IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

STEPHEN J. BLEISTINE,

Plaintiff,

v.

DIOCESE OF TRENTON, et al,

Defendants.

Civil Action 

No. 11-2138 (JBS/KMW)

OPINION

APPEARANCES:

James M. Carter, Esq.

Law Offices of Hoffman Dimuzio

4270 Route 42

Turnersville, NJ 08012

Attorney for Plaintiff Stephen Bleistine

Michael J. Canavan, Esq.

Buchanan Ingersoll & Rooney PC

700 Alexander Park

Suite 300

Princeton, NJ 08540

-andScott L. Puro, Esq.

Backes & Hill, LLP

3131 Princeton Pike

Bldg. 5; Ste. 114

Lawrenceville, NJ 08648

Attorneys for Defendants Diocese of Trenton and Holy Cross

High School

SIMANDLE, Chief Judge:

I. INTRODUCTION

Plaintiff Stephen Bleistine brought this action against

Defendants Holy Cross High School and Diocese of Trenton alleging

that they terminated him unlawfully because of his age, in

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violation of the Age Discrimination in Employment Act (“ADEA”)

and the New Jersey Law Against Discrimination (“NJLAD”). This

action comes before the Court on Defendants’ Motion for Summary

Judgment. [Docket Item 14.] Defendants’ motion will be granted

because Plaintiff has failed to show that there is a genuine,

material, factual dispute regarding the cause for his

termination.

II. BACKGROUND

This section provides an overview of the facts, the Motion

for Summary Judgment, and the subsequent briefing.

A. Factual Background

In June of 2007, Plaintiff Stephen Bleistine retired from

the public school system at age 62. (Def. Statement of 1

Undisputed Facts (“Def. SOF”) ¶ 6.) In the summer of 2007, he saw

a newspaper ad for positions at Defendant Holy Cross High School.

(Def. SOF ¶ 8.) The two advertised positions were Associate

Principal for Curriculum and Development and Associate Principal

for Academic Intervention. (Def. SOF ¶ 8.) Plaintiff only applied

for the Associate Principal for Academic Intervention position.

(Def. SOF ¶ 9.) 

Holy Cross’ Principal, Dennis Guida, oversees the day-to-day

operations at Holy Cross and makes personnel decisions, including

hiring and firing decisions. (Pl. Opp’n Ex. F, Guida Dep. 16:2-

Plaintiff’s date of birth is June 3, 1945. (Compl. ¶ 4.) 1

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8.) Guida hired Plaintiff for the Academic Intervention position

under a contract for the 2007-2008 school year. (Def. SOF ¶ 9.)

Plaintiff’s greatest asset in the hiring process was his ability

to work with the Student Administrative Systems Information

(“SASI”) program, which includes software for scheduling, grade

reporting, and student transcripts, because Holy Cross was

switching its scheduling format. (Def. SOF ¶ 13, 17; Bleistine

Dep. 27:22-25.) 

During the scheduling process, guidance counselors met with

students to develop schedules. (Def. SOF ¶ 19.) The counselors

input this information, along with teachers’ availability, into

the SASI program. (Def. SOF ¶ 19.) Then Plaintiff created a

master schedule. (Def. SOF ¶ 19.)

Plaintiff was also responsible for supervising the Dean of

Students and handling student discipline. (Def. SOF ¶ 20.)

Principal Guida and Plaintiff had philosophical differences

regarding student discipline; Plaintiff preferred to strictly

enforce the student code and often recommended expulsion, whereas

Guida preferred to work with students to teach them proper

behavior. (Def. SOF ¶¶ 22-24.) Plaintiff claimed that Guida

called him an “old antiquated thinker” in the context of a

dispute regarding strict enforcement of the dress code. (Def. SOF

¶ 26.) He claimed that this conversation occurred on April 20,

2009, approximately 70 days before his termination. (Pl. SOF ¶

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3.) Guida disputed Plaintiff’s account and claimed that he used

the term “antiquated public school thinking” to describe a job

applicant whom Plaintiff recommended. (Def. SOF ¶ 27.) 

The “lion’s share” of Holy Cross’ funding comes from tuition

and student fees. (Def. SOF ¶ 32.) In 2009, enrollment dropped

from 759 students for the 2008-2009 school year to 685. (Def. SOF

¶ 35.) In March of 2009, the projected enrollment was 745

students, and Principal Guida notified six teachers that their

contracts would not be renewed. (Def. SOF ¶ 37.) In May of 2009,

the projected enrollment dropped to 685, and Principal Guida

informed three more staff members, including Plaintiff, that

their contracts would not be renewed. The following chart

summarizes the terminations that occurred in 2009:

NAME POSITION AGE DATE OF TERMINATION

Dennis Daly Teacher 26 April 30, 2009

Richard McCormick Teacher 36 April 30, 2009

Jennifer McNally Teacher 32 April 30, 2009

Mellisa Minuto Teacher 25 April 30, 2009

Patricia Sacks Teacher 57 April 30, 2009

Marie Boljen Teacher 53 April 30, 2009

Stephen Bleistine

(Plaintiff)

Associate

Principal

64 June 30, 2009

Ron Green Director of

Technology

50 June 30, 2009

Kevin McKenzie Administrative

Assistant

27 June 30, 2009

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(Def. SOF ¶¶ 37, 39.) 

Plaintiff was one of three Associate Principals at Holy

Cross when he was terminated. The other two Associate Principals

were Michael Fynan (age 56 at the time of the reduction in force)

and Marie Germano (age 33). (Def. SOF ¶ 42.) They each had

specific responsibilities: Plaintiff handled scheduling; Fynan

handled finances; and Germano handled curriculum and

instructional development. (Def. SOF ¶ 40.) Germano was hired in

the summer of 2007, after Plaintiff was hired. (Def. SOF ¶ 11.) 

Principal Guida explained that he decided not to renew

Plaintiff’s contract because he wanted to move the scheduling

process to the guidance department and, once he had done so,

there was no longer a need for the associate principal for

scheduling. (Def. SOF ¶ 40.) When Guida told Plaintiff that

Plaintiff’s contract would not be renewed, he said the budget was

insufficient to accommodate Plaintiff’s position. (Def. SOF ¶

41.) Fynan retained his position as Associate Principal for

Business Administration, and Germano retained her position as

Associate Principal for Curriculum and Development. (Def. SOF ¶

42.) Guida reassigned Plaintiff’s duties, and Jennifer Kelly, the

Director of Guidance, was paid an additional $10,000 stipend to

handle the SASI functions. (Def. SOF ¶ 45.) 

After his termination, Plaintiff filed a complaint alleging

age discrimination with the New Jersey Division on Civil Rights

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(“DCR”), which was dual filed with the Philadelphia Office of the

Equal Employment Opportunity Commission (“EEOC”). According to

the DCR investigator’s report, when the investigator asked

Plaintiff whether he ever heard any derogatory, age-related

comments from anyone at Holy Cross School, Plaintiff said “No.”

(Def. SOF ¶ 29.) Plaintiff obtained a Right to Sue Notice from

the EEOC in 2011 because the matter had been pending for more

than six months; the DCR closed its files administratively. (Def.

Mot. Summ. J. Ex. 10.) 

Plaintiff then filed a Complaint in this Court alleging that

he was equally or more qualified than the other two associate

principals, Germano and Fynan, and that his age was the

motivating factor in Defendants’ decision to terminate his

employment. He alleged two claims: violation of the Age

Discrimination in Employment Act and violation of the New Jersey

Law Against Discrimination.

B. Defendants’ Motion for Summary Judgment

Defendants filed a Motion for Summary Judgment [Docket Item

14], arguing that Plaintiff’s claims should be dismissed as a

matter of law because there are no genuine issues of material

fact. Defendants argue, essentially, that Plaintiff did not

present direct evidence of discrimination and that he cannot show

circumstantial evidence either. Defendants argue that the only

evidence of alleged hostility toward older people that Plaintiff

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offered was a stray comment from Principal Guida. Even if Guida

did characterize Plaintiff as an “old antiquated thinker,” that

comment “cannot be construed by any reasonable trier of fact as

anything more than a stray remark which was not part of the

decision making process and was unconnected in time or context to

the non-renewal of Mr. Bleistine’s contract.” (Def. Mot. Summ. J.

at 19.) Defendants note case law holding that similar stray

comments are insufficient to survive summary judgment.

Defendants argue that it is particularly difficult to show

age discrimination because Plaintiff was first hired when he was

already a member of the protected class. Defendants argue that

Plaintiff ignores the diminished budget due to reduced enrollment

and the eight other staff members who were also terminated, most

of whom were not in the protected class. In a reduction in force

case, Defendants argue that Plaintiff cannot simply point to “one

comparator” (i.e. Germano) to show that similarly situated people

were treated differently. 

In addition, Defendants argue that Plaintiff’s subjective

beliefs about his qualifications are insufficient to create

genuine issues of fact, particularly because the essence of

reduction in force is that competent employees, who would retain

their jobs in more prosperous times, are let go. The purpose of

the age discrimination statutes, Defendants argue, is to prevent

age discrimination, not to mandate that employers must choose

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older workers over younger workers. 

And finally, Defendants argue that, even if the Court denies

summary judgment, the Court should dismiss, with prejudice, all

claims against Defendant Diocese of Trenton because the Diocese

of Trenton was never Plaintiff’s employer. The age discrimination

statutes only apply to employers; Defendants argue that the

Diocese of Trenton and Holy Cross High School are separate

corporations, that only Holy Cross employed Defendant, and that

the Holy Cross principal had sole authority over hiring and

firing decisions.

C. Plaintiff’s Opposition

Plaintiff filed Opposition [Docket Item 16] to Defendants’

motion. In his Opposition brief, Plaintiff provided a “Statement

of Contested Material,” which contains only three numbered

paragraphs and which does respond to any paragraphs in

Defendants’ “Statement of Undisputed Material Facts.” Plaintiff’s

statement includes the following facts: First, Plaintiff states

that “[t]he most important fact to be determined by the jury, and

the reason summary judgment is inappropriate, is whether the

motivation of the defendants in failing to renew the plaintiff’s

employment contract was his age.” (Pl. SOF ¶ 1.) Second,

Plaintiff states that “[t]he positions held by the plaintiff and

the other two associate principals were substantially similar

positions and were not distinct.” (Pl. SOF ¶ 2.) The third

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statement is that “[t]he defendants’ employee and decision-maker,

Dennis Guida, made a comment that the plaintiff was ‘old’ and

that his thinking was ‘antiquated’ on or about April 20, 2009,

approximately 70 days before he was advised of the defendants’

decision to not renew his contract.” (Pl. SOF ¶ 3.) 

Plaintiff argued that summary judgment was inappropriate

because he had established a prima facie case of age-based

discrimination and that there was a genuine issue of material

fact from which a reasonable jury could conclude that his age was

the cause of his termination. Plaintiff argues that he, Germano,

and Fynan were all similarly situated in terms of their job

qualifications, job categories, and a common core of identical

job duties and functions, such as supervising teachers. Plaintiff

also argued that the Court need not analyze his prima facie case

because the Court must only resolve one question, i.e. whether

Plaintiff has produced sufficient evidence for a reasonable jury

to conclude that the employer’s asserted nondiscriminatory reason

was pretextual or that there was intentional discrimination. 

Plaintiff argues that Fynan and Germano are respectively

eight and thirty-one years younger and that those age differences

are sufficient to establish discrimination. Plaintiff argues that

the other eight employees who were terminated do not impact the

discrimination evidence because Plaintiff “was an associate

principal, and as such, an administrator while the reamining

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eight employees affected by the reduction in force were not

members of the administration but were rather teachers or office

staff.” (Pl. Opp’n at 7.) Plaintiff argues that “the finder of

fact must compare ‘apples to apples,’ i.e. administrators to

administrators, rather than teachers or staff to administrators.”

(Pl. Opp’n at 7.) 

In addition, Plaintiff argues that “defendant has offered

little explanation as to why or how this decision was made other

than to cite overall financial concerns requiring a reduction in

force.” (Pl. Opp’n at 7-8.) Plaintiff states, “[t]he only

information provided by the school principal, Mr. Guida, was that

once Holy Cross moved scheduling – one of Mr. Bleistine’s

responsibilities – into the guidance department, there was no

longer a need for his administrative position. However, there is

no specific indication of why Mr. Bleistine was chosen over Mr.

Fynan and Ms. Germano.” (Pl. Opp’n at 8.) 

Plaintiff argues that the lack of explanation regarding the

reason for his termination is highlighted when comparing the

associate principals’ credentials and experience because

Plaintiff had higher qualifications and more expertise. In

addition, Plaintiff argues that “[s]ignificant indirect evidence

of proof that the plaintiff’s age was a factor in terminating him

is that it would have been less expensive to keep him over Ms.

Germano.” (Pl. Opp’n at 9.) 

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Essentially, Plaintiff argues that there is evidence to

support his age discrimination claims, particularly when

considering the evidence in his favor. He claims that he has

established a prima facie case of discrimination and that there

“exists a genuine issue of material fact upon which a reasonable

jury could find that defendant’s proffered reason for the

discharge is pretextual or that an invidious discriminatory

reason was more likely than not a motivating or determinative

cause. . . .” (Pl. Opp’n at 10.) 

Finally, Plaintiff asserts that the Diocese of Trenton is an

appropriate party to the case and should not be dismissed. 

D. Defendants’ Reply

Defendants submitted a Reply [Docket Item 21] to Plaintiff’s

Opposition. Defendants challenged each element of Plaintiff’s

Statement of Contested Facts. Defendants argued that Plaintiff’s

first fact, which asserts that the jury must determine whether

defendants’ motivation was age discrimination, is not a statement

of fact with supporting evidence. Defendants challenged

Plaintiff’s second fact, which is that all three associate

principal positions were substantially similar and indistinct, by

arguing that Plaintiff cited general requirements for associate

principals, not the specific job descriptions. In addition,

Defendants argued that Plaintiff’s extensive resume does not

indicate experience in finance or curriculum and instructional

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development, i.e. the areas handled by Fynan and Germano.

Defendants’ challenged Plaintiff’s third fact, which is that

Principal Guida said plaintiff was ‘old’ and his thinking was

‘antiquated’ on or about April 20, 2009, by arguing that fact was

contradicted by Plaintiff’s admission to the EEOC/DCR

investigator and by Plaintiff’s deposition testimony. 

Defendants emphasized that Guida had a legitimate, nondiscriminatory reason, i.e. cutting staff to maintain a balanced

budget, and that Plaintiff had offered “no evidence to refute

Guida’s explanation other than his belief that age was the

primary motivation.” (Def. Reply at 6.) Defendants also argued

that Plaintiff had not made a prima facie case of discrimination

because (1) he did not show he was competent to serve in the

positions that remained and (2) the terminated employees

reflected disparate ages. Defendants claimed that Plaintiff had

not shown that Guida’s proffered reasons were implausible or that

invidious discrimination was the determining factor.

III. STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A dispute is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the non-moving party.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact

is “material” only if it might affect the outcome of the suit

under the applicable rule of law. Id. Disputes over irrelevant or

unnecessary facts will not preclude a grant of summary judgment.

Id. The district court must “view the facts and draw reasonable

inferences in the light most favorable to the party opposing the

summary judgment motion.” Scott v. Harris, 550 U.S. 372, 378

(2007).

Once the moving party has supported its motion, “its

opponent must do more than simply show that there is some

metaphysical doubt as to material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A summary

judgment movant may meet its burden by showing that the opposing

party is unable to meet its burden of proof at trial. Celotex

Corp. v. Catrett, 477 U.S. 317, 325 (1986). Nonetheless,

Defendants, as the moving parties on the motion, bear the initial

responsibility of demonstrating the absence of a genuine issue of

material fact. Id.

IV. STATEMENT OF FACTS

Before the Court can turn to its legal analysis, it must

evaluate the Statements of Fact presented by the parties. The

essence of summary judgment is a determination of whether there

are genuine, material, facts in dispute. Local Civil Rule 56.1(a)

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requires summary judgment movants to submit a statement of

undisputed material facts, citing to affidavits and other

documents submitted in support of the motion. The opponent of

summary judgment shall furnish “a responsive statement of

material facts, addressing each paragraph of the movant’s

statement, indicating agreement or disagreement. . . .” L. Civ.

R. 56.1(a). “[A]ny material fact not disputed shall be deemed

undisputed for purposes of the summary judgment motion.” L. Civ.

R. 56.1(a). The purpose behind this requirement is “to narrow the

issues before the District Court, to assist in identifying

whether material facts are, or are not, in dispute in a summary

judgment motion.” Lite, N.J. Federal Practice Rules, Comment 2.a.

to L. Civ. R. 56.1, at 287 (2013 ed.).

Defendants’ Motion for Summary Judgment contains a

“Statement of Undisputed Material Facts” which contains 45

numbered paragraphs and cites exhibits, such as deposition

transcripts. In his Opposition brief, Plaintiff provided a

“Statement of Contested Material,” which contains only three

numbered paragraphs and which does respond to any paragraphs in

Defendants’ statement. Under L. Civ. R. 56.1, “facts submitted in

the statement of material facts which remain uncontested by the

opposing party are deemed admitted.” Hill v. Algor, 85 F. Supp.

2d 391, 408 n.26 (D.N.J. 2000). See also Booker v. Twp. of

Willingboro, CIV. 10-4886 JBS/JS, 2012 WL 2397929 *1 n.1 (D.N.J.

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June 22, 2012) (where plaintiff only responded to four of 87

facts asserted by defendants, the other 83 facts were deemed

undisputed). 

Plaintiff’s statement includes the following facts: First,

Plaintiff states that “[t]he most important fact to be determined

by the jury, and the reason summary judgment is inappropriate, is

whether the motivation of the defendants in failing to renew the

plaintiff’s employment contract was his age.” (Pl. SOF ¶ 1.) This

statement is not a fact; it is a hypothesis that Plaintiff would

like a jury to test. Plaintiff has not cited any documentary

support for this statement, in contravention of Local Civil Rule

56.1(a). The Court must make factual inferences in the

Plaintiff’s favor, but “it is insufficient for the party opposing

a motion for summary judgment to rely upon suppositions,

conjecture or to assert that an issue may arise at a future

date.” U. S. ex rel. Sacks v. Philadelphia Health Mgmt. Corp.,

519 F. Supp. 818, 823 (E.D. Pa. 1981). The Court will therefore

disregard the Plaintiff’s first fact.

Second, Plaintiff states that “[t]he positions held by the

plaintiff and the other two associate principals were

substantially similar positions and were not distinct.” (Pl. SOF

¶ 2.) As support for this statement, Plaintiff directs the Court

to Exhibits C and D. Exhibit C is a list entitled “Qualifications

of Vice-Principal,” and it explains basic requirements, such as

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New Jersey Teacher Certification and competency in management,

interpersonal, and communication skills, for viceprincipal/assistant principal positions. Exhibit D, the second

exhibit that Plaintiff cites in support of paragraph 2, is the

cover page and page 15 of the Holy Cross High School Faculty

Manual. Page 15 lists the leadership team, including associate

principals Michael Fynan, Stephen Bleistine, and Marie Germano,

and the leadership support team and Department

Chairpersons/Academic Council. This list provides no explanation

of duties or responsibilities.

The Court shall accept Plaintiff’s assertion that the

associate principal positions were substantially similar because

they shared many similar responsibilities, but Plaintiff’s own

deposition testimony contradicts his assertion that the jobs were

indistinct. For example, when discussing the roles of the Holy

Cross Associate Principals, Plaintiff stated, “the central focus

of our job was to help Dennis [Guida] in running the school. And

then we all had like a different area that we broke down – broke

down our categories into, and mine was student discipline and it

was student services, scheduling.” (Pl. Opp’n Ex. B, Bleistine

Dep. 38:1-6.) In addition, in his deposition, Plaintiff admitted

that, when he applied for the position at Holy Cross High School,

two positions were advertised, assistant principal for curriculum

and development and associate assistant principal for academic

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intervention. (Bleistine Dep. 24:2-6.) Plaintiff only applied for

the academic intervention position. (Bleistine Dep. 24:9-17.)

Plaintiff’s deposition testimony, the different job titles, and

Plaintiff’s decision to apply for only one position belie his

assertion that the two positions were indistinct. For purposes of

evaluating Defendants’ summary judgment motion, the Court shall

therefore assume that the three associate principal positions

shared many responsibilities, but each had its own “different

area,” as Plaintiff himself testified.

The third and final fact in Plaintiff’s Statement of

Contested Material Facts is “[t]he defendants’ employee and

decision-maker, Dennis Guida, made a comment that the plaintiff

was ‘old’ and that his thinking was ‘antiquated’ on or about

April 20, 2009, approximately 70 days before he was advised of

the defendants’ decision to not renew his contract.” (Pl.

Statement of Contested Material Facts, ¶ 3.) Plaintiff’s

deposition testimony was that the comment was “old antiquated

public school thinker.” (Bleistine Dep. 58:16-17.) Defendants

dispute the timing and context of this statement, but the Court

must view evidence in favor of the nonmoving party and shall

disregard Defendants’ version of events.

Other than the three statements discussed above, the Court

has deemed undisputed the facts in Defendants’ Statement of

Facts.

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V. ADEA CLAIM

This section provides an overview of ADEA law, Plaintiff’s

prima facie case, Holy Cross’ asserted reasons for terminating

Plaintiff, and Plaintiff’s failure to show that those reasons

mask invidious discrimination. 

A. ADEA Legal Standard

The ADEA provides, in relevant part, that “[i]t shall be

unlawful for an employer ... to fail or refuse to hire or to

discharge any individual or otherwise discriminate against any

individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual's age.”

29 U.S.C. § 623(a)(1). The 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.” Gross v. FBL Fin.

Services, Inc., 557 U.S. 167, 176 (2009). In other words, “a

plaintiff must prove that age was the ‘but-for’ cause of the

employer's adverse decision.” Id. at 176.

The ADEA’s prohibition against discrimination is “limited to

individuals who are at least 40 years of age,” § 631(a). This

language “does not ban discrimination against employees because

they are aged 40 or older; it bans discrimination against

employees because of their age, but limits the protected class to

those who are 40 or older.” O'Connor v. Consolidated Coin

Caterers Corp., 517 U.S. 308, 312 (1996).

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A plaintiff may demonstrate age discrimination under the

ADEA by either direct or indirect evidence. Torre v. Casio, Inc.,

42 F.3d 825, 829 (3d Cir. 1994). Direct evidence of

discrimination “would be evidence which, if believed, would prove

the existence of the fact in issue without inference or

presumption.” Id. at 829 (emphasis in original). However, 2

evidence is not direct “where the trier of fact must infer the

discrimination on the basis of age from an employer's remarks.”

Id. at 829 (emphasis in original). A plaintiff seeking to prove

his case through direct evidence, confronts a “high hurdle”

because “the evidence must demonstrate that the decision makers

placed substantial negative reliance on an illegitimate criterion

in reaching their decision.” Anderson v. Consol. Rail Corp., 297

F.3d 242, 248 (3d Cir. 2002).

In order to establish a case through indirect evidence, a

plaintiff must establish a prima facie case showing that he: “(1)

The Third Circuit, in Torre, explained that an example of 2

evidence that would be considered “direct” is found in Trans

World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). In TWA,

former airline captains showed that an airline's policy allowed

those disqualified from continuing as a captain for any reason

other than age to transfer automatically to the position of

flight engineer, but required age-disqualified captains to bid

for engineer vacancies or retire if no vacancies occurred prior

to their 60th birthdays. Id. at 121. This scheme “directly

demonstrated TWA's disparate treatment on the basis of age.”

Torre at 829 n.2.

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was a member of a protected class (i.e. he was forty years of age

or older); (2) was qualified for the position at issue; (3)

suffered an adverse employment action; and (4) was replaced by a

sufficiently younger person, raising an inference of age

discrimination.” Anderson at 249. 

This case involves a reduction-in-force, i.e. a situation in

which Plaintiff was not replaced by another employee, but instead

was terminated in the context of a school-wide reduction in

staffing. The Third Circuit has recognized that “the fourth

element is inadequate in a reduction in force context” and, in

such a case, “the fourth element is satisfied by showing that the

employer retained a ‘sufficiently younger’ employee.” Showalter

v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231, 235 (3d Cir.

1999). In addition, “to present a prima facie case raising an

inference of age discrimination in a reduction in force

situation, the plaintiff must show, as part of the fourth

element, that the employer retained someone similarly situated to

him who was sufficiently younger.” Anderson at 250. The Anderson

court explained that the “similarly situated” requirement is

necessary because the ADEA “is not a bumping statute;” in other

words, the ADEA does not guarantee that younger employees will be

bumped to ensure that protected employees retain their positions.

Anderson at 250.

Once the plaintiff has established a prima facie case, the

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“burden of production shifts to the defendant to articulate some

legitimate, nondiscriminatory reason for the employee's

rejection.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

The employer can satisfy this burden “by introducing evidence

which, taken as true, would permit the conclusion that there was

a nondiscriminatory reason for the unfavorable employment

decision.” Id. at 763. Once the employer articulates a legitimate

reason for the unfavorable employment decision, the burden of

production moves to the plaintiff, who must show that the

employer's explanation is pretextual. Id. at 763. To defeat

summary judgment when the defendant answers the plaintiff's prima

facie case with legitimate, non-discriminatory reasons for its

action, “the plaintiff must point to some evidence, direct or

circumstantial, from which a factfinder could reasonably either

(1) disbelieve the employer's articulated legitimate reasons; or

(2) believe that an invidious discriminatory reason was more

likely than not a motivating or determinative cause of the

employer's action.” Id. at 764. Pretext “is not demonstrated by

showing simply that the employer was mistaken. . . . Instead, the

record is examined for evidence of inconsistencies or anomalies

that could support an inference that the employer did not act for

its stated reasons.” Sempier v. Johnson & Higgins, 45 F.3d 724,

731 (3d Cir. 1995).

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B. Plaintiff Has Established a Prima Facie Case

Plaintiff has not presented evidence of direct

discrimination; this case requires the indirect-evidence

analysis. Plaintiff has satisfied the four necessary elements for

establishing a prima facie case: First, Plaintiff was 64 years

old at the time of termination and was a member of the protected

class. Second, Plaintiff has produced substantial evidence

showing that he has extensive experience in school administration

and that he was particularly qualified to use the SASI program.

Third, Plaintiff suffered an adverse employment action because

his employment contract was not renewed.

And fourth, Holy Cross retained sufficiently younger

employees. The associate principals who remained were Germano

(age 33) and Fynan (age 56). When compared to Plaintiff (age 64),

the average age difference is 19.5 years. In establishing the

fourth element, there is no particular age difference that must

be shown: “a five year difference can be sufficient, . . . but .

. . a one year difference cannot.” Sempier v. Johnson & Higgins,

45 F.3d 724, 729 (3d Cir. 1995). Here, the 19.5 year average age

difference is sufficient to establish the fourth element. See,

e.g., Barber v. CSX Distrib. Servs., 68 F.3d 694, 699 (3d Cir.

1995) (eight year difference between plaintiff and comparator

could support a finding that the comparator was “sufficiently

younger”); Sempier v. Johnson & Higgins, 45 F.3d 724, 729-30 (3d

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Cir.1995) (the combined difference in age between plaintiff and

four-years-younger and ten-years-younger coworkers was sufficient

to satisfy the fourth prong of a prima facie case).

C. Plaintiff Cannot Show Pretext

In response to Plaintiff’s prima facie case, Holy Cross has

asserted several reasons for the termination. First, Holy Cross

has emphasized that it had to balance its budget because

enrollment dropped from 759 students to 685 and the lion’s share

of its funding comes from tuition, which is undisputed. Second,

Principal Guida explained that he wanted to move the scheduling

responsibility to the guidance department, which is also

undisputed. Third, the associate principals whom Holy Cross

retained, Germano and Fynan, handle instructional development,

curriculum, and finance responsibilities, which were outside of

Plaintiff’s expertise. 

Plaintiff claims invidious discrimination existed, but his

arguments do not cast doubt on Holy Cross’ asserted reasons. To

create a factual dispute as to pretext, Plaintiff “must not only

introduce evidence from which a reasonable person could infer

that he is qualified; he also must introduce evidence that casts

doubt on his employer's contention that there was a legitimate

business justification for letting him go.” Healy v. New York

Life Ins. Co., 860 F.2d 1209, 1220 (3d Cir. 1988). 

Plaintiff has not challenged the validity of any of Holy

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Cross’ reasons. He has not disputed that Holy Cross had to

balance its budget because of the drop in enrollment; that he

lacks expertise in instructional development, curriculum, and

finance; that Guida wanted to move scheduling to the guidance

department; or that Guida did, in fact, make that shift.

Plaintiff admitted that, when he first applied to Holy Cross, the

associate principal position that handles curriculum and

instructional development was available, but he did not apply for

it. (Bleistine Dep. 24:8-17.) That is the position that Germano

obtained and retained after Plaintiff’s termination.

Plaintiff argues that he had extensive experience and that

he was skilled in the SASI scheduling process. But it is

undisputed that Plaintiff was terminated as part of a reduction

in force (or “RIF”). As the Third Circuit has noted, however,

“the essence of a RIF is that competent employees who in more

prosperous times would continue and flourish at a company may

nevertheless have to be fired.” Healy v. New York Life Ins. Co.,

860 F.2d 1209, 1220 (3d Cir. 1988). Plaintiff’s competence and

expertise is insufficient to establish pretext given the reduced

enrollment and subsequent reduction in force at Holy Cross.

Plaintiff argues that Plaintiff, Germano, and Fynan “were

similarly situated in terms of job qualifications and job

category.” (Pl. Opp’n at 3.) The three associate principals were

similarly situated, and their jobs carried many similar

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responsibilities, such as supervising teachers. But differences

also existed between the daily functions of the respective

associate principal positions. Germano and Fynan manage finance,

curriculum, and instructional development, areas that Plaintiff

did not handle and has not asserted that he can handle.

Plaintiff also argues that Holy Cross’ reason regarding

declining enrollment and budgetary problems masks invidious

discrimination because Defendants fail to acknowledge that

“Bleistine was an associate principal, and as such, an

administrator, while the remaining employees affected by the

reduction in force were not members of the administration but

were rather teachers or office staff.” (Pl. Opp’n at 7.)

Plaintiff insists that “the finder of fact must compare ‘apples

to apples,’ i.e. administrators to administrators.” (Pl. Opp’n at

7.) The Court finds no indication whatsoever of pretext simply

because Plaintiff was the only associate principal who was

terminated. In fact, it seems logical that, if Holy Cross was

losing six teachers and two administration employees, it would

need fewer associate principals to manage the remaining

employees. 

Plaintiff argues that Holy Cross has “offered little

explanation as to why or how this [termination] decision was

made. . . .” (Pl. Opp’n at 7.) Plaintiff argues that the only

information provided by Holy Cross was that, once scheduling was

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moved to the guidance department, there was no longer a need for

his administrative position. Plaintiff states, “there is no

specific indication of why Mr. Bleistine was chosen over Mr.

Fynan and Ms. Germano.” (Pl. Opp’n at 8.) Holy Cross has

indicated why Plaintiff was chosen: Plaintiff handled scheduling,

and that function moved. Plaintiff has emphasized that he had

extensive training in the SASI program and that Germano and Fynan

had not received SASI training. But no one has alleged that

Germano and Fynan handled SASI scheduling after Plaintiff left. 

Plaintiff also argues that “[s]ignificant indirect evidence

of proof that the plaintiff’s age was a factor in terminating him

is that it would have been less expensive to keep him over Ms.

Germano.” (Pl. Opp’n at 9.) Even if retaining Germano was more

expensive than retaining Plaintiff would have been, that fact

does not show pretext. Germano performed different functions that

Plaintiff could not have performed, while Plaintiff’s scheduling

responsibilities were simply added as duties for the guidance

department at a substantial monetary savings. Age discrimination

laws “should not be used to impede an employer's effort to

organize its business as it deems fit so long as the employer in

doing so does not violate employment age discrimination

restrictions.” Hyland v. Am. Int'l Group, 360 F. App'x 365, 368

(3d Cir. 2010); cf. Gray v. York Newspapers, Inc., 957 F.2d 1070,

1083 (3d Cir. 1992) (“[T]he ADEA is a discrimination statute and

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is not intended to handcuff the management and owners of

businesses to the status quo.”). Aside from Germano’s

compensation, Plaintiff also testified that he spoke to Jennifer

Kelly, the woman who took over the scheduling responsibilities

for a $10,000 stipend. Kelly allegedly told Plaintiff that the

scheduling “was really an unbelievable amount of work” and that

“I don’t think Dennis [Guida] has a clue about how much work this

is. . . .” (Bleistine Dep. 81:15-17.) Plaintiff may believe that

Guida’s assignment of the scheduling task was unwise and fiscally

imprudent, but “[t]o discredit the employer's proffered reason, .

. . the plaintiff cannot simply show that the employer's decision

was wrong or mistaken, since the factual dispute at issue is

whether discriminatory animus motivated the employer, not whether

the employer is wise, shrewd, prudent, or competent.” Fuentes v.

Perskie, 32 F.3d 759, 765 (3d Cir. 1994). In any event, if Ms.

Kelly is correct, Holy Cross is undercompensating her at $10,000

for the additional scheduling work she must do, but this does not

contradict Holy Cross’ proffered rationale for the RIF as

motivated by cost savings. The Court may not dictate how Holy

Cross structures and compensates its employees; the Court may

only ensure that Holy Cross does not discriminate on the basis of

age in making its management decisions.

D. Guida’s Alleged Stray Remark Does Not Establish Pretext

Plaintiff also argues that Guida called him an “old

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antiquated public school thinker” 70 days before his termination

and that this comment shows discriminatory animus.3

The Court will assume, as Plaintiff argues, that a

reasonable fact-finder could interpret this comment as a comment

on Plaintiff’s age. The comment actually refers to Plaintiff’s

thinking, not his age. Plaintiff has acknowledged that he and

Guida disagreed over disciplinary issues, that Plaintiff thought

Guida was too lax, and that Plaintiff would have expelled

students whom Guida did not expel. For example, Plaintiff

testified that he was frustrated because Guida did not expel two

boys for reenacting a movie scene in which one boy defecated on

the other. He stated, “I thought those kids should have been

expelled. I could not see any reason to maintain those kids at

Holy Cross High School, but Dennis’ [Guida’s] choice was to keep

them. . . .” (Bleistine Dep. 63:14-17.) Plaintiff claims that

Guida called him an “old antiquated public school thinker” after

another disciplinary dispute in which Plaintiff expressed

frustration “with the fact that these kids were walking around

Holy Cross claims that Guida referenced a job applicant, 3

not plaintiff, in making the comment and that the timing was

further removed from the date of termination. In addition, Holy

Cross notes that, according to the DCR investigator’s report,

when the investigator asked Plaintiff whether he ever heard any

derogatory, age-related comments from anyone at Holy Cross

School, Plaintiff said “No.” (Def. SOF ¶ 29.) At this procedural

posture, the Court will presume that Plaintiff’s version is

correct since all evidence must be viewed in favor of the nonmoving party.

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with their shirts out and . . . not being dressed very properly.

. . .” (Bleistine Dep. 59:25-60:2.) Essentially, it seems that

Guida’s alleged comment was directed at Plaintiff’s thinking

regarding strict discipline, as opposed to his age. 

But the alleged comment contains the word “old” and all

evidence must be construed in Plaintiff’s favor. The Court will

therefore assume that the comment was a reference to Plaintiff’s

age. In Hyland v. Am. Int'l Group, 360 F. App'x 365, 367 (3d Cir.

2010), the Third Circuit analyzed a case in which the plaintiff’s 

“direct supervisor and the prime mover in the reorganization that

resulted in [plaintiff]'s termination referred to [plaintiff] as

the ‘old man’ of the operation.” The Third Circuit held that

“this stray remark made ten months before [plaintiff]'s

termination could not support an inference of age discrimination.

. . .” Id. at 367. The Hyland court explained:

We do not think that a single remark that might reflect

the declarant's recognition of an employee's age in a

context unrelated to the employee's termination is

sufficient evidence to support a prima facie case of age

discrimination based on direct evidence at the time that

the employer later terminates the employee. After all,

whether or not a supervisor makes reference to an

employee's age it is likely that he will have some

concept of it.

Id. at 367-68 (3d Cir. 2010). The Hyland court emphasized that

the context of the “old man” comment was unrelated to the

plaintiff’s termination. In this case, the context in which

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Plaintiff claims Guida made the remark, i.e. after a policy

disagreement regarding students’ failure to tuck in their shirts,

was also unrelated to Guida’s asserted reasons for the

termination. In addition, all parties have agreed that Plaintiff

and Guida had philosophical differences regarding discipline, and

that Plaintiff’s approach was seen as “old school” in the sense

of being strict or uncompromising. The alleged comment is not

evidence of inconsistencies or anomalies that could support an

inference that the employer did not act for its stated reasons.

See Sempier v. Johnson & Higgins, 45 F.3d 724, 731 (3d Cir.

1995).

The Hyland comment occurred 10 months before the

termination, whereas Plaintiff claims that the comment in this

case occurred only 70 days before the termination. But other

significant events occurred in between the alleged comment and

the termination. For the 2008-2009 school year, enrollment was

759 students. In March of 2009, Guida thought the next year’s

enrollment would drop to 745 students, and he terminated six

teachers. Plaintiff claims that Guida made the “old antiquated

thinker” comment on April 20, 2009. In May of 2009, Guida learned

that the enrollment would drop to 685 students, not 745. The next

month, he terminated three more people, including Plaintiff.

Given the distinct context, the undisputed disciplinary

differences between Plaintiff and Guida, and the timeline in

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terms of Guida’s learning of the dropping enrollment numbers, the

Court holds, as a matter of law, that this alleged remark does

not show discriminatory animus. 

The Hyland court concluded, “it would be unfortunate if the

courts forced the adoption of an employment culture that required

everyone . . . to be careful so that every remark made every day

passes the employment equivalent of being politically correct

lest it be used later against the employer in litigation.” Id. at

368. Guida’s alleged comment may have been impolitic, but it does

not suggest that Guida’s stated reasons for terminating Plaintiff

were pretextual. 

Plaintiff cites Steward v. Sears Roebuck & Co., 231 F. App'x

201, 211 (3d Cir. 2007) to argue that Guida’s remark does show

discrimination. The Steward court stated that “remarks made by

supervisors directly involved in the termination decision at

issue can be evidence of their discriminatory animus, even if the

remarks were not made in connection with the termination

decision.” Steward v. Sears Roebuck & Co., 231 F. App'x 201, 211

(3d Cir. 2007). In Steward, the comment at issue was “Hell, you 4

The Third Circuit has held that “[s]tray remarks by non- 4

decisionmakers or by decisionmakers unrelated to the decision

process are rarely given great weight, particularly if they were

made temporally remote from the date of decision.” Ezold v. Wolf,

Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992)

(cited with approval in Fuentes v. Perskie, 32 F.3d 759, 767 (3d

Cir. 1994)). In Ezold, the stray remark occurred five years

before the adverse employment decision and was made by an

authority figure who did not participate in the decision-making

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are old enough, you have been around long enough, you should

handle this.” Id. at 211. The Steward court held that a

reasonable fact-finder could infer that the remark reflected age

bias and that it certainly reflected the employer’s “awareness”

of the plaintiff’s age. Steward at 211. 

The Steward case is easily distinguishable from Plaintiff’s

case. The Steward court noted that the plaintiff presented this

remark “[i]n addition to presenting evidence to cast doubt on the

three specific reasons given by [the employer] for his

termination.” Id. at 211. Here, Plaintiff has not presented any

evidence to cast doubt on Holy Cross’ specific reasons for the

termination. In addition, the Steward employer made that comment

to plaintiff Steward after Steward voiced concerns about the

additional responsibilities that were given to him. This context

is relevant because Steward’s employer claimed that Steward

failed to timely complete tasks, but Steward showed pretext with

evidence that the employer’s deadlines were unreasonable.

In addition, the Steward plaintiff had begun working for his

employer in 1979 and was terminated in 2001, approximately seven

months after he came under the supervision of a new manager. His

previous managers had all given him positive evaluations, and the

new manager was the person who made the “Hell, you are old

enough” comment. Here, Principal Guida hired Plaintiff Bleistine

process.

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at the age of 62 and terminated him two years later. Unlike the

Steward case, here, there was no shift in management personnel

from the person who hired Plaintiff to the person who terminated

him. The Eighth Circuit has held that “[i]t is simply incredible,

in light of the weakness of plaintiff's evidence otherwise, that

the company officials who hired him at age fifty-one had suddenly

developed an aversion to older people less than two years later.”

Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir.

1992). In this case, Guida hired Plaintiff, and the alleged

comment does not indicate that, two years later, Guida “developed

a sudden aversion to older people.”

Plaintiff has not pointed to evidence from which a

factfinder could reasonably either “(1) disbelieve the employer's

articulated legitimate reasons; or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or

determinative cause of the employer's action.” See Fuentes at

764. Considering all of his arguments together, the Plaintiff has

not shown that Holy Cross’ reasons are worthy of disbelief or

that invidious discrimination was likely. Defendant’s Motion for

Summary Judgment on Plaintiff’s ADEA claim is granted.

VI. NJLAD CLAIM

The New Jersey Law Against Discrimination (“NJLAD”)

prohibits, inter alia, discrimination on the basis of age. N.J.

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Stat. Ann. §§ 10:5-4, 10:5-12. New Jersey has adopted the burdenshifting analysis for pretext cases under the NJLAD, thus the

Court's ADEA discussion supra applies equally to Plaintiff's

NJLAD claims. Geltzer v. Virtua W. Jersey Health Sys., 804 F.

Supp. 2d 241, 250 (D.N.J. 2011); see also Martinez v. Nat'l

Broad. Co., 877 F. Supp. 219, 227 (D.N.J. 1994) (“The burdens of

proof and production for discrimination claims arising under

Title VII, the ADEA, and the LAD are the same.”) and Bergen

Commercial Bank v. Sisler, 157 N.J. 188, 200, 723 A.2d 944, 949

(1999) (The New Jersey Supreme Court, “in outlining approaches

and infusing discrimination claims under the LAD with substantive

content typically has looked to federal cases arising under

analogous provisions of . . . the Age Discrimination in

Employment Act”). Because Plaintiff’s ADEA claim will not survive

summary judgment, Plaintiff’s NJLAD claim will also be dismissed. 

V. CONCLUSION

Defendants’ Motion for Summary Judgment is granted.

Plaintiff’s ADEA and NJLAD claims will be dismissed, and the case

will be closed. Because the Court is granting Defendants’ motion

and dismissing Plaintiff’s claims, the Court need not analyze 

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Defendants’ argument that Defendant Diocese of Trenton should be

dismissed because it was not Plaintiff’s employer.

November 14, 2012 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge

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