVED FOR PUBLICATION

October 24, 2014

APPELLATE DIVISION

October 24, 2014
2 A-2186-12T3

Resnick Law Group, P.C., attorneys for 

respondent (Gerald Jay Resnick, on the 

brief).

The opinion of the court was delivered by 

GRALL, P.J.A.D.

Plaintiffs Robert A. Klein and Lamont W. Garnes filed a 

complaint alleging that Passaic County (the County), the Passaic 

County Sheriff's Department (the PCSD) and the former Sheriff, 

Jerry Speziale, violated the Law Against Discrimination (LAD), 

N.J.S.A. 10:5-1 to -42. Specifically, they contended that their 

employer used age as a determinative factor in identifying the 

sheriff's investigators whose employment would be terminated to 

reduce personnel costs in a budgetary crisis and those who would 

be rehired when the budget permitted. By statute, sheriff's 

investigators serve at the pleasure of the sheriff appointing 

them and are in the unclassified service. N.J.S.A. 40A:9-117a. 

Plaintiffs dismissed their claims against Sheriff Speziale, but 

not the PCSD, prior to trial. They sought damages from the 

County in the amount of past and future lost wages, damages for 

emotional distress and punitive damages. 

The jury rejected plaintiffs' claims of age discrimination 

in rehiring and determined that Garnes failed to prove that the 

County and the PCSD, collectively defendants, intentionally 

discriminated against Garnes in terminating his employment. In 
3 A-2186-12T3

contrast, the jury found in favor of Klein on one of his claims 

— discriminatory termination. The jury awarded Klein $177,700 

for past wages but no punitive damages. Following the verdict, 

the judge increased the damages award by $18,279 to account for 

taxes. The judge also awarded Klein a $389,593.33 counsel fee 

(consisting of a $292,195 lodestar plus a $97,398.33 fee 

enhancement) plus $17,459.11 for expenses and $14,890.60 for 

pre-judgment interest. 

Defendants appeal the $617,922.04 judgment in favor of 

Klein. Garnes does not challenge the verdict against him. 

Klein did not file a cross-appeal. 

On appeal defendants urge reversal on several grounds. 

They contend that plaintiffs, having dismissed their claim 

against the sheriff, should not have been permitted to maintain 

an action against them based on vicarious liability. They argue 

the LAD should be interpreted as the United States Supreme Court 

interpreted the Age Discrimination in Employment Act (ADEA) in 

Gross v. FBL Financial Services, 557 U.S. 167, 129 S. Ct. 2343, 

174 L. Ed. 2d 119 (2009), and contend that Klein did not adduce 

adequate evidence to meet that standard. They further argue 
4 A-2186-12T3

that the evidence was inadequate to support the verdict in favor 

of Klein.1 

Defendants also challenge the amount of the judgment. They 

submit that even if Klein had established age discrimination, he 

could not establish damages because, as an "at will employee," 

he had no expectation of continued employment. In addition, 

they contend that the counsel fee award is excessive. For the 

reasons that follow, we affirm. 

 I 

Before setting forth the facts of the case, we address 

defendants' claims that present questions of law independent of 

the evidence presented at trial. On such matters, a reviewing 

court owes no deference to the trial court's determinations and 

 

1 Defendants' argument on the adequacy of the evidence includes 

a reference to the verdict being "against the weight" of the 

evidence. The record on appeal does not include the transcript 

of defendants' post-trial motion, but it appears from the notice 

of motion and the form of order defendants submitted that they 

moved for a judgment notwithstanding the verdict, R. 4:40-2, and 

remittitur, not for a new trial on liability on the ground that 

the verdict on liability was against the weight of the evidence, 

R. 4:49-1(a). We note that the judge used the form order 

defendants submitted to memorialize his denials of those two 

types of relief, and he indicated on the order that he had 

stated his findings on the record on July 13, 2012. Because we 

do not have that transcript and because a claim that the verdict 

was against the weight of the evidence cannot be raised on 

appeal if it was not raised by way of motion for a new trial in 

the trial court, R. 2:10-1, we do not address defendants' remark 

about the verdict on liability being against the weight of the 

evidence. 
5 A-2186-12T3

decides the question de novo. State v. Coles, 218 N.J. 322, 342 

(2014).

A. 

Defendants argue that plaintiffs should not have been 

permitted to maintain this action following their dismissal of 

their claims against the sheriff. They contend that because 

sheriff's investigators serve at the pleasure of the county 

sheriff, who is a constitutional officer with the exclusive 

statutory authority to hire and fire sheriff's investigators, 

the County cannot be held vicariously liable even if the sheriff 

unlawfully and intentionally terminated plaintiffs' employment 

because of their age. 

The Federal Court of Appeals for the Third Circuit, 

applying New Jersey law, rejected a claim similar to defendants'

in Coleman v. Kaye, 87 F.3d 1491, 1495 (3d Cir. 1996), cert. 

denied, 519 U.S. 1084, 117 S. Ct. 754, 136 L. Ed. 2d 691 (1997), 

a case in which a county argued that it could not be held 

vicariously liable for the county prosecutor's violation of the 

LAD in deciding whether to promote one of his investigators. 

Coleman is instructive because county prosecutors and county 

sheriffs both have exclusive authority to hire and terminate 
6 A-2186-12T3

their investigators. Id. at 1502; see N.J.S.A. 2A:157-10; 

N.J.S.A. 40A:9-117a.2 

In Coleman, the "district court found that the County of 

Monmouth could not be held liable under the New Jersey LAD 

premised upon a theory of respondeat superior for the actions 

of" the county prosecutor, because "there was no master/servant 

relationship between the County of Monmouth and" its prosecutor. 

Id. at 1496. The Third Circuit, applying New Jersey law, 

reversed that determination. 

Applying New Jersey law, the Court of Appeals determined 

that the prosecutor "was acting as a local, county official when 

he denied [the plaintiff's] applications for promotion," and 

held "that the discriminatory acts of [the prosecutor] and his 

subordinates may be imputed to the County of Monmouth since [the 

prosecutor] was the final policymaking authority acting on 

behalf of Monmouth County in the prosecutor's office." Id. at 

1506. 

We see no basis for reaching a different conclusion in 

this case. For all practical and pertinent purposes, a county 

sheriff's and a county prosecutor's statutory authority over 

employment decisions involving investigators is the same, 

 

2 Both county prosecutors and county sheriffs have terms fixed 

in the constitution. N.J. Const. art. VII, § II, ¶¶ 1 & 2. 
7 A-2186-12T3

exclusive and independent of the county. Moreover, the New 

Jersey Supreme Court has followed the reasoning in Coleman twice 

— most recently in Lavezzi v. State, 219 N.J. 163 (2014), and a 

decade earlier in Wright v. State, 169 N.J. 422, 441-42 (2001). 

We recognize that Lavezzi, Wright and Coleman all involved 

a separate question of the State's vicarious liability in 

matters related to law enforcement that is not at issue here, 

but our Supreme Court has agreed with the Third Circuit that a 

county prosecutor performs his or her administrative functions 

"'on behalf of the county.'" Lavezzi, supra, 219 N.J. at 175 

(quoting Coleman, supra, 87 F.3d at 1499); accord Wright, supra, 

169 N.J. at 442. And, in discussing Coleman and decisions of 

our courts, the Supreme Court has concluded that a county 

prosecutor's "liability derived from the prosecutor's 

administrative functions . . . is deemed to be the county's 

responsibility." Lavezzi, supra, 219 N.J. at 178. 

On the foregoing authority, we conclude that neither the 

exclusivity of the sheriff's authority over employment of 

sheriff's investigators nor plaintiffs' dismissal of their 

claims against the sheriff himself had any bearing on the 

County's liability for any violation of the LAD by the PCSD 

through the conduct of the sheriff's subordinates who terminated 
8 A-2186-12T3

plaintiffs' employment. The liability of the sheriff's 

subordinate employees may be imputed to the County. 

B. 

Defendants also argue that the United States Supreme 

Court's interpretation of the ADEA, 81 Stat. 602, as amended 29 

U.S.C. §§ 621 to 634, in Gross, supra, 557 U.S. at 173-79, 129 

S. Ct. at 2348-52, 174 L. Ed. 2d at 126-30, requires a special 

interpretation of the LAD where discrimination based on age is 

alleged. Both statutes require a plaintiff to prove that an 

adverse employment action was taken "because of" the plaintiff's 

age. 29 U.S.C. § 623(a)(1); N.J.S.A. 10:5-12(a). 

The Court's decision in Gross rests on its interpretation 

of the plain language of the ADEA which prohibits employment 

discrimination "because of [the] individual's age," 

29 U.S.C. § 623(a)(1). The Court determined that "the ordinary 

meaning of the ADEA's requirement that an employer took adverse 

action 'because of' age is that age was the 'reason' that the 

employer decided to act." Id. at 176, 129 S. Ct. at 2350, 174 

L. Ed. 2d at 128. As defendants in this case correctly note,

the LAD also makes it unlawful "[f]or an employer, because of 

the . . . age . . . of any individual . . . to refuse to hire or 

employ or to bar or to discharge or require to retire, unless 
9 A-2186-12T3

justified by lawful considerations other than" age. N.J.S.A.

10:5-12a. 

In Gross, the Court cited its decision in Hazen Paper Co. 

v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 1706, 123 L. Ed.

2d 338, 347 (1993), a case based on disparate treatment 

attributable to age. The Court described Hazen Paper Co. as 

holding that such a claim "cannot succeed unless the employee's 

protected trait actually played a role in [the employer's 

decision making] process and had a determinative influence on 

the outcome." Gross, supra, 557 U.S. at 176, 129 S. Ct. at 

2350, 174 L. Ed. 2d at 128. 

We discern no significant difference between the Court's 

description of the essential showing in Gross, and our Supreme 

Court's description of what a plaintiff must prove to establish 

a claim of age discrimination in employment under the LAD. 

Under New Jersey law, "an employee must 'show that the 

prohibited consideration[, age,] played a role in the decision 

making process and that it had a determinative influence on the 

outcome of that process.'" Bergen Commercial Bank v. Sisler, 

157 N.J. 188, 207 (1999) (quoting Maiorino v. Schering-Plough 

Corp., 302 N.J. Super. 323, 344 (App. Div.) (quoting Miller v. 

CIGNA Corp., 47 F.3d 586, 597 (3d Cir. 1995)), certif. denied, 

152 N.J. 189 (1997)). 
10 A-2186-12T3

"Although the discrimination must be intentional, an 

employee may attempt to prove employment discrimination by using 

either direct or circumstantial evidence." Id. at 208 (internal 

citation omitted); see O'Brien v. Telcordia Technologies, Inc., 

420 N.J. Super. 256, 262 (App. Div. 2011) (noting that a 

"plaintiff must present either circumstantial or direct evidence 

of age discrimination"). Pursuant to Gross, "the burden of 

persuasion necessary to establish employer liability is the same 

in alleged mixed-motives cases as in any other ADEA disparatetreatment action. A plaintiff must prove by a preponderance of 

the evidence (which may be direct or circumstantial) that age 

was the 'but-for' cause of the challenged employer decision." 

557 U.S. at 177-78, 129 S. Ct. at 2351, 174 L. Ed. 2d at 129. 

And as previously noted, the showing required is that "the 

plaintiff's age must have 'actually played a role in [the 

employer's decision making] process and had a determinative 

influence on the outcome.'" Reeves v. Sanderson Plumbing 

Prods., 530 U.S. 133, 141, 120 S. Ct. 2097, 2105, 147 L. Ed. 2d 

105, 116 (2000) (quoting Hazen Paper Co., supra, 507 U.S. at 

610, 113 S. Ct. at 1706, 123 L. Ed. 2d at 347); accord Gross, 

supra, 557 U.S. at 177-78, 129 S. Ct. at 2351, 174 L. Ed. 2d at 

129 (citing Reeves). 
11 A-2186-12T3

The Court's decision in Gross raises a separate issue about 

proof of age discrimination claims that is not implicated in 

this case. In Gross, based on differences in the language 

Congress used in the ADEA and Title VII, the Court held that the 

shift in burden of persuasion to the defendant in a mixed-motive 

discrimination case under Title VII of the Civil Rights Act of 

1964 described in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 

S. Ct. 1775, 104 L. Ed. 2d 268 (1989), has no application in an 

ADEA case. There is no reason for us to consider whether our 

courts should or would follow that aspect of Gross in addressing 

age discrimination claims under the LAD because the trial court 

did not give this jury an instruction on the shifting burden of 

persuasion. As we did in O'Brien v. Telecordia Technologies, 

Inc., we leave that "thorny" question for a case in which it is 

necessary to decide it. 420 N.J. Super. at 270; see McDevitt v. 

Bill Good Builders, Inc., 175 N.J. 519 (2003) (discussing Price 

Waterhouse in a case with a claim based on the ADEA). 

It is worth noting, however, that the Court's decision in 

Gross casts no significant doubt on the applicability of the 

burden of production framework of McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), to 

claims of age discrimination under the LAD. Defendants do not 

argue otherwise. In Gross, the Court consistently and 
12 A-2186-12T3

unambiguously disapproved a shift of the "burden of persuasion." 

See Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009) 

(concluding that its prior decisions applying the McDonnell 

Douglas framework, which shifts only the burden of production, 

to ADEA claims were not irreconcilable with Gross and following 

its precedent). Our courts have applied the McDonnell Douglas

framework to age discrimination claims under the ADEA and the 

LAD. McDevitt, supra, 175 N.J. at 523 (ADEA); Sisler, supra, 

157 N.J. at 209-13 (LAD). The Court recently stated, "All LAD 

claims are evaluated in accordance with the United States 

Supreme Court's burden-shifting mechanism." Battaglia v. United 

Parcel Serv., Inc., 214 N.J. 518, 546 (2013) (citing McDonnell 

Douglas, supra, 411 U.S. at 802-04, 93 S. Ct. at 1824-25, 36 L. 

Ed. 2d at 677-79). 

Based on the foregoing, we conclude that Gross has no 

impact on our review of the adequacy of evidence supporting the 

jury's verdict in favor of Klein. 

C. 

Defendants also claim that Klein is not entitled to damages 

because, as an "at will" employee, he had no expectation of 

continued employment. That claim has insufficient merit to 

warrant any discussion beyond the brief remarks that follow. R.

2:11-3(e)(1)(E). The LAD prohibits an employer from basing "any 
13 A-2186-12T3

employment decisions on discriminatory reasons." Nini v. Mercer 

Cnty. Cmty. Coll., 202 N.J. 98, 107 (2010). "'[T]he overarching 

goal' of the LAD, reflecting the clear public policy of this 

State, '"is nothing less than the eradication 'of the cancer of 

discrimination'"' in the workplace." Sisler, supra, 157 N.J. at 

199 (quoting Fuchilla v. Layman, 109 N.J. 319, 334 (quoting 

Jackson v. Concord Co., 54 N.J. 113, 124 (1969)), cert. denied, 

488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988)). It 

provides a remedy for violation of civil rights that is 

independent of private or public contract. Ibid. Accordingly, 

relief is not dependent upon a contractual right or any 

expectation other than freedom from unlawful discrimination. 

Having addressed these foregoing preliminary legal 

questions, we turn to address the evidence. 

 II

This controversy was born of a budget crisis. In 2007, the 

Freeholders for Passaic County informed the sheriff that the 

PCSD budget would be cut significantly. Although the projected 

reduction in PCSD's budget varied between the initial disclosure 

and the development of PCSD's plan to address it, cuts as high 

as thirty percent — $20 to $12 million of a $70,000,000 budget —

were forecast. Because ninety percent of the PCSD's budget was 

spent on personnel, the PCSD considered a reduction in force. 
14 A-2186-12T3

The sheriff assigned Charles Myers, Director of 

Administration, to develop and implement a plan. Myers 

explained that he had no "selection criteria" for identifying 

sheriff's investigators for removal but that his recommendations 

were "[m]ore or less based on the staffing needs of the agency 

and the need to cut a certain amount from the budget." In his 

words, "[i]t was a constant balancing act between what do we 

need, what can we cut, and where are we at with the number at 

this point." Myers did not recall why Garnes and Klein were on 

the list of investigators whose service would be terminated 

while others in the same position were not, but he did recall 

that seniority played no role in his decision and that the need 

to "meet a certain number" — the amount that had to be cut and 

the minimum staffing levels required — did play a role. Myers, 

however, did not know what Klein's assignment as a sheriff's 

investigator was. Further, he explained that the duties a 

particular sheriff's investigator was then performing "[b]ore no 

relevance to the layoffs." He looked at the cost of having the 

investigator work — a matter of salary, pension and social 

security contributions. 

Using Garnes as an example, Myers explained: "I don't 

recall how we may have selected him out [of] the group of 25 

other investigators. But that's just what worked. The final 
15 A-2186-12T3

list was the final list." Myers also recalled that the first 

investigator he placed on the removal list was his stepson, a 

man much younger than Garnes and Klein.3 

At trial, Myers testified that he did a staffing levels 

study that consisted of identifying the number of officers or 

investigators needed in the corrections positions and court 

positions. In addition, he made decisions about sheriff's 

investigators based on N.J.S.A. 40A:9-117a, which limits the 

number of appointments to those unclassified positions to no 

more than fifteen percent of the total number of officers 

employed. According to Meyers, to meet the statutory limit and 

the overall reduction in personnel costs, eight investigators 

had to be removed. 

Myers explained that the reduction in staff was

necessitated by the cuts to the PCSD's budget and done for the 

purposes of efficiency and economy. He noted that there was an 

additional cost savings when sheriff's investigators, as opposed 

to sheriff's officers, were removed. Myers explained that 

because the investigators serve at the pleasure of the sheriff 

and do not have civil service protections enjoyed by other 

officers, they can be laid off more promptly than their 

 

3 Myers disclosed the information in the text during his 

deposition, and plaintiffs' attorney presented selected portions 

of the deposition transcript as part of plaintiffs' case. 
16 A-2186-12T3

colleagues who have civil service protection and must be laid 

off in conformity with a civil process that can take as long as 

ninety days. For that reason, the PCSD discontinued the service 

of sheriff's investigators so that its budget could be reduced 

by the cost of keeping the employee as early as January 1, 2008. 

Although the sheriff had met with his investigators and 

warned of the budget cut and the staff reductions earlier, 

formal notice was first sent to Klein and Garnes on December 10, 

2007. The notices were given by memo from the sheriff. The 

memos advised the recipient that for "reasons of economy and 

efficiency," he would be "separated from duty effective January 

1, 2008." The memo did not mention any reemployment 

opportunities within the PCSD, but it did advise the 

investigators of their ability to apply for civil service 

positions in other jurisdictions pursuant to N.J.S.A. 40A:14-180 

and offer assistance to them in that endeavor. 

Klein and Garnes were two of eight investigators separated 

from employment effective January 1, 2008. There was no 

evidence that either of these investigators was tendering 

substandard or less than quality performance.

Garnes, born in November, was forty-nine years old on 

January 1, 2008. He had worked as a PCSD sheriff's investigator 

since his initial appointment in 1990. Among the investigators 
17 A-2186-12T3

employed by the PCSD in December 2007, Garnes was one of the 

highest paid. According to information provided by the PCSD 

listing base salary and total earnings as of September 28, 2007, 

Garnes's salary was $79,568 and with longevity and a stipend for 

education he had been paid $89,025. Garnes did not claim to 

have earned less. Indeed, at trial he testified that his 

earnings in 2006 and 2007 respectively, were $101,331.45 and 

$94,584.95. 

Klein was older than Garnes, and his earnings were lower. 

Klein, appointed in December 2003, was fifty-seven years old by 

January 1, 2008. His base salary was $60,561 in 2007, and the 

PCSD records do not reflect that he had any additional earnings 

as of September 28, 2007. 

The ages and salaries of the other six investigators whose 

service was discontinued effective January 1, 2008 were as 

follows4: a fifty-nine year old with a base salary of $79,568; a 

twenty-seven year old with a base salary of $46,739 and earnings 

of $52,913; a thirty-six year old with a base salary of $46,739; 

a thirty-six year old with a base salary of $46,739 and earnings 

of $48,239; a twenty-six year old with a base salary of $66,284 

 

4 In stating the age of these investigators we have been less 

than precise, in that we have used the age each would be as of 

December 31, 2008. The earnings stated are based on information 

provided by the PCSD that purports to state earnings as of 

September 28, 2007. 
18 A-2186-12T3

and total earnings of $69,817; and a twenty-five year old with a 

base salary of $46,739. 

At trial, defendants relied upon the mixed ages of this 

group of eight investigators and their asserted purposes of 

efficiency and economy to defeat Garnes' and Klein's allegations 

of age discrimination. The jurors determined that Garnes, who 

was ten years younger than and paid more than the eldest 

investigator discharged who had the same base salary, failed to 

prove that he was terminated because of his age. As previously 

noted, Garnes did not appeal.

The jurors reached a different conclusion with respect to 

Klein. Klein was several years older than Garnes — fifty-seven 

— and earned less than Garnes — $60,561. The only investigator 

working at the time older than Klein was the fifty-nine year old 

whose base salary was $79,568 and whose service was discontinued 

with Klein's, effective January 1, 2008. 

Several investigators younger than Klein and with base 

salaries and earnings as high or higher than his on September 

28, 2007, continued their employment as investigators beyond 

January 1, 2008. Identified by the age they would reach by 

December 2008 and stating their earnings as of September 28, 

2007, they include: a thirty-six year old earning $60,561, whose 

employment was discontinued in December 2010; a thirty-one year 
19 A-2186-12T3

old earning $89,116, whose employment was discontinued in March 

2009; a forty-nine year old earning $92,208, whose employment

was discontinued in March 2008; a thirty-six year old earning 

$84,342, whose employment was discontinued in March 2008; a 

forty-three year old earning $66,264, whose employment was 

discontinued in March 2008; a forty-six year old earning 

$66,264, whose employment was discontinued in April 2010; and a 

forty-six year old earning $72,890, whose employment was 

discontinued in March 2008. 

In addition, several younger sheriff's investigators with 

base salaries as high or higher than Klein's were still employed 

as sheriff's investigators in the PCSD at the time of trial, 

which was in May 2012. They include5: a thirty-eight year old 

investigator in 2008 earning $88,229; a twenty-eight year old in 

2008 earning $60,561; a thirty-nine year old in 2008 earning 

$72,890; a thirty-nine year old in 2008 earning $62,061; and a 

thirty-three year old in 2008 earning $72,890. 

In addition to the foregoing, there is evidence that 

numerous sheriff's investigators, all of them younger than 

Klein, were hired from January 1, 2008 through December 23, 

 

5 Once again, in stating the age of these investigators we have 

been less than precise, in that we have used the age each would 

be as of December 31, 2008. The earnings stated are based on 

information provided by the PCSD that purports to state earnings 

as of September 28, 2007.
20 A-2186-12T3

2009. During that period, eleven sheriff's investigators who 

were younger than Klein was on January 1, 2008 were appointed as 

sheriff's investigators. 

Neither plaintiff presented any direct evidence of 

discrimination based on age. 

As previously noted, to establish a claim of age 

discrimination in employment under the LAD, "an employee must 

'show that the prohibited consideration[, age,] played a role in 

the decision making process and that it had a determinative 

influence on the outcome of that process.'" Sisler, supra, 157 

N.J. at 207 (quoting Maiorino, supra, 302 N.J. Super. at 344 

(quoting Miller, supra, 47 F.3d at 597)). Proof by a 

preponderance of the evidence is required. Id. at 210. 

Where, as here, a claim of age discrimination is supported 

only by circumstantial evidence, the evidence is assessed under 

the McDonnell Douglas framework. Id. at 209. If the plaintiff 

establishes a prima facie case, a presumption of unlawful 

discrimination arises. Id. at 210. The employer may obliterate 

that presumption "with admissible evidence of a legitimate, nondiscriminatory reason" for taking the employment action at 

issue. Ibid. At that point, the employee has an opportunity to 

prove that the employer's asserted reason for the action is not 
21 A-2186-12T3

true and is merely a pretext for discriminating among employees 

on an impermissible basis. Id. at 211.

The elements of a LAD plaintiff's prima facie case vary 

depending upon the discrimination alleged and the employment 

action taken. The McDonnell Douglas framework as stated by our 

Supreme Court in Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 492 

(1982), a case involving discriminatory hiring, is as follows: 

The plaintiff must demonstrate by a 

preponderance of the evidence that he or she 

(1) belongs to a protected class, (2) 

applied and was qualified for a position for 

which the employer was seeking applicants, 

(3) was rejected despite adequate 

qualifications, and (4) after rejection the 

position remained open and the employer 

continued to seek applications for persons 

of plaintiff's qualifications. 411 U.S. at 

802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677 

(footnote omitted).

Modification to address the circumstances of the particular 

case is obviously required. Thus, where the plaintiff complains 

of a discharge, evidence of qualification and discharge suffices 

to establish the third element. Sisler, supra, 157 N.J. at 212. 

And evidence of replacement efforts may substitute for evidence 

of continued efforts to fill a vacant position. Erickson v. 

Marsh & McLennan Co., 117 N.J. 539, 551 (1990). Similarly, 

where the allegation is discrimination based on age under the 

LAD, which, unlike the ADEA that protects only those over forty, 

does not limit the protection to persons who have reached a 
22 A-2186-12T3

certain age, evidence of membership in a specified age group is 

not required. See Sisler, supra, 157 N.J. at 212-14 (noting the 

need for refocusing the first and fourth elements that hinge

respectively on membership and non-membership in a protected 

class). Instead, the third and fourth elements can be shown by 

evidence giving rise to an inference that an older employee has 

been treated less favorably than his or her younger 

counterparts. Sisler, supra, 157 N.J. at 212-13, 217-18. 

 In the context of an age discrimination claim based on a 

reduction in force, the Third Circuit described the prima facie 

case as follows: "To establish a prima facie case under the 

McDonnell Douglas/Burdine pretext framework in a RIF case, the 

plaintiff must show he was in the protected class, he was 

qualified, he was laid off and other unprotected workers were 

retained." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d 

Cir. 1994). Adapting that case to account for the fact that the 

LAD does not identify a protected age group, we conclude that

Klein, a fifty-seven year old and of an age sufficient to 

warrant an inference that his age was relevant, had to show that 

he was laid off while other younger employees earning as much or 

more than he were carried. See Murray v. Newark Hous. Auth., 

311 N.J. Super. 163, 172-74 (Law Div. 1998) (restating the prima 

facie case articulated in Armbruster). Judge Payne's reasoning 
23 A-2186-12T3

in Murray was cited with approval by our Supreme Court in 

Sisler. 157 N.J. at 201, 210, 211, 217. 

In this regard, it is important to note that the reasons 

the employer offers for selections of employees to be among 

those let go in a reduction in force are pertinent to an 

evaluation of the plaintiff's proofs of age discrimination in 

that context. "An employee may meet this burden either by 

persuading the court 'directly "that a discriminatory reason 

more likely motivated the employer or indirectly by showing that 

the employer's proffered explanation is unworthy of credence."'" 

Sisler, supra, 157 N.J. at 211 (quoting Murray, supra, 311 N.J. 

Super. at 173 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 

450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 217

(1981))).

Klein clearly made the essential prima facie showing and 

overcame the evidence defendants offered to prove that Klein was 

selected to be among the investigators terminated for reasons of 

economy and efficiency. The evidence showing that younger and 

higher paid investigators who also served at will were retained 

gave rise to a reasonable inference that the reasons the PCSD 

asserted for terminating him were simply a pretext for the 

employer's preference to retain younger investigators. There is 

no question that defendants established a budget crisis 
24 A-2186-12T3

requiring terminations, but they did not establish a 

justification for addressing that budget crisis by leaving 

investigators who were younger and higher paid on the job while 

terminating Klein who was older and paid less. 

Accepting "as true all evidence supporting" Klein's claim 

and according him "the benefit of all legitimate inferences 

which can be deduced [from the evidence]," we cannot conclude 

that defendants were entitled to a judgment notwithstanding the 

verdict. Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l 

Sch. Dist., 201 N.J. 544, 572 (2010). Accordingly, we affirm. 

III

A trial judge's fee determinations are "disturbed only on 

the rarest occasions, and then only because of a clear abuse of 

discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). We 

have considered the record and the findings and reasons for the 

award the judge placed on the record on September 14, 2012, in 

light of that deferential standard of review. In the end, we 

have determined that no argument defendants raise to establish 

that this award is excessive has sufficient merit to warrant 

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

Affirmed.