MCQUILKIN v. DELAWARE RIVER PORT AUTHORITY
Filing
42
OPINION. Signed by Chief Judge Jerome B. Simandle on 11/6/2013. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JAMES McQUILKIN,
Plaintiff,
HON. JEROME B. SIMANDLE
Civil No. 11-652 (JBS/AMD)
v.
OPINION
DELAWARE RIVER PORT AUTHORITY,
Defendant.
APPEARANCES:
Stephen G. Console, Esq.
Rahul Munshi, Esq.
CONSOLE LAW OFFICES LLC
1525 Locust Street, 9th Floor
Philadelphia, PA 19102
Attorneys for Plaintiff
William F. Cook, Esq.
William M. Tambussi, Esq.
BROWN & CONNERY
360 Haddon Avenue
Westmont, NJ 08108
Attorneys for Defendant
SIMANDLE, Chief Judge:
I.
INTRODUCTION
Plaintiff James McQuilkin alleges that his employer,
Defendant Delaware River Port Authority (“DRPA”), retaliated
against him after he questioned whether he had been denied
tuition reimbursement for his law school education because of his
age. Plaintiff alleges that, after he successfully challenged the
DRPA tuition reimbursement decision, Defendant retaliated against
him by setting his salary as a grants specialist too low, denying
him raises and failing to create the position of grants
administrator for him, all in violation of the retaliation
provision of the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 623(d).
Defendant brings this motion for summary judgment [Docket
Item 35], arguing that the claims are time-barred and, in the
alternative, that Plaintiff fails to establish a prima facie case
of retaliation. Defendant also argues that Plaintiff is not
entitled to liquidated damages.
For the reasons explained below, Defendant is entitled to
summary judgment to the extent Plaintiff’s claims depend on the
initial setting of his salary as a grants specialist or for
failing to create the position of grants administrator which did
not exist within the DRPA. These claims fail because they are
untimely, because Plaintiff cannot establish these are materially
adverse actions, or both. However, as further explained below,
summary judgment is denied to the extent Plaintiff alleges
Defendant denied him a raise as a grants specialist in
retaliation for his allegation of age discrimination.
II.
Background1
1
Many of the factual assertions in Plaintiff’s CounterStatement of Material Facts are without citations to the record.
According to L. Civ. R. 56.1(a), all statements of facts must be
accompanied by citations “to the affidavits and other documents
submitted in support of the motion.” See also Fed. R. Civ. P.
2
A. Facts
i. Plaintiff’s employment & law school tuition reimbursement
Plaintiff James McQuilkin was hired by Defendant DRPA in
1987 as a toll collector and later worked as a toll accountant
and purchasing specialist before being promoted to grants
specialist in 2005. (Statement of Material Facts (“SMF”) [Docket
Item 35-2] ¶¶ 1-4.) Plaintiff retired in January 2010. (Id. ¶ 5.)
In 1997, at the age of 49, while Plaintiff was working for
the DRPA, he began attending law school, first at Widener Law and
then at Rutgers School of Law - Camden. (Id. ¶ 6.) When Plaintiff
first enrolled, the DRPA offered its employees a tuition
reimbursement program that provided for 100 percent reimbursement
for tuition, books and registration fees. (Counter-statement of
Material Facts (“CMF”) [Docket Item 37] ¶ 10.) The reimbursement
policy did not require employees to demonstrate that their course
of study was related to their jobs. (Id. ¶ 11.) Plaintiff
received reimbursement for his first semester. However, effective
January 1, 1998, the DRPA adopted a new, more limited policy that
required employees to demonstrate a connection between their
56(c) (“A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A) citing to particular
parts of materials in the record . . . ; or (B) showing that the
materials cited do not establish the absence or presence of a
genuine dispute . . . .”). The Court will not consider factual
assertions that are without citations to the record when
determining whether a material fact is disputed. See Fed. R. Civ.
P. 56(c)(3) (“The court need consider only the cited materials,
but it may consider other materials in the record.”).
3
course of study and their job, present or prospective. (Def. Ex.
D-7 [Docket Item 35-3] at 2, 4; Def. Ex. 12 at 1.) The change in
policy was not communicated to all employees until December 1998.
(Id. at 4 n.5.) Plaintiff’s request for tuition reimbursement for
his second semester was denied in January 1998. (SMF ¶ 9.)
Plaintiff filed an internal grievance, which was denied in
February 1998. (CMF ¶ 16.) In a letter explaining the denial, the
treasurer and CFO of the DRPA stated that because “there are no
current or prospective job opportunities in the Finance Division
requiring a law degree, there was no basis for approving the
tuition reimbursement request” under the new policy. (Pl. Ex. E
[Docket Item 37-2] at 1.) Years later, in 2004, Plaintiff met
with Jeffrey Nash, vice chair of the DRPA board of commissioners,
and complained to him about what Plaintiff described as “the
arbitrary and capricious exclusion of benefits under the DRPA
tuition reimbursement program . . . .” (Def. Ex. 12 at 1.)
Plaintiff identified other employees who received reimbursements
and suggested that some factor other than cost motivated his
denial. (Id. at 1-2.) Plaintiff stated: “I don’t profess to
understand the actual reason for my exclusion from our tuition
reimbursement policy, or even why I have not been able to advance
into a more responsible job classification since graduating from
Rutgers Law School in 2001.” (Id. at 2.)
DRPA investigated Plaintiff’s reimbursement denial. (SMF ¶
4
15.) On May 12, 2004, Plaintiff met with Toni Brown, the DRPA’s
director of office of business development and equal opportunity.
(Id.; Def. Ex. D-6 at 1.) As Ms. Brown recounted in an e-mail to
Michael Joyce, assistant general counsel for the DRPA, and John
Matheussen, CEO of the DRPA, Plaintiff mentioned in the meeting
that
1) he thought it [reimbursement denial] might form the
basis of an ‘age’ discrimination claim, and 2) he
thinks the ‘arbitrary and capricious’ manner in which
Barbara Jones denied his request is ‘systemic’ of the
way decisions are being made regarding ‘certain
policies’ within her control through Human Resources.2
(Id.) Plaintiff later testified that he told Ms. Brown that he
had gone to the Equal Employment Opportunity Commission (“EEOC”)
to fill out an intake questionnaire, although that fact was not
stated in Brown’s summary e-mail. (SMF ¶¶ 16-17.) Brown did
mention that
Jim believes his age may well have been the reason for
the adverse decision; he will be 57 in November, and was
about 51 when he first started the law school program.
The other four employees were significantly younger than
Jim when they started their respective programs (late
20s, early 30s, and late 30s.)
(Def. Ex. D-6 at 2.)
2
Barbara Jones, DRPA’s chief administrative officer,
allegedly did not return phone calls to Plaintiff about his
reimbursement denial. (Def. Ex. D-6 at 1.) She allegedly told
other employees that “There will be no legal openings for him
(Jim McQuilkin).” (Id.) Ms. Brown observed that “Barbara’s
prediction proved to be wrong. Since 1997 . . . the DRPA has
hired 6 attorneys (3 of those 6 attorneys were hired after Jim
graduated in 2001.)” (Id.)
5
Upon completion of the investigation, and on the
recommendation of Ms. Brown, the DRPA reimbursed Plaintiff in
full, paying more than $30,000. (Id. ¶¶ 21-22.) Plaintiff never
filed an EEOC charge in 2004. (Id. ¶ 29.)
ii. Plaintiff’s promotion to grants specialist
Later in 2004, Plaintiff discussed the possibility of
joining DRPA’s government relations department3 with the
department’s director, William (“Bill”) Shanahan. (Id. ¶ 33.) The
parties dispute the content of discussions between Plaintiff and
Mr. Shanahan as well as how to characterize what promises were
made to Plaintiff, if any, relating to his job title, job
description, or salary. According to Plaintiff,
Bill had asked me if I would be interested in coming
into the Grants Department, but not as a specialist.
Bill had actually showed me a document that he was
going to submit to the Personnel Document requesting
two positions. One as a security administrator, and the
second, which he asked me if I would be interested in,
was for the grants administrator. And both of those
jobs were listed on his document as Grade 10’s.
(McQuilkin Dep. [Def. Ex. D-1; Docket Item 35-3] at 154:20155:6.) By “Grade 10,” Plaintiff was referring to his salary
level. At the time, Plaintiff was working as a purchasing
specialist, at a salary of Grade 7. (SMF ¶ 34.)
Plaintiff did not join the department as a grants
administrator, however; it is undisputed that such a position did
3
The parties also refer to this department as the “Grants
Department.”
6
not exist at the time, and, to this day, does not exist at the
DRPA. (Id. ¶¶ 65-66.) It is also undisputed by the parties that
formal action by the DRPA board of commissioners would have been
required to create the grants administrator position. (Id. ¶ 63;
see also McQuilkin Dep. 258:15-22 (acknowledging that the
position of grants administrator did not exist and could be
created only by the board).) Additionally, the DRPA was in the
midst of a reorganization, which affected staffing. (Def. Ex. D10; SMF ¶ 44; McQuilkin Dep. at 220:11-221:1.) The reorganization
resulted in Plaintiff transferring from the purchasing department
to the Grants Department, not as a grants administrator, but as a
grants specialist at a salary of Grade 8. (Id. ¶ 42.) The step up
in salary grade resulted in a $5,000 raise for Plaintiff, an
increase of 12 percent. (Id.)
Still, Plaintiff asserts that Mr. Shanahan told him, and he
was “led to believe,” that his new salary upon joining the
department would be at Grade 10.4 (CSF ¶ 35; McQuilkin Dep. at
4
Plaintiff testified:
A. I was led to believe that’s what the position would
be [Grade 10].
Q. But you were never guaranteed a 10; is that correct?
A. No guarantee, no.
Q. Mr. Shanahan merely proposed that you’d be placed
into the position of Grants Administrator at a 10;
correct?
A. Yes.
Q. And ultimately it was decided that you would be
placed into the position of Grants Specialist at a Grade
8; correct?
7
240:4-8.) However, Plaintiff does not cite any portion of the
record to show that Shanahan told Plaintiff that his position of
grants specialist was guaranteed at a salary of Grade 10. To the
contrary, Shanahan testified that the most he could do was
recommend to human resources where to set Plaintiff’s salary and
that he had no authority to set Plaintiff’s salary. (Shanahan
Dep. at 26:4-27:5.) Shanahan testified he did not recall the
specifics of his recommendation, but he was “pretty sure” he
requested that Plaintiff be placed at Grade 10. (Id. at 26:2427:1.) Plaintiff testified that he understood that Shanahan did
not have the final authority to set his salary and that Shanahan
never offered a “guarantee” of a specific salary grade.
(McQuilkin Dep. at 39:17-20, 240:4-11.) Moreover, the salaries
for all “specialists” at the DRPA are set at Grade 7 or 8. (Def.
Ex. D-13; e-mail from Ms. Brown stating that “At the Authority
all ‘specialist’ positions are slotted at Grades 7 and 8.”)
On December 20, 2004, Plaintiff received a memorandum from
Kelly Forbes, director of human resource services, stating that
the “reorganization has impacted you as outlined below[.]” (Def.
Ex. D-10.) The document showed that the salary for his new job as
grants specialist was Grade 8, or $53,000. (Id.) Plaintiff
accepted the grants specialist position at Grade 8 by signing an
A. Yes.
(McQuilkin Dep. at 240:7-19.)
8
acceptance form. (SMF ¶ 50.) Plaintiff’s Grade 8 salary was made
retroactive to October 20, 2004. (Def. Ex. D-11.) Until his
retirement in 2010, Plaintiff continued to receive annual merit
increases and received a special holiday check equal to 0.5
percent of his base salary. (SMF ¶¶ 54, 58.) Plaintiff was never
demoted, disciplined or terminated. (Id. ¶ 60.)
In December 2004, Mr. Shanahan asked Ms. Brown about
Plaintiff’s salary being set at Grade 8, not 10. The difference
between a mid-point Grade 8 salary and a mid-point Grade 10
salary was approximately $11,200. (Pl. Ex. Y.) Ms. Brown e-mailed
Mr. Matheussen saying, “Bill called me to discuss this one, he
wondered why McQuilkin’s new position was ‘downgraded’ from a 10
to an 8. I gave you a heads up on this one.” (Pl. Ex. J.) Later,
Brown wrote to Matheussen, indicating that she would request that
two other employees have their salaries moved “back to 12 and 11,
respectively,” adding, “I’d like to talk to . . . you again
regarding McQuilkin (this one is a real stretch, especially in
light of everything that has already been done).” (Pl. Ex. L.)
Matheussen responded, “I agree.” (Id.) Matheussen clarified this
exchange during his deposition, explaining that “everything that
has already been done” referred to “[m]oving him [Plaintiff] from
the purchasing department into the grants department.”
(Matheussen Dep. at 96:6-10.) Matheussen added:
Remember, we moved him without posting the position. We
felt as though he was qualified to do the job as grants
9
specialist. We didn’t post it for anyone else, and we
made him a grants specialist and gave him the appropriate
job assignment, job description, and job grade level. Now
people were subsequently looking to see if he could be
paid additional monies on top of that. The job
description, the job grade level didn’t support it.
(Id. at 97:2-11.)
iii. Supervisors advocate for a raise for Plaintiff, new job
title of grants administrator
Mr. Shanahan continued to advocate for the creation of the
grants administrator position for Plaintiff. In July 2005, Mr.
Nash indicated in an e-mail to Mr. Matheussen that he liked
Shanahan’s proposal. (Pl. Ex. M.) Mr. Matheussen was not
convinced. In an e-mail to Ms. Brown, dated July 22, 2005,
Matheussen stated, “I’m concerned about a whole host of issues,
none the least of which are Jim’s settlement/raise last year
(please tell me $ amounts and dates on that), the fact that it is
suggested we do it without posting, giving some raises/promotions
while we are telling others of our budget problems and the impact
it would have on Purchasing.” (Pl. Ex. M [Docket Item 39] at 1.)
In February 2006, Mr. Shanahan drafted a proposal for
personnel changes in his department, including the creation of a
grants administrator position. (Pl. Ex. O. at 1.) Shanahan
acknowledged that “[t]his position does not exist in the current
structure,” but went on to describe the administrator’s duties
and stated that, although Plaintiff was a grants specialist,
“[h]e has been doing the job as Grants Administrator for the past
10
8 months.” (Id.) He added: “Jim McQuilkin has been to doing [sic]
this job admirably and should be recognized for his efforts by
establishing the title and promoting him into the position. Jim
is currently a Grade 8, and the position should be at least a
Grade 10 or 11.” (Id. at 2.) Ms. Brown testified that between
December 2005 and May 2007, “the board was at an impasse and
there were no meetings and very little to any [sic] business that
was being completed.” (Brown Dep. at 191:7-11.)
Both Mr. Shanahan and Linda Hayes, the capital grants
manager, lobbied again for the creation of a grants administrator
position in 2007. (SMF ¶ 65.) Ms. Hayes wrote to Mr. Matheussen
to say, “Several months ago, I spoke to you about the need to
upgrade Jim McQuilkin to the Grants Administrator position that
he was promised when he took the job and that he regularly
performs.” (Pl. Ex. Q.) She added: “It seems inherently unfair to
have someone doing a job on a high professional level, working
closely with Legal and Engineering staffs, among others and
getting paid at the grade 9 rate.”5 (Id.) The DRPA hired the Hay
Group, a consulting firm, to study what the compensation for a
grants administrator position should be, if the position were
created. (Id. ¶ 66.) The Hay Group concluded that the “job has an
evaluation that places it in grade 10 . . . .” (Def. Ex. D-15.)
5
The reference to Grade 9 appears to be a typographical
error. There is no allegation in the record, or Plaintiff’s
papers, that Plaintiff ever received a salary of Grade 9.
11
The memo noted that “[w]hile the Grants Administrator position is
essentially a new position, the current Grants Specialist
incumbent has been performing the duties of this position for
quite some time.” (Id.)
In late 2007, Shanahan drafted a proposal to create the
position for the board of commissioners. (Pl. Ex. Z; CSF ¶¶ 8384.) The position was not created. Mr. Shanahan testified that on
the day of the board meeting, Mr. Matheussen told Shanahan that
“the board’s pulling this now, you know, as of today.” (Shanahan
Dep. at 54:20-23.) Shanahan further testified he didn’t know why
the proposal was not presented to the board. (Id. at 53:16-18.)
Shanahan reported back to Plaintiff that “Mr. Matheussen told him
to withdraw it. It was on the agenda to be considered by the
Board, and it was withdrawn.” (McQuilkin Dep. at 263:20-23.)
In 2008, the DRPA retained the Hay Group again, this time to
evaluate the salary of the grants specialist position. (Def. Ex.
D-16.) The consultant concluded, in a memo dated December 2,
2008, that because “the Grants Specialist position has expanded
and evolved over recent years to include the direct
responsibility of working through the entire Grants process,
dealing directly with federal and state entities, and seeing
Grants projects through to completion while ensuring compliance
on all aspects of the grants,” the job “has an evaluation that
places it in a Grade 10.” (Id.) Ms. Brown testified that the DRPA
12
“accepted the recommendation” but the grants specialist salary
was not increased. (Brown Dep. at 161:18-162:21.) Brown’s
understanding was that “at some point this was going to become a
part of the operating budget and the salary was going to be
increased. The grade, the position was going to be increased from
a Grade 8 to a Grade 10.” (Id. at 162:11-19.) When asked why the
salary was not increased, Brown responded: “I don’t know.” (Id.
at 162:22-23.) Brown also testified: “I believe that there is
documentation, to the effect that there certainly, as part of the
2010 operating budget, an increase certainly was contemplated for
the grants specialist position, which would have taken effect
January 1, 2010, but . . . Mr. McQuilkin did submit his
documentation that he intended to retire.” (Id. at 194:3-11.)
In September 2009, Ms. Hayes corresponded with Mr.
Matheussen again about promoting Plaintiff. (Pl. Ex. K.) She
wrote:
I strongly believe that Jim merits this promotion and
have tried for over 2 years to ascertain why this has
not happened. . . . Many other persons who I feel merit
a raise much less, based on the complexity of this job,
have received their promotions and I just can’t
understand why this happens . . . . Frankly it makes me
think that there is some underlying reason for the lack
of action on this, so I very much want to pursue this
with HR.
(Id.) Plaintiff himself testified that “what’s behind this whole
issue” was the fact that he had received tuition reimbursements
in the fall of 2004. (McQuilkin Dep. at 280:16-23.)
13
Mary-Rita D’Alessandro, Esq., assistant to the board chair,
testified that she got the impression from Mr. Joyce that
“there’s a history here” and “we have made accommodations for Jim
in the past and we’re not going to make this one.” (D’Alessandro
Dep. at 21:19-22:11.) D’Alessandro testified that Mr. Joyce and
and Mr. Matheussen felt they had “bent over backwards for this
guy . . . .” (Id. at 27:12-15.) At the same time, D’Alessandro
testified she did not have any specific recollection of Mr. Joyce
or Ms. Brown saying anything that would suggest that Plaintiff’s
salary remaining at Grade 8 was related to his age. (Id. at
64:18-65:7.) She stated that she had no knowledge of Plaintiff’s
age affecting his salary status. (Id. at 70:14-19.) Neither Joyce
nor Matheussen supported giving Plaintiff a raise, according to
D’Alessandro. (Id. at 28:12-14.)
On October 23, 2009, Plaintiff filed a complaint with the
EEOC alleging age discrimination and retaliation. (Compl. [Docket
Item 1] Ex. 1.) Plaintiff retired in January 2010.
B. Procedural history
The EEOC issued Plaintiff a right-to-sue letter on November
15, 2010. (Compl. Ex. 2.) Plaintiff brought this suit.6
Defendants moved to dismiss the Complaint. [Docket Item 8];
see also McQuilkin v. Del. River Port Auth., No. 11-652, 2011 WL
6
The Court exercises jurisdiction under 28 U.S.C. § 1331,
because Plaintiff’s claims arise under federal law.
14
5325620 (D.N.J. Nov. 3, 2011), ECF. No. 12. The Court dismissed
Plaintiff’s age discrimination claim under the ADEA, because
“[t]here are no facts alleged which give rise to an inference
that the Grants Specialist position was downgraded from level 11
to level 8 compensation due to the Plaintiff’s age.” Id. at *7.
The Court denied Defendant’s motion to dismiss the retaliation
claim brought under the ADEA, because Plaintiff engaged in
protected activity by filling out the EEOC questionnaire and
opposing the Defendant’s denial of tuition reimbursement to older
employees, and the Complaint alleged that Defendant “downgraded
the position to grade level 8 only after the Plaintiff was
hired.” McQuilkin, 2011 WL 5325620, at *5 (citing Compl. ¶ 26).
The Court stated that the “complaint sufficiently alleges that
the Plaintiff was paid less than the position was marketed as and
this pay decrease was made after the Plaintiff was selected, as
if aimed at him. This is sufficient to state a claim for an
adverse employment action.” Id. The Court found a plausible basis
for inferring causation. Id. at *6.
Defendant filed the present motion for summary judgment, and
the Court heard oral argument on September 23, 2013.
III. Standard of review
A court shall grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
15
P. 56(a). A dispute is “genuine” if, based on the evidence in the
record, a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A fact is “material” if it might affect the outcome
of the suit. Id. The court will view evidence in the light most
favorable to the non-moving party and “all justifiable inferences
are to be drawn in [that party’s] favor.” Hunt v. Cromartie, 526
U.S. 541, 552 (1999).
IV. Discussion
The ADEA prohibits employers from retaliating against an
employee who opposes discrimination on the basis of age or raises
allegations of age discrimination. 29 U.S.C. § 623(d)7; see also
Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 568 (3d Cir. 2002)
(referencing the ADEA, among other statutes, and stating that it
“forbids discrimination against an individual because ‘such
individual’ has engaged in protected conduct”); Krouse v. Am.
Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (treating the
7
The ADEA provides: “It shall be unlawful for an employer
to discriminate against any of his employees . . . because such
individual . . . has opposed any practice made unlawful by this
section . . . .” 29 U.S.C. § 623(d). The statute makes it
unlawful for an employer to “discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.” §
623(a)(1). The law also prohibits an employer from “limit[ing],
segregat[ing], or classify[ing] his employees in any way which
would deprive or tend to deprive any individual of employment
opportunities . . . because of such individual’s age[.]” §
623(a)(2).
16
ADEA and the Americans with Disabilities Act as essentially
identical for purposes of retaliation precedents).
In New Jersey, a charge of discrimination or retaliation
must be filed with the EEOC within 300 days of the alleged
unlawful employment practice. Miller v. Beneficial Mgmt. Corp.,
977 F.2d 834, 842 (3d Cir. 1992); 29 U.S.C. § 626(d)(1)(B). These
filing deadlines “function as statutes of limitations” which
begin “at the time of the alleged discrimination.” Parikh v.
United States, 491 F. App’x 303, 306 (3d Cir. 2012) (citing Del.
State Coll. v. Ricks, 449 U.S. 250, 256-58 (1980), and dismissing
an ADEA claim as time-barred). Because Plaintiff here did not
file an EEOC charge against the DRPA until October 23, 2009
(Compl. ¶ 12; Compl. Ex. 1), Plaintiff must allege a discrete act
of retaliation on or after December 27, 2008, to survive summary
judgment.
Defendant argues that Plaintiff’s retaliation claim is timebarred. (Def. Mot. Br. at 21.) Defendant acknowledges that “when
a discriminatory compensation decision or other practice is
adopted” by the employer, each resulting, discriminatory paycheck
constitutes an independent “unlawful practice” under the ADEA.
See 29 U.S.C. § 626(d)(3).8 Consequently, Defendant characterizes
8
This provision originated in the Lilly Ledbetter Fair Pay
Act of 2009 (“FPA”), codified in large part at 42 U.S.C. §
2000(e)-5(e)(3)(A). For purposes of the ADEA, the FPA states:
an unlawful practice occurs, with respect to compensation
17
Plaintiff’s allegations instead as a “failure-to-promote claim.”
(Id. at 22.) Defendant cites Noel v. Boeing Co., 622 F.3d 266 (3d
Cir. 2010) and Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d
370 (D.C. Cir. 2010), to argue that failure-to-promote claims are
not compensation discrimination claims within the meaning of the
FPA, because they do “not involve a pay disparity,” and therefore
do not gain the benefit of the renewal of the 300-day window upon
receiving each paycheck. (Def. Mot. Br. at 23, 26.)
In Schuler, the plaintiff Harold Schuler alleged that his
employer denied him a promotion to partner in violation of the
ADEA.9 Schuler, 595 F.3d at 373. The plaintiff argued that the
decision not to promote him was an “other practice,” under 29
U.S.C. § 626(d)(1)(3), and was “‘intertwined with a
discriminatory compensation decision’ because as a result of that
decision he received significantly less remuneration than he
in violation of this chapter, when a discriminatory
compensation decision or other practice is adopted, when
a person becomes subject to a discriminatory compensation
decision or other practice, or when a person is affected
by application of a discriminatory compensation decision
or other practice, including each time wages, benefits,
or other compensation is paid, resulting in whole or in
part from such a decision or other practice.
29 U.S.C. § 626(d)(3).
9
The plaintiff alleged he was denied promotions on three
occasions. Schuler, 595 F.3d at 373. The portion of the Schuler
opinion relevant to this case concerns the first two denials,
which occurred more than 300 days prior to the plaintiff filing
EEOC charges. Id. at 374.
18
would have as a partner. Id. at 374. The D.C. Circuit disagreed.
The court stated that “in order to benefit from the [Fair Pay
Act] Schuler must bring a claim involving ‘discrimination in
compensation’ and point to a ‘discriminatory compensation
decision or other practice.’” Id. The court distinguished “paying
different wages or providing different benefits to similarly
situated employees” from “promoting one employee but not another
to a more remunerative position.” Id. Noting that the FPA was
enacted to overrule the U.S. Supreme Court’s decision in
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), in
which a plaintiff-employee claimed she was being paid
significantly less than male colleagues, the D.C. Circuit stated
that “the statute is directed at the specific type of
discrimination involved in that case and not to other unspecified
types of discrimination in employment.” Id. at 375. The court
held that the failure to promote an employee “to a higher paying
position is not a ‘compensation decision or other practice’
within the meaning of that phrase in the [Fair Pay Act] and
Schuler’s failure-to-promote claim is not a claim of
‘discrimination in compensation.’ The [FPA] therefore does not
revive his claims under the ADEA.” Id.
In Noel, the plaintiff, a black Haitian national, alleged
that his employer failed to promote him with an accompanying step
up in salary grade in violation of Title VII of the 1964 Civil
19
Rights Act. Noel, 622 F.3d at 268, 270. The plaintiff did not
file his EEOC charge within 300 days, but argued that the FPA
“revives his claim since each paycheck he received during the
requisite time period started the administrative clock ticking
anew.” Id. at 270. The Third Circuit first determined that the
plaintiff had not pleaded a “discrimination-in-compensation
claim” because his factual allegations were focused on the
allegedly discriminatory failure to promote and he did not allege
that white peers performing the same work received more pay. Id.
at 272. The court then turned to “whether, under the FPA, a
failure-to-promote claim constitutes ‘discrimination in
compensation.’” Id. Citing Schuler with approval, the Third
Circuit held that it did not. Id. at 275. The court stated
the FPA was enacted to address a particular type of
employment discrimination, compensation decisions, which
are often concealed and not discovered until long after
the 180- or 300-day administrative period expires. There
is no indication, however, that Congress intended the FPA
to apply to discrete employment decisions, like promotion
decisions, and Noel cites no authority for that
proposition.
Id. at 274. The court further noted that “discrete employment
acts trigger the administrative clock at the time the employment
decisions occur.” Id. at 275. The Third Circuit thus declined to
treat a failure-to-promote claim as an “other practice” under
Title VII. Id. To fit within the scope of the FPA, a
“discriminatory ‘other practice,’ while not actually setting a
disparate remuneration level, must relate to pay disparity.” Id.
20
at 273 n.6.
Here, Plaintiff disputes Defendant’s characterization of his
claim. (Pl. Opp’n at 30.) Plaintiff contends that his claim is a
“retaliatory compensation claim where Defendant wrongfully denied
Plaintiff: (a) the salary he was promised from the outset by his
supervisor; (b) salary raises that were advocated for by his
supervisors and the Hay Group; and (c) a new job title and pay
commensurate with his job duties.” (Id.) Plaintiff suggests his
“case is and always has been about being continually denied pay
matching his responsibilities in retaliation for engaging in
protected activities. Accordingly, Noel is not dispositive of
this matter.” (Id.) Instead, Plaintiff argues his case is
controlled by Mikula v. Allegheny Cnty., 583 F.3d 181 (3d Cir.
2009). (Id. at 28-29.)
In Mikula, the female plaintiff requested a salary increase
and a change in job title to her human resources department,
because she alleged she was making more than $7,000 less than
male co-workers, but never received a response from HR. Mikula,
583 F.3d at 182. The Third Circuit, on rehearing, held that
“failure to answer a request for a raise qualifies as a
compensation decision because the result is the same as if the
request had been explicitly denied.” Id. at 186. The holding in
Mikula was distinguished by the Third Circuit in Noel, which
noted that a claim for failure to receive a raise was different
21
from failing to receive a promotion, which is a discrete
employment act.10 Noel, 622 F.3d at 275.
Here, Plaintiff argues that, like the plaintiff in Mikula,
he “did not asked [sic] to be ‘promoted’ to a new position with
new responsibilities, and never sought to move up the DRPA
organization chart. Rather, he requested higher pay as he would
continue to perform the same job duties and report to Ms. Hayes
and Mr. Shanahan, his same supervisors.” (Pl. Opp’n at 29.)
In reply, Defendant argues that “this is not a ‘compensation
discrimination’ case as that term is understood in Noel.” (Reply
at 12.) Defendant argues that in Noel, “the Third Circuit
specifically held that Mikula does not apply” to failure-topromote claims. (Id.)
Defendant is too quick to dismiss Plaintiff’s complaint as
alleging only a failure to promote. Plaintiff asserts three
distinct decisions which he believes are actionable under the
ADEA retaliation provision: the initial setting of Plaintiff’s
salary, the failure to create the grants administrator position,
and the failure to give him a raise as a grants specialist. (See
10
In describing Mikula in Noel, the Third Circuit mentioned
only that “the plaintiff sued the Allegheny County Police
Department for gender discrimination based on its failure to give
her a pay raise.” Noel, 622 F.3d at 275. The Third Circuit made
no mention of the fact that the Mikula plaintiff requested a
change in job title. Clearly, the salient fact in Mikula was that
the plaintiff requested raises and never received a response.
Id.; Mikula, 583 F.3d at 186 (holding that “failure to answer a
request for a raise qualifies as a compensation decision”).
22
Compl. ¶¶ 29, 33, 36, 37 (alleging that the setting of
Plaintiff’s salary at Grade 8 was discriminatory and retaliatory
and asserting that the consultant recommended changing the salary
for the grants specialist position); Pl. Opp’n at 11
(“Defendant’s failure to give Plaintiff salary raises from 2005
to 2010 that were urged by his supervisors and recommended by an
outside consulting agency”).) The Court will consider each action
in turn.
A. Setting Plaintiff’s initial salary at Grade 8
i. Timeliness
Plaintiff asserts that he discussed with Mr. Shanahan taking
a position within the Grants Department at a salary of Grade 10,
but he ultimately was offered a grants specialist position at
Grade 8. Despite having an expectation that his salary would be
two grades higher, Plaintiff signed an acceptance form for his
grants specialist position acknowledging his salary would be set
at Grade 8. (McQuilkin Dep. at 242:23-243:13.)
Plaintiff cannot invoke the tolling provisions of the FPA
for a discrete employment act that occurred in 2004, when he knew
at the time of his promotion that there was a pay disparity
between what he believed he was due and what he was offered. As
the Third Circuit has held, “discrete employment acts trigger the
administrative clock at the time the employment decisions occur.”
Noel, 622 F.3d at 275. Although Plaintiff has testified that, at
23
the time, he did not make any connection between his salary grade
and his allegations of age discrimination, Plaintiff was aware at
the time that his salary was set below the level he expected, and
within a matter of weeks, Mr. Shanahan was inquiring about the
Grade 8 salary. This is not a case where Plaintiff accepted his
new salary and discovered only years later that he had been
receiving a lower salary than he should have been getting.
Plaintiff knew instantly that the salary was two grades below
where he thought the salary should be.
The ADEA provides Plaintiff 300 days to file a complaint
with the EEOC with any suspicions that a compensation decision
was discriminatory. Instead of going to the EEOC, Plaintiff opted
to work with his supervisors to see if his salary could be
increased. That may have been a sensible decision at the time,
but it is not one that entitles Plaintiff to invoke the FPA
tolling provisions now. For a discrete employment action, such as
an increase in salary that the Plaintiff knew at the time was
below what (he claims) it should have been, FPA tolling does not
apply. Therefore, to the extent Plaintiff’s claim alleges that
his initial salary at Grade 8 was retaliatory, that claim is
time-barred.
ii. ADEA reliation
Even if the Court were to find this claim timely, Defendant
would still be entitled to summary judgment. There is no basis in
24
the record for a retaliation claim arising out of Plaintiff’s
promotion to grants specialist with a starting salary of Grade 8.
Plaintiff asserts that Mr. Shanahan “told Plaintiff that his new
position would be at Grade Level 10 or Grade Level 11.” (CSF ¶
35.) In support, Plaintiff cites the following passage of his
deposition testimony:
Bill had asked me if I would be interested in coming into
the Grants Department, but not as a specialist. Bill had
actually showed me a document that he was going to submit
to the Personnel Department requesting two positions. One
as a security administrator, and the second, which he
asked me if I would be interested in, was for the grants
administrator. And both of those jobs were listed on his
document as Grade 10’s.
(McQuilkin Dep. at 154:21-155:6; CSF ¶ 35.) Far from supporting
the claim that the grants specialist position came with a Grade
10 salary, this testimony only supports the conclusion that a
grants administrator position might have had a salary of Grade
10. Plaintiff did not produce any document referenced in his
testimony or in his Complaint that linked Grade 10 to the grants
specialist position. He testified that he had an expectation of a
higher salary based on talks with Shanahan, but the cited
testimony provides no basis for that impression.
The only cited evidence that speaks to a re-classification
of the specialist salary grade is an ambiguous reference in an email from Ms. Brown to Mr. Matheussen, in which she summarizes an
inquiry she received from Mr. Shanahan. (Pl. Ex. J.) She wrote:
“[Shanahan] wondered why McQuilkin’s new position was
25
‘downgraded’ from a 10 to an 8.” (Id.) But Ms. Brown appears only
to be parroting what Shanahan had asked, and Shanahan never
testified that the grants specialist salary was ever set at,
marketed as, or offered to anyone at Grade 10. Shanahan merely
recommended that compensation to relevant authorities. (Shanahan
Dep. at 26:4-27:5.) According to Brown, all specialist positions
at the DRPA are set at Grade 7 or 8. (Def. Ex. D-13.) Brown did
correspond with Matheussen about two other employees and “taking
their grades back to 12 and 11, respectively,” but did not
mention taking Plaintiff’s “grade back.” (Pl. Ex. L.) When
Shanahan advocated for Plaintiff’s further promotion in February
2006, he stated that Plaintiff had been performing duties
equivalent to those of a grants administrator “for the past 8
months” -- a time frame that does not extend back to the moment
Plaintiff was promoted to grants specialist. Even assuming that
the work of a grants administrator should be compensated at a
Grade 10, the evidence does not show that Plaintiff was doing
that work when he signed on as a grants specialist. There is no
basis for finding that Plaintiff was entitled to a Grade 10
salary at the time he was promoted to grants specialist.
One reference in Ms. Brown’s e-mail to the word “downgraded”
-- quoting Mr. Shanahan -- is not enough evidence to support an
inference that Plaintiff was promised a Grade 10 salary for the
position of grants specialist, when Shanahan himself testified he
26
made no such guarantee.11 There is no other evidence of a
“downgrade,” and the testimony of both Shanahan and Plaintiff
lays to rest any doubt whether the position of grants specialist
had ever been set at Grade 10. “‘[W]here 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.’” NAACP v.
N. Hudson Reg’l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011),
cert. denied, 132 S. Ct. 2749 (2012). Drawing all reasonable
inferences in favor of Plaintiff, the Court holds that the record
cannot support the finding that Defendant’s salary was set at
Grade 10 and lowered to Grade 8, or that any alleged downgrade
was in retaliation for Plaintiff’s protected activity. Defendant
is entitled to summary judgment on this portion of the claim.
B. Failure to create the grants administrator position
i. Timeliness
To the extent Plaintiff’s claim depends on Defendant’s
failure to create the job title of grants administrator and
promote him to that position, the claim is time-barred by the
FPA. A failure-to-promote claim, based on a discrete employment
action of which Plaintiff had knowledge at the time it occurred,
11
Moreover, Plaintiff does not produce evidence showing
that retaliation for his protected activity was a determinative
factor in his promotion. LeBoon v. Lancaster Jewish Cmty. Ctr.
Ass’n, 503 F.3d 217, 232 n.8 (3d Cir. 2007), cert. denied, 128 S.
Ct. 2053 (2008). (See also Reply at 4-6 (arguing there is no
causation between Plaintiff’s comment and his promotion).)
27
is not eligible for FPA tolling.
Plaintiff avoids characterizing his request as one for a
promotion, but his supervisors described the request as such.
(See Pl. Ex. O at 1 (“McQuilkin . . . should be recognized for
his efforts by establishing the title and promoting him into the
position) (emphasis added); Pl. Ex. Q (“I spoke to you about the
need to upgrade Jim McQuilkin”) (emphasis added); Pl. Ex. K (“I
strongly believe that Jim merits this promotion”) (emphasis
added).) Although Plaintiff argues that he merely requested that
his pay and title be recalibrated to reflect his duties, such a
request is still properly considered a promotion. Plaintiff was
not requesting a job title or compensation package that would
have represented a horizontal move; he was requesting a step up
in title and pay -- the hallmarks of a promotion.
His argument that he was already performing those duties is
unavailing. While he may have been performing duties beyond his
stated job description, he was not performing a job that
otherwise existed within the DRPA organization and Defendant
merely refused to label his work appropriately. Other companies
in the industry might have hired professionals as “grants
administrators,” but Plaintiff was not performing the job of a
“grants administrator” for the DRPA because the organization did
not have, and never has had, such a post. Plaintiff is not
entitled to the benefits of the FPA simply because Defendant may
28
have a different organizational structure with different
compensation schemes than other comparable employers. In effect,
Plaintiff is arguing that he was undercompensated for the work he
was doing, that he had more responsibility than his job title
indicated, and he wanted a promotion in title and salary to
reflect that work. The majority of American professionals might
feel the same way.
Moreover, Mr. Matheussen’s alleged “blocking” of the grants
administrator was a discrete employment act of which Plaintiff
had knowledge at the time it occurred. Plaintiff testified that
Mr. Shanahan told him that Matheussen wanted to withdraw the
grants administrator proposal from the board’s agenda. By late
2007, Plaintiff and his supervisors had already spent nearly two
years fighting to increase Plaintiff’s salary and began to have
suspicions that something other than merit was holding Plaintiff
back. Therefore, within 300 days of Mr. Matheussen’s discrete
action, Plaintiff could have filed a complaint with the EEOC but
he did not. Discrete employment acts do not qualify for tolling
under the FPA. Noel, 622 F.3d at 274.
Because failure-to-promote claims based on discrete
employment acts do not qualify for revival under the FPA,
Plaintiff’s claim is time-barred to the extent it depends on his
allegation of not being promoted. See Noel, 622 F.3d at 275;
Schuler, 595 F.3d at 375; see also Morrow v. L&L Prods., Inc., --
29
- F. Supp. 2d ---, No. 11-15589, 2013 WL 2034556, at *11 (E.D.
Mich. May 14, 2013) (holding that FPA “does not exempt a
plaintiff from pursuing claims upon discrete acts other than pay,
such as an alleged failure to promote based on gender”).
ii. ADEA retaliation
Again, even if the Court were to accept that the claim is
timely, Defendant would be entitled to summary judgment. The
Court is persuaded by the reasoning of unpublished Third Circuit
decisions and other authority that the failure of an employer to
create a new position of grants administrator for Plaintiff -- a
job title that did not exist at the time -- cannot be the basis
of a retaliation claim. See Young v. Temple Univ. Hosp., 359 F.
App’x 304, 310 (3d Cir. 2009) (not for publication) (holding that
the failure to promote the plaintiff to a “position [that] did
not exist when [plaintiff] requested the promotion,” cannot
constitute an adverse employment action or support a prima facie
case of retaliation); Vuong v. Mgmt. of J.C. Penney’s Co., 169 F.
App’x 675, 677 (3d Cir. 2006) (faulting plaintiff for failing to
provide evidence that the positions she requested actually
existed or had openings at the times she applied, among other
things); Frintner v. TruePosition, 892 F. Supp. 2d 699, 710-11
(E.D. Pa. 2012) (granting summary judgment for the defendant
employer because the evidence showed not more than plaintiff’s
supervisor proposed a promotion for plaintiff and drafted a job
30
description for the plaintiff, but the desired position “was
never created” by the employer); Stoppi v. Wal-Mart Transp., LLC,
No. 09-916, 2010 WL 3398990, at *9 (M.D. Pa. 2010) (rejecting the
plaintiff’s argument that she suffered an adverse action when her
employer “decided not to create the position to avoid having to
promote her,” when no one was hired to fill a position that did
not exist); Hottenroth v. Vill. of Slinger, 388 F.3d 1015, 1032
(7th Cir. 2004) (stating that “an adverse employment action does
not include an employer’s refusal to grant an employee an
discretionary benefit to which she is not automatically entitled”
and that plaintiff failed to establish “that she was ever
entitled to have a new position created for her”); Exum v. U.S.
Olympic Comm., 389 F.3d 1130, 1137 (10th Cir. 2004) (holding that
a plaintiff failed to establish a prima facie case of
discrimination because “[a]n employer’s failure to promote a
plaintiff to a non-existent position is not enough to support a
presumption of intentional racial discrimination”).
Plaintiff attempts to distinguish Young by stating that the
plaintiff in that case presented no evidence that the defendant
took affirmative steps to block the creation of the position.
(Id.) Further, Plaintiff argues that in Frintner the plaintiff
only pointed to her own testimony that her supervisor would “try
to” get her a new title, but the record otherwise did not have
evidence of the defendant’s intentional conduct. (Id. at 26.)
31
Plaintiff concludes that “Defendant cannot shield itself from
liability for retaliation when the failure to create this
position was the retaliatory adverse action against Plaintiff.”
(Id.)
The Court sees no meaningful way to distinguish Plaintiff’s
situation from that in Young, Frintner, or the other similar
cases cited by Defendant.12 Both Plaintiff and the plaintiff in
Frintner were told by supervisors that they deserved promotions,
the supervisors proposed a promotion and drafted a job
description. See Frintner, 892 F. Supp. 2d at 711. Despite the
support of supervisors and an outside consultant, Plaintiff here
simply was not entitled to a job that did not exist. See
Hottenroth, 388 F.3d at 1033 (finding no adverse action when a
supervisor did not request that the village board create a new
position for the plaintiff, because the plaintiff was not
entitled to a new position).
The Court finds unavailing Plaintiff’s argument that the
12
Plaintiff also argues that Young applied the wrong
standard in defining “adverse action” because it did not cite
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006). (Pl. Opp’n at 26 n.10.) This Court does not sit in
judgment of the Third Circuit, and the Court disagrees that
applying Burlington N. changes the outcome here. A reasonable
jury could not conclude that a reasonable worker would be
dissuaded from making a charge of discrimination if he knew that,
at some point in the future, he might not be entitled to a
promotion to a position that did not exist and had never existed,
and which carried no higher salary than what the employee,
supervisors and consultants believed he was entitled to receive
in his current position.
32
affirmative acts of Defendant distinguish his case from the
relevant precedents. All plaintiffs bringing retaliation suits
allege that intentional, discriminatory animus or a retaliatory
purpose actually animated the failure to promote or to create a
job title. Plaintiff argues that he has affirmative evidence that
Mr. Matheussen “pulled” the position from the agenda, but this
fact is unremarkable when board action still would have been
required to create the new job title, and there was no guarantee
that the board would have passed the measure, even if it had
stayed on the agenda. Although Shanahan wanted to create the
position, had a successful record of advocating for new positions
for others, and likewise strongly advocated for Plaintiff, he did
not have the authority to create the post and thus could not
“promise” the job to Plaintiff. Plaintiff effectively asked
Defendant to take a step it never had taken before, creating a
new position for him with higher compensation. A “subjective
expectation that [an employer] would create an entirely new
position for [him] (and [him] alone) cannot support a prima facie
case of retaliation.” Young, 359 F. App’x at 310; see also
Stoppi, 2010 WL 3398990, at *9 (granting summary judgment for the
employer when the plaintiff “hoped to be promoted,” among other
reasons). In the end, the DRPA was not obligated to create a new
position for Plaintiff, and the ADEA does not compel DRPA to
create a such a post. The failure to invent a new position for
33
Plaintiff in these circumstances was not an adverse action for
purposes of a retaliation claim under the ADEA.
C. Failure to give Plaintiff a raise
i. Timeliness
Finally, Plaintiff claims that he was denied a raise despite
that the fact that his supervisors and an outside consultant all
recommended that Plaintiff’s salary be increased to Grade 10,
even without a change in job title. This claim is closer to that
of the plaintiff in Mikula, who requested a raise and a new job
title but never heard back. The Third Circuit permitted the
plaintiff’s claim to be tolled under the FPA in that case. See
Mikula, 583 F.3d at 186-87 (“failure to answer a request for a
raise qualifies as a compensation decision because the result is
the same as if the request had been explicitly denied”). Here,
there is no discrete moment where Plaintiff learned that a
request for a raise was approved or rejected. Rather, the record
shows a long process of discussions, requests and studies, but no
solid commitment from high-level employees. Defendant took some
action -- more action than the employer in Mikula, it appears -but still never provided Plaintiff with an answer. A failure to
answer the request is the same as a denial. Id.
Defendant says its actions of retaining a consultant and
considering the Hay Group recommendation in 2010 distinguish this
case from Mikula, where the employer simply never responded to
34
Plaintiff. In other words, Defendant asserts that it was
responding to Plaintiff’s request and was working toward
implementation. But no evidence suggests that anything definitive
about the raise had been decided -- or would be decided at any
point in the future, for Plaintiff or other grants specialists -and no word filtered back to Plaintiff. Just as a failure to
answer resembles a denial, at a certain point, a slow process of
implementation begins to look like a failure to respond.
Essentially, for as long as Plaintiff requested a raise, he met
with, if not silence, incremental steps toward a resolution or
unending delay in implementing a potential raise -- effectively
silence. Because Plaintiff alleges a retaliatory compensation
decision in the denial of his request for a raise, he is entitled
to the benefit of FPA tolling under Mikula.13 Each new paycheck
13
Defendant’s other reasons to distinguish Mikula are
unpersuasive. Defendant observes that in Mikula, the plaintiff
herself requested a raise, and here only Plaintiff’s supervisors
requested a raise. Defendant does not explain the significance of
such a distinction, and the Court cannot think of one. An
employer may retaliate against an employee whether the employee
himself or someone else lodges the request for a raise.
Second, the Plaintiff here did receive annual merit
increases over this period, whereas the plaintiff in Mikula
received no raises whatsoever. But this argument goes more to
causation or pretext -- or damages -- than whether the claim
presents a compensation decision for purposes of the FPA. The
suggestion that the DRPA did not retaliate against Plaintiff as
much as it could have (by granting merit increases) is not a
reason to bar the claim under the FPA. Plaintiff argues that the
merit increases did not match what Plaintiff would have earned if
his salary had been bumped up two grades. Therefore, the denial
of, or lack of resolution concerning, Plaintiff’s request
qualifies as a compensation decision independent of his merit
35
Plaintiff received constituted an independent “unlawful practice”
under the ADEA, see 29 U.S.C. § 626(d)(3), and because Plaintiff
did not retire until January 2010, his administrative complaint
was timely in October 2009.
ii. ADEA retaliation claims, generally
Because Plaintiff presents a timely claim for ADEA
retaliation, the Court will turn to the merits. ADEA claims are
governed by the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Burton
v. Teleflex, Inc., 707 F.3d 417, 425 (3d Cir. 2013); Fasold v.
Justice, 409 F.3d 178, 188 (3d Cir. 2005).
First, the Plaintiff must establish a prima facie case of
retaliation under the ADEA by showing that (1) he engaged in
protected employee activity, (2) he was subject to adverse action
by his employer, and (3) there is a causal connection between the
protected activity and the adverse action. Fogleman, 283 F.3d at
568. An adverse action is “materially adverse” if it would
“dissuade a reasonable worker from making or supporting a charge
of discrimination.” Pagan v. Holder, 741 F. Supp. 2d 687, 698
(D.N.J. 2010) (citing Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006)).
Upon Plaintiff’s showing of a prima facie case, the burden
shifts to Defendant to articulate “‘a legitimate,
increases.
36
nondiscriminatory [justification] for the adverse employment
action.’” Burton, 707 F.3d at 426 (quoting Smith v. City of
Allentown, 589 F.3d 684, 690 (3d Cir. 2009)). Defendant’s burden
is minimal, as it is “one of production, not persuasion; it ‘can
involve no credibility assessment.’” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000) (quoting St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 509 (1993)). Plaintiff must then
“point to some evidence, direct or circumstantial, from which a
factfinder could reasonably either (1) disbelieve the employer’s
articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action.” Burton, 707 F.3d
at 427 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.
1994)). Plaintiff “must demonstrate such weaknesses,
implausibilities, 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.’” Fuentes, 32 F.3d at
764 (emphasis in original, citations omitted). The “factfinder
may infer from the combination of the prima facie case, and its
own rejection of the employer’s proffered reason, that the
employer engaged in the adverse employment action for an
invidious reason.” Burton, 707 F.3d at 427.
37
iii. Plaintiff’s prima facie case
The parties agree, for purposes of this motion, that the
first element -- protected activity -- has been satisfied.
The key inquiry for the Court is whether a reasonable jury
could infer, based on the current record, that Plaintiff suffered
a materially adverse employment action when Defendant did not
raise his salary grade, despite giving him annual merit
increases. To put it another way, the question is whether a
reasonable jury conclude that a reasonable worker would be
dissuaded from raising a charge of age discrimination if an
employer would slowly deliberate, delay or deny a salary grade
increase (worth approximately $11,000 per year), even if that
employee received smaller annual merit increases in the meantime.
There is some support for the notion that a delay in
implementing a pay raise is an adverse employment action. Pajic
v. Cigna Corp., No. 89-2404, 1990 WL 191939, at *9 (E.D. Pa. Nov.
30, 1990) (stating that the defendant’s “delay in reevaluating
the salaries of . . . employees is evidence of discrimination” in
discussing the “adverse employment action” prong of a prima facie
retaliation claim); Johnson v. District of Columbia, --- F. Supp.
2d ---, No. 07-1033, 2013 WL 2420820, at *8 (D.D.C. June 5, 2013)
(stating in dicta that a “claim that the District delayed and
denied providing him with an allegedly promised pay raise
arguably is an adverse employment action, if the claim is
38
properly supported by the record”); McNutt v. Nasca, No. 10-1301,
2013 WL 209469 (N.D.N.Y. Jan. 17, 2013) (denying summary judgment
on the claim that a promised increase of the plaintiff’s salary
was withheld for about a year, in part because the defendant did
not address the point in its motion); Ellins v. City of Sierra
Madre, 710 F.3d 1049, 1061 (9th Cir. 2013) (concluding that a
reasonable factfinder could conclude that the failure to sign the
plaintiff’s application deprived him of a raise from the date he
was entitled to the raise to the date to which the employer chose
to backdate her approval).
Other courts look to whether a raise was discretionary to
determine whether failure to give a raise is actionable.
See Davis v. Cleary, No. 09-925, 2011 WL 4435697, at *9 (D.N.J.
Sept. 22, 2011) (stating that “‘the denial of a raise can
constitute a materially adverse employment action if a raise
would have been an expected element of the employee’s salary and
its denial cuts the salary in real terms,’” but finding that the
plaintiff “lacked any expectancy in a salary increase because . .
. the board had already denied her request for such an increase”)
(quoting Griffin v. Potter, 356 F.3d 824, 830 (7th Cir. 2004));
But the Third Circuit recently held that a district court erred
when it concluded that the plaintiff “did not suffer an adverse
employment action merely because the [defendant] DEA possessed
discretion on whether to extend the [employment] agreement” to
39
which the plaintiff claimed entitlement. Sala v. Hawk, 481 F.
App’x 729, 732 (3d Cir. 2012). See also Walker v. Bd. of Regents
of Univ. of Wis. Sys., 300 F. Supp. 2d 836, 852 (W.D. Wis. 2004)
(“To the extent that defendants suggest that there is no adverse
employment action when the employer’s decision is a discretionary
one, the court of appeals has squarely rejected this argument.”)
(citing Power v. Summers, 226 F.3d 815, 821 (7th Cir. 2000),
which held a denial of a discretionary raise is an adverse
employment action).
In this case, the denial of a raise, or delay in
implementing a raise, is a materially adverse employment action
for purposes of Plaintiff’s prima facie case. The decision had a
significant impact on Plaintiff’s salary, even if he did receive
modest annual merit increases. Moreover, this is not a case in
which a plaintiff requested a raise on a whim or delusional
prayer and was rebuffed by his employer. Here, though a raise
would have been discretionary, the record shows that nearly all
of the major players involved, including Plaintiff’s supervisors
and the vice chair of the board of commissioners, were in favor
of a raise, an outside consultant recommended a raise, and at
least one supervisor questioned whether some ulterior motive was
at play in the denial of his raise. In these circumstances, the
ultimate denial or indefinite delay of implementing the raise is
an adverse action. See Sala, 481 F. App’x at 732 (holding that
40
the defendant’s discretion does not preclude a finding of adverse
action); Power, 226 F.3d at 821 (same).
Defendant relies on the fact that it did retain a consultant
to study the request for a raise, and that an increase was
“contemplated” to take effect in 2010. Ms. Brown testified:
I believe that at some point, and I might be confusing
the years, but I believe at some point this was going
to become a part of the operating budget and the salary
was going to be increased. The grade, the position was
going to be increased from a Great 8 to a 10 at some
point.
(Brown Dep. 162:11-19.) She added: “an increase certainly was
contemplated for the grants specialist position, which would have
taken effect on January 1, 2010.” (Id. at 194:6-8.) There is
nothing in the record to indicate that a raise, even in late
2009, was more than “contemplated.” A delay of such kind is, as a
practical matter, akin to a denial, and the negative effect of
this course of action can be considered adverse to Plaintiff.
The final prima facie element Plaintiff must establish is
causation. The Third Circuit has described three ways to
establish causation: showing “(1) an unusually suggestive
temporal proximity between the protected activity and the
allegedly retaliatory action, or (2) a pattern of antagonism
coupled with timing to establish a causal link,” or, in the
absence of that proof, (3) “the plaintiff must show that from the
‘evidence gleaned from the record as a whole’ the trier of fact
should infer causation.” Lauren W. ex rel. Jean W. v. DeFlaminis,
41
480 F.3d 259, 267 (3d Cir. 2007); see also Diaz v. Donahoe, No.
10-6510, 2013 WL 85262, at *10 (D.N.J. Jan. 4, 2013).14
Here, Plaintiff does not argue that the timing of the
alleged retaliation is unusually suggestive of causation or that
he suffered a pattern of antagonism coupled with timing to
establish a causal link.15 (Pl. Opp’n at 11-12.) Instead,
Plaintiff urges that a trier of fact may infer causation “through
a broad array of evidence” in the record. (Id. at 12.)
Plaintiff argues that “[d]irect statements from Defendant’s
14
Recently, the U.S. Supreme Court held that “a plaintiff
making a retaliation claim under 42 U.S.C. § 2000e-3(a)” -- which
closely resembles the ADEA retaliation provision -- “must
establish that his or her protected activity was a but-for cause
of the alleged adverse action by the employer.” Univ. of Texas
Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). The
Supreme Court previously held that a plaintiff in an ADEA
disparate treatment action must prove by a preponderance of the
evidence that age was the but-for cause of the challenged
employer decision. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
177-78 (2009) (interpreting 29 U.S.C. § 636(a), not the ADEA
retaliation provision). Combined, Gross and Nassar point to the
same result in an ADEA retaliation claim: the plaintiff’s
protected activity must have a determinative effect on the
defendant’s retaliatory activity. See also Model Jury
Instructions for the U.S. Court of Appeals for the Third Circuit
§ 8.1.5 (2012), available at http://www.ca3.uscourts.gov/sites/
ca3/files/8_Chap_8_2012_July.pdf (last visited Nov. 4, 2013)
(discussing Gross but not Nassar).
15
The Court agrees that the timing of alleged retaliation
is not unusually suggestive of causation, but, on the other hand,
the temporal period is not so great to render causation farfetched. Here, the resistance to granting Plaintiff’s pay raise
seems to have started soon after the controversy about
reimbursement in 2004 into 2005. After that, Plaintiff’s
supervisors continued to reference his reimbursement or his
employment history in discussing issues related to Plaintiff’s
compensation.
42
upper management employees . . . show that Defendant refused to
take any action to support Plaintiff in retaliation for his
complaints of age discrimination and in an effort to use the
money saved to offset its own costs in reimbursing Plaintiff’s
tuition. (Id.) Those statements include: (1) Ms. Brown’s comment
that “this one is a real stretch, especially in light of
everything that has already been done” (id. at 13; Pl. Ex. L.);
(2) Ms. D’Alessandro’s testimony that Mr. Joyce did not support a
raise because “there’s a history here” and Defendant had made
accommodations for Plaintiff in the past (“bent over backwards”)
and was not going to make another (Pl. Opp’n at 17; D’Alessandro
Dep. at 21:17-22:11, 27:5-18); and (3) Mr. Matheussen’s comment
that “I’m concerned about a whole host of issues, none the least
of which are Jim’s settlement/raise last year (could you tell me
$ amounts and dates on that) . . . .” (Pl. Opp’n at 19, Pl. Ex.
M.) Ms. Hayes also suggested in an email that she suspected some
“underlying reason for the lack of action on this . . . .” (Pl.
Opp’n at 22; Pl. Ex. K.) Plaintiff suggests that “[c]ausation is
clear in this case as CEO Matheussen himself ties the decision to
stall Plaintiff’s advancement in the company with the
‘settlement’ he achieved after complaining . . . .” (Pl. Opp’n at
20.)
Defendant contends that Plaintiff must tie the alleged
protected activity to an adverse action, not the resulting
43
tuition reimbursement. (Reply at 4.) Defendant argues that
Plaintiff presents no evidence that his comment to Ms. Brown
caused any retaliation. (Id.)
It would be improper for the Court to enter summary judgment
at the present time on this claim. There is enough material in
the record, viewed in the light most favorable to the Plaintiff,
for a jury to infer that retaliation caused the adverse
employment action. A jury could choose to read between the lines
of the correspondence and testimony in the record to conclude
that Mr. Matheussen and others were angry or fed up with
Plaintiff’s challenge of his tuition reimbursement and retaliated
against him for raising the specter of age discrimination in the
process. A reasonable jury could find that the evidence suggests
a link between the denial and the payout that resulted from
Plaintiff’s appeal, and a jury would be entitled to believe that
Plaintiff’s allegation of age discrimination was instrumental to
his appeal and thus caused the denial of his future raise
requests. At least one of Plaintiff’s supervisors believed some
ulterior motive was responsible for Defendant’s inaction. A jury
might infer the same. Plaintiff has established a prima facie
case of age discrimination.
iii. Legitimate reason and pretext
Under McDonnell Douglas, Defendant must put forth some
legitimate, non-discriminatory reason why Plaintiff’s pay grade
44
was not adjusted. Defendant asserts that Mr. Matheussen’s July 25
e-mail suggests legitimate, non-discriminatory reasons for why
Plaintiff’s pay grade should not have been adjusted, including
the facts that Plaintiff was awarded the job without posting the
position for other applicants, that Defendant had budget
problems, and that the decision could have an impact on
Defendant’s purchasing. (Reply at 11; Pl. Ex. M.) Plaintiff
argues that any proffered reason is pretext, based largely on the
same evidence Plaintiff uses to assert causation.
The question for the Court is whether the Plaintiff points
to some evidence from which a factfinder rationally could find
the proffered reason unworthy of credence. Fuentes, 32 F.3d at
764; Burton, 707 F.3d at 427. Here, a factfinder could disbelieve
Defendant’s stated reasons, based on the same evidence Plaintiff
cites to make his prima facie case. The statements from Mr.
Matheussen and others, noting the settlement as one factor for
the denial, as well as the overwhelming support by the
supervisors and other authority figures within the DRPA could
lead a factfinder to believe that Plaintiff’s invocation of age
discrimination in connection with his request for reimbursement
really was a determinative factor in Plaintiff’s subsequent
treatment. Accordingly, summary judgment is denied in part.
D. Liquidated damages
Finally, Defendant argues that Plaintiff is not entitled to
45
liquidated damages, which are only available if the employer
willfully violates the law. (Def. Mot. Br. at 29); 29 U.S.C. §
626(b) (providing for double the amount of damages for lost wages
and benefits if the employer willfully violates the law); Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 125 (1985)).
Defendant argues that Plaintiff admitted the DRPA did not act
with malice, that Defendant was helpful in getting tuition
reimbursement, that Mr. Shanahan never discriminated or
retaliated against him, and that Plaintiff has “no facts” to
suggest that Mr. Matheussen acted improperly with respect to the
grants administration position. (Def. Mot. Br. at 29-30.)
Plaintiff retorts that Defendant “willfully denied Plaintiff
compensation,” illustrated by comments tying the compensation
decisions to the receipt of tuition reimbursements and stating
that Defendant had accommodated Plaintiff in the past and were
not going to bend over backwards for him again. (Pl. Opp’n at
27.)
A jury should decide whether the evidence suggests
Defendant’s actions were willful, which could be inferred from
the record. Therefore, the motion for summary judgment is denied
as to liquidated damages.
V. Conclusion
Defendant’s motion for summary judgment is granted in part
and denied in part. To the extent Plaintiff brings a claim
46
alleging a violation of the ADEA retaliation provision for (1)
failure to set Plaintiff’s salary at grade 10 when he was
promoted to grants specialist and (2) failure to promote
Plaintiff to the position of grants administrator, summary
judgment is granted. To the extent Plaintiff brings an ADEA
retaliation claim on the grounds of being denied a raise, summary
judgment is denied. As material facts going to willfulness are in
dispute, Plaintiff is entitled to have a jury decide the
liquidated damages question, so summary judgment is denied as to
liquidated damages. An accompanying Order will be entered.
November 6, 2013
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
47
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