Lawrence v. Natl Westminister ( 1996 )

Opinions of the United
1996 Decisions 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Precedential or Non-Precedential: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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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 non-
retaliatory 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, non-
retaliatory 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.