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. e du/thir dc ir c uit_1996/47UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 95-5603

___________

ALBERT L. LAWRENCE

v.

NATIONAL WESTMINSTER BANK NEW JERSEY

Albert Lawre nce, Appellant

__________________________________________ _____

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 94-cv-01368)

___________________

Argued June 5, 1996

Before: SCIRICA and ROTH, Circuit Judg es and O'NEILL, District Judge*

(Filed October 15, 1996)

GREGORY S. SCHAER, ESQUIRE (ARGUED)
Law Offices of Linda B. Ken ney The Galleria, Two Bridge Av enue Atrium Building #5, 2nd Flo or Red Bank, New Jersey 07701

Attorney for Appellant

*The Honorable Thomas N. O'Neill, Jr., United State s District Judge for the Eastern District of Pennsylvania, sit ting by designation.THOMAS D. RUANE, ESQUIRE (A RGUED)

St. John & Wayne
Two Penn Plaza East Newark, New Jersey 07105

STEVEN B. HARZ, ESQUIRE Robinson, St. John & Wayne
245 Park Avenue New York, New York 10167

Attorneys for Appellee

__________________

OPINION OF THE COURT

__________________

SCIRICA, Circuit Judge.

Albert Lawrence appeals the grant of summa ry judgment to National Westminster Bank in his suit alleging a ge and handicap discrimination and denial of severance ben efits. We will affirm in part, reverse in part, and remand to the district

court.

I. Albert Lawrence was hired by Citizens Firs t National Bank of New Jersey, now National Westminster Bank, New Jersey, in October 1979 as Vice President/Chief Investment Officer of the Trust Department. In 1985 he was promoted to the p osition of Senior Vice President/Chief Investment Officer. On June 30, 1987, Lawrence was injured in a car accident and sustained severe back injuries. As a result he wears a back brace. Lawrence alleges he suffers fr om chronic pain and discomfort because of the injury. Neverth eless, after the accident, Lawrence returned to work and resumed his position
with the bank. In early 1992, Allan Nichols became bank C hairman. Nichols developed new goals and business objectives for the bank, and specifically for the Trust Department. Althoug h the parties'

accounts of what ensued over the next one and one h alf years differ, the bank contends Lawrence's level of perfo rmance substantially deteriorated. On September 3, 1993, at the age of sixty, Lawrence was terminated for sub-standard per formance and "behavior not befitting a manager." Lawrence disputes he was fired for "cause. " He contends this explanation was pretextual, and that he was fired because of his age and/or his physical condition. Lawrence filed
suit in the United States District Court for New Je rsey alleging age and handicap discrimination under New Jersey an d federal
laws. As we have noted, the district court grant ed National Westminster Bank's motion for summary judgment. La wrence v.National Westminster Bank, New Jersey, No. 94-1368, 1995 WL

506043 (D. N.J. Aug. 16, 1995). Lawrence now appea ls.

II. We have jurisdiction over the final order of the district court under 28 U.S.C. § 1291. "When we re view a grant of summary judgment, we apply the same test as the district court should have applied initially." Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir.), cert. denied, ___ U.S. ___ _, 115 S.Ct. 2611, 132 L.Ed.2d 854 (1995). A court may grant su mmary judgment when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "When the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving part y's evidence is insufficient to carry its burden of persuasion a t trial." SeeBrewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329 ( 3d Cir. 1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322- 23 (1986). A nonmoving party creates a genuine iss ue of material fact when it provides evidence "such that a reasona ble jury could return a verdict for the nonmoving party." Anderso n v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "In reviewi ng the record, the court must give the nonmoving party the benefit of all reasonable inferences." Brewer, 72 F.3d at 330.

III.

A. Lawrence alleges National Westminster Bank violated the Age Discrimination in Employment Act ("ADEA"), 29 U .S.C. § 621 et seq., and New Jersey's Law Against Discrimination ( "LAD"), N.J.S.A. 10:5-1 et seq., by dismissing him because of his age. Age discrimination claims under the ADEA a nd LAD are governed by the same standards and allocation of bu rdens of proof. See Retter v. Georgia Gulf Corp., 755 F. Su pp. 637, 638 (D. N.J. 1991), aff'd, 975 F.2d 1551 (3d Cir. 1992) ; see alsoWaldron v. SL Industries, Inc., 56 F.3d 491, 503-04 (3d Cir. 1995). Lawrence's age discrimination claims are gr ounded not on direct evidence but on pretext. We have adopted th e McDonnell Douglas burden shifting analysis for age discrimina tion cases brought under a pretext theory. See Sempier, 45 F. 3d at 728; Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 89 7 (3d Cir.), cert. dismissed, 483 U.S. 1052 (1987). Under the M cDonnell Douglas framework, a plaintiff must first present a prima facie case by establishing that (1) he is over 40 years o ld, (2) he is qualified for the position in question, (3) he suff ered from an adverse employment decision, and (4) his replacemen t was sufficiently younger to permit a reasonable inferen ce of age discrimination. Sempier, 45 F.3d at 728; Chipollin i, 814 F.2d at 897. Once a plaintiff has satisfied the prime faci e standard, the burden shifts to defendant to articulate a "leg itimate nondiscriminatory" reason for the adverse employmen t decision. Should the defendant successfully carry its burden, the plaintiff then "has the opportunity to demonstrate that the e mployer's
stated reasons were not its true reasons but were a pretext for discrimination." Sempier, 45 F.3d at 728. At this stage, the plaintiff may defeat a summary judgment motion eith er: (1) bydiscrediting the proffered reasons for termination, directly or

circumstantially, or (2) by adducing evidence that discrimination was more likely than not a motivating or determinat ive cause of the adverse action. Sempier, 45 F.3d at 731; see a lso Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) ("We hold that, to . . . [defeat a motion for summary judgment], the plainti ff generally must submit evidence which: l) casts sufficient dou bt upon each of the legitimate reasons proffered by the defendan t so that a factfinder could reasonably conclude that each reas on was a fabrication; or 2) allows the factfinder to infer t hat discrimination was more likely than not a motivatin g or determinative cause of the adverse employment actio n"). Here, the parties' disagreement revolves a round the "pretext" prong of the discrimination claim. The d istrict court found Lawrence established a prima facie case of ag e discrimination, but determined "plaintiff failed to offer any evidence that suggests defendant's nondiscriminator y reason for terminating his employment is unworthy of belief." The court then granted summary judgment in favor of National Westminster

Bank.

B. After reviewing the record, we believe Law rence cast sufficient doubt on National Westminster Bank's pro ffered reasons
for his termination to create a material issue of f act. SeeFuentes, 32
F.3d at 762. National Westminster Bank asserts it dismissed Lawrence because of poor job performance. According to the bank, Lawrence's managerial and customer-relati ons skills declined dramatically in the year before his termin ation. He
lost customer accounts and the confidence of custom ers, supervisors and other bank employees. In particular, National Westminster Bank a rgues Lawrence's last evaluation is demonstrative of his inadequate performance. The evaluation rated his performance in several areas, falling into three categories: behavior; performance/financial standards; and specific objec tives. Overall, he was described as meeting standards in t he latter category, but falling below standards in the other two categories. Lawrence challenges the credibility of the evaluation contending that the report was unsigned, undated, incomplete, and never provided to him during his em ployment.
National Westminster Bank also relies on a March 1993 memorandum, prepared by Richard Moore, for National Westminster Bank's Senior Vice President, Peter Beisler, detail ing several reasons why Lawrence was not "the right person to l ead [National Westminster Bank's] investment effort in the future and should be replaced in that position." National Westminster B ank contends
Moore's memorandum substantiates its assertion Lawr ence was fired

"for cause." A jury might well view Moore's memorandum as evidence that National Westminster Bank's proffered reasons for Lawrence's termination were not pretextual. Lawrence, however , contends Moore prepared the memorandum as an after-the-fact justification for the discriminatory employment decision. Accord ing to Lawrence, the memo was written at the direction of NationalWestminster Bank's human resources office once the termination

decision was made. Furthermore, Lawrence claims Mo ore did not actually believe he was incapable of performing at a satisfactory level. At his deposition, Moore conceded he had no reason to believe Lawrence was incapable; rather, he thought Lawrence did not want to implement the kind of changes envisione d by Moore and the bank's new leadership. A jury could find Lawre nce's account
credible. To substantiate his account, Lawrence reli es on depositions of his subordinates, which portray his performance in a favorable light. According to Edward Hofmann, a Trust Portfolio Manager for the Trust Department, and Leo nard Nedswick, an Administrative Officer in the Trust Department, Lawrence was competent and expressed an enthusiastic and positiv e attitude
toward his work. Hofmann described him as "a thoro ugh investment professional, very interested in his business" and as "a very good portfolio manager." Nedswick said he consider ed Lawrence qualified to service the accounts on which they wor ked together. Moreover, in contrast to National Westminster Bank' s assertions,
Nedswick stated he had never heard of an instance w here Lawrence failed to inspire his co-workers, and based on his experience working with Lawrence, never believed him to be dis interested in
customer contacts. Both Hofmann and Nedswick state d they knew of no complaints about Lawrence's overall performance, and were unaware he was considered by upper management as th e least favored portfolio manager.
We also differ with the district court ove r its observation that Lawrence's evaluations gradually g rew less favorable over time. Our review of Lawrence's perf ormance evaluations contained in the record does not reveal on obvious downward trend. Whether there was a trend, and wha t significance should be attached to a pattern of per formance, should be determined by the fact finder.

C. In view of the foregoing, we believe the d istrict court erred in ruling Lawrence failed to offer "any" evid ence impugning National Westminster Bank's justification for his t ermination. "On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probativ e." Brewer, 72 F.3d at 331. As we explained in Sempier, the qu estion is whether the record could support an inference the e mployer did not act for a non-discriminatory reason. Sempier, 45 F.3d at 732. We believe such an inference could be support ed by the record here. We will reverse the grant of defendan t's summary judgment motion on the age discrimination claims, a nd remand to
the district court.

IV.

A. Lawrence also alleges National Westminster Bank violated the Americans With Disabilities Act, 42 U. S.C. § 12101 et seq., and New Jersey's Law Against Discriminatio n, by discriminating against him on account of his back i njury. Lawrence asserts both an improper termination claim as well as afailure to accommodate claim. (Compl. at ¶ 26.)

The ADA proscribes "discrimination against a qualified individual with a disability because of the disabil ity of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee co mpensation, job training, and other terms, conditions, and priv ileges of employment." 42 U.S.C. § 12112(a). The term "qual ified individual with a disability" means a person who, w ith or without "reasonable accommodation," can perform the essenti al functions of the employment position that person holds or see ks. 42 U.S.C. § 12111(8). In addition, under the Act, an employe r must make "reasonable accommodations" to the "known physical or mental limitations of an otherwise qualified individual wi th a disability who is an applicant or employee." 42 U. S.C. § 12112(b)(3). New Jersey's Law Against Discriminati on also prohibits unlawful discrimination because of a pers on's "handicap" in employment. See N.J.S.A. 10:5-4.1 an d 10:5-29.1.

B. Turning to Lawrence's allegation that Nati onal Westminster Bank violated the ADA by firing him bec ause of his disability, we rely on a pretextual analysis struct urally similar to the one used for his age discrimination claim. See McNemar v. Disney Store, Inc., 91 F.3d 610, 619 (3d Cir. 1996) (in ADA cases, courts apply the Title VII burden-shifting r ules); Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995) (explaining the methods and manner of proof applica ble in other discrimination contexts, such as those involving Ti tle VII and the ADEA, also apply in an action brought under the ADA). Unlike Lawrence's age discrimination claims, in thi s instance,
the district court found Lawrence had failed to mak e out a prima facie case. The court granted summary judgment aga inst Lawrence
because he had not introduced sufficient evidence t o suggest a causal connection between his disability and his te rmination. The district court erred when it required Lawrence to proffer evidence of a causal relationship to establ ish his prima facie case. Under the McDonnell Douglas framework the elements necessary for a prima facie case may vary depending on the factual situation. McDonnell Douglas Corp. v. Gree n, 411 U.S. 792, 802 n.13 (1973). But to establish a prima fac ie case for discriminatory employment termination, the plaintif f must prove by a preponderance of the evidence that (1) he belo ngs to a protected class; (2) he was qualified for the posit ion; (3) he was dismissed despite being qualified; and (4) he w as ultimately replaced by a person sufficiently outside the prote cted class to create an inference of discrimination. See Sempier , 45 F.3d at 728 (ADEA termination case); Chipollini, 814 F.2d a t 897 (same). As with cases brought under Title VII and ADEA, it is permissible in an ADA case for a plaintiff to prove discriminat ory intent on the part of an employer through the McDonnell Dougl as framework.

C.
1. On remand, Lawrence must first establish t he primafacie elements for disability discrimination under the proper

standard. Assuming Lawrence can satisfy his prima facie burden, then on pretext, his evidence supporting hi s age discrimination claims would also apply to his ADA d isability claim. Just as we found Lawrence presented suffici ent evidence to support an inference he was not terminated for a reason unrelated to his age, we find he has advanced enoug h evidence to cast sufficient doubt upon defendant's claim he was fired for "cause" rather than on account of his physical cond ition.

2. Lawrence also challenges the district cour t's ruling barring his ADA claim for "failure to accommodate" because he never requested an accommodation. Under the ADA, a n employer is required to make "reasonable accommodations to the known physical limitations . . . of an otherwise qualified individ ual with a disability who is an . . . employee, unless such [e mployer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business . . . ." 42 U.S.C. § 12112(b)(5)(A). Relying on the Interpretive Guide of Title I of the ADA, the court noted an employer is not expecte d to
accommodate disabilities of which it is unaware. S ee 42 U.S.C. § 12111(9); 29 C.F.R. app. § 1630.9 (1996) ("In gener al . . . it is the responsibility of the individual with a disabil ity to inform the employer that an accommodation is needed. When the need for an accommodation is not obvious, an employer, befor e providing a reasonable accommodation, may require that the indi vidual with a disability provide documentation of the need for ac commodation.") (EEOC regulations relating to "reasonable accommoda tion"). The court observed "plaintiff stated unequivocally . . . he never asked his employer for any type of accommodation" f or his physical condition. Lawrence contends an employer' s knowledge of the disability is itself enough, and he cites to te stimony indicating that National Westminster Bank employees were aware of
his condition. Whether or not a request by a plaintiff fo r accommodation is required to make an ADA claim is i mmaterial here, since Lawrence has not alleged or explained w hat actual accommodations were lacking. We agree with the dis trict court that Lawrence advanced no Rule 56 evidence depictin g how National Westminster Bank failed to accommodate him as requi red by the Act. Under Celotex, "the moving party is [entitled to summary judgment] because the nonmoving party has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof." Ce lotex, 477 U.S. at 323. Moreover, all of the submitted Rule 5 6 evidence
indicates that National Westminster Bank accommodat ed Lawrence whenever an accommodation was required. Viewing th e evidence in the light most favorable to Lawrence, we conclud e the district court properly granted summary judgment against him regarding his
ADA "accommodation" claim.

D. As for Lawrence's LAD claim, the district courtacknowledged Lawrence's assertion his termination v iolated the

Act insofar as it was motivated by his "handicap." Yet, the
court did not discuss this claim. We have previously found that "in adjudica ting cases brought under the ADA and NJLAD, courts apply the b urden-shifting framework applicable to cases brought under Title V II . . . ." McNemar, 91 F.3d at 619; see Marzano v. Computer Sc ience Corp. Inc., 91 F.3d 497, 502 (3d Cir. 1996). Therefore, the ADA and LAD claims are governed by the same standards. See , e.g., Ensslin v. Township of North Bergen, 646 A.2d 452, 458-59 (N.J. Super. Ct. App. Div. 1994) (noting New Jersey Supre me Court's suggestion of a correlation between state and feder al law on handicap discrimination), certif. denied, 663 A.2d 1354 (N.J. 1995); Clowes v. Terminix Int'l, Inc., 538 A.2d 794 , 805 (N.J. 1988) (holding once a prima facie case under LAD ha s been established, the methodology employed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is followed); Andersen v. Exxon Co., U.S.A. , 446 A.2d 486 n.3 (N.J. 1982).
In view of the district court's failure to address the LAD claim, and our prior assessment of the evidence related to the ADA termination claim, we will also reverse the grant of summary judgment regarding the LAD disability claim

. V.A.
National Westminster Bank asked Lawrence t o sign a termination agreement which would provide him with severance payments, in exchange for his promise not to take l egal action against them. With the advice of counsel, Lawrence refused to sign the agreement. National Westminster Bank gave Lawrence no
severance benefits after his termination.
Lawrence contends the denial of severance benefits following his refusal to sign the agreement constit uted a breach of contract, as well as unlawful retaliation. The district court
dismissed Lawrence's claim because he "admitted" at deposition that he was owed no benefits by National Westminste r Bank, and because employees terminated for cause are not enti tled to severance benefits. As we have indicated, the cour t also found Lawrence proffered no evidence contradicting Nation al Westminster Bank's position that he was fired for "cause."

B. We agree with the district court that were Lawrence terminated for cause, he would not be entitled to r eceive
severance benefits. National Westminster Bank's em ployment manual contained a schedule setting out severance b enefits based on an employee's age and tenure. The manual was si lent on
whether termination for cause bars severance benefi ts. Under New Jersey law, a company's employment manual may contr actually bind the company. Woolley v. Hoffmann-LaRoche, Inc., 49 1 A.2d 1257, 1264 (N.J.), modified on other grounds, 499 A.2d 51 5 (N.J. 1985); see also Witkowski v. Thomas J. Lipton, Inc., 643 A .2d 546, 550 (N.J. 1994) ("An employment manual providing terms and conditions of employment that include grounds and procedures f or dismissal can create an employment contract."). But Richard Moore, Executive Vice President of the Trust Department, t estified thatNational Westminster Bank had a firm and uniform po licy against

granting severance benefits to employees dismissed for cause. Lawrence presented no evidence indicating National Westminster Bank had a policy entitling such employees to benef its. In view of Moore's unrebutted testimony, w e do not believe the employment manual alone creates a mater ial dispute about whether terminated employees are owed severan ce benefits. We find the district court properly held that if La wrence had been terminated for cause, he would not be entitled to severance
benefits. Of course, should a jury find Lawrence was not fired for cause, it could consider whether Lawrence was e ntitled to severance benefits upon his termination. Under New Jersey law "[t]he key consideration in determining whether an employment manual gives rise to contractual obligations is the reasonable expectation of the employees." Witkowski, 643 A.2d at 550. As we have noted, National Westminster Bank's employme nt manual set
out a schedule for severance benefits based on the employee's position and duration of employment. In the past, severance benefits were paid to terminated employees but not to employees discharged for cause. In the event it is determine d Lawrence was not fired for cause, the jury should determine whet her there was a reasonable expectation of receiving severance ben efits. SeeNicosia v. Wakefern Food Corp., 643 A.2d 554, 562 (N.J. 1994) ("`disputes of fact as to the contract status of an employee under a manual are properly submitted to the jury'" ) (quoting lower court with approval).

C.
Lawrence contends his denial of severance benefits following his refusal to sign the termination agree ment amounted to "retaliation" and violated provisions of New Jer sey statutory law. New Jersey's Conscientious Employee Protectio n Act provides: an employer cannot take any retaliatory action against an employee because the employee does any of the following: discloses, or threatens to disclose . . . the policy or practice of the employer . .

. that the employee reasonably believes is i n violation of a law, or a rule or regulatio n promulgated pursuant to law.

N.J.S.A. 34:19-1. New Jersey's Law Against Discrim ination makes it unlawful "[f]or any person to take reprisals aga inst any person because he has opposed any practices or acts forbidden [under the Act] . . . or because he has filed a com plaint, testified or assisted in any proceeding [under the Act]. N.J.S.A. 10:5-12(d). To establish a prima facie ca se for retaliation under LAD a plaintiff must show: (1) he engaged in a protected activity; (2) he was discharged subsequen t to or contemporaneous with such activity; and (3) a causa l link exists between the protected activity and the discharge. Romano v. Brown & Williamson Tobacco Corp., 665 A.2d 1139, 11 42 (N.J. Super. Ct. App. Div. 1995); cf. Jalil v. Avdel Corp ., 873 F.2d701, 708 (3d Cir. 1989) (setting out same elements for

retaliation under federal law), cert. denied, 493 U .S. 1023 (1990). Lawrence contends he has established a pri ma facie case,
and that National Westminster Bank has failed to of fer a nonretaliatory reason for the adverse action. See Rom ano, 665 A.2d at 1142 (once plaintiff establishes prima facie ele ments of retaliation, the defendant must articulate a legiti mate, nonretaliatory reason for the decision). National Wes tminster Bank argues Lawrence has not set out a prima facie case of retaliation. It contends Lawrence's deposition res ponses show there was no causal link between his refusal to sig n the agreement and his subsequent termination and denial of benefits.
The district court dismissed the counts of the complaint alleging National Westminster Bank denied Lawrence benefits in retaliation for his refusal to sign wha t he believed to be an illegal termination agreement. Again, the court found the record devoid of any evidence to support such a n allegation, or that Lawrence was terminated for any reason othe r than his performance. While we differ with the district cou rt whether there were disputed material facts related to the d iscrimination and contract claims, we agree with the court there was insufficient evidence of causation. Lawrence's retaliation theory derives from his refusal of the bank's offer of a severance package conditio ned on his accession to the terms of the termination agreement . Yet these actions alone do not create a genuine issue of mate rial fact. National Westminster Bank believed it had no duty t o grant
severance benefits. All the record evidence demons trates that
National Westminster Bank never offered severance b enefits to employees terminated for cause. That it offered La wrence benefits as inducement to sign the termination agre ement does not suggest the failure to tender benefits absent Lawre nce's assent was retaliatory. Lawrence offers no evidence for h is contention
he was denied benefits because of his refusal to si gn the termination agreement. Therefore, we will affirm t hat part of the district court's summary judgment order dismiss ing Lawrence's
retaliation claim.

VI.

A.
Lawrence also asserts National Westminster Bank's request that he sign a purportedly illegal terminat ion agreement
constituted a violation of the Older Workers Benefi t Protection Act ("OWBPA"), a part of the ADEA, 29 U.S.C. § 621 et seq. The OWBPA makes it unlawful to "discharge . . . or othe rwise discriminate against any individual" with respect t o employment
terms or conditions "because of such individual's a ge." 29 U.S.C § 623(1). In relevant part, OWBPA amended the ADEA
, "specifically limiting the manner in which an emplo yee may waive the protections afforded under [the ADEA]." Oberg v. Allied Van Lines, Inc., 11 F.3d 679, 682 (7th Cir. 1993), cert . denied, __ U.S. ___, 114 S.Ct. 2104, 128 L.Ed.2d 665 (1994); s ee 29 U.S.C. § 626(f); see generally John R. Runyun, Hedging Betts : The Older Workers Benefit Protection Act, 72 Mich. B. J. 168 (1993) (explaining the features of OWBPA).The district court rejected Lawrence's OWB PA claim, and

granted National Westminster Bank's motion for summ ary judgment. Because Lawrence never signed the agreement, the di strict court found he suffered no injury under OWBPA. The court also
reiterated its view that Lawrence was terminated fo r cause, and
concluded this was the reason he was denied severan ce benefits. Moreover, the court stated it did not believe a vio lation of OWBPA alone could serve as the basis for an age dis crimination claim under the ADEA, or that Congress created a pr ivate right of
action for violations of the OWBPA. In the court's view, the only effect of an illegal agreement is that Nationa l Westminster Bank cannot rely on it. Lawrence maintains the court improper ly analyzed his OWBPA claim. In particular, he asserts the cou rt erred in concluding he lacked standing because he did not si gn the agreement, and in determining the Act does not prov ide for a private right of action.

B.
We concur with the district court that Law rence's OWBPA claim is unfounded. As the court noted, Lawrence n ever signed the termination agreement presented to him; therefo re, he never "waived" his rights under the Act and cannot establ ish a violation of § 626(f). The alleged effort to induc e him to sign the agreement could not result in a violation of OW BPA's waiver provisions. Because Lawrence suffered no injury cogniz able under the OWBPA, we need not decide whether the waiver pr ovisions of OWBPA may be enforced through private civil actions

. VII. Finally, Lawrence argues the statutory vio lations he alleged were also violations of New Jersey public p olicy. We hold the district court correctly dismissed Lawrenc e's public policy claim. Under New Jersey law "an employee has a ca use of action for wrongful discharge when the discharge is contra ry to a clear mandate of public policy." See Pierce v. Ortho Pha rmaceutical Corp., 417 A.2d 505, 512 (N.J. 1980). "The sources of public policy include legislation; administrative rule, re gulations or decisions; and judicial decisions." Id. Because t he sources of public policy Lawrence relies on are coterminous wi th his statutory claims, he cannot advance a separate comm on law public policy claim. See Catalane v. Gilian Instrument Co rp., 638 A.2d 1341, 1349 (N.J. Super. Ct. App. Div.) (ruling comm on law claim of violation of public policy should not be submitt ed to jury where statutory remedy under LAD exists), certif. d enied, 642 A.2d 1006 (N.J. 1994); cf. Shaner v. Horizon Bancor p., 561 A.2d 1130, 1141 (N.J. 1989) ("Because the LAD provides . . . a remedy, it might be unnecessary to recognize or create a Pi erce-type action to vindicate substantially the same rights a nd provide similar relief."). Moreover, the paradigmatic dismissal givin g rise to a public policy cause of action is the termination of an employee in retaliation for the employee's refusal to act co ntrary to public policy. See Citizens State Bank, New Jersey v.Libertelli, 521 A.2d 867, 869 (N.J. Super. Ct. App. Div. 1987)

(explaining Pierce protects an employee from retali ation for refusal to commit an act violating a clear mandate of public policy). As noted, we agree with the district cour t that
Lawrence has advanced no evidence of retaliation. We will affirm the district court's grant of summary judgment against Lawrence on his public policy clai m.
VIII. For the foregoing reasons we will affirm i n part and reverse in part the judgment of the district court. We will remand to the district court for proceedings consis tent with this opinion.