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NOT FOR PUBLICATION (Document No. 17) 

 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

___________________________________

:

EDNA M. BRATEK, DIANE M. :

DELUCA, LOIS L. SKOFF, and DAVID :

L. STEINBERG, :

: Civil No. 11-3049 (RBK/KMW)

Putative Class Action Plaintiffs, :

:

v. : OPINION

:

:

TD BANK, N.A., and :

JOHN DOES 1-5 and 6-10, :

:

Defendants :

___________________________________ :

KUGLER, United States District Judge:

This matter arises out of claims of age discrimination made by Edna Bratek, Diane 

Deluca, Lois Skoff, and David Steinberg (collectively, “Plaintiffs”) against their former 

employer TD Bank, N.A. (“Defendant”). Currently before the Court is Defendant’s motion to 

dismiss Plaintiffs’ Second Amended Complaint for failure to state a claim upon which relief can 

be granted (Doc. No. 17). For the reasons stated herein, the Court finds that Plaintiffs have 

failed to plead properly the prima facie elements under the New Jersey Law Against 

Discrimination (“NJLAD”) of a claim for “disparate treatment” discrimination based on a theory 

of wrongful termination. However, the Second Amended Complaint does allege facts in support 

of a disparate treatment claim based on a reduction-in-force theory that are sufficient to “state a 

claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

Thus, Defendant’s motion will be denied.

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I. Factual Background and Procedural History

Plaintiffs were employed as customer service representatives at Defendant’s call center in 

Burlington County, New Jersey. Between mid-2009 and 2010, all Plaintiffs, ranging in age from 

sixty-one to sixty-eight, had their positions terminated by Defendant. Second Amended Compl. 

¶ 15. 

In April 2011, Plaintiffs filed the instant lawsuit in New Jersey Superior Court. Their 

original complaint charged Defendant with violating the NJLAD by terminating Plaintiffs’

employment based on considerations of age. Specifically, Plaintiffs alleged, in addition to other 

theories,1 that they were fired because of Defendant’s disparate treatment agenda to reduce the 

overall age of its customer service representatives. Compl. ¶ 27. 

Defendant removed the case to this Court on the basis of federal diversity jurisdiction. 

See 28 U.S.C. § 1332 (2006). Thereafter, Defendant moved to dismiss the complaint under Fed. 

R. Civ. P. 12(b)(6), arguing that Plaintiffs’ complaint failed to state a claim upon which relief 

could be granted. The Court granted the motion, finding, among other things, that Plaintiffs had 

not properly alleged the elements of a prima facie case under any disparate treatment theory of 

unlawful age discrimination. Bratek v. TD Bank, No. 11-3049, 2012 WL 603299 (D.N.J. Feb. 

22, 2012). It granted Plaintiffs leave to file an amended complaint within fourteen days. 

Plaintiffs filed their Second Amended Complaint on March 6, 2012, and Defendant filed the 

instant motion to dismiss shortly thereafter.

II. Discussion

 1 Plaintiffs asserted a separate count of age discrimination based on a “disparate impact” theory. The Court 

dismissed this claim as legally insufficient. Bratek v. TD Bank, No. 11-3049, 2012 WL 603299 (D.N.J. Feb. 22, 

2012). Plaintiffs did not reassert this claim in their Second Amended Complaint and thus it will receive no further 

attention here.

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In support of its motion, Defendant argues in essence that the allegations Plaintiffs added 

to their Second Amended Complaint do not remedy the pleading deficiencies observed by this 

Court in granting the motion to dismiss Plaintiffs’ original Complaint. Thus, it is necessary to 

consider both the proper pleading standards for claims of age discrimination under the NJLAD, 

as well as the differences between Plaintiffs’ original Complaint and the Second Amended 

Complaint.

In its earlier opinion, the Court discussed at some length the law governing both an age 

discrimination claim under the NJLAD in particular, and the so-called “plausibility pleading” 

standards under Fed. R. Civ. P. 12(b)(6) in general. Bratek, 2012 WL 603299 at **1-5. A full 

recapitulation is not necessary here. It will suffice to say that in order to survive a motion to 

dismiss in the present context, the plaintiff’s principal burden is to “demonstrate that he or she 

can meet each of the elements of the prima facie case” of whatever theory of age discrimination 

he or she chooses to assert. Victor v. State, 4 A.3d 126, 141 (N.J. 2010). This amounts to only a 

“rather modest” burden, one meant to “demonstrate to the court that plaintiff’s factual scenario is 

compatible with discriminatory intent.” Henry v. New Jersey Dept. of Human Serv., 9 A.3d 882, 

889 (N.J. 2010).

There is no single prima facie case that applies to all employment discrimination claims. 

Victor, 4 A.3d at 141. Plaintiffs’ Second Amended Complaint alleges age discrimination based 

on two disparate treatment theories: a wrongful termination theory and a reduction-in-force 

theory. In order to assert a prima facie case of age discrimination under the NJLAD on the basis 

of wrongful termination, a plaintiff must show that: (1) plaintiff was a member of a protected 

group; (2) plaintiff’s job performance met the employer’s legitimate expectations; (3) plaintiff 

was terminated; and (4) the employer replaced, or sought to replace, the plaintiff. Zive v. Stanley 

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Roberts, Inc., 867 A.2d 1133, 1141 (N.J. 2005). In order to make out a prima facie case on the 

basis of a reduction in force theory, a plaintiff must show that: (1) plaintiff was a member of a 

protected class; (2) plaintiff was qualified for the position at issue; (3) plaintiff suffered an 

adverse employment action; and (4) the employer retained an employee sufficiently younger than 

the plaintiff who was similarly situated. Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 300-

01 (3d Cir. 2004). 

When considering whether allegations in Plaintiffs’ Second Amended Complaint 

establish the prima facie elements of these two theories of age discrimination, the Court must 

“accept all factual allegations as true, construe the complaint in the light most favorable to the 

plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff 

may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) 

(quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a 

complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to 

“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

III. Analysis

In its opinion granting Defendant’s motion to dismiss Plaintiffs’ original Complaint, the 

Court found that Plaintiffs had not established the second and fourth elements of the prima facie 

case for either the wrongful termination or reduction in force theories of age discrimination. 

Bratek, 2012 WL 603299 at **5, 6. 

Apparently responding to the Court’s analysis, Plaintiffs’ Second Amended Complaint 

includes three new paragraphs. The first states that each named plaintiff was “performing to the 

reasonable expectation” of his or her employer at the time of each person’s termination. Second 

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Amended Compl. ¶¶ 15a-d. Another lists the names and ages of persons who remained in 

Defendant’s employ after Plaintiffs were terminated. Id. at ¶19a. The third addition states that 

Defendant has continued to hire Customer Service Representatives, the same position from 

which Plaintiffs were laid off. Id. at ¶19b.

As an initial matter, despite Defendant’s claim to the contrary, Paragraphs 15a through 

15d of Plaintiffs’ Second Amended Complaint are sufficient to satisfy the second element of the 

prima facie case for both the wrongful termination and the reduction-in-force theories of age 

discrimination under the NJLAD. Thus, combined with other pleadings not in dispute, Plaintiffs 

have satisfied the first three elements of both claims. See Bratek, 2012 WL 603299 at *5. It is 

the fourth prima facie element for each theory which warrants further consideration.

Defendant asserts that Plaintiffs’ wrongful termination claim remains deficient because 

Plaintiffs have still never alleged that they were replaced by anyone of a sufficiently younger age 

as to permit an inference that age was a factor in the termination decision. Def.’s Br. in Support 

of Mot. to Dismiss 16. The Court agrees: Plaintiffs still do not allege which individuals replaced 

them, nor do they allege the age of these replacements (if in fact they were replaced at all). The 

failure to make such averments is fatal to Plaintiffs’ wrongful termination claim. Thus, 

Plaintiffs’ Second Amended Complaint cannot survive on this basis. 

Defendant argues that Plaintiffs’ reduction-in-force claim is likewise defective. 

Defendant acknowledges that the Second Amended Complaint includes the names of eighteen

customer service representatives under the age of forty who were retained by Defendant after 

Plaintiffs’ employment was terminated. But Defendant submits that this averment is legally 

insufficient in light of the size of the alleged class of plaintiffs. That is, because Plaintiffs claim 

that the population of customer service representatives across the country affected by the 

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Defendant’s alleged age discrimination is between “several hundred” and as much as “one 

thousand” people, offering the names of only eighteen individuals who were retained at an

individual facility, Defendant contends, is “statistically irrelevant.” Def.’s Br. in Support of Mot. 

to Dismiss 18; see also id. at 20-21 (arguing that the Second Amended Complaint is deficient in 

part because it alleges “that approximately 3% of the population retained was less than 40 years 

old, [but makes] no factual allegations about the age distribution of the other 97% employees 

[sic] who were retained”). 

Defendant offers no case law acknowledging the legal significance of this argument, and

the Court is not inclined to create any at this juncture. It would pose a substantial hurdle indeed 

if a class action plaintiff, in order to survive a motion to dismiss in an age discrimination case

under the NJLAD, needed to provide detailed personnel information about every one of his or 

her similarly situated co-workers. Such a requirement would not be in keeping with the 

admonishment by the New Jersey Supreme Court that a plaintiff’s obligation to properly plead 

the elements of a prima facie case of employment discrimination should impose only a “rather 

modest” burden to demonstrate that the “plaintiff’s factual scenario is compatible with

discriminatory intent.” See Henry v. New Jersey Dept. of Human Serv., 9A.3d 882, 889 (N.J. 

2010) (emphasis added). Instead, it will suffice for the present purposes that Plaintiffs have 

provided the names and approximate ages of several fellow customer service representatives 

whom Defendant retained and who are sufficiently younger than Plaintiffs as to permit an 

inference of age discrimination. Accordingly, Plaintiffs have met their primary burden of 

properly pleading the four elements of an age discrimination claim under the NJLAD based on a 

reduction in force theory of disparate treatment. Such is sufficient to “state a claim to relief that 

is plausible on its face.” See Iqbal, 556 U.S. at 678.

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IV. Conclusion 

For the reasons stated above, Plaintiffs have failed to establish the elements of a prima 

facie case of age discrimination under the New Jersey Law Against Discrimination based on a 

wrongful termination theory of disparate treatment. However, Plaintiffs have established the 

elements of a prima facie case of age discrimination based on a reduction in force theory of 

disparate treatment. Thus, Defendant’s motion to dismiss Plaintiffs’ Second Amended 

Complaint will be denied.2

 The Court will issue an appropriate order.

Dated: 11/5/12 /s/ Robert B. Kugler _ 

 ROBERT B. KUGLER

United States District Judge

 2 The Court recognizes that Defendant has also moved to strike the class action allegations of Plaintiffs’ Second 

Amended Complaint. The Court finds resolution of those issues at the motion to dismiss stage to be premature, and 

thus will deny without prejudice that aspect of Defendant’s motion to dismiss. The Court will be pleased to consider 

these arguments if and when Plaintiffs file for class certification.

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