1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-15-1996

Lawrence v. Natl Westminister

Precedential or Non-Precedential:

Docket 95-5603

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Recommended Citation

"Lawrence v. Natl Westminister" (1996). 1996 Decisions. Paper 47.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 95-5603 

 ___________ 

 ALBERT L. LAWRENCE 

 v. 

 NATIONAL WESTMINSTER BANK NEW JERSEY

 Albert Lawrence, 

 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 Judges 

 and O'NEILL, District Judge* 

 (Filed October 15, 1996) 

 GREGORY S. SCHAER, ESQUIRE (ARGUED) 

 Law Offices of Linda B. Kenney 

 The Galleria, Two Bridge Avenue 

 Atrium Building #5, 2nd Floor 

 Red Bank, New Jersey 07701 

 Attorney for Appellant 

 

*The Honorable Thomas N. O'Neill, Jr., United States District 

Judge for the Eastern District of Pennsylvania, sitting by 

designation. 
 THOMAS D. RUANE, ESQUIRE (ARGUED) 

 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 summary judgment 

to National Westminster Bank in his suit alleging age and 

handicap discrimination and denial of severance benefits. We 

will affirm in part, reverse in part, and remand to the district 

court. 

 I. 

 Albert Lawrence was hired by Citizens First 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 position 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 from chronic 

pain and discomfort because of the injury. Nevertheless, after 

the accident, Lawrence returned to work and resumed his position 

with the bank. 

 In early 1992, Allan Nichols became bank Chairman. 

Nichols developed new goals and business objectives for the bank, 

and specifically for the Trust Department. Although the parties' 

accounts of what ensued over the next one and one half years 

differ, the bank contends Lawrence's level of performance 

substantially deteriorated. On September 3, 1993, at the age of 

sixty, Lawrence was terminated for sub-standard performance 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 Jersey alleging 

age and handicap discrimination under New Jersey and federal 

laws. 

 As we have noted, the district court granted National 

Westminster Bank's motion for summary judgment. Lawrence v. 
National Westminster Bank, New Jersey, No. 94-1368, 1995 WL 

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

 II. 

 We have jurisdiction over the final order of the 

district court under 28 U.S.C. § 1291. "When we review 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 summary 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 party's evidence 

is insufficient to carry its burden of persuasion at 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 issue of material 

fact when it provides evidence "such that a reasonable jury could 

return a verdict for the nonmoving party." Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986). "In reviewing 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 and LAD are 

governed by the same standards and allocation of burdens of 

proof. See Retter v. Georgia Gulf Corp., 755 F. Supp. 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 grounded not on 

direct evidence but on pretext. We have adopted the McDonnell 

Douglas burden shifting analysis for age discrimination cases 

brought under a pretext theory. See Sempier, 45 F.3d at 728; 

Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.), 

cert. dismissed, 483 U.S. 1052 (1987). Under the McDonnell 

Douglas framework, a plaintiff must first present a prima facie 

case by establishing that (1) he is over 40 years old, (2) he is 

qualified for the position in question, (3) he suffered from an 

adverse employment decision, and (4) his replacement was 

sufficiently younger to permit a reasonable inference of age 

discrimination. Sempier, 45 F.3d at 728; Chipollini, 814 F.2d at 

897. Once a plaintiff has satisfied the prime facie standard, 

the burden shifts to defendant to articulate a "legitimate 

nondiscriminatory" reason for the adverse employment decision. 

Should the defendant successfully carry its burden, the plaintiff 

then "has the opportunity to demonstrate that the employer'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 either: (1) by 
discrediting the proffered reasons for termination, directly or 

circumstantially, or (2) by adducing evidence that discrimination 

was more likely than not a motivating or determinative cause of 

the adverse action. Sempier, 45 F.3d at 731; see also Fuentes v. 

Perskie, 32 F.3d 759, 764 (3d Cir. 1994) ("We hold that, to . . . 

[defeat a motion for summary judgment], the plaintiff generally 

must submit evidence which: l) casts sufficient doubt upon each 

of the legitimate reasons proffered by the defendant so that a 

factfinder could reasonably conclude that each reason was a 

fabrication; or 2) allows the factfinder to infer that 

discrimination was more likely than not a motivating or 

determinative cause of the adverse employment action"). 

 Here, the parties' disagreement revolves around the 

"pretext" prong of the discrimination claim. The district court 

found Lawrence established a prima facie case of age 

discrimination, but determined "plaintiff failed to offer any 

evidence that suggests defendant's nondiscriminatory 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 Lawrence cast 

sufficient doubt on National Westminster Bank's proffered reasons 

for his termination to create a material issue of fact. 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-relations skills 

declined dramatically in the year before his termination. He 

lost customer accounts and the confidence of customers, 

supervisors and other bank employees. 

 In particular, National Westminster Bank argues 

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 objectives. 

Overall, he was described as meeting standards in the 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 employment. 

 National Westminster Bank also relies on a March 1993 

memorandum, prepared by Richard Moore, for National Westminster 

Bank's Senior Vice President, Peter Beisler, detailing several 

reasons why Lawrence was not "the right person to lead [National 

Westminster Bank's] investment effort in the future and should be 

replaced in that position." National Westminster Bank contends 

Moore's memorandum substantiates its assertion Lawrence 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. According to 

Lawrence, the memo was written at the direction of National 
Westminster Bank's human resources office once the termination 

decision was made. Furthermore, Lawrence claims Moore 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 envisioned by Moore and 

the bank's new leadership. A jury could find Lawrence's account 

credible. 

 To substantiate his account, Lawrence relies 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 Leonard Nedswick, 

an Administrative Officer in the Trust Department, Lawrence was 

competent and expressed an enthusiastic and positive attitude 

toward his work. Hofmann described him as "a thorough investment 

professional, very interested in his business" and as "a very 

good portfolio manager." Nedswick said he considered Lawrence 

qualified to service the accounts on which they worked together. 

Moreover, in contrast to National Westminster Bank's assertions, 

Nedswick stated he had never heard of an instance where Lawrence 

failed to inspire his co-workers, and based on his experience 

working with Lawrence, never believed him to be disinterested in 

customer contacts. Both Hofmann and Nedswick stated they knew of 

no complaints about Lawrence's overall performance, and were 

unaware he was considered by upper management as the least 

favored portfolio manager. 

 We also differ with the district court over its 

observation that Lawrence's evaluations gradually grew less 

favorable over time. Our review of Lawrence's performance 

evaluations contained in the record does not reveal on obvious 

downward trend. Whether there was a trend, and what 

significance should be attached to a pattern of performance, 

should be determined by the fact finder. 

 C. 

 In view of the foregoing, we believe the district court 

erred in ruling Lawrence failed to offer "any" evidence impugning 

National Westminster Bank's justification for his termination. 

"On summary judgment, it is not the court's role to weigh the 

disputed evidence and decide which is more probative." Brewer, 

72 F.3d at 331. As we explained in Sempier, the question is 

whether the record could support an inference the employer did 

not act for a non-discriminatory reason. Sempier, 45 F.3d at 

732. We believe such an inference could be supported by the 

record here. We will reverse the grant of defendant's summary 

judgment motion on the age discrimination claims, and 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 Discrimination, by 

discriminating against him on account of his back injury. 

Lawrence asserts both an improper termination claim as well as a 
failure to accommodate claim. (Compl. at ¶ 26.) 

 The ADA proscribes "discrimination against a qualified 

individual with a disability because of the disability of such 

individual in regard to job application procedures, the hiring, 

advancement, or discharge of employees, employee compensation, 

job training, and other terms, conditions, and privileges of 

employment." 42 U.S.C. § 12112(a). The term "qualified 

individual with a disability" means a person who, with or without 

"reasonable accommodation," can perform the essential functions 

of the employment position that person holds or seeks. 42 U.S.C. 

§ 12111(8). In addition, under the Act, an employer must make 

"reasonable accommodations" to the "known physical or mental 

limitations of an otherwise qualified individual with a 

disability who is an applicant or employee." 42 U.S.C. § 

12112(b)(3). New Jersey's Law Against Discrimination also 

prohibits unlawful discrimination because of a person's 

"handicap" in employment. See N.J.S.A. 10:5-4.1 and 10:5-29.1. 

 B. 

 Turning to Lawrence's allegation that National 

Westminster Bank violated the ADA by firing him because of his 

disability, we rely on a pretextual analysis structurally 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 rules); Newman 

v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995) 

(explaining the methods and manner of proof applicable in other 

discrimination contexts, such as those involving Title VII and 

the ADEA, also apply in an action brought under the ADA). 

Unlike Lawrence's age discrimination claims, in this instance, 

the district court found Lawrence had failed to make out a prima 

facie case. The court granted summary judgment against Lawrence 

because he had not introduced sufficient evidence to suggest a 

causal connection between his disability and his termination. 

 The district court erred when it required Lawrence to 

proffer evidence of a causal relationship to establish 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. Green, 411 U.S. 

792, 802 n.13 (1973). But to establish a prima facie case for 

discriminatory employment termination, the plaintiff must prove 

by a preponderance of the evidence that (1) he belongs to a 

protected class; (2) he was qualified for the position; (3) he 

was dismissed despite being qualified; and (4) he was ultimately 

replaced by a person sufficiently outside the protected class to 

create an inference of discrimination. See Sempier, 45 F.3d at 

728 (ADEA termination case); Chipollini, 814 F.2d at 897 (same). 

As with cases brought under Title VII and ADEA, it is permissible 

in an ADA case for a plaintiff to prove discriminatory intent on 

the part of an employer through the McDonnell Douglas framework. 

 C. 

 1. 

 On remand, Lawrence must first establish the prima 
facie elements for disability discrimination under the proper 

standard. Assuming Lawrence can satisfy his prima facie 

burden, then on pretext, his evidence supporting his age 

discrimination claims would also apply to his ADA disability 

claim. Just as we found Lawrence presented sufficient evidence 

to support an inference he was not terminated for a reason 

unrelated to his age, we find he has advanced enough evidence to 

cast sufficient doubt upon defendant's claim he was fired for 

"cause" rather than on account of his physical condition. 

 2. 

 Lawrence also challenges the district court's ruling 

barring his ADA claim for "failure to accommodate" because he 

never requested an accommodation. Under the ADA, an employer is 

required to make "reasonable accommodations to the known physical 

limitations . . . of an otherwise qualified individual with a 

disability who is an . . . employee, unless such [employer] 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 expected to 

accommodate disabilities of which it is unaware. See 42 U.S.C. § 

12111(9); 29 C.F.R. app. § 1630.9 (1996) ("In general . . . it is 

the responsibility of the individual with a disability to inform 

the employer that an accommodation is needed. When the need for 

an accommodation is not obvious, an employer, before providing a 

reasonable accommodation, may require that the individual with a 

disability provide documentation of the need for accommodation.") 

(EEOC regulations relating to "reasonable accommodation"). The 

court observed "plaintiff stated unequivocally . . . he never 

asked his employer for any type of accommodation" for his 

physical condition. Lawrence contends an employer's knowledge of 

the disability is itself enough, and he cites to testimony 

indicating that National Westminster Bank employees were aware of 

his condition. 

 Whether or not a request by a plaintiff for 

accommodation is required to make an ADA claim is immaterial 

here, since Lawrence has not alleged or explained what actual 

accommodations were lacking. We agree with the district court 

that Lawrence advanced no Rule 56 evidence depicting how National 

Westminster Bank failed to accommodate him as required 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." Celotex, 477 

U.S. at 323. Moreover, all of the submitted Rule 56 evidence 

indicates that National Westminster Bank accommodated Lawrence 

whenever an accommodation was required. Viewing the evidence 

in the light most favorable to Lawrence, we conclude the district 

court properly granted summary judgment against him regarding his 

ADA "accommodation" claim. 

 D. 

 As for Lawrence's LAD claim, the district court 
acknowledged Lawrence's assertion his termination violated the 

Act insofar as it was motivated by his "handicap." Yet, the 

court did not discuss this claim. 

 We have previously found that "in adjudicating cases 

brought under the ADA and NJLAD, courts apply the burden-shifting 

framework applicable to cases brought under Title VII . . . ." 

McNemar, 91 F.3d at 619; see Marzano v. Computer Science 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 Supreme Court's 

suggestion of a correlation between state and federal 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 has 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 to sign a 

termination agreement which would provide him with severance 

payments, in exchange for his promise not to take legal 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 constituted 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 Westminster Bank, and 

because employees terminated for cause are not entitled to 

severance benefits. As we have indicated, the court also found 

Lawrence proffered no evidence contradicting National 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 receive 

severance benefits. National Westminster Bank's employment 

manual contained a schedule setting out severance benefits based 

on an employee's age and tenure. The manual was silent on 

whether termination for cause bars severance benefits. Under New 

Jersey law, a company's employment manual may contractually bind 

the company. Woolley v. Hoffmann-LaRoche, Inc., 491 A.2d 1257, 

1264 (N.J.), modified on other grounds, 499 A.2d 515 (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 for dismissal 

can create an employment contract."). But Richard Moore, 

Executive Vice President of the Trust Department, testified that 
National Westminster Bank had a firm and uniform policy against 

granting severance benefits to employees dismissed for cause. 

Lawrence presented no evidence indicating National Westminster 

Bank had a policy entitling such employees to benefits. 

 In view of Moore's unrebutted testimony, we do not 

believe the employment manual alone creates a material dispute 

about whether terminated employees are owed severance benefits. 

We find the district court properly held that if Lawrence 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 entitled 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 employment 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 determined Lawrence was 

not fired for cause, the jury should determine whether there was 

a reasonable expectation of receiving severance benefits. 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 agreement amounted 

to "retaliation" and violated provisions of New Jersey statutory 

law. New Jersey's Conscientious Employee Protection 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 in 

 violation of a law, or a rule or regulation 

 promulgated pursuant to law. 

N.J.S.A. 34:19-1. New Jersey's Law Against Discrimination makes 

it unlawful "[f]or any person to take reprisals against any 

person because he has opposed any practices or acts forbidden 

[under the Act] . . . or because he has filed a complaint, 

testified or assisted in any proceeding [under the Act]. 

N.J.S.A. 10:5-12(d). To establish a prima facie case for 

retaliation under LAD a plaintiff must show: (1) he engaged in a 

protected activity; (2) he was discharged subsequent to or 

contemporaneous with such activity; and (3) a causal link exists 

between the protected activity and the discharge. Romano v. 

Brown & Williamson Tobacco Corp., 665 A.2d 1139, 1142 (N.J. 

Super. Ct. App. Div. 1995); cf. Jalil v. Avdel Corp., 873 F.2d 
701, 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 prima facie case, 

and that National Westminster Bank has failed to offer a nonretaliatory reason for the adverse action. See Romano, 665 A.2d 

at 1142 (once plaintiff establishes prima facie elements of 

retaliation, the defendant must articulate a legitimate, nonretaliatory reason for the decision). National Westminster Bank 

argues Lawrence has not set out a prima facie case of 

retaliation. It contends Lawrence's deposition responses show 

there was no causal link between his refusal to sign 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 what he believed 

to be an illegal termination agreement. Again, the court found 

the record devoid of any evidence to support such an allegation, 

or that Lawrence was terminated for any reason other than his 

performance. While we differ with the district court whether 

there were disputed material facts related to the discrimination 

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 conditioned on his 

accession to the terms of the termination agreement. Yet these 

actions alone do not create a genuine issue of material fact. 

National Westminster Bank believed it had no duty to grant 

severance benefits. All the record evidence demonstrates that 

National Westminster Bank never offered severance benefits to 

employees terminated for cause. That it offered Lawrence 

benefits as inducement to sign the termination agreement does not 

suggest the failure to tender benefits absent Lawrence's assent 

was retaliatory. Lawrence offers no evidence for his contention 

he was denied benefits because of his refusal to sign the 

termination agreement. Therefore, we will affirm that part of 

the district court's summary judgment order dismissing Lawrence's 

retaliation claim. 

 VI. 

 A. 

 Lawrence also asserts National Westminster Bank's 

request that he sign a purportedly illegal termination agreement 

constituted a violation of the Older Workers Benefit Protection 

Act ("OWBPA"), a part of the ADEA, 29 U.S.C. § 621 et seq. The 

OWBPA makes it unlawful to "discharge . . . or otherwise 

discriminate against any individual" with respect to employment 

terms or conditions "because of such individual's age." 29 U.S.C 

§ 623(1). In relevant part, OWBPA amended the ADEA, 

"specifically limiting the manner in which an employee 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); see 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 OWBPA claim, and 

granted National Westminster Bank's motion for summary judgment. 

Because Lawrence never signed the agreement, the district court 

found he suffered no injury under OWBPA. The court also 

reiterated its view that Lawrence was terminated for cause, and 

concluded this was the reason he was denied severance benefits. 

Moreover, the court stated it did not believe a violation of 

OWBPA alone could serve as the basis for an age discrimination 

claim under the ADEA, or that Congress created a private right of 

action for violations of the OWBPA. In the court's view, the 

only effect of an illegal agreement is that National Westminster 

Bank cannot rely on it. 

 Lawrence maintains the court improperly analyzed 

his OWBPA claim. In particular, he asserts the court erred in 

concluding he lacked standing because he did not sign the 

agreement, and in determining the Act does not provide for a 

private right of action. 

 B. 

 We concur with the district court that Lawrence's OWBPA 

claim is unfounded. As the court noted, Lawrence never signed 

the termination agreement presented to him; therefore, he never 

"waived" his rights under the Act and cannot establish a 

violation of § 626(f). The alleged effort to induce him to sign 

the agreement could not result in a violation of OWBPA's waiver 

provisions. 

 Because Lawrence suffered no injury cognizable under 

the OWBPA, we need not decide whether the waiver provisions of 

OWBPA may be enforced through private civil actions. 

 VII. 

 Finally, Lawrence argues the statutory violations he 

alleged were also violations of New Jersey public policy. We 

hold the district court correctly dismissed Lawrence's public 

policy claim. 

 Under New Jersey law "an employee has a cause of action 

for wrongful discharge when the discharge is contrary to a clear 

mandate of public policy." See Pierce v. Ortho Pharmaceutical 

Corp., 417 A.2d 505, 512 (N.J. 1980). "The sources of public 

policy include legislation; administrative rule, regulations or 

decisions; and judicial decisions." Id. Because the sources of 

public policy Lawrence relies on are coterminous with his 

statutory claims, he cannot advance a separate common law public 

policy claim. See Catalane v. Gilian Instrument Corp., 638 A.2d 

1341, 1349 (N.J. Super. Ct. App. Div.) (ruling common law claim 

of violation of public policy should not be submitted to jury 

where statutory remedy under LAD exists), certif. denied, 642 

A.2d 1006 (N.J. 1994); cf. Shaner v. Horizon Bancorp., 561 A.2d 

1130, 1141 (N.J. 1989) ("Because the LAD provides . . . a remedy, 

it might be unnecessary to recognize or create a Pierce-type 

action to vindicate substantially the same rights and provide 

similar relief."). 

 Moreover, the paradigmatic dismissal giving rise to a 

public policy cause of action is the termination of an employee 

in retaliation for the employee's refusal to act contrary 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 retaliation for 

refusal to commit an act violating a clear mandate of public 

policy). As noted, we agree with the district court 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 claim. 

 VIII. 

 For the foregoing reasons we will affirm in part and 

reverse in part the judgment of the district court. We will 

remand to the district court for proceedings consistent with this 

opinion.