LaRosa v. Harvey Operations-T, LLC

Filing 64

ORDER: IT IS HEREBY ORDERED that 19 Motion for Summary Judgment is GRANTED. IT IS FURTHER ORDERED that the 37 38 Motions in Limine are DENIED AS MOOT. Signed by Judge Wendy B Vitter on 10/14/2020. (jeg)

Case 2:19-cv-11805-WBV-DMD Document 64 Filed 10/14/20 Page 1 of 12

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ANTHONY LAROSA

CIVIL ACTION

VERSUS

NO. 19-11805

HARVEY OPERATIONS-T, LLC
A SUBSIDIARY OF GROUP 1
AUTOMOTIVE, INC.

SECTION D (3)

ORDER
Before the Court is Defendant Harvey Operations-T, LLC’s Motion for
Summary Judgment. 1 The Motion is opposed, 2 and Defendant has filed a Reply.3
Because Plaintiff fails to create an issue of material fact as to whether Defendant’s
proffered reasons for terminating LaRosa were pretextual, the Court GRANTS the
Motion.
I.

FACTUAL BACKGROUND
This is an age-discrimination case involving a car dealership.

Harvey

Operations-T is a subsidiary of Group 1 Automotive, Inc., “Group 1,” which is a large
automotive retailer that operates three dealerships in Louisiana, including Bohn
Brothers Toyota. 4

In 2016, management in Group 1 began actively recruiting

Anthony LaRosa to become the General Manager of Bohn Brothers Toyota. It is

R. Doc. 19.
R. Doc. 20.
3 R. Doc. 31.
4 R. Doc. 19-3 at 1 ¶¶ 1-2.
1
2

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undisputed that LaRosa was most heavily recruited by Mike Springs, who was then
Group 1’s sixty-two-year-old Gulf South Market Director. 5 It is also undisputed that
David Fesmire, the Vice President of Operations, approved of LaRosa’s hiring.6
LaRosa accepted the position and began as General Manager of Bohn Brothers Toyota
on January 23, 2017. 7 LaRosa was sixty-two years old at the time he was hired. 8
In the two years that followed, Bohn Brothers Toyota was not as successful as
management had hoped.

Specifically, Defendant cites that profitability, sales

volume, and sales efficiency declined from early 2017 through early 2019. 9
Throughout this time, Group 1 management repeatedly spoke with LaRosa about
what they viewed as poor performance. In August 2018, Fesmire sent LaRosa a
breakdown of the month’s budget and noted it was not “the month we were
expecting.” 10 LaRosa responded that it was “not the month I expected either” and
stated “[t]rust me, I’m not happy either.” 11 In 2019, Daryl Kenningham, Group 1’s
CEO, wrote to LaRosa when a report demonstrated that retail sales efficiency had
decreased over the past year. He wrote on the report: “Tony, going the wrong way.”12
At his deposition, LaRosa acknowledged that the decrease in sales efficiency
See R. Doc. 20-2 at 1-3; R. Doc. 19-3 at 1 ¶ 3.
R. Doc. 19-3 at 1 ¶ 4; R. Doc. 20 at 2.
7 See R. Doc. 20-2 at 3 ¶ 14.
8 LaRosa testified at his deposition that he was sixty-one when he was hired. See R. Doc. 19-4 at 67.
But other evidence in the record, including LaRosa’s declaration, indicates that he was sixty-two when
he was hired. See R. Doc. 20-2 at 1 ¶ 2; R. Doc. 19-3 at 1 ¶ 3. Because it is undisputed LaRosa was
hired in January 2017 (R. Doc. 20-2 at 3 ¶ 14), that he was fired at the age of sixty-four in March 2019
(R. Doc. 20-2 at 3 ¶ 16), and that his birthday is in October (R. Doc. 19-4 at 67), the evidence indicates
that LaRosa was sixty-two at the age he was hired. The Court notes that a one-year difference in
LaRosa’s age at the time he was hired would not impact this analysis.
9 See R. Doc. 19-3 at 2 ¶ 9.
10 R. Doc. 19-6 at 1.
11 Id. at 1.
12 R. Doc. 19-8 at 2.
5
6

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“[a]bsolutely was a problem.” 13 On top of these issues, Gulf States Toyota, which
performs semi-annual General Manager Evaluations on Group 1 Toyota dealerships,
found that LaRosa did not meet its expectations several times. 14
LaRosa largely blames the performance issues on Dan Kilmer, who replaced
Springs as Gulf Coast Market Director in June 2018. 15 Kilmer had previously run a
successful dealership for Group 1 in South Carolina. 16 According to LaRosa, Kilmer
instituted a new advertising and pricing strategy for the dealership that LaRosa
disagreed with. 17 Indeed, at his deposition, LaRosa stated: “And I’m telling you, I
took a lot of pride in my job. And I lost it from two idiots [Kilmer and Fesmire], two
idiots that didn’t know what they were doing.” 18 LaRosa also contends that his
performance was adequate, particularly when judged by different metrics than those
relied on by Group 1. 19
On March 14, 2019, Group 1 terminated LaRosa. 20 LaRosa was terminated
by Kilmer, and the decision was approved by David Fesmire, the Vice President of
Operations, and Daryl Kenningham, Group 1’s CEO. 21 LaRosa was replaced by Billy
Moore, a forty-nine year old former manager of Don Bohn Ford, whom LaRosa argues
was a liability to Group 1 due to various sexual harassment allegations. 22 Moore did

R. Doc. 19-4 at 48-49.
R. Doc. 19-3 at 4 ¶ 19.
15 R. Doc. 20 at 8; R. Doc. 20-2 at 4 ¶¶ 26-27.
16 R. Doc. 19-3 at 2 ¶ 6.
17 See R. Doc. 20 at 8-9.
18 R. Doc. 19-4 at 50-51.
19 R. Doc. 20 at 19-22.
20 R. Doc. 19-3 at 4 ¶ 20; R. Doc. 20-2 at 3 ¶¶ 16-19.
21 R. Doc. 19-3 at 4 ¶ 20.
22 Id. at 4 ¶ 21; R. Doc. 20 at 7-8.
13
14

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not last long at Bohn Brothers Toyota, and was terminated in October 2019. 23
Notably, 75% of the general managers who worked under Kilmer were over fifty, and
25% of the managers were over sixty. 24
In July 2019, LaRosa sued Harvey Operations arguing that he had been
terminated as a result of age discrimination. 25 Defendant thereafter filed the instant
Motion for Summary Judgment. 26

Defendant does not dispute that LaRosa can

establish a prima facie case of age discrimination, but contends that he cannot show
that

the

legitimate reason Defendant proffers for

LaRosa’s

termination,

unsatisfactory performance, is pretextual. Rather, Defendant argues that LaRosa is
asking this Court to act as a “super-personnel department.” LaRosa has filed an
Opposition, 27 in which he argues his performance was satisfactory based on various
metrics, that the issues with his performance were largely caused by Kilmer’s
advertising strategy, and that Defendant’s choice of Moore to replace him is further
evidence of age discrimination. Defendant filed a Reply, 28 further explaining its
management decisions, and defending its choice of Moore as a successor.
II.

LEGAL STANDARD
Summary judgment is proper if the movant shows there is no genuine dispute

as to any material fact and that it is entitled to judgment as a matter of law. 29 If the
movant shows the absence of a disputed material fact, the non-movant “must go
R. Doc. 19-3 at 5 ¶ 23.
R. Doc. 19-3 at 5 ¶ 24.
25 See R. Doc. 1.
26 R. Doc. 19.
27 R. Doc. 20.
28 R. Doc. 31.
29 F ED. R. CIV. P. 56(a).
23
24

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beyond the pleadings and designate specific facts showing that there is a genuine
issue for trial.” 30 The Court views facts and draws reasonable inferences in the nonmovant’s favor. 31 The Court neither assesses credibility nor weighs evidence at the
summary judgment stage. 32
III.

ANALYSIS

LaRosa brings a claim under the Louisiana Employment Discrimination Law,
La. R.S. 23:301, et seq. As the parties recognize, with respect to claims of age
discrimination, the LEDL is modeled after the federal Age Discrimination in
Employment Act and should be construed in light of federal precedent. 33 In order to
establish an LEDL claim, a plaintiff may reply upon direct or circumstantial
evidence. Here, LaRosa provides no direct evidence of age discrimination. The Court
therefore applies the burden-shifting framework that the U.S. Supreme Court laid
out in McDonnell Douglas Corp. v. Green. 34
Under the McDonnell Douglas framework, a plaintiff must first establish a
prima facie case. 35 Once the plaintiff has done so, the “burden shifts to the employer
to produce a legitimate, nondiscriminatory reason for [her] termination.” 36 Once the
employer has done so, the burden then shifts back to the plaintiff, who must produce

McCarty v. Hillstone Restaurant Grp., Inc., 864 F.3d 354, 357 (5th Cir. 2017).
Vann v. City of Southaven, Miss., 884 F.3d 307, 309 (5th Cir. 2018).
32 Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012) (internal citation omitted).
33 See, e.g., O’Boyle v. La Tech Uni., 741 So. 2d 1289, 1290 (La. App. 2 Cir. 1999) (holding that the
LEDL “mirrors the federal ADEA and should be construed in light of federal precedent”).
34 411 U.S. 791 (1973). Louisiana Courts also apply this framework. See also Taylor v. Oakbourne
Country Club, 663 So. 2d 379, 283-84 (La. App. 4 Cir. 1995) (applying McDonnell Douglas to a LEDL
claim).
35 Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005).
36 Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003).
30
31

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“substantial evidence that the proffered legitimate nondiscriminatory reason is a
pretext for discrimination.” 37 “A decision as to whether judgment as a matter of law
is appropriate ultimately turns on ‘the strength of the plaintiff’s prima facie case, the
probative value of the proof that the employer’s explanation is false, and any other
evidence that supports the employer’s case and that properly may be considered on a
motion for judgment as a matter of law.” 38
In order to establish a prima facie case of age discrimination, a plaintiff must
show “(1) that he was discharged; (2) he was qualified for the position; (3) he was
within the protected class at the time of discharge; and (4) he was either i) replaced
by someone outside the protected class, ii) replaced by someone younger, or iii)
otherwise discharged because of his age.” 39 Here, LaRosa establishes a prima facie
case. Specifically, he has established that he was discharged, that he was qualified,
that he was sixty-four at the time of discharge, and that he was replaced by Moore,
who was fifteen years his junior. The parties do not dispute that Plaintiff has
established each of these elements.
Because LaRosa has established a prima facie case of age discrimination, the
burden shifts to Defendant to provide a legitimate, nondiscriminatory reason for
Plaintiff’s termination. 40 Notably, this is a burden of production, not persuasion.41
Here, Defendant has proffered a legitimate, nondiscriminatory reason for LaRosa’s

Id.
Id. at 579 (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001)).
39 Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010).
40 See Laxton, 333 F.3d at 578.
41 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
37
38

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termination: unsatisfactory performance. 42 Once Defendant provides a legitimate,
nondiscriminatory reason for termination, the burden thereafter shifts back to
Plaintiff

to

produce “substantial

evidence that

the

proffered legitimate

nondiscriminatory reason is a pretext for discrimination.” 43
In support of his contention that Defendant’s reason for termination was
pretextual, LaRosa argues that his performance was, in fact, satisfactory. He also
points to the new online advertising program that was put in place by Kilmer which
purportedly put their dealership at a disadvantage to other dealerships. According to
Defendant, it primarily evaluated LaRosa’s performance on (1) sales volume, (2) sales
efficiency, and (3) profitability as opposed to budget. 44 Defendant has put forth
evidence that Bohn Toyota was not successful with respect to these factors during
LaRosa’s tenure. 45 LaRosa does not directly dispute this. Rather, in his Opposition,
LaRosa specifically cites to twenty other examples of evidence of satisfactory
performance, including net profit of over $1,000,000 in the relevant years and positive
finance and insurance gross. 46 In these examples, LaRosa primarily emphasizes that
during his employment, Bohn Brothers Toyota was successful relative to other
dealerships owned by Group 1, which sold different products throughout the Gulf
Coast region. 47 LaRosa argues that his performance was satisfactory based on his
own chosen metrics; however, Defendant has provided evidence that management

R. Doc. 19-2 at 14. See also R. Doc. 19-15.
Laxton, 333 F.3d at 578.
44 R. Doc. 19-3 at 2 ¶ 9.
45 Id. See also R. Doc. 19-6; R. Doc. 19-7; R. Doc. 19-8; R. Doc. 19-10.
46 See R. Doc. 20 at 19-21.
47 See id. at 20.
42
43

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judged him by different metrics. 48 Indeed, in his Opposition LaRosa concedes that he
was aware of Defendant’s sales goals and did not meet his sale goals, although he
insists he came close. 49 During his deposition, LaRosa testified that none of his
supervisors ever made any negative comments about his age, nor had he ever heard
from others that any of his supervisors had made such comments. 50 Instead, in
response to the question regarding whether there existed anything that connects his
age to his termination, LaRosa testified “I mean, listen, the way—it’s all in a
mannerism. It’s all in the way I felt I was treated by Dan Kilmer. He wanted me out
of there because of what I knew, because of what I had to say. He didn’t give me an
opportunity.” 51
By asking the Court to intervene and find that Defendant’s stated reason of
termination for unsatisfactory performance was pretextual based on measurements
of his success by his own metrics, LaRosa asks the Court to act as a “super-personnel
department reviewing the wisdom or fairness of the business judgments made by [his]
employer.” 52 Federal courts are specifically not vested with such powers. As the Fifth
Circuit has explained, “it is not our place to second-guess the business decisions of an
employer, so long as those decisions are not the result of discrimination.” 53 And as

R. Doc. 19-3 at 2 ¶ 9.
See id. at 22.
50 R. Doc. 19-4 at 73.
51 Id.
52 Eyob v. Mitsubishi Caterpillar Forklift Am., Inc., 745 F. App’x 209, 215 (5th Cir. 2018) (citing Riser
v. Target Corp., 458 F.3d 817, 821 (8th Cir. 2006)).
53 Id. at 212 (quoting Jackson v. Watkins, 619 F.3d 463, 468 n.5 (5th Cir. 2010). See also Little v.
Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991) (“[E]ven an incorrect belief that an employee’s
performance is inadequate constitutes a legitimate, non-discriminatory reason. We do not try in court
the validity of good faith beliefs as to an employee’s competence. Motive is the issue.”).
48
49

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the Seventh Circuit has more pointedly stated: “An employer can set whatever
performance standards he wants, provided they are not a mask for discrimination on
forbidden grounds such as race or age. He can set unrealistic standards and fire an
employee for not being able to meet them . . . He can be as arbitrary as he wants—he
just cannot treat an older employee more harshly than a younger one.” 54 Here,
Plaintiff did not meet the standards set out by management. To the extent he argues
that those standards were unreasonable, or that his performance was otherwise
satisfactory and he therefore should not have been terminated, these arguments fail
to undermine Defendant’s proffered explanation or show that it is pretextual.
Whether or not Defendant’s stated criteria are the most appropriate on which to
evaluate a manager of a dealership is a business judgment within Defendant’s
discretion.
Plaintiff also argues that, to the extent his performance was unsatisfactory, it
was because of advertising strategies imposed by Kilmer on LaRosa that were not
imposed on managers of other dealerships within the same franchise. As an initial
matter, this argument fails for the same reason as LaRosa’s argument that his
performance was satisfactory enough to avoid termination—it deals with a business
judgment this Court may not reconsider, namely, the advertising methods suited for
individual dealerships. 55 The Court also notes that LaRosa specifically testified at
his deposition that he had no knowledge whatsoever about how advertising was done

54
55

Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1571 (7th Cir. 1989).
See Eyob, 745 F. App’x at 215; Palucki, 879 F.2d at 1571.

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at other dealerships. 56 He now submits an affidavit directly contradicting his
deposition testimony, in which he states that his dealership was the only one
subjected to Kilmer’s advertising methodology. 57

When a plaintiff’s deposition

testimony contradicts his sworn affidavit, it may be disregarded under the shamaffidavit rule. That rule states that “a nonmoving party may not manufacture a
dispute of fact merely to defeat a motion for summary judgment.” 58 Therefore, when
an affidavit differs from deposition testimony, courts may disregard the affidavit at
the summary judgment stage. 59 Here, the contradiction between LaRosa’s deposition
testimony and his affidavit merits application of the sham-affidavit rule. Therefore,
even if LaRosa’s affidavit did create an issue of fact as to this issue, it would be
properly disregarded.
Finally, LaRosa attempts to undermine Defendant’s explanation for his
termination by taking aim at the qualifications of his successor, Moore. Plaintiff
spends much of his Opposition discussing Moore’s purported sexual misconduct,
stating “[t]here can be no justification by management to move Moore to LaRosa’s
position due to Moore’s ongoing, documented inappropriate and illegal behavior.”60

See R. Doc. 19-4 at 55 (“Q. And, again, do you have any knowledge as to how Dan [Kilmer] handled
advertising for any of the other dealerships under his— A. None whatsoever. Q. –market? A. None
whatsoever. I was only concerned about mine, and he never shared that information.”)
57 See R. Doc. 20-2 at 4 ¶ 27 (“Kilmer did not place restrictions on other younger general managers’
advertising on their websites that he placed on me at Bohn Toyota. I had spoken to several other GM’s
at the time along the gulf coast, and they confirmed that they did not have to price their cars the way
that Kilmer priced ours.”).
58 Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000).
59 See, e.g., Powell v. Dallas Morning News, L.P., 776 F. Supp.2d 240, 247 (N.D. Tex. 2011) (“Courts
have consistently disregarded such sham affidavits as nothing more than an attempt to ‘manufacture
a disputed material fact where none exists.”).
60 R. Doc. 20 at 8; see also id. at 4-7 (Opposition discussing Moore’s behavior); R. Doc. 20-3 (Declaration
of Pamela Taquino discussing Moore’s behavior).
56

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LaRosa’s argument that Moore made a poor successor because of allegations of sexual
impropriety does nothing to undermine Defendant’s explanation that it fired LaRosa
for poor performance. The Court also notes that Defendant demoted Moore, age fortynine, after six months for failing to turn Bohn Brothers Toyota around. 61 Defendant’s
willingness to demote a younger general manager, who had approximately twenty
years of experience at the dealership, 62 in short order for the same reason it fired
LaRosa is further evidence that it’s focus with LaRosa was performance, not age.
The Court is further guided by the fact that when LaRosa was hired, he was
sixty-two, and he was fired less than two years later, at the age of sixty-four. The
Fifth Circuit has held that when a Plaintiff is hired and fired by the same actor within
a short time period, there exists an inference that age discrimination is not the motive
behind termination. 63 This is because “[i]t hardly makes sense to hire workers from
a group one dislikes (thereby incurring the psychological costs of associating with
them), only to fire them once they are on the job.” 64

Here, LaRosa argues this

inference does not apply because he was hired by Marketing Director Michael Springs
and was fired by the then-current Marketing Director Dan Kilmer, so therefore he
was not hired and fired by the “same actor.” But although Springs was actively
involved in LaRosa’s recruitment and hiring and Kilmer involved in LaRosa’s firing,
Fesmire, Vice President of Operations, approved both decisions. While the “same

See R. Doc. 19-3 at 5 ¶ 23.
R. Doc. 19-3 at 4 ¶ 21.
63 See Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996), abrogated on other grounds, Reeves,
530 U.S. at 134.
64 Id. (quoting Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991)).
61
62

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actor” inference would be stronger had the Marketing Director of Group 1 remained
the same during LaRosa’s employment, Fesmire’s involvement in both decisions lends
additional support to the Court’s conclusion that summary judgment is appropriate.
In summary, LaRosa contends that Defendant, which employees a majority of
managers over fifty-years-old and hired him at the age of sixty-two, only two years
before firing him, discriminated against him based on his age. In support of this
argument, LaRosa offers no evidence whatsoever of an age-based animus. Rather,
LaRosa’s arguments amount to contesting business decisions of his employer,
disparaging his successor, and arguing that his performance was satisfactory based
on other metrics that he should not have been terminated. These arguments fail to
demonstrate

that

Defendant’s

proffered legitimate

performance, acted as a pretext for age discrimination.

reason,

unsatisfactory

Summary judgment is

therefore appropriate.
IV.

CONCLUSION

IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment 65 is GRANTED. IT IS FURTHER ORDERED that the parties’ Motions
in Limine 66 are DENIED AS MOOT.
New Orleans, Louisiana, October 14, 2020.

______________________________________
WENDY B. VITTER
UNITED STATES DISTRICT JUDGE

65
66

R. Doc. 19.
R. Doc. 37; R. Doc. 38.