Full opinion text
OPINION LECHNER, District Judge. Plaintiff, Patrick Pepe (“Pepe”) filed a complaint in the Superior Court of New Jersey, Law Division, Union County (the “Complaint”), against the defendant, the Rival Company (“Rival”), alleging age discrimination under the New Jersey Law Against Discrimination (the “NJLAD”), N.J.S.A., 10:5-1, et seq., breach of án express and/or an implied employment contract and breach of the covenants of good faith and fair dealing. Rival filed a notice of removal (the “Notice of Removal”) pursuant to 28 U.S.C. § 1446(a); diversity jurisdiction was asserted pursuant to 28 U.S.C. § 1382 Currently before the Court is a motion for summary judgment (the “Motion for Summary Judgment”), filed by Rival. For the reasons set out below, the Motion for Summary Judgment is granted. Facts A. Parties Pepe resides in New Jersey. See Complaint; Notice of Removal ¶ 3. Pepe was employed by Rival from 1989 to 1998. See Complaint, First Count ¶ 1; Plaintiffs Rule 56.1 Statement ¶¶ 1, 62. Pepe was initially employed as a district sales manager (“District Sales Manager”) and was later promoted to senior district sales manager (“Senior District Sales Manager”) in the Rival Kitchen Sales Organization (the “Kitchen Sales Organization”). See Complaint, First Count ¶ 1; Plaintiffs Rule 56.1 Statement ¶¶ 1, 62. Rival is a Delaware corporation with its principal place of business in Missouri. See Notice of Removal If 4. Rival sells various product lines, including a line of kitchen appliances. See Moving Brief at 1. Rival sells its product lines to retail customers which include department stores, distributors and certain national stores such as Wall-Mart, K-Mart and Target. See Deposition of Mark Bittner (“Bittner Dep”) at 175. B. Background 1. Allegations Pepe contends Rival is hable under the NJLAD, because his termination was allegedly motivated by age. See Complaint, First Count ¶¶ 11, 13. Pepe also alleges Rival is liable for breach of either an express and/or implied employment contract based upon his membership in a so-called Secular Trust (the “Secular Trust”), a pension plan offered to select Rival employees, and/or an employment handbook Rival sent to him at the beginning of his employment. See id. at Second Count, ¶¶3, 4. Finally, Pepe alleges Rival breached covenants of good faith and fair dealing in connection with his alleged employment contract. See id. at Third Count, ¶ 2. 2. Initial Employment with Rival In 1989, Pepe joined Rival as a District Sales Manager responsible for a territory which included New York, New Jersey and parts of New England (the “New York Territory”). See Pepe Cert. ¶ 1. Upon commencing employment at Rival, Pepe did not sign an employment contract. See Deposition of Patrick Pepe (“Pepe Dep.”) at 191; Defendant’s Rule 56.1 Statement ¶ 2. Once Pepe began his employment, Rival sent a copy of The Rival Company Sales, Administrative & Clerical Associates Handbook (the “Rival Associate Handbook”) to his home in New jersey. See Pepe Cert. ¶ 45. Pepe stated he relied on the Rival Associate Handbook “as outlining company policy.” Id. at ¶ 48. However, after receiving the Rival Associate Handbook, Pepe stated he reviewed the portions “which seemed important.” Id. at ¶ 46. Pepe stated he reviewed “portions relating to performance and benefits.” Id. The Rival Associate Handbook included a section titled the Associate Handbook Statement (“Associate Handbook Statement”). See Rival Associate Handbook at 2. Appearing on page two of the Rival Associate Handbook following a message from the President of Rival, the Table of Contents and the Company Mission Statement, the Associate Handbook Statement provides: This Rival Associate Handbook is by no means intended to cover every facet of the Associate-Employer relationship. Regardless of the manner or duration of the Associate’s compensation, nothing contained herein shall create employment for a definite term and the statements made herein are simply general statements of THE RIVAL COMPANY (“THE COMPANY”) policy. Without prior notice and at any time for any reason, the Company specifically reserves the right to: 1. MODIFY THESE POLICIES, 2. APPLY THEM IN A MANNER THAT RETAINS DISCRETION IN THE COMPANY, OR 3. REFRAIN FROM APPLYING THESE POLICIES Associates may terminate their employment without prior notice at any time for any reason, The Company may do the same. All oral statements made at any time regarding employment and any written employment rules, statements, policies or Rival Associate Handbooks of any form or nature issued prior to this manual are hereby revoked. The Company’s policies may not be changed except in writing by the President of The Company. Id. (emphasis added). Pepe admitted he did not read the Rival Associate Handbook Statement; he stated that nothing about the page “made it seem any more important than the first few pages that went before it.” Pepe Cert, at ¶ 47. Pepe asserts he interpreted the Rival Associate Handbook as “containing promises of the company with respect to many things including promotion, transfer, corrective action, and termination.” Id. The Promotions and Transfers section of the Rival Associate Handbook reads: It is the policy of The Rival Company to fill vacancies wherever possible by transfer or promotions. The best qualified individual will be selected. Primary consideration will be given to qualified associates when trying to fill vacancies. * * * * ❖ • Those who apply will be considered on the basis of ability, experience, overall job performance and attendance. Screening interviews will be done by the Personnel Manager with the interviewing supervisor making the final selection. • The first 30 days will be considered a probationary period, as it is in all positions within the Company. The person selected will be given the chance to perform the new job in a satisfactory manner. • If there are no qualified applicants for the job within Rival, it will be filled by other means. • The Personnel Department will notify all applicants when a position has been filled. Rival Associate Handbook at 17. The Corrective Action Procedure section of the Rival Associate Handbook provides: From time to time, problems arise that relate to attendance, work performance or disruptive behavior. Every associate will be given the opportunity to correct such problems. Corrective actions will follow a 3-step plan: Step # 1 — Counseling Your supervisor will counsel you about the problem. They [sic] will work with you to correct the problem. This will be considered your “Verbal Warning.” If the problem is corrected nothing further will be said. It will not be held against you in any way. Step # 2 — Written Warning Should the problem continue, your supervisor will counsel you again. They [sic] will put a statement of the problem in written form, a copy of which will go to your personnel file. Receipt of a written warning automatically places you on thirty (30) days probation. Your signature is required on this form as acknowledgment that you have read and understand the form. If the problem continues, the supervisor is required to move you to Step # 3. Step # 3 — Termination To insure fair play, no terminations under this policy are permitted without the approval of the department head. No one will be terminated without every possible assistance and fair warning. Id. at 20. Pepe argues, based upon the Corrective Action Procedures listed in the Rival Associate Handbook, he had an implied employment contract that he would not be terminated without cause. See Opposition Brief at 35. Further, Pepe states no one at Rival ever told him he was an at-will employee. See Pepe Cert. ¶ 48. Nevertheless, at page two of the Rival Associate Handbook it is clearly, plainly stated that: ... [N]othing contained herein shall create employment for a definite term .... Associates may terminate their employment without prior notice at any time for any reason, The Company may do the same. Rival Associate Handbook at 2. 3. Employment 1989 — 1997 In 1992, Pepe was promoted to Senior District Sales Manager. See id. at ¶4. The Senior District Sales Manager position ' involved “supervising a [District [S]ales [M]anager, selling Rival’s products, increasing the number of customers and sales volume in the territory, implementing pricing and advertising programs that were approved by senior management, controlling and administering the advertising budget,” communicating with the home office and maintaining good customer relations for Rival in the New York Territory. Id. at ¶ 5. 4. Performance at Rival During the first eight years of his tenure at Rival, Pepe was supervised and reviewed by Karl Zehner (“Zehner”). See Plaintiffs Rule 56.1 Statement at ¶ 14. Zenner testified that he received “a lot of feedback” from Pepe and probably spoke to him every day. Zehner Dep. at 36. Zehner also testified that Pepe expanded both the volume of sales and the customer base of the New York Territory. See Zehner Dep. at 32; see also Pepe Cert. ¶ 8. Pepe attained eighty-five percent of his sales quota in 1996 and received a $12,-500.00 bonus. See Jacob Supplemental Cert., Exhibit A (the “1996 Bonus Review”); Pepe Dep. at 321. Pursuant to the 1996 Bonus Review, Pepe received the “Threshold” bonus for team work, the “Target” bonus for placement and profitability, and the maximum bonus for advertising. See 1996 Bonus Review. Pepe testified that “Threshold” bonus was “the first level of bonus pay out.” Pepe Dep. at 322. Pepe also testified that the effort for the “Target [bonus was] what they wanted you to achieve.” Id. Under the heading “Teamwork” the 1996 Bonus Review stated: Pat did a fair job on teamwork goal with Federated. Communication better at end of the year, but needs much improvement with other associates calling on Federated. Pat must focus on reestablishing Rival as [sic] major vendor for Federated. 1996 Bonus Review. Zehner described advertising administration as an area from which District Sales Managers “could make contributions to profitability of the company.” Zehner Dep. at 30. Zehner complimented Pepe on advertising administration and commented, that during his last few years at Rival, Pepe “was under budget” for New York Territory advertising. Id. Pepe contends Cindy Francis (“Francis”), Director of Advertising, consistently complimented him on his advertising administration. See Pepe Cert. ¶¶ 25, 27. According to Manning, Pepe turned in the worst performance of all Rival District Sales Managers in advertising administration. See Manning Dep. at 108-109. When asked about administration skills in general, Manning described Pepe as “not somebody that you’d count on.” Id. In addition, various other members of Rival senior management criticized Pepe concerning his administrative and communication skills. See Deposition of Stanley Biggs (“Biggs Dep.”) at 75-86 (discussing Pepe’s deficient computer skills and Pepe’s failure to respond to administrative inquiries from Francis and himself); Francis Dep. at 9-12, 47-54 (noting that Pepe did not timely cancel his “ad reqs” and had a greater problem with administrative issues than other Rival salespeople). 5. The Secular Trust In 1996 Pepe was invited to participate in the Secular Trust, a pension plan established for highly compensated Rival personnel. See Pepe Cert. ¶ 55; Manning Dep. at 78-79; Biggs Dep. at 87. Rival made a contribution to the Secular Trust for each plan participant equal to twelve percent of his or her yearly salary. See Pepe Cert. ¶ 55. Pepe argues his inclusion in the Secular Trust ensured his employment with Rival until his retirement. See Opposition Brief at 37;- see also Pepe Cert. ¶ 57; Pepe Dep. at 307. Pepe asserts Manning told him inclusion in the Secular Trust guaranteed “a comfortable retirement from Rival.” Pepe Cert. ¶ 56. Pepe also asserts William Endres (“Endres”), then the Vice President of Sales, described the Secular Trust as a “great experience” and told Pepe “[y]ou have a long and enhanced opportunity until retirement to be here.” Pepe Dep. at 307. The Secular Trust Agreement (the “Secular Trust Agreement”), which Pepe asserts provided an express or implied employment contract, does not contain any assurances concerning employment at Rival. See Secular Trust Agreement; see also Manning Dep. at 80; Biggs Dep. at 87. On the first page, the Secular Trust Agreement identifies its purpose — to act as a retirement plan. See Secular Trust Agreement at 1. In the definition section, the Secular Trust Agreement defines a “Terminated Participant” as “a person who has been a Participant, but whose employment has been terminated other than by death.” See id. at 8. Further the Secular Trust Agreement provides for a determination of benefits when a participant terminated his or her participation for reasons other than death. See id. The Secular Trust Agreement indicates the time ,for distribution of benefits. The provision provides: Except as limited by Sections 5.4 and 5.5, whenever the Trustee is directed, pursuant to this Agreement, to make a distribution, the distribution may be made as soon thereafter as practicable, but in no event later than the 60th day after the close of the Plan Year in which the latest of the following events occurs: (a) the date on which the Participant attains the earlier age of 65 or the Normal Retirement Age specified herein; (b) the 10th anniversary of the year the Participant commenced participation in the Plan; or (c) the date the Participant terminates his or her service with the Company. Id. at 13. The Secular Trust Agreement also has a choice of law provision titled “Governing Law.” Id. at 22. The choice of law provision states: “To the extent not preempted by the Employee Retirement Income Security Act, this Trust Agreement and the Trusts created herein shall be construed, regulated and administered under the laws of the State of Missouri....” Id. Pepe admitted no member of Rival management told him participation in the Secular Trust would guarantee his employment until retirement. See Pepe Dep. at 306. Pepe further admitted he did not read the terms of the Secular Trust Agreement until after he was terminated. See id. at 185-186, 189-190. Pepe also admitted he knew at least one member of the Secular Trust, Endres (Vice President of Sales), who was fired by Rival. See id. at 190. When asked during his deposition if he believed his inclusion in the Secular Trust meant he could not be fired “[u]nder all circumstances,” Pepe answered: Well, I don’t think anybody, anyone would think under all circumstances. I would think if I continued to perform my duties as I’ve been in the past and planned on continuing to do in the future and continued to get good job reviews and perform as I was performing, then I would be there [at Rival] until 65. Id. at 307. 6. Changes in Rival Management Zehner voluntarily resigned from Rival on 25 October 1997; at that time Witter and Scott Royal-Ferris (“Royal-Ferris”), took over the responsibility of supervising. both Pepe and Philip Pruner, the District Sales Manager for the Ohio territory. See Plaintiffs Rule 56.1 Statement ¶¶ 20-21. About two weeks later, in early November 1997, Royal-Ferris informed Pepe of his intention to terminate Thomas Frain (“Frain”), the District Sales Manager whom Pepe supervised. See id. at ¶22. Pepe complained about the change because the New York Territory always had been covered by at least two District Sales Managers. See id. at ¶¶ 23-24; see also Pepe Cert. ¶ 34. In addition, Frain had been responsible for calling on most of the smaller retailers, which allowed Pepe to focus his efforts on the larger accounts in the territory, including I. Lehrhoff & Company (“Lehrhoff’). See Plaintiffs Rule 56.1 Statement ¶ 22; see also Pepe Cert. ¶ 34. On 5 December 1997, Frain was terminated and Pepe became responsible for the New York Territory. See Plaintiffs Rule 56.1 Statement ¶¶ 25-26. Pepe argues the termination of Frain was part of a scheme “to expose him” and “lead to his termination.” Id. at ¶ 27 (citing Witter Dep. at 99); see also Opposition Brief at 5. Accurately stated, Witter testified the decision to fire Frain was motivated by three factors — (1) the declining sales volume in the New York Territory no longer supported both positions, (2) Rival management did not believe “they were getting the most out of [Frain]” and (3) Royal-Ferris wanted to show Pepe was working only for Lehrhoff and to “uncover a lot that [Pepe] was not doing.” Witter Dep. at 99. Witter further testified the change was not designed to make Pepe fail, but rather “to see how [Pepe would] respond to the bigger challenge” of calling on other customers in the New York Territory. Id. Pepe states that after the firing of Frain, Stan Biggs (“Biggs”), Vice-President and Treasurer of Rival, and Witter began “harassing him with questions and criticizing him” regarding various aspects of his advertising administration. Pepe Cert. ¶ 18; Plaintiffs Rule 56.1 Statement ¶ 28. Following Zehner’s departure, members of Rival management began to question Pepe about the New York Territory advertising. See, e.g., Biggs Dep. at 82-86; Witter Dep. at 89. Biggs requested Pepe start following company policy by submitting dealer debits, documentation which proves that an advertisement has been run. See Biggs Dep. at 82-84. In addition, Witter and Biggs both questioned the practice Pepe employed of allocating advertising money from smaller accounts to Lehrhoff. See id. at 85-86; see also Witter Dep. at 39 (“[t]here were some questions about the advertising of the New York market.”). Biggs and other members of Rival senior management thought Pepe was focusing on one particular account, the Lehrhoff account, to the exclusion of other accounts in the New York Territory. See Biggs Dep. at 89; Deposition of William Yager (‘Yager Dep.”) at 23-24. William Yager (“Yager”), President and Chief Operating Officer of Rival, testified he believed Pepe was “working” for Lehrhoff. See Yager Dep. at 23. Biggs stated he believed Pepe was loyal to Lehrhoff and not Rival. See Biggs Dep. at 89. Biggs testified Pepe had shown Arthur Lehrhoff, the Chief Executive Officer of Lehrhoff, a confidential internal pricing memorandum, addressing “special deals” on pricing. See id. Pepe argues he did not give the confidential memorandum to anyone at Lehrhoff. See Plaintiffs Rule 56.1 Statement ¶ 47. Pepe offered the testimony of Arthur Lehrhoff, who stated he took the memorandum from Pepe’s desk. See Lehrhoff Cert. ¶ 9. Pepe contends the criticism concerning his advertising administration represented a departure from previously accepted practices at Rival. See Pepe Cert. ¶¶ 21, 24. Specifically, Pepe argues his continued receipt of the maximum advertising bonus and comments by his previous supervisor, Zehner, demonstrate his skill in advertising administration. See Opposition Brief at 2; Pepe Cert ¶25; see also Zehner' Dep. at 30. Further, Pepe argues that he was consistently under budget and received compliments concerning his advertising administration. See Opposition Brief at 2-3; Pepe Cert ¶ 25. 7. Reorganization On 1 April 1998, Mark Bittner (“Bitt-ner”) was hired by Rival as the Vice President of Sales. See Bittner Dep. at 37. Before joining Rival, Bittner had reorganized the sales organization of thirteen other companies. See id. at 158. At the outset, it is important to recognize that Pepe has failed to offer any evidence, or even argue, Bittner had any motivation to harm Pepe or otherwise terminate him for Rival other than for legitimate, non-discriminatory business reasons. During his first few weeks of employment, Bittner reviewed the existing sales structure and determined a reorganization would benefit Rival. See id. at 46, 119— 120. Bittner believed Rival should focus more on national accounts. See id. at 48. Specifically, Bittner believed Rival would achieve greater sales by replacing the District Sales Manager positions with outside sales representative agencies which would be paid only for the sales they generated. See id. at 176-719. Bittner planned “to eliminate all of the direct selling positions that did not entail national accounts.” See id. at 49. Bittner presented his ideas to Yager and Manning, both of whom agreed with his proposed reorganization (the “Reorganization”). See id. at 46-48; Yager Dep. at 15-16, 20. Significantly, Pepe does not contest the fact that, the Reorganization occurred. During the decision-making stage of the Reorganization, Bittner questioned the strength of three markets, those covered by Pepe (then age 47), Paul Curlett (“Curlett”) (then age 57) and Phil Lapenta (“La-penta”) (then age 35). See Bittner Dep. at 136; Butler Cert. ¶2. He recommended terminating all three employees based on the decline in revenue in all three territories. See Bittner Dep. at 136. Yager and Manning agreed with Bitt-ner’s assessment of Pepe and Lapenta, but disagreed concerning Curlett. See Yager Dep. 16-17, 23-24, 33; Manning Dep. at 33. Yager believed Curlett should not be terminated because Curlett “deserved a chance to be accountable in the future.” Id. at 16-17. Manning felt that Curlett should be retained because companies in his territory had “disappeared” and many “key accounts ... were no longer in business.” Manning Dep. at 34. Manning did not know enough to judge Bittner’s evaluation of Lapenta. See id. at 37-38. As a result of the Reorganization, all seven District Sales Manager positions were replaced with outside sales representative agencies. See Bittner Dep. at 49. These outside sales representative agencies handle the customers previously serviced by the District Sales Managers. See id. This replacement decreased Rival’s costs because, unlike the District Sales Managers, the outside sales representative ágen-cies were not on Rival’s payroll. See id. at 178-179. 8. Regional Sales Manager Position The Reorganization eliminated all of the District Sales Manager, Field Sales Manager and the National Account Manager positions at Rival and created the new Regional Sales Manager positions. See Bittner Dep. at 47-49. Bittner explained that there was a “world of difference” between the District Sales Manager position and the Regional Sales Manager position. Id. at 167. The Regional Sales Manager job was not a selling position. See id. The Regional Sales Manager position was supervisory in nature, involving the hiring and overseeing of outside -sales representative agencies. See id. at 164; see also Pruner Dep. at 118. Customer contact, which represented a significant portion of the District Sales Managers’ time would be primarily handled by outside sales representative agencies. See Defendant’s Rule 56.1 Statement ¶ 48; Bittner Dep. at 174; Manning Dep. at 107. The Militti Group and Synergy Sales were retained to call on customers in areas covered by the New York Territory. See Defendant’s Rule 56.1 Statement ¶ 48; Bittner Dep. at 174; Manning Dep. at 107. Regional Sales Managers covered a more extensive area than District Sales Managers. See Bittner Dep. at. 164; see also Pruner Dep. at 118. For example, the Regional Sales Manager position, which Pepe claims he should have been appointed to, supervised accounts in Michigan, Ohio, Pennsylvania, New York, New Jersey, Vermont, New Hampshire, Massachusetts, Connecticut, Rhode Island and the PHD national account (the “East Territory”) (the “East Regional Sales Manager”). See Bittner Dep. at 164; see also Pruner Dep. at 118. Due to the supervisory nature of the Regional Sales Manager position, extensive administrative skills were required. See Bittner Dep. at 179-180. The administrative aspects of the Regional Sales Manager position resulted in a greater amount of paperwork than the District Sales Managers were responsible for under the old system. See id. at 183, 186; Manning Dep. at 113-114. The Regional Sales Manager position also required more frequent communication with, and prompt responses to, the home office than the District Sales Manager position. See Bitt-ner Dep. at 183-184. 9. Selection of a Regional Sales Manager Bittner testified he considered every District Sales Manager, including Pepe, for the new positions created by the Reorganization. See Bittner Dep. at 120. According to Bittner, he placed “the best people in the best jobs.” See id. Bittner did not, however, seek applications for the new Regional Sales Manager positions. See id. In fact, neither Pepe nor any of the other District Sales Managers applied for, or were aware of, the new positions prior to implementation of the Reorganization. See, e.g., Pruner Dep. at 117-118. To select the most qualified people, Bitt-ner asked Witter, based upon his experience as their supervisor, to rank the District Sales Managers. See Bittner Dep. at 96. Bittner testified: I asked Tom Witter to rank his direct reports. And I wanted to see the best and I wanted to see the worst and I wanted him to rank them in terms of all qualifications of the job and contributions and strategic thinking and planning and promotional activity and general management characteristics. And he ranked his direct reports. Id. Witter testified he considered the candidates and ranked the District Sales Managers based upon his “perception of the sales job” done by each of them. See Witter Dep. at 37. As part of his rankings, Witter considered both the District Sales Managers responsiveness to, and communications with, the home office. See id. Witter ranked Pruner as the best candidate of the seven District Sales Managers. See id. Specifically, Witter testified the principal reason he ranked Pruner first was because of “his aggressiveness and his thoroughness in communication.” Witter Dep. at 38. Pepe was ranked “dead last as the weakest member of the sales team.” Bittner Dep. at 98. Based in part on these rankings, Bittner placed Pruner in the Regional Sales Manager position overseeing the East Territory. See id. In addition, Bittner testified he also considered the fact that no one he spoke with had anything negative to say about Pruner’s work performance; as well, no one with whom he spoke had anything positive to say about Pepe’s work. See id. 112-113. Witter explained several of the reasons for his negative evaluation of Pepe. See Witter Dep. at 38-39. The primary reasons for ranking Pepe last were: (1) Pepe was very difficult to reach by phone and (2) “he didn’t have much computer training” and despite several offers to take classes in Kansas City, Pepe never scheduled an appointment. See id. at 38. The secondary reasons for ranking Pepe last included: (1) Pepe did not respond punctually to e-mails, (2) Pepe was unprepared for a sales presentation Witter attended, (3) Pepe did not adequately focus on, and even ignored, various accounts in his territory, (4) Pepe did not know how to get to an account on Long Island and (5) Pepe did not cancel “ad reqs” on time, but only canceled them at the end of the fiscal year to come in under budget. See id. at 38-39. Pepe disputes all the reasons Witter gave for his negative ranking of Pepe. See Pepe Cert. ¶¶ 26-37; see also Moving Brief at 8-10. Pepe stated he was never unprepared for a sales meeting and offered the testimony of Mark Opfell, Vice President of Lehrhoff, to confirm that he never found Pepe unprepared for a sales meeting. See Pepe Cert. ¶ 33; see also Opfell Cert. ¶ 9. Pepe also asserts that while he may not have been reachable at his home office, he could always be reached by cell phone even if he was out on the road. See Pepe Cert. ¶ 28. Pepe also disputes that his computer skills were deficient. See id. at ¶31. It appears, giving Pepe the benefit of all favorable inferences, all of his disputation goes to whether Rival was right in its business judgment of Pepe’s worth to the company. This, however, is not the issue in the case. 10. Pepe’s Allegations of Age Discrimination Pepe testified he was denied the Regional Sales Manager position for the East Territory based upon his age. See Pepe Dep. at 166. At the time of the Reorganization, Pruner was 31 years old and Pepe was 47 years old. See Butler Cert. ¶2. The difference in his and Pruner’s age is the only evidence Pepe provides of the alleged discrimination. Pepe testified Rival discriminated against him by failing to appoint him to the Regional Sales Manager position held by Pruner. See Pepe Dep. at 392. Comparing himself and Pruner, Pepe testified he should have been appointed to the East Regional Sales Manager position based on my experience with the, my experience within The Rival Company, within New York, New Jersey, New England territory that [Pruner] covers, my experience versus, which was a lot more, versus his less experience, my ability to, my seniority versus a lot less seniority in knowing the company. My rapport and my knowledge of the New York customers. My being a team leader at Federated. My getting a great job review for great performance in the New York market, which was the toughest, one of the toughest markets in the country, versus no experience in that market at all. Pepe Dep. at 165. Pepe admitted in his deposition he does not know if Bittner was out to “fire the old people.” Pepe Dep. at 506-507. Pepe argues,, however, Witter and Royal-Ferris by firing Frain and making him responsible for the New York Territory “set [him] up to fail.” Opposition Brief at 27. As with much of Pepe’s opposition, this is simply argument which is unsupported by fact. Pepe argues this conduct tainted the decision made by Bittner to terminate him. See id. There is no evidence to support this argument. Rival presented evidence that the average age of personnel in the Kitchen Sales Organization increased following the Reorganization. See Butler Cert. ¶ 2; see also Defendant’s Rule 56.1 Statement ¶ 12. In addition, Rival noted the District Sales Manager positions held by Lapenta, then age 35; Mike Belliston, then age 38; Bill Korbin, then age 40 were all eliminated. See Moving Brief at 4. Further, Curlett, then age 57, was appointed to a Regional Sales Manager position. See id.; see also Butler Cert. ¶ 2. Bittner considered all of Rival’s former District Sales Managers for the new Regional Sales Manager positions. See Bitt-ner Dep. at 120. Witter testified he ranked Pruner first among the District Sales Managers because of “his aggressiveness and his thoroughness in communication.” Witter Dep. at 38. Bittner also considered the fact that no one with whom he spoke had anything negative to say about Pruner’s work performance; as well, no one with whom he spoke had anything positive to say about Pepe’s work. See Bittner Dep. at 112-113. Based upon his extensive experience reorganizing company sales forces, Bittner appointed Pruner as the East Regional Sales Manager. See id. at 120. Bittner believed Pruner would make a good Regional Sales Manager and that Pruner was the best qualified candidate for the East Territory. See id. Manning agreed with Bittner’s decision. See Manning Dep. at 33-34. Pepe testified that following his termination “Pruner seemed to be there the next week overseeing the [New York] [T]erritory.” Id. at 224. Pepe admitted, however, he does not know the scope of the East Regional Sales Manager position or the duties associated with it. See Pepe Dep. at 31, 34, 152. In addition, he could not describe the difference between the Regional Sales Manager and the District Sales Manager positions. See id. at 283-284 (“I think basically they are, basically the same. Probably a larger geographic area for regional”) Pepe admitted he does not know the criteria Bittner used in making decisions concerning the Reorganization. See id. at 491, 507-508. Pepe also admitted he has no knowledge of Pruner’s qualifications or his performance as a District Sales Manager. See id. at 166. In addition, Pepe conceded management decides which candidate is best qualified for the Regional Sales Manager position. See id. at 203. 11. Termination On 1 May 1998, Bittner called Pepe at home and left a message requesting Pepe meet him at the Newark Airport Hilton on 4 May 1998. See Pepe Cert. ¶ 58. On 4 May 1998, Bittner and Pepe met at the Newark Airport Hilton. See id. at ¶ 59. Bittner informed Pepe he was being terminated by Rival. See id. at ¶ 60; Bittner Dep. at 128. As explained, several Rival managers had serious questions, based upon legitimate, non-discriminatory business concerns, about Pepe’s work performance and loyalty. Nevertheless, Pepe was not terminated for poor work performance. See Moving Brief at 2. Reviewing the evidence presented, in light of all inferences in favor of Pepe, it appears the employment of Pepe was terminated after his position was eliminated in a business-driven reorganization. There is no genuine issue of material fact; Pepe has not offered any evidence or pointed to any evidence to establish or infer that age discrimination played a role in his termination. Discussion A. Standard for Summary Judgment To prevail on a motion for summary judgment, the moving party must establish “there is no genuine issue as to any material fact and that the moving party is entitled to judgment- as a matter of law.” Fed.R.Civ.P. 56(c). The present task is to determine whether genuine issues of material fact exist and whether Rival is entitled to judgment as a matter of law. A District Court may not resolve factual disputes in a motion for summary judgment. See Linan-Faye Constr. Co. v. Housing Auth., 49 F.3d 915, 926-27 (3d Cir.1995) ("[A]t the summary judgment stage, `the judge’s function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.’") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); Desvi, Inc. v. Continental Ins. Co., 968 F.2d 307, 308 (3d Cir.1992) ("[T]hreshold inquiry is whether there are `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party’") (citations omitted). When considering a motion for summary judgment, all evidence submitted "must be viewed in the light most favorable to the nonmoving party and all inferences must be drawn in that party’s favor." Gray v. York Newspapers, Inc., 957 F.2d 1070, 1077 (3d Cir.1992) (citing Erie Telecommunications v. Erie, 853 F.2d 1084, 1093 (3d Cir.1988)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Kowalski v. L & F Products, 82 F.3d 1283, 1288 (3d Cir.1996); Meyer v. Riegel Products Corp., 720 F.2d 303, 307 & n. 2 (3d Cir.1983) (the court must resolve "all inferences, doubts and issues of credibility ... against the moving party"), cert. dismissed, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984). Although the summary judgment hurdle is difficult to overcome, it is by no means insurmountable. As Rule 56(e) makes clear, once the moving party files a properly supported motion, the burden shifts to the non-moving party to demonstrate the existence of a genuine dispute. See Fed. R.Civ.P. 56(e); see also Anderson, 477 U.S. at 256, 106 S.Ct. 2505. As the Supreme Court stated in Matsushita, once the moving party has demonstrated the absence of a genuine issue of material fact, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." 475 U.S. at 586, 106 S.Ct. 1348. Indeed, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e). Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial." Matsushita, 475 U.S. at 586-87, 106 S.Ct. 1348 (emphasis in original) (citations omitted). In other words, the inquiry involves determining "`whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’" Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir.1990) (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505) cert. denied, 501 U.S. 1218, 111 S.Ct. 2827, 115 L.Ed.2d 997 (1991). "[T]he mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Gomez v. Allegheny Health Serv., Inc., 71 F.3d 1079, 1085 (3d Cir.1995), cert. denied, 518 U.S. 1005, 116 S.Ct. 2524, 135 L.Ed.2d 1049 (1996); see also Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir.1995); United States v. 717 So. Woodward St., 2 F.3d 529, 533 (3d Cir. 1993) (stating "[a]lthough entitled to the benefit of all justifiable inferences from the evidence, the nonmoving party may not ... withstand summary judgment by resting on mere allegations or denials in the pleadings.") (citations omitted); Players Int’l, Inc. v. United States, 988 F.Supp. 497, 500 (D.N.J.1997) (stating "the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial.") (citations omitted); Nevets C.M., Inc. v. Nissho Iwai Am. Corp., 726 F.Supp. 525, 534 (D.N.J.1989), aff’d without op’n, 899 F.2d 1218 (3d Cir.1990). Conclusory statements and arguments, alone, do not raise triable issues which preclude summary judgment. See Ridgewood Bd. of Ed. v. N.E., 172 F.3d 238, 252 (3d Cir.1999) (speculation and conclusory allegations are insufficient to forestall summary judgment); Sterling Nat’l Mortgage Co., v. Mortgage Corner, Inc., 97 F.3d 39, 44 (3d Cir.1996) ("[m]ere speculation about the possibility of the existence of such facts" does not raise a triable issue to defeat a motion for summary judgment). "The nonmoving party creates a genuine issue of material fact if [he or she] provides [or points to] sufficient evidence to allow a reasonable jury to find for him [or her] at trial." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir. 1995) (citations omitted). If the nonmovant fails to make a sufficient showing regarding an essential element of his or her case upon which he or she will bear the ultimate burden of proof at trial, all other facts are necessarily immaterial and summary judgment must be granted. See Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Brewer, 72 F.3d at 330; Siegel, 54 F.3d at 1130-31; see also Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir.1993) (stating "[s]ummary judgment is appropriate where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, or where it is so overwhelming that it mandates judgment in favor of the movant"). In Anderson, the Court held "[i]f the evidence [submitted by the non-movant] is merely colorable, or is not significantly probative, summary judgment may be granted." 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). A factual dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505; see also Coolspring Stone Supply, Inc. v. American States Life Ins. Co., 10 F.3d 144, 148 (3d Cir.1993) (observing that for issue to be considered genuine, nonmoving party must adduce more than a mere scintilla of evidence in its favor). In addition, when the factual context renders a claim implausible, the non-movant has a heavier burden of production in opposing a motion for summary judgment. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. "Summary judgment may present the district court with an opportunity to dispose of meritless cases and avoid wasteful trials." Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir.1996) (citing Celotex, 477 U.S. at 327, 106 S.Ct. 2548). Discovery in this case has been completed. A review of all the submissions reveals no genuine factual dispute that can be described as “material” in light of the controlling case law. Therefore, judgment may be awarded as a matter of law. B. NJLAD Claim Pepe alleges discrimination on the basis of age in violation of the NJLAD. See Complaint, First Count ¶¶ 10, 13. The Complaint states: After Plaintiffs termination, Defendant announced an opening for the position of Regional Sales Manager involving the oversight of sales in New York, New England and Cleveland. As set forth above, Plaintiff was already responsible for the New York and New England territory. Plaintiff was qualified but was not even given the opportunity to apply for this position. Instead, Defendant, without Plaintiffs knowledge appointed an employee who was significantly younger, less qualified, less senior and less experienced and who had little or no contact with the New York and New England territory * * * * * Defendant intended to discriminate against Plaintiff because of his age and, in fact, did discriminate against Plaintiff by discharging him from employment because of his age in violation of New Jersey’s Law Against Discrimination, N.J.S.A. 10:5-1, et. seq. (“NJLAD”). As such, Plaintiffs civil rights have been violated. Id. The NJLAD provides in pertinent part: It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination: a. For an employer, because of ... age ... of any individual, to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.... N.J.S.A. 10:5-12. To prevail on an NJLAD claim, Pepe must establish the discriminatory consideration, his age, played a determinative role in his termination. See Bergen Commercial Bank v. Sisler, 157 N.J. 188, 208, 723 A.2d 944 (1999) (extending NJLAD to include all claims alleging age played a role in the employment decision); Greenberg v. Camden County Vocational Technical Schools, 310 N.J.Super. 189, 198, 708 A.2d 460 (App.Div.1998) (citing Miller v. CIGNA Corp., 47 F.3d 586, 597 (3d Cir.1995) (plaintiff must show "the prohibited consideration played a role in the decisionmaking process and that it had a determinative influence on the outcome of that process.")) Under the NJLAD, discrimination may be alleged in various contexts. In the present case, Rival interprets the Complaint as alleging a termination and replacement claim. See Moving Brief at 11. A plaintiff seeking to survive summary judgment on a termination and replacement case must demonstrate "by a preponderance of the evidence" that: (1) he belongs to a protected category, (2) in performing his job he met his employer’s legitimate expectations, (3) he nevertheless was fired and (4) he was replaced by a significantly younger candidate to permit an inference of age discrimination. See Bergen Commercial Bank, 157 N.J. at 208, 723 A.2d 944; Erickson v. Marsh & McLennan Co., 117 N.J. 539, 550, 569 A.2d 793 (1990); Mogull v. CB Commercial Real Estate Group, Inc., 319 N.J.Super. 53, 64, 724 A.2d 863 (App.Div.1999), certif. granted, 161 N.J. 150, 735 A.2d 575; Greenberg, 310 N.J.Super. at 198, 708 A.2d 460; see also Healy v. New York Life Ins. Co., 860 F.2d 1209, 1214 (3d Cir.1988), cert. denied, 490 U.S. 1098, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989); Keller v. Orix Credit Alliance, 130 F.3d 1101, 1114 n. 5 (3d Cir.1997) (Roth, J., concurring in part dissenting in part); Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir.1996); Waldron v. SL Indus., Inc., 56 F.3d 491, 494 (3d Cir.1995); Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.); cert. denied, 515 U.S. 1159, 115 S.Ct. 2611, 132 L.Ed.2d 854 (1995); MCI, 829 F.Supp. at 1449. In cases where the position held by the discharged employee was eliminated, or the discharged employee was not replaced, he or she must prove that a younger employee was either retained or treated more favorably. See O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d 433, (1996); Showalter v. University of Pittsburgh Medical Center, 190 F.3d 231, 234 (3d Cir.1999); EEOC v. MCI Int’l, Inc., 829 F.Supp. 1438, 1449 (D.N.J.1993). Pepe contends the Complaint alleges a failure to promote claim. See Opposition Brief at 23. A plaintiff seeking to overcome summary judgment on a failure to promote claim must demonstrate that (1) he is a member of a protected class, (2) he applied and was qualified for a position for which the employer was seeking applicants, (3) he was rejected despite adequate qualifications, and (4) after his rejection, the position was awarded to someone with equivalent or lesser qualifications who was sufficiently younger to create an inference of age discrimination. See Erickson, 117 N.J. at 550, 569 A.2d 793; Andersen v. Exxon Co., 89 N.J. 483, 492, 446 A.2d 486 (1982); Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 84-85, 389 A.2d 465 (1978); Mogull, 319 N.J.Super. at 64, 724 A.2d 863; Greenberg, 310 N.J.Super. at 198, 708 A.2d 460; see also McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Lawrence, 98 F.3d at 65; Waldron, 56 F.3d at 494; Sempier, 45 F.3d at 728.; Waldron, 56 F.3d at 494; Johnson v. Penske Truck Leasing Co., 949 F.Supp. 1153, 1170 (D.N.J.1996). Pepe admits no one at Rival ever made a comment to him which could be considered to be discriminatory based upon age. See Pepe Dep. at 29-31. In fact, Pepe offers no evidence of age discrimination and does not contest statistical evidence presented by Rival which indicates the average age in the Kitchen Sales Organization increased following the Reorganization. See Butler Cert. ¶¶ 4, 6; Defendant’s Rule 56.1 Statement ¶¶ 12, 24. Given the difficulty in proving an employer’s intent through direct evidence, circumstantial evidence may be used to prove discrimination. See Bergen Commercial Bank, 157 N.J. at 209, 723 A.2d 944; Greenberg, 310 N.J.Super. at 198, 708 A.2d 460. In such cases, the New Jersey courts follow the burden-shifting analysis established in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Bergen Commercial Bank, 157 N.J. at 209, 723 A.2d 944; Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 631, 660 A.2d 505 (1995) (citing Erickson v. Marsh & McLennan Co., 117 N.J. 539, 549-50, 569 A.2d 793 (1990) (acknowledging the New Jersey Supreme Court follows the standards and analysis established in Federal discrimination cases for making determinations on NJLAD claims); Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97-98, 570 A.2d 903 (1990); Shaner v. Horizon Bancorp., 116 N.J. 433, 437, 561 A.2d 1130 (1989) (citing Peper, 77 N.J. at 81, 389 A.2d 465); Andersen, 89 N.J. at 492, 446 A.2d 486; Peper, 77 N.J. at 82-83, 389 A.2d 465 (recognizing the approach articulated in McDonnell Douglas as the starting point for litigation under the NJLAD)); see also Abrams v. Lightolier, Inc., 50 F.3d 1204, 1212 (3d Cir.1995) ("New Jersey courts in applying the NJLAD generally follow the standards of proof applicable under the [F]ederal discrimination statutes....") (citations omitted); McKenna v. Pacific Rail Svc., 32 F.3d 820, 827 (3d Cir.1994) (citing Lehmann v. Toys `R’ Us, Inc., 132 N.J. 587, 600, 626 A.2d 445 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); Maidenbaum v. Bally’s Park Place, Inc., 870 F.Supp. 1254, 1258 (D.N.J.1994), aff’d without op’n, 67 F.3d 291 (3d Cir.1995). While strict adherence to the McDonnell Douglas test is not mandated, the approach is considered an appropriate framework for analyzing unlawful discrimination claims. See Grigoletti, 118 N.J. at 98, 570 A.2d 903 (citing Erickson, 117 N.J. at 550, 569 A.2d 793) (employing standard and methodology under Federal Equal Pay Act for suit brought under NJLAD on the basis of unequal wages for performance of substantially equal work). Under the McDonnell Douglas approach, the burden of persuasion remains at all times on the plaintiff, but the burden of going forward shifts. See 411 U.S. at 802-803, 93 S.Ct. 1817; see also Hicks, 509 U.S. at 507, 113 S.Ct. 2742; Erickson, 117 N.J. at 550, 569 A.2d 793; Andersen, 89 N.J. at 492-93, 446 A.2d 486. Once a plaintiff demonstrates a prima facie case of discrimination, a presumption that the employment decision was motivated by improper considerations arises. See Hicks, 509 U.S. at 506, 113 S.Ct. 2742; Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 31, 429 A.2d 341 (1981). The burden of production shifts to the defendant to rebut the presumption by articulating a legitimate, non-discriminatory reason for its actions. See Hicks, 509 U.S. at 507, 113 S.Ct. 2742; Texas Department of Community Affairs v. Burdine, 450 U.S. at 248, 254 (1981); Lawrence, 98 F.3d at 66; Clowes v. Terminix Int’l, Inc., 109 N.J. 575, 596, 538 A.2d 794 (1988); Andersen, 89 N.J. at 492, 446 A.2d 486; Goodman, 86 N.J. at 31, 429 A.2d 341, Peper, 77 N.J. at 83, 389 A.2d 465. While a defendant need not prove the legitimacy of its proffered reason, some supporting evidence is required. See Burdine, 450 U.S. at 254, 101 S.Ct. 1089; Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). Once a defendant proffers a legitimate, non-discriminatory reason for the employment decision, "the presumption of discrimination disappears." Bergen Commercial Bank, 157 N.J. at 211, 723 A.2d 944; see also Hicks, 509 U.S. at 507, 113 S.Ct. 2742; Burdine, 450 U.S. at 255 & n. 10, 101 S.Ct. 1089. A plaintiff is then charged with the burden of proving that the legitimate, non-discriminatory reason proffered by the defendant was merely a pretext for discrimination. See Hicks, 509 U.S. at 507-08, 113 S.Ct. 2742; Burdine, 450 U.S. at 256, 101 S.Ct. 1089; Bergen Commercial Bank, 157 N.J. at 211, 723 A.2d 944; Andersen, 89 N.J. at 492, 446 A.2d 486; Goodman, 86 N.J. at 32, 429 A.2d 341; Peper, 77 N.J. at 83, 389 A.2d 465. In Fuentes, the Third Circuit explained that once a defendant' provides a legitimate, non-discriminatory reason for its employment decision, the plaintiff must offer some evidence to discredit the proffered reason in order to avoid summary judgment. 32 F.3d at 764. A plaintiff may not avoid summary judgment merely by showing the employment decision was wrong or even mistaken. See id. A plaintiff must submit either direct or circumstantial evidence from which the factfinder could conclude either the proffered reasons are not credible or discrimination was more likely than not a motivating or a determinative cause of the employment decision. See id. at 765; see also Iadimarco v. Runyon, 190 F.3d 151, 166 (3d Cir.1999); Armbruster v. Unisys Corp., 32 F.3d 768, 782-83 (3d Cir.1994); Slohoda v. United Parcel Serv., Inc., 207 N.J.Super. 145, 155, 504 A.2d 53 (App. Div.1986), certif. denied, 104 N.J. 400, 517 A.2d 403 (1986). Specifically The complainant must show “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ .and hence infer ‘that the employer did not act for [the asserted] nondiscriminatory reasons.’ ” Iadimarco, 190 F.3d at 166 (quoting Fuentes, 32 F.3d at 765). If a plaintiff produces or points to evidence sufficient to cast substantial doubt on the proffered reasons, no additional evidence is required to survive summary judgment. See Brewer, 72 F.3d at 331; Fuentes, 32 F.3d at 765. Unsupported allegations, subjective beliefs, or argument alone, however, cannot forestall summary judgment. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (a nonmoving party may not successfully oppose a summary judgment motion by simply replacing "conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."); EEOC v. MCI Int’l, Inc., 829 F.Supp. 1438, 1451 (D.N.J.1993). While generally at the summary judgment stage courts may not engage in weighing evidence, a review of the proffered evidence must be made to determine whether sufficient doubt has been cast on the reasons offered by the employer, thereby creating a genuine issue of material fact. See Lawrence, 98 F.3d at 67. To meet this burden, a plaintiff must offer or point to competent evidence to demonstrate the proffered reason was merely a ruse for discrimination. See Iadimarco, 190 F.3d at 166; Fuentes, 32 F.3d at 764; Stinson v. Delaware River Port Auth., 935 F.Supp. 531, 541 (D.N.J.1996), aff’d without op’n, 124 F.3d 188 (3d Cir.1997)(to evade summary judgment the plaintiff must produce sufficient evidence so the factfinder could reasonably conclude the reason offered by the employer was fabricated). The Circuit has indicated that absent a sufficient showing by the plaintiff, courts should not substitute their own judgment, or the judgment of anyone else, for that of the employer. See Healy, 860 F.2d at 1220. While this places a burden upon the plaintiff, this allocation of the burden of proof is necessary in order to maintain an appropriate balance between the discrimination laws and the independence of private employers. See Fuentes, 32 F.3d at 765. The anti-discrimination statutes are designed to protect against discrimination, not to displace employers’ discretion in making employment decisions. See Bur-dine, 450 U.S. at 259, 101 S.Ct. 1089 (anti-discrimination statutes were not intended to “diminish traditional management prerogatives”); Price Waterhouse, 490 U.S. at 242, 109 S.Ct. 1775 (recognizing the importance under Title VII of preserving “an employer’s remaining freedom of choice”); see also Brewer, 72 F.3d at 332 (“an employer may have any reason or no reason for discharging an employee so long as it is not a discriminatory reason”). Rival contends that Pepe has failed to established a prima facie case of age discrimination because his position was eliminated by a business-driven reorganization. See Moving Brief at 11. Pepe does not dispute that a reorganization occurred. See Opposition Brief at 23. Instead, Pepe contends Rival misstates his claim as one of a termination and replacement rather than a failure to promote. See id. Employing a liberal construction and extending to Pepe the benefit of all reasonable interpretations and inferences, it appears the Complaint sufficiently alleges both a termination and replacement claim and a failure to promote claim. Accordingly, each will be reviewed. 1. The Termination and Replacement Claim As mentioned, the first hurdle Pepe must surmount to avoid summary judgment on his discrimination claim based upon the termination and replacement theory is establishing a prima facie case. See Bergen Commercial Bank, 157 N.J. at 210, 723 A.2d 944. As indicated, in order to establish a prima facie case Pepe must demonstrate "by a preponderance of the evidence" that: (1) he belongs to a protected category, (2) in performing his job he met his employer’s legitimate expectations, (3) he nevertheless was fired and (4) he was replaced by a significantly younger candidate to permit an inference of age discrimination. See id.; Erickson, 117 N.J. at 550, 569 A.2d 793; Mogull v. CB Commercial Real Estate Group, Inc., 319 N.J.Super. 53, 64, 724 A.2d 863 (App.Div. 1999); Greenberg, 310 N.J.Super. at 198, 708 A.2d 460; see also Healy, 860 F.2d at 1214; Keller, 130 F.3d at 1114 n. 5; Lawrence, 98 F.3d at 65; Waldron, 56 F.3d at 494; Sempier, 45 F.3d at 728; MCI, 829 F.Supp. at 1449. In cases where the position held by the discharged employee was eliminated or the employee was not replaced he or she must prove that a younger employee was either retained or treated more favorably. See O’Connor, 517 U.S. at 309, 116 S.Ct. 1307; Showalter, 190 F.3d at 234; MCI, 829 F.Supp. at 1449. Pepe argues he met the first three prongs in establishing his prima facie case. See Opposition Brief at 23. Rival disputes whether Pepe performed according to its expectations. Rival also argues Pepe was not replaced by a significantly younger candidate. Accordingly, pursuant to Rival’s argument, an inference of age discrimination or alternatively that a younger employee was either retained or treated more favorably is not appropriate. See Moving Brief at 11. Rival argues Pepe is alleging he was terminated and replaced by Pruner. See Moving Brief at 11 (citing Complaint ¶ 9). Rival asserts Pruner was appointed to the Regional Sales Manager position after Pepe was terminated. See id.; Pruner Dep. at 117-118. Further, Rival contends the new Regional' Sales Manager position created by the Reorganization differed significantly in scope and responsibility from the District Sales Manager position Pepe occupied. See Moving Brief at 12-13; Bittner Dep. at 167; Pruner Dep. at 118. Rival argues, therefore, given the difference between the two positions, Pepe cannot be considered as having been replaced. See id. While Pepe concedes the Reorganization, he maintains he should have been placed in the Regional Sales Manager position which effectively replaced the District Sales Manager position. See Opposition Brief at 23. A factually analogous case is found in EEOC v. MCI, Int’l, 829 F.Supp. 1438 (D.N.J.1993). Bruce Bowen (“Bowen”), one of the plaintiffs in a class action against MCI, was laid off from his position as the Supervisor of Records Management and Procedure for RCAG Global Communications, Inc. (“RCAG”), a company acquired by MCI in May, 1988 (the “Acquisition”). See id. at 1466. Bowen, then 44 years old, was responsible for developing and writing policies and procedures for RCAG company-wide. See id. At the time of the Acquisition, two people reported to Bowen with respect to records management and he was involved in a special project involving writing systems documentation for the engineering department. See id. MCI argued Bowen could not establish a prima facie case of employment discrimination because his position was eliminated during the Acquisition. See id. Policies and procedures at MCI were not devised and documented in one centralized location, as they were at RCAG, but were devised and documented separately by each department. See id. Because Bowen was responsible for a function at RCAG which MCI did not perform, MCI argued it eliminated his position. See id. Further, MCI argued no one at its Piscataway facility assumed Bowen’s role, or one similar, following his layoff. See id. Bowen argued that his position was not truly eliminated but Shelly Bloch (“Bloch”) took over his position because she performed similar job functions to those he had previously performed. See id. Bloch was responsible for the administration of MCI’s Rye Brook, New York facility and as part of her duties, she made policies and procedures. See id. The court concluded the comparison between Bowen’s company-wide position and Bloch’s position at the Ryeberg, New York facility did not rebut MCI’s claim that Bowen’s position was eliminated. See id. Based upon the difference in the scope of responsibility between the two positions, the court concluded that no replacement had taken place and therefore granted summary judgment in favor of the defendant. See id. at 1467. Rival presents more compelling evidence in the present case then did the defendant in MCI. In the instant case all available facts (and favorable inferences) demonstrate that the Regional Sales Manager position differs dramatically from the District Sales Manager position held by Pepe. According to Bittner, the person responsible for the Reorganization and the creator of the Regional Sales Manager position, there was a “world of difference” between the two positions.