BUCHHOLZ v. VICTOR PRINTING, INC. et al
Filing
33
OPINION FILED. Signed by Judge Noel L. Hillman on 6/29/12. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
RICHARD BUCHHOLZ,
Plaintiff,
CIVIL NO. 10-6406(NLH)(AMD)
v.
OPINION
VICTOR PRINTING, INC., and
LEONARD VICTOR
Defendants.
APPEARANCES:
PAUL CALVIN LANTIS
ARI R. KARPF
CHRISTINE ELAINE BURKE
KARPF, KARPF & CERUTTI, P.C.
3331 STREET ROAD, SUITE 128
TWO GREENWOOD SQUARE
BENSALEM, PA 19020
On behalf of plaintiff
FERNANDO M. PINGUELO
NORRIS MCLAUGHLIN & MARCUS, PA
721 ROUTE 202-206
PO BOX 1018
SOMERVILLE, NJ 08876-1018
and
JACLYN KATE RUOCCO
MATTHEW V. DELDUCA
PEPPER HAMILTON LLP
301 CARNEGIE CENTER
SUITE 400
PRINCETON, NJ 08543
On behalf of defendants
HILLMAN, District Judge
Plaintiff filed a complaint alleging that defendants
discriminated against him on the basis of age in violation of the
New Jersey Law Against Discrimination.
defendants’ motion for summary judgment.
Before the Court is
For the reasons set forth
below, defendant’s motion will be denied.1
I.
BACKGROUND
Plaintiff, Richard Buchholz, began working for defendants
in June 1986.
His employment ended on October 16, 2009.
Defendant
Victor Printing, Inc. (“Victor Printing”) is a small, family-run
printing shop in Cherry Hill, New Jersey founded in 1972.
Defendant Leonard Victor is the owner and president of Victor
Printing.
Plaintiff was hired to work as a pressman, operating
the AB Dick, a two-color press or duplicator.
small press foreman.
In 1991, he became a
Over the years, Victor Printing acquired more
sophisticated multi-colored press machines and began phasing out
work on the AB Dick two-color press.
Although other operators
chose to be trained on the more sophisticated equipment, plaintiff
chose not to.
Eventually, there was less work on the AB Dick
machine and plaintiff’s hours were reduced in 2006 to three days a
week.
Defendants then offered plaintiff a job as a full-time
driver which plaintiff accepted.
Plaintiff was 63 years old at
that time.
As an accommodation to plaintiff, defendants did not
reduce plaintiff’s rate of pay when he became a driver which
1
Defendants also filed an unopposed motion for leave to
file an over-length reply brief. Defendants reply brief is 16
pages, one page over the 15 page limit. Pursuant to Local Rule
7.2(b), the Court will grant defendants’ motion.
2
remained at $17.50 per hour.
This rate of pay was higher than
plaintiff’s second job as a driver for TD Bank at $11.00 per hour.
The van that plaintiff drove for defendants displayed the Victor
Printing name and phone number.
In late 2008, Victor Printing’s
sales declined 25 to 30 percent.
As a result, in December 2008 and
January 2009, Victor Printing laid off eight employees.
Plaintiff,
who was 65 years old at the time, was not laid off.
In the four or five month period before he was
terminated, defendants received complaints about plaintiff’s
driving.
The first involved plaintiff getting out of the van to
confront a driver who had his son in the car.
Plaintiff states the
driver wanted to get in front of him at a stop light.
called Victor Printing to complain.
The driver
Victor, who took the call,
described the driver as “irate” and “very upset.”
Plaintiff admits
to getting out of the car to see if the van was hit and confronting
the driver as to his driving.
Victor warned plaintiff that he was
driving a “billboard” for Victor Printing.
The second instance occurred when plaintiff, while
attempting to exit the Turnpike, pulled in front of a tractor
trailer.
The driver of the tractor trailer called to complain that
plaintiff cut him off so that he had to lock his brakes and almost
caused an accident.
Plaintiff was directed by defendants to call
the driver and apologize, which he did.
Defendants also had discussions with plaintiff about his
3
appearance.
Plaintiff admits that he cut his uniform shirt around
the collar and in front of the shirt, but that he stopped wearing
cut shirts after it was brought to his attention.2
Plaintiff also
states that defendants did not maintain a formal discipline policy
and only issued verbal warnings to employees.
Within weeks of plaintiff’s termination, defendants
received a complaint from a customer that plaintiff had acted
inappropriately by complaining to the customer about Victor
Printing.
Plaintiff states that he told the customer that the
boxes were heavy and that Victor Printing did not send someone to
help him.
Defendants, however, did not inform plaintiff of the
call.
On October 15, 2009, the day before plaintiff was let go,
plaintiff hit a parked truck belonging to a large client of
defendants’, Edmunds Direct Mail (“Edmunds”), while on a delivery.
Plaintiff states that he heard a noise while backing in, got out to
look and saw that a mirror on the truck had moved but observed no
other damage.
The accident damaged the Edmunds truck and left
scratches on the defendants’ van.
Plaintiff did not report the
accident to either Edmunds or the defendants.
The following day, plaintiff returned to Edmunds for a
2
Defendants also allege that plaintiff was disciplined
many times for his “attitude” and used profanity toward Bob
Gullo, Production Manager for Victor Printing. Plaintiff
specifically denies these statements.
4
delivery and was confronted by one of Edmunds’s employees about the
damage to the truck.
Plaintiff had hit one of the truck’s mirrors
breaking an amber lens.
Although plaintiff knew he was required to
report an accident or damage to equipment, plaintiff maintains that
he did not report it because he did not believe there was any
damage done.
Defendants learned about the accident after an
Edmunds employee had called and notified them.
Defendants state
that Edmunds was upset that no one from Victor Printing had called
to discuss the accident.3
On October 16, 2009, plaintiff was confronted about the
incident involving the Edmunds truck and admitted that he failed to
report the accident with the Edmunds truck.
the meeting appears to be in dispute.
What else happened in
Plaintiff maintains that
Victor told him that he was being laid off because there was not
enough work for him to do and that if work increased, he could come
back for three days a week and work at a lower rate of pay.
Defendants maintain that plaintiff was fired because of his poor
driving and that plaintiff was described as “laid off” as an
accommodation so that plaintiff could inform other employers he was
3
Although plaintiff denies that Edmunds was upset, he
cites no evidence that could show Edmunds was not upset. Also,
plaintiff argues that since he spoke Edmunds employees the day
after the accident, defendants’ statement that no one from Victor
Printing called about the accident is not accurate. Plaintiff’s
argument in unavailing. Plaintiff being confronted by an
employee at Edmunds for breaking a lens on their truck is not
akin to having an officer of the company call to acknowledge the
accident.
5
laid off and could collect unemployment compensation.
After the October 16th meeting, three of defendants’
current employees took over the duties of driver until a
replacement could be hired.
In April 2010, defendants hired a
replacement driver who was 22 years old.
Plaintiff argues that defendants discriminated against
him on the basis of age.
He states that in the weeks before he was
laid-off, he was asked by Victor on two separate occasions about
his retirement plans - once approximately two weeks before he was
laid-off, and once on October 8, 2009, approximately one week
before he was laid-off.
Defendants state that the inquiries
regarding plaintiff’s retirement were in response to certain
events.
Specifically, in September 2009, plaintiff switched his
medical coverage under the Victor Printing medical plan to the TD
Bank medical plan.
On October 8, 2009, plaintiff completed a
401(k) withdrawal request to withdraw 100 percent of his account.
Around this time, defendants also learned that plaintiff would
begin collecting social security in October 2009.
On December 10, 2010, plaintiff filed a complaint
alleging that defendants violated the New Jersey Law Against
Discrimination.
Defendants now move for summary judgment seeking
to dismiss plaintiff’s claim.
II.
JURISDICTION
This Court exercises subject matter jurisdiction pursuant
6
to 28 U.S.C. § 1332 (diversity).
Pennsylvania.
Plaintiff is a citizen of
Defendant Victor Printing, Inc. is a New Jersey
corporation with its principal place of business in New Jersey.
Defendant Leonard Victor is a citizen of New Jersey.
Plaintiff
alleges that the amount in controversy exceeds $75,000.00,
exclusive of interest and costs.
III. DISCUSSION
A.
Summary Judgment Standard
Summary judgment is appropriate where the Court is
satisfied that “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 the moving party is entitled to a judgment
as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330
(1986); Fed. R. Civ. P. 56(c).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A fact is “material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the suit.
Id.
In considering a motion for summary judgment, a district court
may not make credibility determinations or engage in any weighing
of the evidence; instead, the non-moving party's evidence “is to be
believed and all justifiable inferences are to be drawn in his
7
favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the
moving party has met this burden, the nonmoving party must
identify, by affidavits or otherwise, specific facts showing that
there is a genuine issue for trial.
Id.
Thus, to withstand a
properly supported motion for summary judgment, the nonmoving party
must identify specific facts and affirmative evidence that
contradict those offered by the moving party.
at 256-57.
Anderson, 477 U.S.
A party opposing summary judgment must do more than
just rest upon mere allegations, general denials, or vague
statements.
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001).
B.
New Jersey Law Against Discrimination
Plaintiff alleges that defendants violated the New Jersey
Law Against Discrimination (“NJLAD”) when they terminated his
employment due to age.
The NJLAD prohibits employers from
discharging an individual from employment because of the
individual’s age.
4
See N.J.S.A. § 10:5–12(a).4
In cases alleging
N.J.S.A. § 10:5–12(a) states, in relevant part:
It shall be an unlawful employment practice, or, as the
case may be, an unlawful discrimination ... [f]or an
8
age discrimination under the NJLAD, “an employee must ‘show that
the prohibited consideration[, age,] played a role in the decision
making process and that it had a determinative influence on the
outcome of that process.’”
Bergen Commercial Bank v. Sisler, 157
N.J. 188, 207, 723 A.2d 944 (1999)(citations omitted).
“Although
the discrimination must be intentional, an employee may attempt to
prove employment discrimination by using either direct or
circumstantial evidence.”
Id. (internal citation omitted); O’Brien
v. Telcordia Technologies, Inc., 420 N.J.Super. 256, 262-63, 20
A.3d 1154 (App.Div. 2011) (“To prevail at trial, plaintiff must
present either circumstantial or direct evidence of age
discrimination.”).
Here, plaintiff asserts that he has direct
evidence of age discrimination.
Alternatively, plaintiff argues
that he can show circumstantial evidence of age discrimination.
1.
Direct Evidence
In order to establish a direct evidence age
discrimination claim under the NJLAD, plaintiff has a “rigorous
burden” to demonstrate “that age, per se, was a substantial factor
in an adverse employment decision.”
Geltzer v. Virtua West Jersey
Health Systems, 804 F.Supp.2d 241, 250 (D.N.J. 2011) (citing Bergen
employer, because of the ... age ... of any individual,
... 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;
9
Commer. Bank v. Sisler, 157 N.J. 188, 209, 723 A.2d 944 (1999)).
“The evidence produced must, if true, demonstrate not only a
hostility toward members of the employee’s class, but also a direct
causal connection between that hostility and the challenged
employment decision.”
Id. (emphasis removed).
“Importantly,
‘stray remarks in the workplace, unrelated to the decisional
process, [are] not sufficiently direct evidence of discrimination
to justify requiring an employer to prove that its ... decisions
were based on legitimate criteria.’”
Id.
Direct evidence is that
“which if believed, proves [the] existence of [the] fact in issue
without inference or presumption.”
E.E.O.C. v. MCI Intern., Inc.,
829 F.Supp. 1438, 1447 (D.N.J. 1993)(citations omitted).5
5
In 2009, the Supreme Court declined to apply the
“mixed-motive” burden-shifting analysis of Price Waterhouse for
Age Discrimination in Employment Act (ADEA) claims, and held that
a plaintiff must prove “by a preponderance of the evidence, that
age was the ‘but—for’ cause of the challenged adverse employment
action,” such that the burden of persuasion “does not shift to
the employer to show that it would have taken the action
regardless of age, even when a plaintiff has produced some
evidence that age was one motivating factor in that decision.”
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180, 129 S.Ct.
2343, 2352, 174 L.Ed.2d 119 (2009). However, the “but-for” ADEA
causation standard has not yet been adopted for direct evidence
NJLAD claims. See Harth v. Daler-Rowney USA Ltd., No. 09–5332,
2012 WL 893095, *3 (D.N.J. March 15, 2012) (citing Geltzer v.
Virtua W. Jersey Health Sys., 804 F. Supp. 2d 241, 250 (D.N.J.
2011)) (explaining that although the standard for analyzing
claims under the ADEA has changed from the mixed-motive burden
shifting analysis to a but-for causation requirement where there
are allegations of direct evidence, that standard has not yet
been applied to NJLAD claims); O’Brien v. Telcordia Technologies,
Inc., 20 A.3d 1154, 1163 (N.J. Super. Ct. App. Div. 2011)
(explaining that “we defer a decision on the thorny issue of the
continued viability of the use of a Price Waterhouse mixed-motive
10
Plaintiff alleges that in the weeks leading up to the
October 16th meeting, defendant Leonard Victor asked him about his
retirement plans.
Plaintiff responded that he did not want and
could not afford to retire.
Plaintiff alleges that Victor again
asked him about his retirement plans to which he responded that he
was not going to retire and liked his job.
Plaintiff alleges that
eight days after the second inquiry, Victor made the decision to
terminate his employment.
Defendants argue that the inquires about plaintiff’s
retirement plans were made because over a two month period,
September to October 2009, plaintiff switched out of the Victor
Printing medical plan to the TD Bank medical plan, was starting to
receive social security payments, and withdrew his entire 401(k)
account.
Defendants state that plaintiff conceded in his
deposition that he understood that these events caused Victor to
ask about his retirement plans.6
analysis in light of the United States Supreme Court’s decision
in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) in
an age discrimination case instituted pursuant to the NJLAD”).
Here, plaintiff has not brought an ADEA claim; he has only
brought a claim under the NJLAD. Therefore, the Court will apply
the New Jersey Supreme Court’s decision in Bergen Commercial Bank
v. Sisler, 157 N.J. 188, 723 A.2d 944 N.J. 1999, which follows
the Price Waterhouse analytical framework. See Harth, 2012 WL
893095, *3 (finding that Gross does not apply where plaintiff
only brought NJLAD claim).
6
Plaintiff testified when he “came into see about the
[401k] check, find out when I was going to get it, [Victor] asked
me, ‘When are you going to retire.’” Buchholz dep. 78:17-19.
Plaintiff also testified, “I changed my medical over, he knew I
11
Under these circumstances, the two inquiries regarding
plaintiff’s plans to retire do not constitute direct evidence.
Rather, the questions about retirement were asked in connection
with other events, namely, plaintiff’s receipt of social security
payments, the switching of his medical plans and the withdrawal of
his entire 401(k) account.
Although there is some ambiguity
surrounding whether plaintiff asked to withdraw the 401(k) money
prior to the first inquiry, it is clear that it occurred prior to
the second inquiry.7
Further, even though Victor made the decision
to terminate plaintiff, Victor has a legitimate interest in knowing
if his employees are going to be leaving employment through
retirement.
See Glanzman v. Metropolitan Management Corp., 391
was starting to collect Social Security, figured I was getting
ready to retire.” Buchholz dep. 79:11-14.
7
Plaintiff’s testimony is less than clear regarding the
timing of these events. On October 8, 2009, plaintiff filled out
a form requesting to withdraw 100 percent of his 401(k) with
defendants. He testified that around that time, Victor asked him
the “first time” when he was going to retire. Buchholz Dep. Tr.
78:15-79:4. He also testified that he changed over his medical
insurance in September 2009. Id. 79:16-18. Later plaintiff
testified that Victor asked him about two weeks before he was
terminated if he was going to retire. Id. 81:3-7. Plaintiff
also testified that there was some “lag time” between the time he
mentioned to Victor that he wanted to withdraw his 401(k) and
when he filled out his paperwork. Id. at 84:21-85:6. Plaintiff
could not recall how much time had passed between those two
events, and could not say for sure that Victor’s first remark
about retirement was made before he inquired about his 401(k).
Id. 85:7-15. Accordingly, in the 20 years that plaintiff worked
for defendants, it was only surrounding events concerning the
complete withdrawal of his 401(k) and switching of medical
insurance that Victor inquired about plaintiff’s retirement
plans.
12
F.3d 506, 513 (3d Cir. 2004) (finding that the district court
correctly determined plaintiff’s supervisor’s asking plaintiff
about her retirement plans was not direct evidence of age
discrimination and could just as easily be explained by a desire on
the employer’s part to do some long-term planning); see also
Edwards v. Schlumberger-Wells Services, a Div. of Schlumberger
Technology, 984 F.Supp. 264, 274 (D.N.J. 1997) (“Neither ‘stray
remarks’ nor ‘statements by nondecisionmakers, [n]or statements by
decisionmakers unrelated to the decisional process itself, suffice
to satisfy the plaintiff’s burden in this regard.’”).
Plaintiff
has not shown any direct hostility on defendants’ part on the basis
of age.
Plaintiff worked for defendants for over 20 years, and was
66 years old when he was asked about his retirement plans by
Victor, who himself was 73 years old at the time.
Therefore, plaintiff has not presented direct evidence
that his age was a substantial factor in his termination.
See
Geltzer, 804 F. Supp. 2d at 250 (concluding that remark that
employee did not want a full time position because he was getting
old was insufficient to support a finding that employee’s age was a
substantial factor in any adverse employment decisions); Fischer v.
Allied Signal Corp., 974 F.Supp. 797, 804 (D.N.J. 1997) (finding
that employer’s comment that the sales organization would be
younger and more aggressive, and needed to be younger, did not
constitute direct evidence of discrimination based upon age).
13
2.
Circumstantial Evidence
If a plaintiff is unable to make out a claim for age
discrimination using direct evidence, he may instead rely on
circumstantial evidence under the McDonnell Douglas
burden-shifting analysis.
See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Sisler, 157
N.J. at 209–10, 723 A.2d 944; see also Smith v. City of Allentown,
589 F.3d 684, 691 (3d Cir. 2009) (finding that Gross decision which
prohibits shifting the burden of persuasion to an ADEA defendant,
does not forbid application of McDonnell Douglas methodology to age
discrimination claims since only the burden of production, not the
burden of persuasion, shifts to the employer).
Under the McDonnell Douglas three-step methodology, the
employee must prove a prima facie case of discrimination, then the
burden of production shifts to the employer to show a legitimate,
non-discriminatory reason for its employment decision, then the
burden then shifts back to the employee to prove by a preponderance
of the evidence that the legitimate non-discriminatory reason
articulated by the employer was not the true reason for the
employment decision, but was merely a pretext for discrimination.
Sisler, 157 N.J. at 210, 723 A.2d at 955.
a.
Plaintiff’s Prima Facie Case
To prove a prima facie case under the NJLAD, a plaintiff
must demonstrate by a preponderance of the evidence that: “(1) he
14
was in a protected group; (2) he was performing his job at a level
that met his employer’s legitimate expectations; (3) he
nevertheless was fired; and (4) the employer sought someone to
perform the same work after he left.”
Fischer, 974 F.Supp. at 805
(citing Erickson v. Marsh & McLennan Co., 117 N.J. 539, 551, 569
A.2d 793 (1990)).
Plaintiff states that defendants do not dispute elements
one, three or four; that plaintiff is a member of a protected
class, that he was discharged, and that they sought someone else to
perform plaintiff’s job after he left.
With regard to element two,
plaintiff states that he worked for defendants for over 20 years,
and had no problem performing his job as a driver for the four
years prior to his discharge.
Defendants argue that plaintiff cannot meet element two
because plaintiff failed to perform his job at a level that met
defendants’ expectations.
Defendants argue that in the months
leading up to his termination, they received two complaints about
his driving, and one complaint from a customer about plaintiff’s
remarks to her regarding needing assistance to lift heavy boxes.
Defendants also argue that plaintiff failed to report hitting a
customer’s truck while on a delivery.
At the prima facie stage, the Court applies an objective
standard to determine whether plaintiff was “performing his job at
a level that met his employer’s legitimate expectations.” See Zive
15
v. Stanley Roberts, Inc., 182 N.J. 436, 454 867 A.2d 1133 (N.J.
2005); Swider v. Ha-Lo Industries, Inc., 134 F.Supp.2d 607, 622-23
(D.N.J. 2001).
“All that is necessary is that the plaintiff
produce evidence showing that she was actually performing the job
prior to the termination.”
Zive, 182 N.J. at 454; Swider, 134
F.Supp.2d at 622-23 (Plaintiff only needs to show that he had the
“education and experience necessary to qualify for the position he
held.”).
“[P]erformance markers like poor evaluations are more
properly debated in the second and third stages of the
burden-shifting test[;] they do not come into play as part of the
second prong of the prima facie case.”
Zive, 182 N.J. at 455
(citing Greenberg v. Camden County Vocational & Technical Schools,
310 N.J.Super. 189, 202, 708 A.2d 460, 467 (App.Div. 1998));
Swider, 134 F.Supp.2d at 622-23 (“Subjective considerations ... are
to be considered when determining whether the employer’s asserted
non-discriminatory reason for the termination was pretext.”).
Applying an objective standard to the second prong of
plaintiff’s prima facie case, the Court considers only the
plaintiff’s evidence.
Zive, 182 N.J. at 455 (plaintiff’s evidence
“can come from records documenting the plaintiff’s longevity in the
position at issue or from testimony from the plaintiff or others
that she had, in fact, been working within the title from which she
was terminated.”).
Here, although plaintiff worked for defendants
for approximately four years as a driver.
16
The facts show that
plaintiff performed his job as a driver and, therefore, plaintiff
has met the second element of prima facie case.
The evidence
presented by defendants go to his performance as a driver and will
be considered in the second and third steps under the McDonnell
Douglas three-step methodology.
b.
Defendants’ Non-Discriminatory Reason
Because plaintiff has established a prima facie case of
age discrimination, the age discrimination is presumed and the
burden of production shifts to defendants to articulate a
legitimate, non-discriminatory reason for plaintiff’s termination.
See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Sisler, 157
N.J. at 210, 723 A.2d at 955; Spinks v. Township of Clinton, 402
N.J.Super. 465, 482 955 A.2d 304 (App.Div. 2008).
Defendants state that in the months leading up to
plaintiff’s termination, they received two complaints concerning
plaintiff’s driving.
The first occurred when plaintiff got out of
the defendants’ van to inspect the van and confronted a driver who
was attempting to get in his lane and who had his son in the car.
Defendants state that Victor warned plaintiff that he was driving a
“billboard” for Victor Printing and that he was not pleased with
plaintiff’s behavior.
Defendants state that plaintiff admitted
that he was “driving a bulletin board around with a phone number on
it” and understood that he was advertising the company on the van
he was driving.
The second incident occurred when plaintiff pulled
17
in front of a tractor trailer on the Turnpike and, in the opinion
of the driver of the tractor trailer, almost caused an accident and
required him “to lock his brakes.”
Defendants also state that they
received a complaint from a customer that plaintiff had acted
inappropriately by complaining to the customer that the boxes were
heavy and that Victor Printing should have should have sent someone
to help him.
Defendants also state that plaintiff, although aware
that he was required to report any damage, failed to report an
accident he had with one of their client’s trucks in which he broke
an amber lens on the truck’s mirror.
Defendants state that they
only learned of the accident after the client, Edmunds, called to
complain.8
Based on the above incidents, defendants have met their
burden of production by showing that these events, if true, would
have justified plaintiff’s termination for cause separate and apart
from any alleged age discrimination.
As a result, the burden
shifts back to plaintiff to show that defendants’ stated reason is
pretext to discriminate against him.
See McDonnell Douglas, 411
U.S. at 804–05, 93 S.Ct. 1817; Sisler, 157 N.J. at 210, 723 A.2d at
955.
8
Although defendants raise other complaints about
plaintiff’s job performance, such as ripped clothing, shabby
appearance, discipline for his “attitude”, and the use of
profanity, plaintiff either disputes these events or raises a
material issue of fact as to whether he was actually terminated
for this conduct.
18
c. Pretext
Because defendants provided sufficient nondiscriminatory
reasons for plaintiff’s termination, the burden of production
shifts back to plaintiff to prove that “the articulated reason ‘was
merely pretext to mask the discrimination’ or was not the true
motivating reason for the employment decision.”
See Reynolds v.
Palnut Co., 330 N.J.Super. 162, 748 A.2d 1216 (App.Div. 2000).
“To
survive summary judgment, plaintiff [is] obligated to show
sufficient evidence to support an inference that the employer did
not act for its stated non-discriminatory reasons.”
Id.
“To
discredit the employer’s proffered reason, however, the plaintiff
cannot simply show that the employer’s decision was wrong or
mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent.”
Perskie, 32 F.3d 759, 765 (3d Cir. 1994).
Fuentes v.
“Rather, the non-moving
plaintiff must demonstrate 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]
non-discriminatory reasons.”
Id.
(internal citation and quotation
marks omitted).
As evidence of pretext, plaintiff makes the following
19
arguments: 1) that defendants could not have considered the various
road rage incidents and customer complaints as grounds for
termination because Victor testified that he only contemplated
terminating plaintiff after the accident with the Edmunds van; 2)
that defendants inquired about plaintiff’s retirement plans shortly
before he was terminated; and 3) that defendants laid-off plaintiff
and offered to rehire him only to hire someone substantially
younger.
Although we find the issue to be an extremely close one,
we conclude that plaintiff has raised a sufficiently genuine issue
of material fact on the issue of pretext to preclude summary
judgment.
Plaintiff argues that defendants’ proffered reason for
terminating plaintiff for failure to report damage to the van or
complaints about his driving and customer relations, is
inconsistent, implausible and contradictory because when he was
terminated he was told he was being let go for lack of work.
Plaintiff argues that Victor told him that if business picked up,
defendants would reinstate him for three days a week at a lower
rate of pay.
Although Defendants argue that plaintiff admitted
that he was called into Victor’s office to discuss the accident
with the customer’s truck, plaintiff testified that he was called
into the discuss the accident and then “all of a sudden the
conversation switched from that to we don’t have any work for you
and best thing, best thing to do is just give you a layoff.”
20
There exists a dispute of material fact concerning the
conversation that occurred at the time of plaintiff’s termination.
Plaintiff testified that he did not ask to be laid-off whereas
Victor testified that when he informed plaintiff he had to let him
go, plaintiff asked to be laid-off.
There is also a dispute over
whether defendants said that plaintiff could return to work.
Plaintiff testified that Victor told him if work increased that he
“could get three days week” at a lower rate,9 whereas Victor denied
ever telling plaintiff he could return to work at a lower rate.
On summary judgment, all reasonable inferences must be
taken in the light most favorable to plaintiff.
See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986).
“This standard is applied with
added rigor in employment discrimination cases, where intent and
credibility are crucial issues.”
Morrissey v. Luzerne County
Community College, 117 Fed.Appx. 809, 811 (3d Cir. 2004) (citations
omitted).
9
Plaintiff states that he was replaced by a driver who was
22 years old. In a footnote, plaintiff argues that in any
reduction-in-force case, summary judgment is automatically denied
where there is evidence that plaintiff was actually replaced.
Plaintiff, however, presented no evidence that his lay-off was
part of a reduction-in-force. See Chu-Constable v. Broad U.S.A.,
Inc., No. A-6021-98T1, 2006 WL 3359303, at *4 (N.J.Super.A.D.
Nov. 21, 2006 (outlining factors to determine whether reduction
if force was undertaken as pretext for unlawful discrimination).
Although defendants did lay-off eight employees in December 2008
and January 2009, plaintiff, who was 65 years old at the time,
was not laid off.
21
Taking all inferences in plaintiff’s favor, there is a
dispute of material fact concerning what was said at the time
plaintiff was laid-off.
Simply stated, if plaintiff had been
terminated for the reasons that defendants now state, why is there
any ambiguity or dispute over the reason for plaintiff’s
termination? If plaintiff was being terminated for his driving
record, why not say so, document the reason and its justification?
This ambiguity raises the prospect that the stated reason - lack of
work - was pretext or excuse for another prohibited reason, namely
age.
It is in this context that plaintiff’s other proffered
evidence - that he was asked about his retirement plans shortly
before being laid-off, that he was told he was laid off for lack of
work yet his job functions immediately taken on by other employees,
and his position ultimately filled by a substantially younger
person - must be viewed in the burden-shifting analysis.
It should
be for a jury to determine whether these facts coupled with the
failure to articulate and document the proffered reason for
termination, establish “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” as to prove
pretext.
In sum, plaintiff has proffered enough facts to support a
reasonable inference that defendants did not act for its stated
non-discriminatory reason.10
10
It would of course be ironic if the denial of summary
judgment turns on what was ultimately an act of kindness by
defendants - that is, describing what was really a termination
22
The Court notes, however, that plaintiff has not
presented a very strong case of age discrimination, only that he
has offered enough factual evidence to survive summary judgment.
For example, the record shows that plaintiff declined to be trained
on the newer equipment even though the printing press that
plaintiff was hired to operate got phased out.
Rather than
terminate his employment at age 63, defendants offered plaintiff a
full-time job as a driver, at his then current rate of pay which
was substantially higher than what a driver would have earned.
Later, in late 2008, when Victor Printing’s sales declined and
defendants laid off eight employees, defendants did not lay-off
plaintiff who was 65 years old at the time.
It was only after
receiving several complaints about plaintiff that defendants
terminated his employment.
Such facts do not present a compelling
argument of discrimination based on age.
Nevertheless, whether to credit defendants’ version or
plaintiff’s version of the discussion during plaintiff’s
for bad driving as a lay off for lack of work motivated by a
desire to benefit the plaintiff. However, as we note infra
defendants’ motivation and any disparity between the real reason
and stated reason for the separation from employment call for
credibility determinations this Court can not make on a motion
for summary judgment. Ultimately, this may be a cautionary tale
worth noting. If employers have a legitimate, non-discriminatory
reason for termination which actually forms the basis for their
motivation to terminate, there should be no hesitation to clearly
state that reason to the terminated employee and any legitimately
interested third party. A failure to do so may have unintended
consequences.
23
termination as to whether defendants offered to rehire him or
whether he was laid-off as a concession due to plaintiff’s years of
service is a credibility determination which the Court cannot make
on summary judgment.
See Marino v. Industrial Crating Co., 358
F.3d 241, 247 (3d Cir. 2004).
IV.
CONCLUSION
For the foregoing reasons, defendants’ motion for summary
judgment will be denied.
Date:
An appropriate Order will be entered.
June 29, 2012
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
24
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