McKenna v. Pacific Rail Service

Furthermore, parties’ rights obligations automobile. should not privately used be procedural application policy did not address determined than under rather duty notify application. matters such as the insured’s injury an company when there was likely coverage to involve under occurrence III. CONCLUSION Thus, policy. application Nathan merely signed Rubin was a binder which aforesaid, In view of the we will affirm the contemplated the terms and conditions February order of coverage appear would of the insurance policy. Terry Mongin the actual Ins.

Agency, 314 N.W.2d 105 Wis.2d

(1982); Helicopter Enstrom Di Santo v. (E.D.Pa.1980)

Corp., F.Supp.

(“final policy may lengthy, containing limi-

tations, conditions, and exclusions which can- (or message

not in a telex be stated short

memorandum)”). hasten to add two caveats to our con-

We incomplete application

clusion that the could First, trump policy. the terms of the McKENNA; Greg Spina; Peter Jack Ric court, recognize, as did the district that the ciardi; Oliver; Hennessey; John Andrew argument stronger Rubins’ would have been Armetta; Cohen; Quaid; Al Pincus Dave if the accident had occurred before the first Lukasweski; Harper; Adam William policy had been issued. Collister v. Na- Cf. Lindh; Gugliotta; Dorrance A. John tionwide Ins. 479 Pa. Life George Whitehead; Shea; Anthony John (1978) (when applied insured for life Nazare; Tighe; Robert Dennis McCar paid premium insurance and two thy; Montacalvo; Richard Jeanette during months advance and was killed McCafferty; George Martin; Ralph Fer period company policy, issued before there nandez; Noethe; Burwitz; Paul Patricia coverage though even insured had not Demone; Dechert; Michael Eddie Salva required by medical examination obtained Petruzzelli; Phyllis Lindh; Joseph tore application receipt and the for it before Pfeil, K. effective), denied, coverage was to be cert. 439 U.S. 99 S.Ct. 59 L.Ed.2d 55 (1979). Here, however, policy was issued SERVICE, RAIL PACIFIC and then renewed three times before the accident. Therefore Nathan Rubin had an Service, Appellant Pacific Rail adequate opportunity to read the terms and Nos. 93-5253 and 93-5385. Second, policy. conditions of the the exclu sion vary express did not an term of the Thus,

application. permanent policy McKENNA; Greg Spina; did Peter Jack Ric required ciardi; Oliver; Hennessey; increase the limits for the un John Andrew derlying coverage specified Armetta; Cohen; Quaid; over those in the Al Pincus Dave application. Consequently, Lukasweski; Harper; Nathan Rubin Adam William reasonably say applied Lindh; cannot that he Gugliotta; for one Dorrance A. John thing something George Whitehead; Shea; but received else.2 In Anthony these John circumstances, Nazare; why Tighe; there is no reason Robert Dennis McCar following Act, 2. The Rubins make the additional ar- Insurance Practices 40 Pa. Cons.Stat.Ann. guments: policy 1171.5(a)(l)(i), (2) (10)(vi); § is unconscionable un- and Electric Brady, der WorldwideUnderwritersIns. Co. v. violated the Unfair Trade Practices and Consum- 192; Law, contrary F.2d Electric acted in bad faith § er Protection Pa. Stat.Ann. tit. 42 Pa. (Supp.1994); § Cons.Stat.Ann. 8371 Elec- We have examined these contentions tric violated additional sections of the Unfair and find them without merit. Montacalvo; Jeanette thy; Richard Martin; Ralph Fer

McCafferty; George Burwitz; Noethe; Patricia

nandez; Paul Dechert; Demone; Salva Eddie

Michael Lindh; Joseph K. Petruzzelli; Phyllis tore

Pfeil, SERVICE,

PACIFIC RAIL Greg Spina; Ric McKenna; Jack

Peter Hennessey; Oliver; Andrew ciardi; John Quaid; Cohen; Armetta; Dave Pincus

Al Harper; Lukasweski; William Adam Gugliotta; Lindh; John A. Dorrance Anthony Shea; Whitehead;

George John Tighe;

Nazare; Dennis McCar Robert Montacalvo; Jeanette

thy; Richard Martin; Ralph George Fer

McCafferty; Burwitz; Noethe;

nandez; Patricia Paul Dechert; Demone; Salva Eddie

Michael Lindh; Joseph Phyllis Petruzzelli;

tore 93- Pfeil, Appellants Nos. 93-5277 and

K.

5386. 93-5277, 93-5253, 93-

Nos. and 93-5386. Appeals, States Court

United Circuit.

Third 10, 1994.

Argued March Aug.

Decided Aug.

As Amended 27, 1994. Rehearing Sept. Petition

Sur Littler, Meade, Roger D. Kyle, W. John Mathiason, Bal- Fastiff, Tiehy,

Mendelson, & (argued), Litt- timore, MD, Gary P. Scholick Mathiason, Fastiff, Tichy, Mendelson, ler, & Francisco, appellant/eross-appel- CA San lee, Rail Service. Pacific Kennedy Nikolaidis, M. Thomas D. Louie Lewis, Greenwald, Kennedy, Lewis, (argued), NJ, Rutherford, Schwartz, East & Clifton McKenna, Spina, appellees/cross-appellants, Armetta, Oliver, Hennessey, Co- Ricciardi, Lukasweski, hen, Lindh, Quaid, Harper, contract, ie Rail Bergen won the North effec- Whitehead, Shea, Nazare, Gugliotta, Tighe, September tive Montacalvo, Martin, McCarthy, McCafferty, Upon learning that PTL had lost Burwitz, Fernandez, Noethe, Demone, Dec- contract, Bergen North PTL employees at Petruzzelli, Lindh, hert, and Pfeil. Bergen the North terminal became interest- in working ed for Pacific Rail at that site. LEWIS, MANSMANN and Before Circuit Pacific representatives trial, Rail testified at McKELVIE, Judges, Judge.* District however, bid, that even submitting before its Pacific Rail had simply decided hire all THE COURT OPINION OF Bergen yard and clerical PTL/North “wholesale,” workers LEWIS, because Judge. Pacific Rail Circuit was concerned about the attitudes and work Appellees/cross-appellants are 23 of 28 for habits of some of the workers.1 yard employees Pennsyl mer and clerical Instead, (“PTL”) upon Lines, winning Bergen the North vania Truck Inc. who assert contract, apparently Pacific Rail appellant/cross-appellee ed that undertook Pacific Rail (“Pacific Rail”) three-step hiring process. First, Pacific Rail engaged age Services dis positions offered employees to its crimination in own of the New violation Elizabeth, (the “LAD”) Jersey (“E-Rail”) Conrail’s New Against Law Discrimination by terminal “promote on a failing theory. from within” to hire them in 1990. Since the trial (Pay Bergen rates at higher North were Supreme this the United States than E-Rail, at so a Bergen move to North Court has issued clarifying a decision was effectively promotion, according by to Pa- employment standards which federal dis cific representatives.) Rail Testimony judged. crimination cases to be indi- are St. — cated that Hicks, yard one of the six Mary’s U.S. -, and Honor Ctr. v. clerical employees 2742, transferred from 113 E-Rail on S.Ct. 125 L.Ed.2d 407 Be basis was over 40 years old. cause we believe the New adopt Court would Hicks’s clarification of Pacific Rail next employment offered applied test to be in federal discrimina three Conrail clerks employees and two PTL LAD, tion in interpreting eases we will nearby from the terminal at Conrail/PTL judgment vacate the that was entered and Kearny, Jersey. The three Conrail of- remand for a new trial. To assist the district (only ferees accepted two of whom their of- remand, court on we will also decide several fers) were over 40. The two PTL offerees subsidiary relating issues to individual claims (both of whom accepted) were under 40. plaintiffs. and Finally, Pacific all applicants Rail hired 11 referred the union represented local that

I. yard and employees clerical at E-Rail. Of Because our legal these, resolution issues one was over 40. require trial, will a new it is not necessary to 1, As of September only a limited number discuss the facts in great detail. The follow- positions in North Bergen open. remained ing, however, provides background some apparently Pacific Rail employment offered dispute. to two former Bergen yard em- PTL/North 1960, Beginning in performed PTL op- lift ployees 40, who were over but both refused loading unloading freight and from the offer. Then a supervisor former PTL erations —

flat bed railroad cars —for Consolidated working Rail for Pacific Rail recommended for (“Conrail”) Corporation Bergen, at its North hire four former Bergen yard PTL/North Jersey, July, In terminal. employees, howev- two of whom were in their 20s er, Conrail, after solicitation of bids Pacif- and two of whom were over 40. Pacific Rail * McKelvie, Honorable Roderick R. United disputed States Plaintiffs at trial sincerity both the Delaware, Judge District for the accuracy District of Pacific Rail’s sitting concern and the of Pacific by designation. Rail’s employees characterization of the PTL Bergen. North two, sitting diversity, court younger and As federal offered was, are, obliged remaining court and we To fill a clerk district they accepted. apply two substantive law. Erie R.R. Co. v. made offers to for- state Pacific Rail position, employees, Tompkins, 304 Bergen clerical U.S. S.Ct. mer PTL/North (1938); Ultimately, L.Ed. 1188 Colantuno Aetna Ins. but both declined. over both (3d Co., Cir.1992). position, In filling the 980 F.2d so simply clerk instead of doing, impose person are not free to our own Rail transferred a who Pacific be; clerical of what state law should we are to 40 from E-Rail to assist with view over interpreted by manager. apply state law as the state’s act office as work guid In highest court. Id. the absence of summarize, September Pacif- prior To ance from court we are to refer to employees, apparently hired 21 Rail had ic appellate decisions of the state’s intermediate pool of PTL none of whom came from determining courts assistance how the Bergen. Only four of employees at North highest Syl rule. v. KDI court would Fleck years over 40 old. these 21 individuals were Pools, van 981 F.2d Cir. 1, Pacific Rail hired either September After 1992); Casualty Fisher USAA Ins. employees, at least two of three or four more (3d Cir.1992). F.2d cases whom were under PTL/North this, supreme such where neither the state Bergen one of whom was over 40 least appellate nor intermediate courts Thus, formerly of the 25 with E-Rail.2 hand, spoken to issue at our task have yard employees that the evidence and clerical even com predicting state law becomes more Pacific Rail hired to work at North showed Nevertheless, plicated. proceed we must years Bergen, either 19 or were under waters, using pro into these uncharted old. nouncements from the New Bergen yard The 28 former PTL/North analogous compass. on as our .Court issues filed this lawsuit employees and clerical who They alleged that Pacific were over A. age hire was due Rail’s failure to them of A in violation the LAD. discrimination Hicks, Supreme Court consid jury employees of of the found favor 18 28 “whether, employer against a suit an ered than and awarded them a total of more $7 alleging racial discrimination in intentional $5,743,500 ($1,448,000 pay in back million VII], the trier of fact’s [Title violation of pay). Both Pacific Rail and the 18 front rejection employer’s of the asserted reasons winners, plus five whose verdict finding for its mandates a for actions court, by the claims were dismissed district —Hicks, at-, 113 plaintiff.” U.S. S.Ct. appeal cross-appeal several issues. 2746. Under the familiar McDonnell at shifting-burden analysis Douglas applicable II. federal discrimination cases discrimination, presented involving proof of in indirect primary The issue plaintiff proving a rela predicting the burden of the delicate task of how the bears volves ease, tively simple which the interpret Court would facie legiti by articulating a employer must rebut apply the LAD the aftermath mate, non-discriminatory its reason for ac Supreme Court’s decision United States — Hicks, Chipollini Spencer generally tions. v. Mary’s Honor Ctr. v. U.S. See St. (3d Cir.1987).3 (1993). 893, -, Gifts, 814 F.2d 113 S.Ct. 125 L.Ed.2d cy purposes, Curiously, ambiguous for our as are record is somewhat immaterial remand. employees certain it will clarified on as whether three four additional September were hired after 1. Plaintiffs’ Exhibit Douglas analysis a total 10 indicates that Pacific Rail hired of was derived 3. The McDonnell Green, persons. parties agree Douglas Corp. were that 21 hired v. U.S. from McDonnell 792, (1973). prior September 1. That would leave four 36 L.Ed.2d See S.Ct. Burdine, but, Community Dept. September discussed in also Texas be hired after Affairs text, parties specifically 101 S.Ct. L.Ed.2d 207 three 450 U.S. discuss Douglas Although discrepan- itself in- employees McDonnell hired after that date. The Hicks, Prior to we had held finding that a plaintiffs bore the burden of proving that employer that a defendant had articulated they were not hired age. because of their entry false reasons judgment mandated App. See at 91-93. The court also instructed plaintiff. Chipollini, for 898; 814 F.2d at jury that in evaluating Pacific Rail’s as- Duffy Wheeling Pittsburgh Corp., Steel legitimate serted business reasons for its ac- (3d Cir.1984). 738 F.2d 1395-96 Hicks tions, they were to decide whether those changed that: the Court ruled definitively reasons were its true reasons or whether finding that a employer that an had articulat they presented “ha[d] been to hide or avoid pretextual ed a reason for its actions does reason, disclosure of the true namely: age judgment not mandate for a plaintiff. In discrimination.” App. at 94. In summariz- stead, “a reason proved cannot be to be ‘a ing charge, the court said: pretext discrimination’ it is unless shown false, both may If I recap reason was you, and that you if find that discrimination Hicks, was the real plaintiff reason.” either, one, established ... — at -, U.S. Thus, 113 S.Ct. at 2752. age a determining his/her factor “[tjhat employer’s proffered reason [for “but for” which would have he/she unpersuasive, its actions] is or even obviously hired; two, that the reasons advanced contrived, necessarily does not establish that by the defendant for hiring plaintiff plaintiffs proffered reason of race is pretext, were a a reason or reasons unwor- at -, (em- correct.” Id. 113 S.Ct. at 2756 thy credence, then plaintiff will have added). phasis In our most recent decisions established claim his/her intentional addressing issue, we have followed this age you discrimination and must return a teaching finding pretext that a lead to If, verdict in however, his/her he/ favor. a reasonable inference of discriminatory mo she has failed to establish either of those tives, but it does automatically compel a propositions, two your then verdict must finding of discrimination. See Miller v. CIG be in favor of the defendant. NA Corp., slip op. 19-20, 93-1773, No. (3d 1994); WL Cir. June App. added). (emphasis 94-95 Clearly, v. Coplay Seman Cement 26 F.3d these instructions would be an incorrect 8, 1994); Cir. June Geary v. statement of federal law after Hicks.4 Visitation Virgin Mary Blessed Par Sch., 324, (3d ish Cir.1993). 7 F.3d 329 n. 4 C. B. question, however, The is whether this LAD the district Jersey New courts would apply Hicks in jury instructed the several times that Hicks, an LAD ease.5 course, of involved the allegations volved (disparate of intentional treat 5. Rail plaintiffs Pacific contends that are es- ment) discrimination in violation of Title VII topped of arguing from that apply Hicks does not 1964, Rights the Civil Act of 2000e, § 42 U.S.C. plaintiffs because the throughout contended shifting analysis burden with which the litigation case Jersey New generally courts follow name synonymous nowis applied also has been federal in law this area. certainly Plaintiffs have cases, in section 1983 section age 1981 cases and consistently position taken the that the standards - Hicks, discrimination cases. U.S. at and allocations of applicable to federal 1, 1; --- n. 113 S.Ct. at 2746-47 n. Se Title apply VII cases involving in cases the LAD. Co., Coplay 428, man v. Cement 26 F.3d 432 n. 7 But on these say facts plaintiffs we cannot are 8, 1994); Geary Cir. June v. Visitation estopped arguing from apply. Hieles does not Sch., Virgin Mary 324, Blessed Parish 7 F.3d 329 place 1992, September, Trial took in post- (3d Cir.1993). & n. 4 trial motions were decided April, in March and 1993. June, Hides was not decided until requested jury Pacific Rail then, instruction ex- position issue, Until our on this which the plaining jury that even rejected if the follow, Pacific district court was bound to was one the Rail's unsupported rationale as by the plaintiffs evidence Jersey believed the Supreme New Court false, jury or would nevertheless still need to would also follow. The fact that the United find plaintiffs met their prov- burden of Supreme States Court has since disavowed our ing wrongful Suppl.App. discrimination. position should not foreclose the 2799. The give district court did not this instruc- arguing that New Court n tion. might nonetheless adopt approach decide to

827 Jersey New by the was intended the LAD interpreta- Supreme Court’s States United cancer dis- “the legislature eradicate statutes anti-discrimination of federal tion Co., 54 v. Jersey Jackson Concord crimination.” New Whether case law. (1969); 793, see 113, 124, the same A.2d will decide N.J. 587, Inc., Us, brought under the Toys ‘R’ N.J. apply in cases Lehmann principles (1993).6 445, New The question. 600, A.2d is another LAD generally looked has Jersey Supreme Court provides: LAD The anti- federal developed under to standards employment an unlawful be It shall construing guidance law discrimination be, unlaw- may an or, the case as practice, Lehmann, 132 N.J. the LAD. ful discrimination: New 452. The A.2d at of the because employer, an a. For framework, Douglas adopted the McDonnell ancestry, origin, color, race, creed, national has never “em- that it it has although noted status, or sexual affectional age, marital literally, test Douglas the McDonnell braced hereditary cel- orientation, atypical or sex Grigoletti v. Ortho inflexibly.” invariably, or individual, or any trait or blood lular 97-98, N.J. Corp., 118 Pharm. in the liability for service because Instead, New dr the United States Forces Armed a marked demonstrated Supreme Court has individual, refuse nationality of instructed discharge willingness, or and has or to or to bar employ hire or the McDonnell to treat general, lawful retire, justified courts unless require to general framework “only em- age, from Douglas than test other considerations claims” analyzing or to discrimination discriminate unlawful individual ployment such appropriate.” compensation or where modified individual “must be against such which Inc., of em- terms, privileges McLennan Marsh & conditions Erickson (1990); ... ployment. v. RCA Global Carrington generally see 10:5-12(a). enacted in First N.J.StatAnn. Commun., F.Supp. attempts legislative federal well before “[tjhere little (D.N.J.1991) (noting that workplace, in the discrimination to eliminate necessary to law or otherwise quired federal circuit before in this VII cases in Title taken interest. promote the national Hicks. opposi- its Legislature further declares The ... of discrimination practices to such tion provided: Jersey legislature has 6. The general prosperity the economic order that opportunity to obtain have the State persons shall All of the inhabitants welfare be- discrimination without ... protected ensured. creed, color, origin, race, national that because Legislature further finds cause of status, discrimination, personal or sex- hard- age, people affectional ancestry, marital suffer sex, status, subject orientation, grievous harm. suffers familial the State ships, and ual applicable economic hardships include: personal limitations only conditions and to The stress; loss; recog- opportunity loss; physical is emotional and persons. to This time alike all trauma, right. emotional be a civil severe cases declared in some nized and and illness, irreparable clearly stated the or other It has 10:5-4. homelessness NJ.Stat.Ann. employment statute itself: of resulting the strain within the LAD behind harm controversies; intent relocation, moving prac- and that search declares and Legislature finds difficulties; by anxiety lack of informa- against of its inhab- caused tices of discrimination color, race, creed, planning diffi- tion, itants, uncertainty, national and resultant of because education, career, dis- sex, family social and or sexual age, culty; ancestry, affectional origin, orientation, status, problems, which status, adjustment lia- ruptions; familial and marital by this protected impact on of the those particularly Armed Forces bility in the for service have, the common under States, of harms nationality, are matters act. Such United remedies, including State, law, legal given and rise government of the to the concern damages. The punitive compensatory and threatens discrimination that such damages avail- be that such Legislature intends inhabitants privileges of the proper rights and this act protected persons to all able the institutions menaces the State but of in liberally construed State; provid- that this act shall free democratic of a foundation available protections with other expression however, combination ed, nothing this of that of this State. the laws under legitimate dis- making of policy prevents the 10:5-3. NJ.Stat.Ann. re- when and aliens citizens between tinctions Jersey reason to New believe that courts will Jersey admonished New courts to construe exhibit slavish devotion to provisions federal law in the of the LAD “fairly justly NJLAD”). interpreting the regard with due to the par- interests of all ties,” 10:5-27, N.J.Stat.Ann. as the New Jer- Thus, Jersey Supreme the New Court has sey Supreme recognized Court itself in An- apply refused Douglas McDonnell dersen v. Exxon 89 N.J. in LAD cases alleging gender framework (1982). A.2d together, Read these discrimination in the form unequal of pay, admonitions are not inconsistent with one Grigoletti, supra; modified the elements of another significant and are both to and in- Douglas prima the McDonnell ease facie structive in our guidance. search As we the context of reverse discrimination failure- explain below, more fully because cases, Erickson, the New supra; to-hire and shifted to Jersey legislature protect intended to employers proving of validity burden compensate victims of discrimination but not handicap their decisions some discrimi- to relieve them of the burden proving nation Super cases. Jansen Food Circus discrimination, unlawful markets, and because 110 N.J. 541 A.2d 682 Jersey New regarding rule presumptions Rockaway See also Jamison v. Twp. parallels the federal rule on presumptions of Educ., N.J.Super. 445-47, Bd. upon which the Hicks (1990) based its deci- (establishing a variation sion, predict that Jersey the New Su- Douglas the McDonnell framework to ap preme Court would endorse ply Hicks’s alleging view retaliatory cases a failure to plaintiff that a in a discrimination promote). case Plaintiffs point to this willingness judgment entitled to as a matter of law sim- modify Douglas the McDonnell frame- ply because he or proves she prima a work as evidence Jersey that the New Su- facie case and that the reason or reasons preme disregard asserted Court would Hicks and in- by his or employer her for the challenged plaintiff stead hold that a asserting a claim of action were false. pursuant discrimination to the judgment LAD is entitled as a matter of Our decision is informed a number law if proven he or she has facie of observations concerning law. case and has demonstrated the reason First, under Jersey law, as under feder employer gave reasons the for the chal- law, plaintiffs al always have retained the lenged employment action were false. ultimate burden of demonstrating that It is true that the New they actions challenged were due to discrimi Court has taken to legislature’s heart See, e.g., nation. Peper v. Princeton Univ. expressed intention that the LAD Trustees, is to be Bd. 55, 87, 389 A.2d liberally. supra construed note (1978); 6. It is Kearny Generating Sys. Rop true, however, also legislature er, N.J.Super. 253, (1982).7 445 A.2d 1159 acknowledge 7. We the New incorporate principles of Hiclts into the law always entirely has not clear on LAD. point. Peper, case which it decided to Similarly, statements in Rockaway Jamison v. adopt Douglas shifting McDonnell burden Twp. of Educ., Bd. N.J.Super. scheme, the agreed court stated in dicta that it (1990), sway do not our view of the burden with judge the statements aof federal who de- placed plaintiff on asserting straightforward Douglas scribed the McDonnell scheme as shift- LADclaim. In Superi- ing proof, the burden of simply rather than or Court extensively referred to a decision production, prima to the defendant once a Appeals Circuit, Court of the for Ninth Wrighten facie case Peper, has been made Inc., out. 77 N.J. at Hosp., (9th Metro. 726 F.2d 1346 Cir. 389 Peper, however, A.2d at 480. The 1984), focus of describing Douglas the McDonnell formu plaintiff's inability was on the pri- establish a applicable lation retaliatory discharge cases. ma case. That and numerous statements The Jamison Wrighten facie cotut cited providing as by since Supreme the New Court employee that an asserting retaliatory a dis superior confirming courts charge burden of by preponderating "show evidence (e.g., does not shift Goodman v. discriminatory London that a intent motivated the em Exch., Inc., Metals N.J. ployer’s A.2d by action" “proving that the articulated (1981); Kearny, supra), convince us that pretext reason is a for the retaliation or a that single Peper statement in cannot serve as a discriminatory basis likely reason more the motivated for concluding Jamison, that court the would employer.” refuse N.J.Super. at law, the Court clarifying the thus Doug understanding the McDonnell of Our upon Federal relied to and referred Hicks similarly re Hicks before framework las 301, concerning presumpt of Evidence Rule the ultimate bear plaintiff the that quired — at -, at Hicks, 113 S.Ct. U.S. ions.8 challenged em the proving that of burden at -, at 2749 113 S.Ct. 2747; id. see also dis unlawful resulted ployment action rejec holding that (“[T]he Appeals’ Court See, v. CIGNA e.g., Billet crimination. proffered reasons defendant’s of the tion Cir.1991). Our 812, 817 F.2d Corp., disregards plaintiff the judgment for compels could be this burden finding that decisions a 301 that of Rule principle the fundamental demonstrating that the as by merely borne burden of the shift does not presumption non-discriminatory reasons legitimate, serted repeated admonition ignores our proof, incredible actions were employer’s the times bears at plaintiff all the VII Title that to the given weight on the based were ”). The persuasion.’ ‘ultimate burden the as a case prima Douglas McDonnell facie similarly has Supreme (and words, our In other “presumption.” LAD, prima describing the the interpreted pretext court’s) proving reasoning that other as Douglas test stage the McDonnell facie a be judgment reflected plaintiff entitled presumption” establishing a “rebuttable of discrimination presumption the that lief Erickson, at 117 N.J. discrimination. a make out ability to by plaintiff’s the raised that when It has also stated at 799. A.2d rebutted been case had prima facie by artic- presumption rebuts the defendant a falsity proven by the strengthened nondiscriminatory reason ulating a legitimate its gave for employer the of the reasons actions, of discrimination the inference for its the mandating a that actions, decision thus plaintiffs evi- from the literally arose which motivated been had actions employer’s v. London destroyed. Goodman is dence —Hicks, U.S. discrimination. unlawful 19, 33, 429 A.2d Exch., Metals (Souter, at ---, 113 S.Ct. Therefore, corresponding 341, 348 that under clarified J., dissenting). Hicks of Evi- Jersey Rule to the New reference by estab presumption raised law federal appro- seems regarding presumptions dence longer no case of the lishment facie provides reference thereto and our priate, a articulated employer an has exists once that New for the conclusion support further its nondiscriminatory reason for legitimate, LAD as law of clarify the Jersey would that proving hold that It does not actions. juris- Title VII Hicks clarified the Court support a suffice will never false reason prudence. merely establishes plaintiff; for a decision Evidence Rule of Like Federal as judgment not merit plaintiff does that provides Evidence Jersey Rule of proven. falsity is law once matter of a through- so, which remains nonpersuasion, added). Doing risk (emphasis at 182 it was party whom upon on added, the trial presumption ... that out creates "a product of originally cast. was the employment action adverse Then, em- retaliatory intent.... improper provides: rule 9. The of the preponderance prove by the ployer must have would action provided adverse Rule evidence Except otherwise as retaliatory Id. intent.” regardless of law, discharges the been taken presumption by other shifting 445-46, of the (the at 182. The to a fact producing evidence burden of retaliatory discrimination (the in a ultimate burden fact) basic fact another presumed when imply necessarily case does Jersey fact) established. any shift would advocate tending disprove is introduced If evidence straightforward lessening burden fact, be submitted the issue shall presumed case. failure-to-hire unless determination of fact for to the trier persons reasonable is such evidence provides: 8. Rule 301 or nonexis- the existence as to not differ would oth- proceedings not In all civil actions If no evidence presumed fact. tence Congress or by Act of provided erwise pre- fact presumed disprove the tending to par- rules, imposes on presumption these sented, be deemed shall presumed fact the of the burden against is directed ty whom it found or other- fact is the basic if established meet to rebut or evidence going with forward persuasion as of burden The wise established. shift to such presumption, but does not the presumed fact disproof the proof of or to the of the the sense party burden of the that the introduction of evidence to rebut a factual (e.g., situations Erickson and Jan destroys presumption that presumption, ), leav- sen departure from that framework in ac ing only evidence that and its inferences to cordance with cases decided various fed judged against the competing evidence appeals eral courts (Grigoletti), depar and its to inferences determine the ultimate ture from apply the standards we in favor of (in question case, at issue an ques- LAD the what it believes to abe more sensible inter tion of whether the illegally defendant dis- pretation Supreme of United States Court against plaintiff). criminated the Specifical- (Lehmann). precedent reject It never ly, it states that “[i]f evidence is introduced outright ed the United Supreme States tending disprove fact, to presumed the the Court’s approach to federal anti-discrimina issue shall be submitted to the trier of fact law; tion contrary, to the it has noted that for determination unless evidence is the such imputed there exists strong legisla but “an. persons that reasonable would not differ as tive intent to harmonize the State’s anti- to the existence nonexistenee of pre- the discrimination statutes with the dominant commentary sumed fact.” The to the rule federal to protections view maximize the for provides presumption that “a valid can be the victims of discrimination and ... to bene used to prima a establish facie but the society by fit all of these Grigoletti, efforts.” presumption normally disappears in the face 118 N.J. at 570 A.2d at 913. of conflicting Nevertheless, evidence. Finally, Supreme the New Jersey Court’s logical inference which can be drawn from decision in provides Goodman sup further the basic fact remains.” N.J.R.Evid. port decision, for our if by implication. supplemental Therefore, comment.10 Goodman, the court considered a case the regard rule with states to state law ex- company which a and its principals argued actly what explained Hicks has to be the that a hearing examiner in the Jersey New operation of federal anti-discrimination law Division on Rights Civil misapplied had under the Douglas shifting McDonnell bur- burden of proof. complainant, The analysis. den The female New job applicant, established may choose, matter, case as a policy facie that she had not been interpret hired because of the LAD even her broadly, more so gender. respondents The rules contended governing usual presumptions she was granted eases, do not an apply not in LAD interview because N.J.R.Evid. cf. (rule her unpleasant. had governs attitude “[ejxcept pro- The otherwise hear ing law”), vided ... examiner by other nevertheless ruled but in for the the face com plainant, explicit explanation stating operation ultimately “‘case ” turns on presumptions credibility’ Jersey law, under New and that he can believed complainant. Goodman, policy make state law decision for it. N.J. at Compare Schweigert at 348. Provident The Ins. Life (N.D.1993) (re N.W.2d ruled that the hearing examiner had fusing adopt properly Hicks applied formulation because Douglas McDonnell different presumptions). shifting state rule on burden scheme: This particularly light explanation true given by respondents general courts’ adoption complainant’s rejection federal was sufficient anti-discrimination law as guidepost. their employer its meet burden of Indeed, the courts’ willingness depart articulating legitimate nondiseriminatory from precedent federal in the reason rejection anti-discrimi- for the destroy and thus nation area has occurred in only three legally con- ‘the mandatory inference of dis- texts, involving either modification of arising crimination from ini- Douglas McDonnell specific framework to fit tial However, evidence.’ ... the trier of does party against shift whom replaced 10. Rule 301 N.J.R.Evid. cited

presumption is directed unless otherwise re- employees, PTL effective July 1993. Commen- quired by Nothing pre- law. in this rule shall tary to it indicates that Rule reflects estab- judge clude the commenting from on inferenc- lished New law. es that be drawn evidence. the the issue—whether by ultimate decision persuaded be may nevertheless fact engaged in unlawful discrimi- employer had combined inferences and its that evidence Thus, pro- respondents the trial court erred from the nation. adduced that with that entitle explanation jury would proposed pounding instructions employer’s that the nothing judgment they merely if more plaintiffs and is unworthy of belief the and demonstrat- discrimi- facie case presented for unlawful pretext a mere than grounds asserted for that the defendant’s nation. ed pretextual. were decision at 348 Goodman, at 429 A.2d N.J. added). why it be- explaining In

(emphasis correctly had hearing examiner the lieved III. Douglas, the court stated McDonnell applied had said that the New Jer hearing conclusion the examiner Our only that incorporate to be the sey Supreme witness Court would plaintiff and her the he found jurisprudence that its LAD truthful, principles had “concluded into that he Hicks but also employer for retried. We do not requires [the the that this case be given the reason Jersey Supreme that Court rejection pretextual and that the New was plaintiffs] believe clarification of rejection apply ‘because choose to her would the reason true for 33-34, as the Jersey only prospectively, Id. at law woman.’” New she awas added). Thus, accept do argue.11 the New Nor we employees (emphasis PTL at 349 mere that this case can be find that contention did not either side’s Jersey Court level, a re support appellate without employer would at the the disbelief of decided it affirmed complainant; for the mand. decision he had decision because

hearing examiner’s argue the trial court’s Plaintiffs that had decided employer disbelieved they jury, instructing that charge to the employer’s fail- for reason that the true proving that the burden times bore all unlawful discrim- plaintiff was to hire the ure age, of their they not hired were because with Hicks This is consistent ination. may occurred that have error cured the New Su- belief that supports our they that would when the instructed interpret- followHicks preme would Court the reasons they proven that if had win ing LAD. failing hire them Rail advanced for Pacific conclusion, persuaded that the are agree, while the false. We cannot were ultimately Jersey Supreme Court would New correctly placed the burden of trial court dis- plaintiffs determine on the illegal proving discrimination may not LAD cases under the crimination times, incorrect rendered all statement pri- merely by proving necessarily prevail explicit and light Hicks was direct employer’s rebutting an case ma facie jury. charge for the to summarize served non-discriminatory rea- legitimate asserted charge that any portion there was If may That actions. level for its sons deliberations, more it was jury’s guided the em- factfinder believes if the suffice have held to be likely portion we than unlaw- reasons to conceal false ployer offered erroneous. discrimination, mandate it but does ful hand, Rail contends Instead, Pacific the other On plaintiff. entry judgment for the in- this case but not remand we need Jersey Rule of Evi- New provided for it because judgment enter op- and their stead governing presumptions dence support a verdict was insufficient eration, go to the factfinder evidence case must above, minimum, Su- that, explained As argue if employees ”[a]t a 11. The past pre- overturning Jersey Supreme preme were to follow not be Court would the New holding prospective only apply by following deciding would its issue Hicks a new cedent or Brief at ly.” Appellees/Cross-Appellants’ merely clarifying approach; it would Hicks law, “Prospective application Under is to believe is no reason prior There decisions. a new establishes appropriate when a decision would past precedent or by overruling principle lawof only prospective- apply such a decision choose to impression.” Mon deciding of first an issue ly- Haynes, tells v. plaintiffs’ appro- favor even under an magistrate and which judge handling priate charge. agree cannot pretrial entered, We with this matters reviewed and said contention, Undeniably, plaintiffs’ only actions, either. ev- that a result of “[a]s defendant’s mainly proving pretext, plaintiffs at idence was aimed have lost income and otherwise suf- evidence, light but that viewed most fered the effects of discrimination on account (Billet, verdict winner age.” favorable to the 940 of their They Id. at 42. were ordered 817), conceivably sup- could quantify F.2d at have to damages by their March (id.), ported plaintiffs for the they a decision under the but did not do so. The first charge. pay,” correct mention of compensation “front or for earnings, future lost pri- surfaced two weeks inability light In of our to divine whether trial, or to plaintiffs when pro- submitted jury’s premised was on verdict correct or posed jury requesting instructions an in- portions charge, of the erroneous we will pay. struction on front Id. at princi- remand the case for retrial under the objection Rail, Over an from Pacific the dis- ples we have set forth above. trict court decided charge pay, to on front jury but after the returned a verdict of more rv. than pay, million in front grant- $5 the court parties Some of the issues the have raised post-trial ed a pay motion to strike the front by have been rendered moot our decision award. Others, however, remain, they thus far.12 light way In this developed, ease determine certain claims are still whether district court did not abuse its discretion in properly at issue this case and thus wheth- striking plaintiffs’ pay front award as a they er should be on addressed remand. having sanction for pay failed to claim front prior (and to two weeks before trial A. even then to mention in proposed jury Among question these ais which instructions, which many included items not plaintiffs arose after trial as to whether the issue). argue Plaintiffs request that their pay were entitled to front awards. Plaintiffs “compensatory damages” encompasses an they complaint sought stated their “a award of earnings, future lost but in the judgment ordering defendant to offer them context of pleadings filed we employment pay wages, compen and to back say vague cannot pleading style— their satory damages, punitive damages and attor even under the lenient plead- rules of notice neys’ App. They alleged fees.” at 14. ing put to Pacific Rail on notice of —sufficed as a they result of Pacific Rail’s actions had Moreover, a claim pay. for front had there “lost income and otherwise suffered the ef any question, plaintiffs every had fects of discrimination on account of their opportunity clarify to damages they age,” App. sought judgment “[or sought pretrial in the order. they When dering defendant to offer to so, failed to magistrate do judge ordered plaintiffs wages and make them whole for all quantification damages by of their a date and benefits lost reason of defendant’s opportunity put certain —an Pacific Rail on discrimination; granting unlawful compensa notice of their plaintiffs claims which the tory damages plaintiffs; ... [grant simply did not seize. ing any just further relief the Court deems and proper.” Id. at 21. pretrial The final circumstances, then, these the district order, upon parties which the collaborated did not abuse its in striking discretion Specifically, given judgment ing will be dismiss the Phyllis cases of retried, vacated and the case Lindh, see no reason to Sal Petruzzelli and Ed Dechert for failure (1) decide the trial whether court erred in refus- to establish a reviewing case. After facie ing plaintiffs’ backpay order remittitur of some record, agree we do not that the district court awards, (2) awarding plaintiffs prejudgment in- Depending upon credibility judgments, erred. terest, (3) refusing to order reinstatement. make, position which we are in no the evi- may quickly dispose We of one issue raised support dence be sufficient to a verdict for Pacific Rail which still must be resolved. Pacific plaintiffs. each of these argues Rail that the district court erred in refus- contrary to law.” “clearly erroneous at the conclu- pay awards front plaintiffs’ 636(b)(1)(A); Cipollone Lig § usurp the than U.S.C. trial. Rather the first sion of 1108, 1120 Group, 785 F.2d gett over the sec- as presider role court’s district Cir.1986). magis question it will before the only on remand The trial, that we hold ond us does judge, district court and of the district trate the discretion to the sound be left not, in the con argues, of fairness Rail in interests as Pacific arise the court to determine Rules of any new claims. 701 of the Federal to allow text of Rule justice whether and testimony by lay opinion (regarding Evidence B. witnesses) a matter of New but is instead concerning expert evi Jersey law whether cannot claim Although plaintiffs the prove distress is to emotional dence needed remand, permitted they will be pay front on type will thus damages this of ease. We contrary damages, distress to emotional seek magistrate judge’s whether the determine judge and magistrate rulings of the to the plaintiffs’ claims for emo to strike decision originally was bifur This case district court. contrary damages to law. distress was tional sepa tried liability would be that cated so Pennsylvania v. Southeastern Bolden initially parties damages. The rately from Cf. (3d Auth., n. 953 F.2d Transp. with that pretrial order their prepared Cir.1991) (whether properly district court reason, presumably dis mind, but for some request ques damages is punitive dismissed with during pretrial conference a cussed review). subject plenary to tion of law that judge, decided magistrate was App. at 64. not be bifurcated. would case damages may “Emotional stress” they apparently envisioned had Because LAD. N.J.Stat.Ann. under the be recovered this, plaintiffs liability prior to then a trial on Corp., 10:5-3; 243 N.J.Su v. Exxon Milazzo regarding to exhibits sought permission list (1990). A.2d 1107 per. pretrial to order damages and to amend testimony prove the expert to require courts witnesses, happened be who list additional injury and the a claimed causal link between doctors, of emotional support their claims plaintiff is alleged when the tortious act The damages. App. at distress subjective or she suffered claiming that he in plaintiffs to judge permitted magistrate (such humiliation, pain, emotional injury as support their exhibits to clude additional distress) obviously to an related is not (to which Pa damages pecuniary for claims Kelly Borwegen, 95 injury. identifiable object), plaintiffs’ but denied did not cific Rail 240, 243-44, N.J.Super. doctors as witnesses. request to name the a con requirement is based on This decision, magis conjunction with that In allowed to jury not be that “a should cern plaintiffs’ claims for judge trate struck If the the issue of causation. speculate on he be damages because distress emotional so esoteric that relation is question causal testimony “competent medical lieved intelligent judg any cannot form lay minds the causation nature ... expert an as opinion expert an it without aid ment about required.13 App. distress” emotional required.” Bushman expert an be court affirmed The district at 2762. Cir.1986) Halm, F.2d appealed. plaintiffs ruling when citing 2 F. law (applying New argue that their claims for Plaintiffs James, Torts Law F. Jr. The Harper & damages not have should emotional distress (1956)). 15-16, § 21 at § 20 at reviewing magistrate In been stricken. not without requirement effect, The to this district judge’s decision Bushman, ex- boundaries, for In however. that decision whether had to determine witnesses as to add the doctors offering to amend motion Significantly, were not which the witnesses, the lack of evidence they resulted expert no had as the doctors Refusing permit the claims were dismissed. could expert reports the doctors state from which testify merely the number of Instead, they lessened doctors to App. expert opinions. at 2759. plain- testifying for lay lay who would testify witnesses would that the doctors intended expert testimo- deprive them tiffs. It did describing they had observed. what witnesses Thus, ny. a a denial of in which this is not case evidence, alleged “plaintiff that a is not re- sent such emotional ample, held Jersey law to submit ex- quired under New distress in this case seems resemble Men legal (In opinion Menza, on the element of pert medical Kelly. plaintiff za facie case of fall, to establish causation pain claimed chest after a months Bushman, 798 F.2d at 653. negligence.” Kelly, plaintiff alleged permanent diffi case, plaintiff whose truck had collided culty sleeping, walking, climbing steps jeep Postal Service sued with a United States accident.) breathing after a car Plaintiffs government under the Federal Tort subjective distress, allege claims of emotional alleging negligence. trial Act Claims identifiable, objectively but we have no medi summary judgment gov- granted to the cally symptoms plaintiff verified as the had in plaintiff alleged had ernment because Bushman. (i.e., injuries” “soft tissue he was seek- hand, magistrate judge’s On the other suffering ing recovery only pain and re- trial, decision was made well before when no knees, injury lated to an to his which had yet presented. evidence had been Some of accident), in the struck dashboard objec- plaintiffs be to able establish opined expert his witness had not that his tively symptoms identifiable from which a pain was caused the accident. We re- jury could infer causation even in the ab- Jim’s, Kelly viewed and Menza v. Diamond If, expert sence of an witness. as to some or N.J.Super. 1006 and plaintiffs, all there exists other evidence requires determined that New law a causation, tending objec- to establish such as case-by-case analysis to determine when ex- tively symptoms appearing identifiable pert testimony required subjec- close is buttress pain suffering. time to Pacific complaints tive The Rail’s takeover at North key question Bergen, plaintiffs is there then the presented whether is evidence who objective tending some basis for the might present show such evidence not need to is, pain. expert testimony Thus, If there no is expert jury. evidence to reach the jury competent needed because a to decide magistrate judge’s wholesale dismissal of all a whether there exists causal connection. plaintiffs’ claims for emotional distress damages knowing anything without more Bushman, plaintiffs “contrary about each case was plaintiff legs pain- that his testified were 636(b)(1)(A). § law.” 28 U.S.C. Plaintiffs’ However, prior to the accident. free he damages claims for emotional distress are to experienced pain stated that he recurrent be reinstated on remand. surrounding his knees soft tissues they his after contacted truck’s dashboard accident_ during Plaintiff has ade- C. objective quately question drawn into pain suffering through his nature of To further assist the district court on re- pain his own statements. sworn The and mand, plaintiffs’ we will allega- also review suffering plaintiff experienced immediately dismissing tions that the court erred directly after the accident is linked to ob- cases of five former PTL workers. We will jectively symptoms identifiable of soft tis- affirm its dismissal of all but one of those injury sue verified in the medical evidence. remand, plaintiffs. plaintiffs On that one Thus, the lower court erred when it con- claims are to be reinstated for consideration injuries cluded that were “not of whether his cause of action survived his obviously injury.” related to an identifiable death. Bushman, 798 F.2d at 660. Here, objective apprised any we are not 1. evidence supporting plaintiffs’ claims of plaintiffs’ Four of these magistrate emotional cases are distress. Neither the judge, easily court, properly nor addressed. The district court the district nor this court presented “objec- Quaid, dismissed the cases of David evidence John tively symptoms” upon Gugliotta, Hennessey identifiable which the Andrew and Adam Lu plaintiffs rely support their claims. Ab- kasweski because the evidence was insuffi- seeing representative, upon Gugliotta in ear- them as a support judgment cient ly Gugliotta if September, asked he was of law. matter work, ready impliedly offering thus him a of insufficient Quaid’s ease falters because statement, job. representative’s The howev- jury could conclude from which a evidence er, job exactly offer but was more was injured. at trial re- Evidence that he inquiry Gugli- in the nature of an about when representative Rail that a Pacific vealed might ready App. at otta to work. job, him Quaid to offer three times called Moreover, (id.), Gugliotta if refused so even time, accept. first Quaid did not The but offer, job merely it was a transforms his 1, Quaid representative September told the particular case into one which resembles (pre- the list that he was “number ten” on Quaid’s Hennessey’s and Lu- more than list) seniority and that sumably the union’s was not kasweski’s. Dismissal their eases to ask the nine men Pacific Rail would have error. him on the list before he above women accept job. App. at 729-30. would time, Quaid September reiterated second Finally, representative Rail we address the case of the

this and told the Pacific Armetta, passed A1 get App. plaintiff to him. at 730-31. estate of who he would back time, December, 1991, Septem- away in in the third week after commence The third ber, Quaid attorneys again told that ment of this lawsuit. Plaintiffs’ representative Quaid in Au apparently to work for the learned of Armetta’s death Pacific Rail would like Quaid gust, that he would work for and defense counsel was notified company. said day accept job then or on the first of trial mid- Rail but did not be- either Pacific proceedings. Specifi- Plaintiffs’ counsel never ongoing September, union cause of “suggestion not want or served formal cally, stated that he did filed a death” he where was notice of the death on defense coun “jump[] [he] before knew written [he] up in then limbo.” sel or the court. going wind[ ] to land and Quaid trial that he App. at 737. stated at death, trial, learning upon At of Armetta’s “never, employment,” “[n]ever never refused should district court ruled that Armetta down,” that “[Pacific [Pacific Rail] turned At the close of be stricken from the case. job,” that I wanted understood] Rail discussing verdict plaintiffs’ directed for [Pacific Rail] I did to ask “[a]ll that matters, argued that Ar- plaintiffs’ counsel any refus- But there was never [sic] time. plain- a be considered metta’s estate should Quaid’s explanations, App. at 728. als.” claiming damages until purposes tiff for however, that did negate fail to the fact he The court refused time of his death. employment that was offered to accept no substitution of ha[d] “there because to have been him and cannot be considered App. in this matter.” Mr. Armetta’s estate Pacific injured by Pacific Rail’s actions when judge that The district court stated at 964. employment. actually offered him Rail estate has [Armetta’s] not “know that he did matter,” pointed out interest in this Hennessey and Lukasweski an Gugliotta, pro nunc tune or no “motion three that there was present situations. These similar App. rules” about Armetta. receiving compensa- ... to relax the workers’ plaintiffs were that he Plaintiffs’ counsel stated at the at 1018. payments for medical conditions tion widow, who had spoken with Armetta’s Bergen. had Pacific Rail took over at North time Id. the lawsuit. jobs wanted to continue be- said she They not have been denied could representa- accept this court refused to age; they not available to The cause of their were and, oral day, denied counsel’s tion the next Pacific Rail needed occupy positions when Armetta for her to substitute Mrs. only argument plaintiffs ad- motion The them. produced husband, plaintiffs had saying that reasoning is a opposition to this vance executrix Mrs. Armetta was the proof of- no Pacific Rail would have contention that rejected plaintiffs’ It they injured of Armetta’s estate. jobs if were but fered them even proof. Id. at supply such counsel’s offer As evidence for age discrimination. court de- Specifically, the district 1023-26. they that a Pacific Rail proposition, note (1) questioned estate as the because trial substitute Armetta’s motion nied the plaintiff claiming damages of action survived Armet- on his behalf. this cause whether (2) death, showing has been no Nothing says suggestion in Rule 25 a “[t]here ta’s ... neglect actions on the [or] of excusable death must be made or sets forth time put the which would part of the defendant doing frame for it. circumstances (3) prejudicial position,” there plaintiff in a only recently which the deceased’s counsel that Mrs. Armetta was the death, was no sugges- to file a learned of failure (4) estate, Armetta’s it was executrix particular period tion of death within a move to substitute Armetta’s es- too late to grounds time does not constitute sufficient because the defendant had plaintiff tate as a refusing such a motion. discovery conduct concern- had no chance to Moreover, the district court’s denial on the any- the estate is” “to do ing “whoever plaintiff basis that the did not make formal necessary prepare thing for trial.” motion, filed and served in accordance with Id. at 1029-30. was, view, overly Rule also in our an 25(a)(1) provides: Rule interpretation strict of the rule. We have thereby party If dies and the claim is not willingness permit indicated a lesser at- may extinguished, the court order substi- tempts Republic to suffice. Anderson v. proper parties. motion tution (3d Cir.1971) Inns, Inc., 444 Motor F.2d 87 by any party be made for substitution (reversing a district court’s dismissal of a representatives by the successors or 25(a) comply case for failure to with Rule and, together party with the the deceased attorney because the had noted in hearing, on the notice of shall be served wife, pretrial his memorandum that upon parties provided as Rule 5 and estate, executrix of the intended continue persons parties provided in the manner so, plaintiff). doing as substitute In we have summons, of a in Rule 4 for the service emphasized apply that our lenient view would any judicial may be served district. case, extraordinary in “an and that de- the motion for substitution is made Unless parture requirements from the of the Feder- days after the not later than 90 death is permitted routinely,” al Rules is not to be upon suggested the record service of a Anderson, 444 F.2d at this case but pro- of the fact of the death as statement Here, extraordinary. strikes us as the dis- motion, for the service of the vided here plaintiffs’ trict court ruled that counsel had the action shall be dismissed as to the ap- failed to move for substitution within an party. deceased time, propriate yet period the time for so 25(a)(1). Thus, dies, party if a Fed.R.Civ.P. moving yet begun had not to run because ideally attorney “sugges- file a his or her will yet suggested death had not on the tion of with the court and serve it death” Wright, record. 7C C. A. Miller & M. Cf. upon parties. suggestion After the all Kane, Federal Practice and Procedure filed, 90-day begins. death is countdown (2d 1986) (“the § ed. time does days, party Within 90 some other or the suggested not run until the death is on the administrator of the deceased executor or record”). prejudice about Concerns to the must move for substitution of the estate for well-placed defendant are not in this in- deceased, deceased’s case will be stance, for the record reveals that defense dismissed. Decisions on the motion for sub- very counsel was notified of Armetta’s death stitution are within the trial court’s discre- shortly plaintiffs’ after counsel became aware 25(a) (“the may tion. court Fed.R.Civ.P. And, contrary of it. to the district court’s substitution”); Advisory order Committee view, neglect” Rule 25 contains no “excusable Note to 1963 Amendments. standard which the district is to Nothing gauge fully was ideal here. Plaintiffs’ its exercise of discretion. We suggestion why might counsel served neither formal of understand the court desire some proof death nor a formal motion for substitution. written of Armetta’s death and of the mean, however, proceed That does not that the dis estate’s desire to with his but trict court properly permit plaintiffs motion made we no reason denied the see not to opin- are reinstated consistent with this produce such tress opportunity an counsel addition, ion. In the claims of deceased deciding the motion. before plaintiff Al are to be so Armetta reinstated Thus, find that the district court cannot we may that the district court consider whether on this issue. Ar- discretion exercised sound and, claims survived his death if Armetta’s on re- claims should be re-examined metta’s so, along so that his claims be tried with mand, given is to be an plaintiffs’ counsel plaintiffs. those of the other proof of Ar- provide written opportunity to death, relationship his 'widow’s metta’s his regard wishes with estate and the estate’s MANSMANN, Judge, dissenting. Circuit remand, Also on

proceeding this lawsuit. however, to address the dis- parties are I. concern, namely whether court’s first trict LAD claim survived his death. Armetta’s agree majority I with the that our role is 25(a)(1) (substitution per- Fed.R.Civ.P. to determine whether the New Su party and the claim is not mitted dies “[i]f preme adopt would LAD the thereby extinguished”). This issue is a mat- Supreme analysis Mary’s Court’s St. Hon Brennan, law, Ransom v. ter of state cf. —Hicks, U.S. -, or Center v. 113 S.Ct. (5th Cir.1971); see N.J.Stat. F.2d (1993). 2742, 125 L.Ed.2d 407 Commission 2A:15-3, which we decline to resolve at Ann. Bosch, 456, 465, er v. Estate 387 U.S. stage parties have neither because (1966); S.Ct. 18 L.Ed.2d 886 argued nor it either here before briefed Corp., McKenna v. Ortho Pharmaceutical court. the district Cir.1980), 622 F.2d cert. de nied, 66 L.Ed.2d 449 U.S. S.Ct.

V. doubt, major It is without as the holds, conclusion, ity predict that were the New apply the rule of law to the accept would the Su- Court to Hicks LAD, require a clarifying this case would new trial preme Court’s decision Hicks law, just jury provide LAD as Hicks did federal anti- because the instructions did Majority op. framework.1 law. Our conclusion to that the Hicks discrimination majority’s prediction this case for 826. It is in the of effect necessitates a remand of Jersey Supreme opinion. in what the New Court would retrial accordance with this On remand, part ways, I it within trial court’s hold that we and because believe will be analysis adopt it will not the Hicks for the whether to allow claims for front discretion LAD, respectfully I dissent.2 pay, plaintiffs’ and claims for emotional dis- at -, longer conflicting among is -U.S. 113 S.Ct. at 2747. No 1. Hicks settled decisions found appeals regarding plaintiff courts of whether for the to show that the it sufficient jury's finding employer pretext proffered pretextual. mandates the of reasons were defendant's finding illegal of discrimination in Title VII first, argues, Pacific Rail that because the New —Hicks, at -, cases. U.S. 113 S.Ct. consistently applied prin- Jersey courts have production of and the order for burdens ciples analysis developed the federal proof mainly presentation of were set forth in age VII and sex discrimination courts Title Green, 792, Corp. Douglas v. 411 U.S. McDonnell claims, they to do in this would continue so 1817, (1973), 36 L.Ed.2d 668 and then 93 S.Ct. reasoning simply is context. The error in this Dept. Community v. revisited in Texas of Affairs interpretation that a new that it fails to consider Burdine, 248, 1089, 450 U.S. 101 S.Ct. 67 has been established. of the burden (1981). Contrary 207 to what we stated L.Ed.2d Second, that, suggests Pacific Rail because Wheeling Pittsburgh Corp., Duffy Steel 738 originally argued precedent that federal 1393, (3d Cir.1984), F.2d Hicks states case, estopped apply they to this are now should plaintiff prima facie case of that after a makes position changing before this court. their and the defendant rebuts that discrimination meritless, again reasons, a contention is it fails Such non-discriminatoiy legitimate with regarding the various to consider that a new rule drops presumption facie case raised case, established in the interim. See burdens has been plaintiff from the and the now must show Majority op. at 826 n. 5. proffered reasons were not that the defendant's the true reasons for the decision Hicks, analysis join Part IV. discriminating I the court's characteristic was. 838 793, 539, course, 569 A.2d 799 nan 117 N.J. have, previously articulated We (1990) (“We however, recognized, have predicting to be used in proper standard Goodman, Peper, the criteria announced state law: only general provide frame and Anderson law we to forecast state attempting In analyzing unlawful discrimination work for precedents, relevant state “must consider appropri be modified where claims and must dicta, decisions, considered analogous Intern., Inc., ate.”); v. Terminix Clowes works, any rehable other scholarly (1988) (“Under 794, 575, N.J. convincingly to show how the tending data the McDonnell circumstances [certain] would decide the in the state highest court analysis only to the Douglas should be used at hand.” issue appropriate.”); application extent that its is Scranton, University

McGowan Peper University Board v. Princeton Cir.1985) (3d (quoting 287, McKen F.2d (1978) Trustees, 77 N.J. 389 A.2d 663). na, See also Blum v. Witco F.2d at (“While Doug commend the McDonnell F.2d Cir. Corp., 829 Chemical starting to our trial courts as a las standards 1987). point brought under the Law actions Against other Discrimination State II. discrimination, proscription against it must correctly majority Historically, as the emphasized that these tests are to be used 827-28, out, Majority op. at New Jer- points appli and to the extent that their where followed Title VII federal sey generally has appropriate”). cation is interpreting the LAD. For a precedent in cases, Grigoletti v. Ortho list of see such especially fed- It is relevant whenever Corp., 118 N.J. 570 A.2d Pharmaceutical precedent a standard that eral establishes (1990). Nonetheless, majori- as the plaintiff it more difficult for the makes Majority op. at ty agrees, also make its the New precedent not wedded federal Lehmann, departs. 626 A.2d at 453 selectively. The New applies (denouncing the Andrews test from this cir- has stated: Supreme Court creating cuit and a new test for sexual LAD, the construing the terms of the LAD); harassment under the Montells v. frequently pre- looked to federal Haynes, Title of the Civil governing VII cedent (1993) (disregarding United States 1964, 42 Rights Act U.S.C.A. prospective questioning appli- Court caselaw (“Title VIP), “a [§]§ 2000e-2000e-17 cation of a new rule of law in a sexual authority.” key interpretative source harassment case under procedural Although the “substantive and LAD); Grigoletti, (adopting 570 A.2d at 913 developed that we have under standards standard, the EPA which is more burden- markedly have influ- LAD State’s defendant, some on the rather than the Title experience,” federal we have enced gender VII standard for discrimination “applied the Title VII standards with flexi- claims); Co., 483, Anderson v. Exxon 89 N.J. bility” depart” not hesitated to and “have (1982) 486, (declining 446 A.2d 494 to follow precedent rigid applica- “if a from federal the allocation of the burdens of estab- inappropriate tion standards is under of its Douglas lished in McDonnell to LAD claims the circumstances.” discrimination); handicap Castellano v. Us, Inc., 587, Education, Toys N.J.Super. ‘R’ 132 N.J. Linden Board 158 Lehmann v. (1993) (citations 350, 396, 445, (App.Div.1978), quota to 386 A.2d 402 mod. 626 A.2d 452 omitted). also, 407, grounds, Grigoletti, tions 570 A.2d on other 79 N.J. 400 A.2d 1182 See (“[T]he (1979) (holding pregnancy at 907 court has never embraced the discrimination literally, invariably contrary Supreme LAD Douglas test violated the McDonnell Gilbert).3 in inflexibly.”); Erickson v. Marsh & Mclen Court’s decision Jersey Similarly, Jersey courts in New There is little reason to believe New the district recognized independence will slavish devotion to federal have also of New courts exhibit interpreting Quite Jersey interpreting the NJLAD. the con- in the LAD. law in courts

839 though essentially to the Board Edu relates same In v. Linden Castellano cation, 350, subject parallel A.2d 396 matter as federal civil N.J.Super. 386 158 rights apply our Jersey law. We are free own Superior (App.Div.1978), the New concept right proper of that which is and preg requiring a addressed whether Court in the circumstances. mandatory teacher to take nant female refusing permit her to maternity leave (citing Id. 386 A.2d at 401 Oakwood at Madi during her son, 481, accumulated sick leave utilize Tp., Inc. v. Madison 72 N.J. 371 impermissible (1977); Johnson, constituted childbirth absence A.2d 1192 State v. 68 N.J. 354, (1975)). 349, Id. at 386 A.2d gender discrimination. 346 A.2d 66 Robinson v. Cf. Court, pri- Cahill, 473, (1973), Supreme 396. The United States 62 303 273 cert. N.J. Castellano, denied, 976, 292, that a held or to the decision 414 U.S. 94 S.Ct. 38 (1973). employer for disability plan provided by an L.Ed.2d 219 paid weekly non- employees, which all its There have also been other areas where benefits, oceupational sickness and accident Jersey departed the New courts have from coverage aris- excluded from disabilities but precedent. Toys In Lehmann v. “R” federal ing pregnancy, did not violate Title VII Inc., Us, (N.J.1993), 626 A.2d 445 the New Rights Act of General Civil Jersey Supreme adopt did not test Gilbert, 125, 97 Electric Co. v. 429 U.S. S.Ct. City we set forth in Andrews v. Philadel 401, also Nash- 50 L.Ed.2d 343 (3d Cir.1990), phia, for a 895 F.2d 1469 sexu 136, Satty, Co. v. 434 U.S. S.Ct. ville Gas al harassment claim under the LAD. There (1977) 347, (holding that an 54 L.Ed.2d 356 set forth a five factor to determine an test policy compensating employees employer’s actionable claim for sexual harassment under during which the periods VII, for limited of time subjective creating a test with both Title non-job Andrews, of a employee missed work because objective standards. 895 F.2d excluding disability, but related illness New 1482-83. The employees, Andrews, paid pregnant sick leave disavowed the test found its disability indistinguishable legally from the elements of a hostile work environment own ).4 response program in insurance Gilbert a sexual harassment cause of action un Lehmann, Jersey Superi- Satty the New LAD. 626 A.2d at 451-54. to Gilbert der the stated: The court stated: or Court expressed in Clearly, by those deci- find that the standards we are not bound We Guidelines, statute, helpful, while are construing our own even the EEOC sions Castellano, signed implement traiy, construing it.” antidiscrimi- 361, law, N.J.Super. nearly twenty years 386 A.2d 396. before nation enacted Communications, Inc., prohibiting Carrington analogous Global federal statute em v. RCA see, (D.N.J.1991). discrimination, F.Supp. ployment See also Shaner v. Hori 433, 436, Lightolier, F.Supp. Bancorp., 116 N.J. 561 A.2d 1130 Abrams zon ("This (D.N.J.1994) (1989); persuaded court is not Elevator Nolan Otis denied, Court would disa- U.S. State cert. (1986), [v. standard enunciated in Slohoda Unit- L.Ed.2d 38 vow the 107 S.Ct. Service, Inc., N.J.Super. themselves bound ed Parcel courts have not considered caselaw, , though (App.Div.1986)] that the NJLAD A.2d 53 to find [the NJLAD] federal "even motivating application fac- essentially subject warrants of the ‘sole to the same matter as relates Corp., rights test v. CIGNA parallel [announced civil law. We are free to tor' federal Griffiths cases.”); Cir.1993)] pretext concept right apply that which 988 F.2d 457 our own Township the proper United States v. Board Educ. in the circumstances.” Castellano of of of 1093, (D.N.J.1992) Education, N.J.Super. Piscataway, F.Supp. 798 1099 Board 158 v. Linden of 360, (hold ("[T]here 350, nothing (App.Div.1978) to indicate that the New is 386 A.2d 396 Jersey Supreme a ‘slavish ing pregnancy Court would exhibit discrimination violated law.”). despite contrary States Su devotion' to federal NJLAD United preme precedent), on other Court modified (1979). 31, 1978, 407, grounds, Notably, VII of the N.J. 400 A.2d 1182 4. on October Title 79 Moreover, positive Rights was amended to include the clear and Civil Act of 1964 “mindful of discrimination,” prohibition pregnancy-based against discrimination in its policy of our state Fed. Sav. & consistently See Jersey held that of sex discrimination. New courts have California 272, 284-85, Guerra, "[ejffectuation 107 Ass'n v. U.S. of that mandate calls for liberal Loan 683, 691-92, (1987). 93 L.Ed.2d 613 interpretation any legislative enactment de- S.Ct. by judging each individual prides itself on to define insufficiently structured develop- his or her merits.” stage in the of action cause However, agree we with of the law. ment (case quotations citations to Id. that the Third Circuit’s dissent below omitted). Ban also Shaner v. Horizon majority employed Andrews test 433, 1130, 1131-32 corp, 116 561 A.2d N.J. many analytical difficul- too contains below Co., 486, (1989); v. Exxon 446 A.2d Anderson usefully em- be and deficiencies ties (“Our (N.J.1982) repeatedly court has ployed here. policy emphasized strong public of New by engraft- risking confusion than Rather discrimination.”). Jersey against employment test, major to the Andrews ing revisions Jersey Layman, the New In Fuchilla v. hope in the a new test announce Supreme engaged in a similar discus Court employees that both creating a standard Jersey: public policy of the New sion to understand employers will be able begin recognizing that the clear We realistically employers can and one policy is to abolish public of this state impor- cannot overstate the We enforce. Indeed, workplace. in the discrimination em- place on a test that allows tance we nothing overarching goal of the law is rights given their in a set ployees to know “of the cancer of less than the eradication employ- and that allows of circumstances Co., v. discrimination.” Jackson Concord procedures that policies and ers to set (1969). 113, 124 As [253 793] 54 N.J. A.2d comply that test. with declared, Legislature has “discrimina- Id. at 453.5 only rights and tion threatens not privileges inhabitants proper

III. but the institutions and State menaces functions of a free democratic state.” Lehmann, Jersey Supreme the New day long past is N.J.S.A. 10:5-3. The legislative intent discussed Court also any employee when need endure discrimi- policy public behind race, religion, or her nation because of his LAD: origin, gender. Employment national against discrimination law The New just a discrimination is not matter between purpose in 1945. Its was first enacted public employer employee. The inter- the eradication ‘of the “nothing less than ” workplace in a discrimination-free in- est opportuni- cancer of discrimination.’ inquiry. v. Vesta fuses the David employment recognized ty “is to obtain (1965). [212 345] N.J. right.” a civil to be N.J.S.A. and declared 10:5-4. Layman, Fuchilla v. 109 N.J. denied, (1988), University protect enacted to cert. The LAD was Dentistry Jersey v. rights aggrieved of individual em- Medicine and New

the civil Fuchilla, protect public’s ployees also to U.S. S.Ct. but (1988).6 passages L.Ed.2d 51 These relied in strong interest in a discrimination-free part Jersey Legislature’s from discrimination on the New decla workplace. Freedom principles fundamental of our ration shall is one of the gender is society. based on be free from discrimination. N.J.Stat.Ann. Discrimination 10:5-3, text, society Majority repugnant in a which 5-4. For the full see “peculiarly enforceable); Woolley Hoffmann-LaRoche, Notably, the United States (1985) (a recently define the elements of a undertaken to 99 N.J. 491 A.2d 1257 written under VII. Harris sexual claim Title harassment implied promise discharge only, for cause Inc., -U.S. -, Systems, 114 S.Ct. will, though employment was terminable at even Forklift 126 L.Ed.2d 295 enforceable); may be Pierce v. Ortho Pharmaceu- (1980) Corp., A.2d 505 tical Additionally, policy (adopting general public exception way furthering rights of em has led the employment recognizing at will that an at-will ployees Sanyo areas. Shebar v. Business in other employee discharged cannot be for reasons con- (1988) Systems Corp., 111 N.J. 544 A.2d 377 trary ppblic policy). (oral promise discharge only, cause even of will, though may at was terminable

841 proclamation op. pre- at n. 6. I find this The Federal Rule of Evidence on overwhelmingly sumptions persuasive. states: cognizant Jersey case- I am of other New In all civil proceedings actions and stating contrary: law the provided by Congress otherwise for Act of arising In a sex discrimination case under rules, by presumption imposes these L.A.D., supreme the N.J. our court held party against on the whom it is directed showing that the test for was facie going the burden of forward with evidence the same as that used in federal cases presumption, to rebut or meet the but does arising Rights under Title of the VII Civil party not shift to such proof the burden of provisions Act of 1964. Because the of the nonpersuasion, in the sense of the risk of ADEA were modeled after Title VII and throughout upon which remains the trial nearly wording pur- are identical party originally the on whom it was cast. pose, applied Title VII standards are Jersey Fed.R.Evid. 301. The New rule on conclude, ADEA cases. We thus as did presumptions states: below, judge plaintiffs’ the contentions appropriately analyzed by should exam- Except provided as otherwise in Rule arising ination of federal cases under Title law, presumption 303 or other dis- and the ADEA VII charges producing the burden evidence (the fact) Educ., presumed a fact Giammarino v. Trenton Bd. when (the fact) fact N.J.Super. (App.Div.1985), 497 A.2d another basic has been es- denied, rt. 102 N.J. 508 A.2d 212 tablished. ce (1985), denied, cert. S.Ct. U.S. If tending evidence is introduced to dis- (1986) (citations L.Ed.2d 337 omit fact, prove presumed the the issue shall be ted). However, in that fol case submitted to the trier of fact for determi- because, Supreme precedent lowed nation unless the evidence is such that time, Supreme consistent persons reasonable would not differ as to Jersey public policy. with New This does pre- the existence or nonexistence of the Jersey not lead to the conclusion that New tending If sumed fact. no evidence will continue to follow the Court. disprove presumed presented, fact is stated, passage The above was correct when presumed' fact shall be deemed estab- but is now doubtful. Clowes v. Terminix Cf. if the fact found lished basic is or other- Intern., Inc., persua- wise established. The burden of (1988) (holding handicap that alcoholism is a disproof sion as to the Jersey begin under the New LAD: ‘We our presumed party fact does not shift to the analysis perspective from the that because against presumption whom is directed legislation, is [LAD] remedial social required unless otherwise law. Noth- construction.”). deserving of a liberal judge ing preclude in this rule shall commenting on inferences that IV. be drawn from the evidence. major premise majority’s opin- Jersey regarding comparison is that A two ion the New rule N.J.R.Evid. 301. presumptions parallels the federal rules reveals that the federal rule “bursts the rule of presumptions upon presumption, which Hicks is based. bubble” of the while the New Majority op. persuaded Jersey jury. I 828-30. am not rule creates an issue closely Athough that the New rule so resem- the New rule does not nec- justifies theory presump- serving essarily Morgan’s bles the federal rule that it follow decision, tions,7 party resisting presump- particularly as the basis of this light policy of the liberal anti-discrimination tion must introduce sufficient evidence adopted by certainly Legislature presumption, both overcome the it is the New Thayer’s “bursting Court. an enactment bubble”8 generally Wigmore, generally Wigmore, § § Evidence Evidence 2493c 8. See 1981). (Chadboum 1981). (Chadbourn rev. rev. changes existing law. The rule along the continuum This rule

—it falls somewhere contrary if has has been that evidence was two. One commentator between introduced, gone.... Jersey presumption rule closer to Mor- was New placed the remains, Thayer’s a fact theory because New Under this rule issue with gan’s than “logical” supporting presump- no distinction between and “artifi- Jersey the evidence presumptions. the rule presumption itself cial” The effect of possibly tion or even (a) H. if contra- Ralph N. Del Deo & John is that there is no evidence to remains. Klock, Jersey underlying fact the as- 2B Practice Ch. 3 at 334 dict either the New fact, (1987).9 Although comment- the assumed fact must be tak- the author was sumed Jersey pre- jury on so ing on the former New rule en to exist and the should be (b) ...; comparison sumptions, a between if there is evidence Rule instructed any underlying fact or 14 and Rule 301 does not reveal to contradict either the Rule ..., change. jury the first fact is to deter- The text of the assumed substantial paragraph of Rule 301 fact as sentence of the second mine the existence the assumed essentially 14. The contest issue. is the same as Rule on- other language change the effect of added does not Klock, 2B Ralph N. Del Deo & John H. rule. Rule 14 stated: (1987). Jersey Practice Ch. 3 at 334 if Except provided Rule evi- Although interpretation this has contrary presumed of a fact is dence to the formally adopted by Su- offered, the existence or nonexistence of Court, preme its existence demonstrates that fact, trier of such fact shall be for the minds can differ on the issue. reasonable is such that the minds unless the evidence being I That cannot conclude that not differ as to of reasonable men would would follow pre-

the existence nonexistence Hicks, analysis par- Court’s sumed fact. ticularly light Jersey’s poli- public of New Majority op. n. 10. Rule 14 See also at 830 cy to eradicate discrimination from the work- presently Rule 301 do not follow effective place. supreme At least one other state rule, previous interpreted which court has chosen follow Hicks because Thayer’s theory. be an In enactment interpreted its rule of on own evidence Co., Dwyer v. Ford Motor 178 presumptions differently. Schweigert v. (1962), court held that a Provident Ins. 503 N.W.2d 225 Life presumption emptied proba (N.D.1992). of all of fact is disappears upon from the case tive force and contrary. any proof

introduction of to the V. Auth., McGlynn Parking v. Newark Cf. clearly N.J. When Because New 432 A.2d dedicated enacted, preserving establishing Rule was the Commission Note a low threshold for explained rights regard employ- rule it this civil violation with the new accompanying discrimination,10 way: ment I would hold (4th Jury Charges 9. The New Model the adverse action would have been taken re- —Civil 1992) employment supports ed. cases gardless retaliatory Jury intent. Model interpretation. dealing with retali In the section Charges Civil, §2Ch. 22C. — only ation for a discrimination claim—the sec presump tion that discusses the effect of the sum, provides the LAD a distinctive cause charge tion—the cites to v. Rock model Jamison arising employment of action from unlawful Educ., away Township Bd. practices and unlawful discrimination in em- (N.J.Super.Ct.App.Div.1990) (citing Wrighten v. ployment. overarching goals of the LAD Metropolitan Hospitals, 726 F.2d aggrieved are not vindication for individu- (9th Cir.1984)), proposition for the that once the als victimized discrimination. Protection plaintiff proves that the defendant's articulated persons similarly for other situated and the alleged discriminatory reason for the false, action is discrimination eradication of invidious presumption is created that the adverse rights paramount exercise of civil are also con- product improper action was the retaliatory cerns of the LAD. The LADconfers broad and required intent and the defendant is prove by preponderance powers goals of the evidence that extensive remedial to fulfill these adopt will not Supreme Court analysis in LAD the Court’s MINES, INC., for the BETHENERGY 93-3428, Hicks. Petitioner No. v. FOR REHEARING

SUR PETITION DIRECTOR, OFFICE OF WORKERS’ PROGRAMS, COMPENSATION United Sept. Department States of Labor and Cather SLOVITER, Judge, Present: Chief Pierson, widow/Bernard, Respon ine BECKER, STAPLETON, MANSMANN, dents. HUTCHINSON, SCIRICA, GREENBERG, COWEN, NYGAARD, ALITO, ROTH, MINES, INC., BETHENERGY McKEE, Judges, Circuit LEWIS 93-3429, Petitioner No. McKELVIE,* Judge. District v. rehearing petition for filed appellees/cross-appellants the above enti- DIRECTOR, OFFICE OF WORKERS’ having tled cases been submitted to the PROGRAMS, COMPENSATION United judges participated who in the decision of Department States of Labor and Wil- this court and to all other available circuit LeJuene, Respondents. liam service, judges regular judge active and no having concurred in the decision asked who INC., BETHENERGY MINES rehearing, majority and a of the circuit 93-3430, Petitioner No. judges regular having active service not banc, rehearing voted for the court in v. petition rehearing is denied. DIRECTOR, OFFICE OF WORKERS’ PROGRAMS,

COMPENSATION United Department of Labor and Thom- States Grassa, Respondents. COMPANY, BARNES AND TUCKER 93-3431, Petitioner No. DIRECTOR, OFFICE OF WORKERS’ PROGRAMS, COMPENSATION United Department George States of Labor and Lubert, Respondents. INC.,

BETHENERGY MINES 93-3432, Petitioner No. DIRECTOR, OFFICE OF WORKERS’ PROGRAMS, COMPENSATION United Department Mary Labor and States Bohachick, widow/Samuel, Respondents. * McKelvie, practices and to counteract the and effects of Honorable R. United States Roderick Delaware, practices Judge sitting such unlawful and discrimination. District for the District of Bancorp, by designation, panel Shaner v. whose vote is limited to Horizon (N.J.1989). rehearing only.

Case Details

Case Name: McKenna v. Pacific Rail Service

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 17, 1994

Citation: 32 F.3d 820

Docket Number: 93-5253, 93-5277, 93-5385 and 93-5386

Court Abbreviation: 3rd Cir.