John Hyland v. American International Group

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4203
JOHN HYLAND,
Appellant
v.
AMERICAN INTERNATIONAL GROUP;
AMERICAN GENERAL LIFE COMPANIES, LLC
On Appeal from the United States District Court
for the District New Jersey
(D.C. Civ. No. 06-6155)
Honorable Anne E. Thompson, District Judge
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 18, 2009
BEFORE: SLOVITER, JORDAN, and GREENBERG, Circuit Judges
(Filed: January 12, 2010)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before the Court on an appeal brought by John Hyland in this action
that Hyland brought against his former employer, American General Life Companies,

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L.L.C., a wholly-owned subsidiary of American International Group, Inc. In his
complaint Hyland charged that American General terminated his employment by reason
of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et
seq., and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq.
(West 2002). The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1367. After discovery American General moved for summary judgment and the District
Court granted the motion by an opinion and order dated September 12, 2008, entered
September 17, 2008. Hyland then appealed. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We exercise plenary review on this appeal and thus can affirm only “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that
[American General] is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);
see Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009).
The basic facts in this case in an overview sense are not in dispute. Hyland is an attorney
at law whom American General or its predecessor employed in a legal position from
1989, when he graduated from law school, until August 2005 when American General
terminated his employment when he was 56 years old by eliminating his position at the
time of a reorganization of its employment structure. Though Hyland indicates that he
“was terminated as part of an overall reorganization and/or reduction in force,” he
contends that “this so-called reorganization was actually an attempt to get rid of one older

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employee,” i.e., him. Appellant’s br. at 19.
Hyland contends that American General replaced him with Timothy Bolden who is about
nine years younger than he is. In Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167
(3d Cir. 2001), we indicated that one of the elements of a prima facie case in an age
discrimination action predicated on indirect evidence is that the person ultimately
replacing the plaintiff be sufficiently younger than the plaintiff so that an inference of age
discrimination can be drawn from the replacement. The difference in age between
Hyland and Bolden satisfies that criterion.
Notwithstanding the difference in ages between Hyland and Bolden, the District Court
held that a reasonable fact finder could not conclude that Bolden had replaced Hyland and
thus Hyland did not make out a prima facie case of discrimination. In this regard, the
record shows that Hyland served in the position of Senior Attorney but that American
General appointed Bolden to fill a new position as Associate General Counsel. Of
course, an employer does not ensure that one position will be considered to have replaced
another simply by changing the title of the original position. Here, however, as Associate
General Counsel Bolden performed functions that Hyland had not performed but did not
perform duties that Hyland had performed. Though there was some overlap between
Hyland’s and Bolden’s duties the difference between their positions was so significant
that a reasonable trier of the fact cannot say that the differences in their positions was
simply cosmetic. In considering the two positions it is highly significant that Bolden’s

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gross salary was almost $55,000 higher than Hyland’s, making it very difficult to
conclude that Bolden replaced Hyland. See Monaco v. American General Assurance Co.,
359 F.3d 296, 305 (3d Cir. 2004). In fact, after American General terminated Hyland it
divided his responsibilities among various employees, some older and some younger than
Hyland. In the circumstances, we agree with the District Court that Hyland did not
establish a prima facie case and thus his case had to fail.
We realize that at a November or December 2004, staff meeting Marc Herling, Hyland’s
direct supervisor and the prime mover in the reorganization that resulted in Hyland’s
termination referred to Hyland as the “old man” of the operation. But the District Court
believed that this stray remark made ten months before Hyland’s termination could not
support an inference of age discrimination underlying Hyland’s termination and we agree.
See Fuentes v. Perskie, 32 F.3d 759, 767 (3d Cir. 1994). We do not think that a single
remark that might reflect the declarant’s recognition of an employee’s age in a context
unrelated to the employee’s termination is sufficient evidence to support a prima facie
case of age discrimination based on direct evidence at the time that the employer later
terminates the employee. After all, whether or not a supervisor makes reference to an
employee’s age it is likely that he will have some concept of it. In any event, it would be
unfortunate if the courts forced the adoption of an employment culture that required
everyone in the structure to be careful so that every remark made every day passes the
employment equivalent of being politically correct lest it be used later against the

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employer in litigation.
We can understand why Hyland believes that American General treated him unfairly
though we, of course, express no view on that possibility. Nevertheless, it is necessary to
remember that the age discrimination laws are not intended to remedy all of the possible
wrongful adverse employment decisions by an employer and the law surely should not be
used to impede an employer’s effort to organize its business as it deems fit so long as the
employer in doing so does not violate employment age discrimination restrictions. See
Gray v. York Newspapers, Inc., 957 F.2d 1070, 1083 (3d Cir. 1992) (“[T]he ADEA is a
discrimination statute and is not intended to handcuff the management and owners of
businesses to the status quo.”).
For the foregoing reasons as well as for the reasons that District Court set forth in its
opinion dated September 12, 2008, we will affirm the order for summary judgment dated
September 12, 2008, entered September 17, 2008.

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