Lamont W. Garnes and Robert A. Klein v. Passaic County And the Passaic County Sheriff's Department ( 2014 )


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  •                     NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2186-12T3
    LAMONT W. GARNES,
    APPROVED FOR PUBLICATION
    Plaintiff,                             October 24, 2014
    and                                         APPELLATE DIVISION
    ROBERT A. KLEIN,
    Plaintiff-Respondent,
    v.
    PASSAIC COUNTY and the PASSAIC
    COUNTY SHERIFF'S DEPARTMENT,
    Defendants-Appellants,
    and
    JERRY SPEZIALE, SHERIFF,
    Defendant.
    _________________________________
    Submitted May 29, 2014 – Decided October 24, 2014
    Before Judges Grall, Waugh and Nugent.
    On appeal from Superior Court of New Jersey,
    Law Division, Passaic County, Docket No. L-
    56-10.
    Florio Perrucci Steinhardt & Fader, L.L.C.,
    attorneys for appellants (J. Andrew Kinsey,
    of counsel; Veronica P. Hallett, on the
    brief).
    Resnick Law Group, P.C., attorneys for
    respondent (Gerald Jay Resnick, on the
    brief).
    The opinion of the court was delivered by
    GRALL, P.J.A.D.
    Plaintiffs Robert A. Klein and Lamont W. Garnes filed a
    complaint alleging that Passaic County (the County), the Passaic
    County Sheriff's Department (the PCSD) and the former Sheriff,
    Jerry Speziale, violated the Law Against Discrimination (LAD),
    N.J.S.A. 10:5-1 to -42.   Specifically, they contended that their
    employer used age as a determinative factor in identifying the
    sheriff's investigators whose employment would be terminated to
    reduce personnel costs in a budgetary crisis and those who would
    be rehired when the budget permitted.   By statute, sheriff's
    investigators serve at the pleasure of the sheriff appointing
    them and are in the unclassified service.   N.J.S.A. 40A:9-117a.
    Plaintiffs dismissed their claims against Sheriff Speziale, but
    not the PCSD, prior to trial.   They sought damages from the
    County in the amount of past and future lost wages, damages for
    emotional distress and punitive damages.
    The jury rejected plaintiffs' claims of age discrimination
    in rehiring and determined that Garnes failed to prove that the
    County and the PCSD, collectively defendants, intentionally
    discriminated against Garnes in terminating his employment.     In
    2                         A-2186-12T3
    contrast, the jury found in favor of Klein on one of his claims
    — discriminatory termination.   The jury awarded Klein $177,700
    for past wages but no punitive damages.    Following the verdict,
    the judge increased the damages award by $18,279 to account for
    taxes.   The judge also awarded Klein a $389,593.33 counsel fee
    (consisting of a $292,195 lodestar plus a $97,398.33 fee
    enhancement) plus $17,459.11 for expenses and $14,890.60 for
    pre-judgment interest.
    Defendants appeal the $617,922.04 judgment in favor of
    Klein.   Garnes does not challenge the verdict against him.
    Klein did not file a cross-appeal.
    On appeal defendants urge reversal on several grounds.
    They contend that plaintiffs, having dismissed their claim
    against the sheriff, should not have been permitted to maintain
    an action against them based on vicarious liability.   They argue
    the LAD should be interpreted as the United States Supreme Court
    interpreted the Age Discrimination in Employment Act (ADEA) in
    Gross v. FBL Financial Services, 
    557 U.S. 167
    , 
    129 S. Ct. 2343
    ,
    
    174 L. Ed. 2d 119
    (2009), and contend that Klein did not adduce
    adequate evidence to meet that standard.   They further argue
    3                          A-2186-12T3
    that the evidence was inadequate to support the verdict in favor
    of Klein.1
    Defendants also challenge the amount of the judgment.      They
    submit that even if Klein had established age discrimination, he
    could not establish damages because, as an "at will employee,"
    he had no expectation of continued employment.      In addition,
    they contend that the counsel fee award is excessive.      For the
    reasons that follow, we affirm.
    I
    Before setting forth the facts of the case, we address
    defendants' claims that present questions of law independent of
    the evidence presented at trial.      On such matters, a reviewing
    court owes no deference to the trial court's determinations and
    1
    Defendants' argument on the adequacy of the evidence includes
    a reference to the verdict being "against the weight" of the
    evidence. The record on appeal does not include the transcript
    of defendants' post-trial motion, but it appears from the notice
    of motion and the form of order defendants submitted that they
    moved for a judgment notwithstanding the verdict, R. 4:40-2, and
    remittitur, not for a new trial on liability on the ground that
    the verdict on liability was against the weight of the evidence,
    R. 4:49-1(a). We note that the judge used the form order
    defendants submitted to memorialize his denials of those two
    types of relief, and he indicated on the order that he had
    stated his findings on the record on July 13, 2012. Because we
    do not have that transcript and because a claim that the verdict
    was against the weight of the evidence cannot be raised on
    appeal if it was not raised by way of motion for a new trial in
    the trial court, R. 2:10-1, we do not address defendants' remark
    about the verdict on liability being against the weight of the
    evidence.
    4                          A-2186-12T3
    decides the question de novo.   State v. Coles, 
    218 N.J. 322
    , 342
    (2014).
    A.
    Defendants argue that plaintiffs should not have been
    permitted to maintain this action following their dismissal of
    their claims against the sheriff.    They contend that because
    sheriff's investigators serve at the pleasure of the county
    sheriff, who is a constitutional officer with the exclusive
    statutory authority to hire and fire sheriff's investigators,
    the County cannot be held vicariously liable even if the sheriff
    unlawfully and intentionally terminated plaintiffs' employment
    because of their age.
    The Federal Court of Appeals for the Third Circuit,
    applying New Jersey law, rejected a claim similar to defendants'
    in Coleman v. Kaye, 
    87 F.3d 1491
    , 1495 (3d Cir. 1996), cert.
    denied, 
    519 U.S. 1084
    , 
    117 S. Ct. 754
    , 
    136 L. Ed. 2d 691
    (1997),
    a case in which a county argued that it could not be held
    vicariously liable for the county prosecutor's violation of the
    LAD in deciding whether to promote one of his investigators.
    Coleman is instructive because county prosecutors and county
    sheriffs both have exclusive authority to hire and terminate
    5                           A-2186-12T3
    their investigators.    
    Id. at 1502;
    see N.J.S.A. 2A:157-10;
    N.J.S.A. 40A:9-117a.2
    In Coleman, the "district court found that the County of
    Monmouth could not be held liable under the New Jersey LAD
    premised upon a theory of respondeat superior for the actions
    of" the county prosecutor, because "there was no master/servant
    relationship between the County of Monmouth and" its prosecutor.
    
    Id. at 1496.
       The Third Circuit, applying New Jersey law,
    reversed that determination.
    Applying New Jersey law, the Court of Appeals determined
    that the prosecutor "was acting as a local, county official when
    he denied [the plaintiff's] applications for promotion," and
    held "that the discriminatory acts of [the prosecutor] and his
    subordinates may be imputed to the County of Monmouth since [the
    prosecutor] was the final policymaking authority acting on
    behalf of Monmouth County in the prosecutor's office."    
    Id. at 1506.
    We see no basis for reaching a different conclusion in
    this case.    For all practical and pertinent purposes, a county
    sheriff's and a county prosecutor's statutory authority over
    employment decisions involving investigators is the same,
    2
    Both county prosecutors and county sheriffs have terms fixed
    in the constitution. N.J. Const. art. VII, § II, ¶¶ 1 & 2.
    6                            A-2186-12T3
    exclusive and independent of the county.   Moreover, the New
    Jersey Supreme Court has followed the reasoning in Coleman twice
    — most recently in Lavezzi v. State, 
    219 N.J. 163
    (2014), and a
    decade earlier in Wright v. State, 
    169 N.J. 422
    , 441-42 (2001).
    We recognize that Lavezzi, Wright and Coleman all involved
    a separate question of the State's vicarious liability in
    matters related to law enforcement that is not at issue here,
    but our Supreme Court has agreed with the Third Circuit that a
    county prosecutor performs his or her administrative functions
    "'on behalf of the county.'"   
    Lavezzi, supra
    , 219 N.J. at 175
    (quoting 
    Coleman, supra
    , 87 F.3d at 1499); accord 
    Wright, supra
    ,
    169 N.J. at 442.   And, in discussing Coleman and decisions of
    our courts, the Supreme Court has concluded that a county
    prosecutor's "liability derived from the prosecutor's
    administrative functions . . . is deemed to be the county's
    responsibility."   
    Lavezzi, supra
    , 219 N.J. at 178.
    On the foregoing authority, we conclude that neither the
    exclusivity of the sheriff's authority over employment of
    sheriff's investigators nor plaintiffs' dismissal of their
    claims against the sheriff himself had any bearing on the
    County's liability for any violation of the LAD by the PCSD
    through the conduct of the sheriff's subordinates who terminated
    7                           A-2186-12T3
    plaintiffs' employment.    The liability of the sheriff's
    subordinate employees may be imputed to the County.
    B.
    Defendants also argue that the United States Supreme
    Court's interpretation of the ADEA, 81 Stat. 602, as amended 29
    U.S.C. §§ 621 to 634, in 
    Gross, supra
    , 557 U.S. at 
    173-79, 129 S. Ct. at 2348-52
    , 174 L. Ed. 2d at 126-30, requires a special
    interpretation of the LAD where discrimination based on age is
    alleged.    Both statutes require a plaintiff to prove that an
    adverse employment action was taken "because of" the plaintiff's
    age.   29 U.S.C. § 623(a)(1); N.J.S.A. 10:5-12(a).
    The Court's decision in Gross rests on its interpretation
    of the plain language of the ADEA which prohibits employment
    discrimination "because of [the] individual's age,"
    29 U.S.C. § 623(a)(1).    The Court determined that "the ordinary
    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."    
    Id. at 176,
    129 S. Ct. at 
    2350, 174 L. Ed. 2d at 128
    .    As defendants in this case correctly note,
    the LAD also makes it unlawful "[f]or an employer, because of
    the . . . age . . . of any individual . . . to refuse to hire or
    employ or to bar or to discharge or require to retire, unless
    8                            A-2186-12T3
    justified by lawful considerations other than" age.   N.J.S.A.
    10:5-12a.
    In Gross, the Court cited its decision in Hazen Paper Co.
    v. Biggins, 
    507 U.S. 604
    , 610, 
    113 S. Ct. 1701
    , 1706, 
    123 L. Ed. 2d
    338, 347 (1993), a case based on disparate treatment
    attributable to age.    The Court described Hazen Paper Co. as
    holding that such a claim "cannot succeed unless the employee's
    protected trait actually played a role in [the employer's
    decision making] process and had a determinative influence on
    the outcome."   
    Gross, supra
    , 557 U.S. at 
    176, 129 S. Ct. at 2350
    , 174 L. Ed. 2d at 128.
    We discern no significant difference between the Court's
    description of the essential showing in Gross, and our Supreme
    Court's description of what a plaintiff must prove to establish
    a claim of age discrimination in employment under the LAD.
    Under New Jersey law, "an employee must 'show that the
    prohibited consideration[, age,] played a role in the decision
    making process and that it had a determinative influence on the
    outcome of that process.'"    Bergen Commercial Bank v. Sisler,
    
    157 N.J. 188
    , 207 (1999) (quoting Maiorino v. Schering-Plough
    Corp., 
    302 N.J. Super. 323
    , 344 (App. Div.) (quoting Miller v.
    CIGNA Corp., 
    47 F.3d 586
    , 597 (3d Cir. 1995)), certif. denied,
    
    152 N.J. 189
    (1997)).
    9                          A-2186-12T3
    "Although the discrimination must be intentional, an
    employee may attempt to prove employment discrimination by using
    either direct or circumstantial evidence."   
    Id. at 208
    (internal
    citation omitted); see O'Brien v. Telcordia Technologies, Inc.,
    
    420 N.J. Super. 256
    , 262 (App. Div. 2011) (noting that a
    "plaintiff must present either circumstantial or direct evidence
    of age discrimination").   Pursuant to Gross, "the burden of
    persuasion necessary to establish employer liability is the same
    in alleged mixed-motives cases as in any other ADEA disparate-
    treatment action.   A plaintiff must prove by a preponderance of
    the evidence (which may be direct or circumstantial) that age
    was the 'but-for' cause of the challenged employer 
    decision." 557 U.S. at 177-78
    , 129 S. Ct. at 
    2351, 174 L. Ed. 2d at 129
    .
    And as previously noted, the showing required is that "the
    plaintiff's age must have 'actually played a role in [the
    employer's decision making] process and had a determinative
    influence on the outcome.'"   Reeves v. Sanderson Plumbing
    Prods., 
    530 U.S. 133
    , 141, 
    120 S. Ct. 2097
    , 2105, 
    147 L. Ed. 2d 105
    , 116 (2000) (quoting Hazen Paper 
    Co., supra
    , 507 U.S. at
    
    610, 113 S. Ct. at 1706
    , 
    123 L. Ed. 2d
    at 347); accord 
    Gross, supra
    , 557 U.S. at 
    177-78, 129 S. Ct. at 2351
    , 174 L. Ed. 2d at
    129 (citing Reeves).
    10                           A-2186-12T3
    The Court's decision in Gross raises a separate issue about
    proof of age discrimination claims that is not implicated in
    this case.    In Gross, based on differences in the language
    Congress used in the ADEA and Title VII, the Court held that the
    shift in burden of persuasion to the defendant in a mixed-motive
    discrimination case under Title VII of the Civil Rights Act of
    1964 described in Price Waterhouse v. Hopkins, 
    490 U.S. 228
    , 
    109 S. Ct. 1775
    , 
    104 L. Ed. 2d 268
    (1989), has no application in an
    ADEA case.    There is no reason for us to consider whether our
    courts should or would follow that aspect of Gross in addressing
    age discrimination claims under the LAD because the trial court
    did not give this jury an instruction on the shifting burden of
    persuasion.   As we did in O'Brien v. Telecordia Technologies,
    Inc., we leave that "thorny" question for a case in which it is
    necessary to decide 
    it. 420 N.J. Super. at 270
    ; see McDevitt v.
    Bill Good Builders, Inc., 
    175 N.J. 519
    (2003) (discussing Price
    Waterhouse in a case with a claim based on the ADEA).
    It is worth noting, however, that the Court's decision in
    Gross casts no significant doubt on the applicability of the
    burden of production framework of McDonnell Douglas Corp. v.
    Green, 
    411 U.S. 792
    , 
    93 S. Ct. 1817
    , 
    36 L. Ed. 2d 668
    (1973), to
    claims of age discrimination under the LAD.   Defendants do not
    argue otherwise.   In Gross, the Court consistently and
    11                        A-2186-12T3
    unambiguously disapproved a shift of the "burden of persuasion."
    See Smith v. City of Allentown, 
    589 F.3d 684
    , 691 (3d Cir. 2009)
    (concluding that its prior decisions applying the McDonnell
    Douglas framework, which shifts only the burden of production,
    to ADEA claims were not irreconcilable with Gross and following
    its precedent).    Our courts have applied the McDonnell Douglas
    framework to age discrimination claims under the ADEA and the
    LAD.   
    McDevitt, supra
    , 175 N.J. at 523 (ADEA); 
    Sisler, supra
    ,
    157 N.J. at 209-13 (LAD).    The Court recently stated, "All LAD
    claims are evaluated in accordance with the United States
    Supreme Court's burden-shifting mechanism."    Battaglia v. United
    Parcel Serv., Inc., 
    214 N.J. 518
    , 546 (2013) (citing McDonnell
    
    Douglas, supra
    , 411 U.S. at 
    802-04, 93 S. Ct. at 1824-25
    , 36 L.
    Ed. 2d at 677-79).
    Based on the foregoing, we conclude that Gross has no
    impact on our review of the adequacy of evidence supporting the
    jury's verdict in favor of Klein.
    C.
    Defendants also claim that Klein is not entitled to damages
    because, as an "at will" employee, he had no expectation of
    continued employment.    That claim has insufficient merit to
    warrant any discussion beyond the brief remarks that follow.       R.
    2:11-3(e)(1)(E).    The LAD prohibits an employer from basing "any
    12                         A-2186-12T3
    employment decisions on discriminatory reasons."      Nini v. Mercer
    Cnty. Cmty. Coll., 
    202 N.J. 98
    , 107 (2010).   "'[T]he overarching
    goal' of the LAD, reflecting the clear public policy of this
    State, '"is nothing less than the eradication 'of the cancer of
    discrimination'"' in the workplace."   
    Sisler, supra
    , 157 N.J. at
    199 (quoting Fuchilla v. Layman, 
    109 N.J. 319
    , 334 (quoting
    Jackson v. Concord Co., 
    54 N.J. 113
    , 124 (1969)), cert. denied,
    
    488 U.S. 826
    , 
    109 S. Ct. 75
    , 
    102 L. Ed. 2d 51
    (1988)).      It
    provides a remedy for violation of civil rights that is
    independent of private or public contract.    
    Ibid. Accordingly, relief is
    not dependent upon a contractual right or any
    expectation other than freedom from unlawful discrimination.
    Having addressed these foregoing preliminary legal
    questions, we turn to address the evidence.
    II
    This controversy was born of a budget crisis.      In 2007, the
    Freeholders for Passaic County informed the sheriff that the
    PCSD budget would be cut significantly.   Although the projected
    reduction in PCSD's budget varied between the initial disclosure
    and the development of PCSD's plan to address it, cuts as high
    as thirty percent — $20 to $12 million of a $70,000,000 budget —
    were forecast.   Because ninety percent of the PCSD's budget was
    spent on personnel, the PCSD considered a reduction in force.
    13                           A-2186-12T3
    The sheriff assigned Charles Myers, Director of
    Administration, to develop and implement a plan.   Myers
    explained that he had no "selection criteria" for identifying
    sheriff's investigators for removal but that his recommendations
    were "[m]ore or less based on the staffing needs of the agency
    and the need to cut a certain amount from the budget."     In his
    words, "[i]t was a constant balancing act between what do we
    need, what can we cut, and where are we at with the number at
    this point."   Myers did not recall why Garnes and Klein were on
    the list of investigators whose service would be terminated
    while others in the same position were not, but he did recall
    that seniority played no role in his decision and that the need
    to "meet a certain number" — the amount that had to be cut and
    the minimum staffing levels required — did play a role.    Myers,
    however, did not know what Klein's assignment as a sheriff's
    investigator was.   Further, he explained that the duties a
    particular sheriff's investigator was then performing "[b]ore no
    relevance to the layoffs."   He looked at the cost of having the
    investigator work — a matter of salary, pension and social
    security contributions.
    Using Garnes as an example, Myers explained: "I don't
    recall how we may have selected him out [of] the group of 25
    other investigators.   But that's just what worked.   The final
    14                          A-2186-12T3
    list was the final list."    Myers also recalled that the first
    investigator he placed on the removal list was his stepson, a
    man much younger than Garnes and Klein.3
    At trial, Myers testified that he did a staffing levels
    study that consisted of identifying the number of officers or
    investigators needed in the corrections positions and court
    positions.    In addition, he made decisions about sheriff's
    investigators based on N.J.S.A. 40A:9-117a, which limits the
    number of appointments to those unclassified positions to no
    more than fifteen percent of the total number of officers
    employed.    According to Meyers, to meet the statutory limit and
    the overall reduction in personnel costs, eight investigators
    had to be removed.
    Myers explained that the reduction in staff was
    necessitated by the cuts to the PCSD's budget and done for the
    purposes of efficiency and economy.    He noted that there was an
    additional cost savings when sheriff's investigators, as opposed
    to sheriff's officers, were removed.    Myers explained that
    because the investigators serve at the pleasure of the sheriff
    and do not have civil service protections enjoyed by other
    officers, they can be laid off more promptly than their
    3
    Myers disclosed the information in the text during his
    deposition, and plaintiffs' attorney presented selected portions
    of the deposition transcript as part of plaintiffs' case.
    15                         A-2186-12T3
    colleagues who have civil service protection and must be laid
    off in conformity with a civil process that can take as long as
    ninety days.   For that reason, the PCSD discontinued the service
    of sheriff's investigators so that its budget could be reduced
    by the cost of keeping the employee as early as January 1, 2008.
    Although the sheriff had met with his investigators and
    warned of the budget cut and the staff reductions earlier,
    formal notice was first sent to Klein and Garnes on December 10,
    2007.   The notices were given by memo from the sheriff.    The
    memos advised the recipient that for "reasons of economy and
    efficiency," he would be "separated from duty effective January
    1, 2008."   The memo did not mention any reemployment
    opportunities within the PCSD, but it did advise the
    investigators of their ability to apply for civil service
    positions in other jurisdictions pursuant to N.J.S.A. 40A:14-180
    and offer assistance to them in that endeavor.
    Klein and Garnes were two of eight investigators separated
    from employment effective January 1, 2008.   There was no
    evidence that either of these investigators was tendering
    substandard or less than quality performance.
    Garnes, born in November, was forty-nine years old on
    January 1, 2008.   He had worked as a PCSD sheriff's investigator
    since his initial appointment in 1990.   Among the investigators
    16                          A-2186-12T3
    employed by the PCSD in December 2007, Garnes was one of the
    highest paid.   According to information provided by the PCSD
    listing base salary and total earnings as of September 28, 2007,
    Garnes's salary was $79,568 and with longevity and a stipend for
    education he had been paid $89,025.   Garnes did not claim to
    have earned less.    Indeed, at trial he testified that his
    earnings in 2006 and 2007 respectively, were $101,331.45 and
    $94,584.95.
    Klein was older than Garnes, and his earnings were lower.
    Klein, appointed in December 2003, was fifty-seven years old by
    January 1, 2008.    His base salary was $60,561 in 2007, and the
    PCSD records do not reflect that he had any additional earnings
    as of September 28, 2007.
    The ages and salaries of the other six investigators whose
    service was discontinued effective January 1, 2008 were as
    follows4: a fifty-nine year old with a base salary of $79,568; a
    twenty-seven year old with a base salary of $46,739 and earnings
    of $52,913; a thirty-six year old with a base salary of $46,739;
    a thirty-six year old with a base salary of $46,739 and earnings
    of $48,239; a twenty-six year old with a base salary of $66,284
    4
    In stating the age of these investigators we have been less
    than precise, in that we have used the age each would be as of
    December 31, 2008. The earnings stated are based on information
    provided by the PCSD that purports to state earnings as of
    September 28, 2007.
    17                           A-2186-12T3
    and total earnings of $69,817; and a twenty-five year old with a
    base salary of $46,739.
    At trial, defendants relied upon the mixed ages of this
    group of eight investigators and their asserted purposes of
    efficiency and economy to defeat Garnes' and Klein's allegations
    of age discrimination.    The jurors determined that Garnes, who
    was ten years younger than and paid more than the eldest
    investigator discharged who had the same base salary, failed to
    prove that he was terminated because of his age.   As previously
    noted, Garnes did not appeal.
    The jurors reached a different conclusion with respect to
    Klein.   Klein was several years older than Garnes — fifty-seven
    — and earned less than Garnes — $60,561.    The only investigator
    working at the time older than Klein was the fifty-nine year old
    whose base salary was $79,568 and whose service was discontinued
    with Klein's, effective January 1, 2008.
    Several investigators younger than Klein and with base
    salaries and earnings as high or higher than his on September
    28, 2007, continued their employment as investigators beyond
    January 1, 2008.   Identified by the age they would reach by
    December 2008 and stating their earnings as of September 28,
    2007, they include: a thirty-six year old earning $60,561, whose
    employment was discontinued in December 2010; a thirty-one year
    18                        A-2186-12T3
    old earning $89,116, whose employment was discontinued in March
    2009; a forty-nine year old earning $92,208, whose employment
    was discontinued in March 2008; a thirty-six year old earning
    $84,342, whose employment was discontinued in March 2008; a
    forty-three year old earning $66,264, whose employment was
    discontinued in March 2008; a forty-six year old earning
    $66,264, whose employment was discontinued in April 2010; and a
    forty-six year old earning $72,890, whose employment was
    discontinued in March 2008.
    In addition, several younger sheriff's investigators with
    base salaries as high or higher than Klein's were still employed
    as sheriff's investigators in the PCSD at the time of trial,
    which was in May 2012.   They include5:   a thirty-eight year old
    investigator in 2008 earning $88,229; a twenty-eight year old in
    2008 earning $60,561; a thirty-nine year old in 2008 earning
    $72,890; a thirty-nine year old in 2008 earning $62,061; and a
    thirty-three year old in 2008 earning $72,890.
    In addition to the foregoing, there is evidence that
    numerous sheriff's investigators, all of them younger than
    Klein, were hired from January 1, 2008 through December 23,
    5
    Once again, in stating the age of these investigators we have
    been less than precise, in that we have used the age each would
    be as of December 31, 2008. The earnings stated are based on
    information provided by the PCSD that purports to state earnings
    as of September 28, 2007.
    19                         A-2186-12T3
    2009.    During that period, eleven sheriff's investigators who
    were younger than Klein was on January 1, 2008 were appointed as
    sheriff's investigators.
    Neither plaintiff presented any direct evidence of
    discrimination based on age.
    As previously noted, to establish a claim of age
    discrimination in employment under the LAD, "an employee must
    'show that the prohibited consideration[, age,] played a role in
    the decision making process and that it had a determinative
    influence on the outcome of that process.'"     
    Sisler, supra
    , 157
    N.J. at 207 (quoting 
    Maiorino, supra
    , 302 N.J. Super. at 344
    (quoting 
    Miller, supra
    , 47 F.3d at 597)).      Proof by a
    preponderance of the evidence is required.      
    Id. at 210.
    Where, as here, a claim of age discrimination is supported
    only by circumstantial evidence, the evidence is assessed under
    the McDonnell Douglas framework.      
    Id. at 209.
      If the plaintiff
    establishes a prima facie case, a presumption of unlawful
    discrimination arises.    
    Id. at 210.
      The employer may obliterate
    that presumption "with admissible evidence of a legitimate, non-
    discriminatory reason" for taking the employment action at
    issue.   
    Ibid. At that point,
    the employee has an opportunity to
    prove that the employer's asserted reason for the action is not
    20                           A-2186-12T3
    true and is merely a pretext for discriminating among employees
    on an impermissible basis.    
    Id. at 211.
    The elements of a LAD plaintiff's prima facie case vary
    depending upon the discrimination alleged and the employment
    action taken.   The McDonnell Douglas framework as stated by our
    Supreme Court in Andersen v. Exxon Co., U.S.A., 
    89 N.J. 483
    , 492
    (1982), a case involving discriminatory hiring, is as follows:
    The plaintiff must demonstrate by a
    preponderance of the evidence that he or she
    (1) belongs to a protected class, (2)
    applied and was qualified for a position for
    which the employer was seeking applicants,
    (3) was rejected despite adequate
    qualifications, and (4) after rejection the
    position remained open and the employer
    continued to seek applications for persons
    of plaintiff's 
    qualifications. 411 U.S. at 802
    , 93 S. Ct. at 
    1824, 36 L. Ed. 2d at 677
             (footnote omitted).
    Modification to address the circumstances of the particular
    case is obviously required.   Thus, where the plaintiff complains
    of a discharge, evidence of qualification and discharge suffices
    to establish the third element.    
    Sisler, supra
    , 157 N.J. at 212.
    And evidence of replacement efforts may substitute for evidence
    of continued efforts to fill a vacant position.    Erickson v.
    Marsh & McLennan Co., 
    117 N.J. 539
    , 551 (1990).    Similarly,
    where the allegation is discrimination based on age under the
    LAD, which, unlike the ADEA that protects only those over forty,
    does not limit the protection to persons who have reached a
    21                       A-2186-12T3
    certain age, evidence of membership in a specified age group is
    not required.   See 
    Sisler, supra
    , 157 N.J. at 212-14 (noting the
    need for refocusing the first and fourth elements that hinge
    respectively on membership and non-membership in a protected
    class).   Instead, the third and fourth elements can be shown by
    evidence giving rise to an inference that an older employee has
    been treated less favorably than his or her younger
    counterparts.   
    Sisler, supra
    , 157 N.J. at 212-13, 217-18.
    In the context of an age discrimination claim based on a
    reduction in force, the Third Circuit described the prima facie
    case as follows:   "To establish a prima facie case under the
    McDonnell Douglas/Burdine pretext framework in a RIF case, the
    plaintiff must show he was in the protected class, he was
    qualified, he was laid off and other unprotected workers were
    retained."    Armbruster v. Unisys Corp., 
    32 F.3d 768
    , 777 (3d
    Cir. 1994).   Adapting that case to account for the fact that the
    LAD does not identify a protected age group, we conclude that
    Klein, a fifty-seven year old and of an age sufficient to
    warrant an inference that his age was relevant, had to show that
    he was laid off while other younger employees earning as much or
    more than he were carried.   See Murray v. Newark Hous. Auth.,
    
    311 N.J. Super. 163
    , 172-74 (Law Div. 1998) (restating the prima
    facie case articulated in Armbruster).   Judge Payne's reasoning
    22                          A-2186-12T3
    in Murray was cited with approval by our Supreme Court in
    
    Sisler. 157 N.J. at 201
    , 210, 211, 217.
    In this regard, it is important to note that the reasons
    the employer offers for selections of employees to be among
    those let go in a reduction in force are pertinent to an
    evaluation of the plaintiff's proofs of age discrimination in
    that context.   "An employee may meet this burden either by
    persuading the court 'directly "that a discriminatory reason
    more likely motivated the employer or indirectly by showing that
    the employer's proffered explanation is unworthy of credence."'"
    
    Sisler, supra
    , 157 N.J. at 211 (quoting 
    Murray, supra
    , 311 N.J.
    Super. at 173 (quoting Texas Dep't of Cmty. Affairs v. Burdine,
    
    450 U.S. 248
    , 256, 
    101 S. Ct. 1089
    , 1095, 
    67 L. Ed. 2d 207
    , 217
    (1981))).
    Klein clearly made the essential prima facie showing and
    overcame the evidence defendants offered to prove that Klein was
    selected to be among the investigators terminated for reasons of
    economy and efficiency.   The evidence showing that younger and
    higher paid investigators who also served at will were retained
    gave rise to a reasonable inference that the reasons the PCSD
    asserted for terminating him were simply a pretext for the
    employer's preference to retain younger investigators.     There is
    no question that defendants established a budget crisis
    23                          A-2186-12T3
    requiring terminations, but they did not establish a
    justification for addressing that budget crisis by leaving
    investigators who were younger and higher paid on the job while
    terminating Klein who was older and paid less.
    Accepting "as true all evidence supporting" Klein's claim
    and according him "the benefit of all legitimate inferences
    which can be deduced [from the evidence]," we cannot conclude
    that defendants were entitled to a judgment notwithstanding the
    verdict.   Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l
    Sch. Dist., 
    201 N.J. 544
    , 572 (2010).     Accordingly, we affirm.
    III
    A trial judge's fee determinations are "disturbed only on
    the rarest occasions, and then only because of a clear abuse of
    discretion."    Rendine v. Pantzer, 
    141 N.J. 292
    , 317 (1995).      We
    have considered the record and the findings and reasons for the
    award the judge placed on the record on September 14, 2012, in
    light of that deferential standard of review.     In the end, we
    have determined that no argument defendants raise to establish
    that this award is excessive has sufficient merit to warrant
    discussion in a written opinion.      R. 2:11-3(e)(1)(E).
    Affirmed.
    24                         A-2186-12T3