WOLF v. PRD MANAGEMENT, INC. et al

Filing 40

OPINION FILED. Signed by Judge Renee Marie Bumb on 7/31/13. (js)

NOT FOR PUBLICATION

[Dkt. No. 33]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

MARY ANN WOLF,
Plaintiff,

Civil No. 11-2736
(RMB/JS)

v.
OPINION
PRD MANAGEMENT, INC., et al.
Defendants.

Appearances
Richard J. Heleniak
Messa & Associates
2091 Springdale Road, Suite 2
Cherry Hill, NJ 08003
Attorneys for Plaintiff
Michael S. Friedman
Jackson Lewis LLP
1601 Cherry Street, Suite 1350
Philadelphia, PA 19102
Penelope Price Jones
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1735 Market Street, Suite 3000
Philadelphia, PA 19103
Attorneys for Defendants
Bumb, UNITED STATES DISTRICT JUDGE:
Plaintiff Mary Ann Wolf (the “Plaintiff”), a former
employee of Defendant PRD Management, Inc. (“PRD)” alleges that
PRD, PRD’s President James McGrath (“McGrath”), and Director of
Special Projects and Strategic Planning Karin McGrath Dunn

1

(“Dunn”) (and, collectively, the “Defendants”) terminated her
employment because of her age, in violation of the Age
Discrimination in Employment Act (the “ADEA”) 29 U.S.C. § 621.1
Defendants have moved for summary judgment, arguing that
Plaintiff was fired for legitimate non-discriminatory reasons.
For the reasons set forth below, Defendants’ motion is DENIED.
I.

Background
A.

The Parties

PRD is a company that specializes in the management of
federally-subsidized affordable senior, disabled, and multifamily housing complexes throughout the region. [Dkt. No. 33,
Defendants’ Statement of Undisputed Material Facts (“DSUMF”) ¶¶
1-2)].
In 1991, Plaintiff began working for PRD at the age of 48.
(DSUMF ¶¶ 1, 5). Beginning in 1995, Plaintiff served as the
Administrator/ Site Manager at MSAA Manor, a property managed by
PRD. (Id. ¶ 3).
B.

Plaintiff Requests A Raise And Announces Her Plans To
Retire

At some point in the months prior to April 2008, Plaintiff
requested a raise in anticipation of her planned retirement in
two more years. (DSUMF ¶ 75). Soon after, McGrath called

1

Plaintiff’s original Complaint asserted a number of additional claims
that were previously dismissed by the Court. [Dkt. No. 10]. Plaintiff’s
only remaining claim is for age discrimination in violation of the
ADEA.

2

Plaintiff on the telephone and stated “I heard you’re going to
retire?” (Id. ¶76).2 Plaintiff stated she said “not for a while”,
to which he replied “I didn’t realize you were that age.” (Id.).
C.

Plaintiff Is Terminated From Her Job At PRD

According to Defendants, on April 16, 2008, McGrath, Dunn,
and Beverly Nahill (“Nahill”), PRD’s human resources manager,
and others, met to discuss Plaintiff’s future employment at PRD.
(DSUMF ¶ 58).

According to Defendants: (1) the meeting lasted

more than two hours; (2) there was no mention of Plaintiff’s age
or retirement; and (3) they discussed four episodes in which
they believed Plaintiff exercised poor judgment.

(Id. ¶¶ 60,

62). According to Plaintiff: (1) her personnel file did not
reflect any disciplinary action with regard to the matters
discussed at the meeting; and (2) McGrath was aware, based on
their prior meeting, that Plaintiff, who was 66 years old at the
time, had requested a raise and had plans to retire. [Dkt. No 38
Plaintiff’s Counter Statement of Facts (“PCSF”) ¶¶ 60, 61; DSUMF
¶ 4].

Ultimately, McGrath made the decision to terminate

Plaintiff’s employment. (DSUMF ¶ 63).

Plaintiff’s eventual

replacement was 41 years old at the time she was hired. (Id. ¶
70).

2

McGrath does not remember making these comments. However, because this
Court must adopt the nonmoving party’s version of the facts where facts
are in dispute in assessing a summary judgment motion, it credits
Plaintiff’s version of the events. See Meyer v. Riegel Prods. Corp.,
720 F.2d 303, 307 n.2 (3d Cir. 1983).

3

On April 17, 2008, Plaintiff met with McGrath and was
informed that she would be terminated effective April 21, 2008.
(Id. ¶ 64). Plaintiff was given four reasons for her
termination: (1) she violated lease regulations by allowing a
resident to have a live-in aide; (2) she failed to pay overtime
to an employee that was owed overtime; (3) she improperly
disciplined a subordinate; and (4) she had made a racially
discriminatory comment and interfered with the hiring process of
another site. (Id. ¶ 65).
D.

Proffered Reasons for Plaintiff’s Termination3
1.

Live-in Aide

Defendants’ first proffered reason for Plaintiff’s
termination stems from a June 2006 incident in which the
Plaintiff allowed an outside individual to move in with a
resident. (DSUMF ¶¶ 8, 10). It is a violation of both PRD’s
internal policies and federal regulations to allow an outside
individual to move in with facility residents. (Id. ¶ 10).
McGrath issued a memorandum to Plaintiff noting that this was a
violation of PRD and federal policy that could possibly expose
PRD to liability. (Id. ¶ 12).

3

Defendants’ offer a fifth rationale based on an alleged additional
violation of PRD policy which was discovered after Plaintiff’s
termination. While Plaintiff disputes these facts, it is not necessary
for discussion, as after-acquired evidence of wrongdoing which would
have resulted in discharge does not bar employees from any relief under
the ADEA. McKennon v. Nashville Banner Publ. Co., 513 U.S. 352, 356
(1995); Bowers v. NCAA, 563 F. Supp. 2d 508, 527 (D.N.J. 2008)
(applying the After-Acquired Evidence Doctrine discussed in McKennon).

4

Plaintiff states that it was her understanding that the
outside individual was acting as a health aide to a disabled
resident who had recently lost her benefits, which included an
in-home aide. (PCSF ¶ 8). Plaintiff informed the resident that,
while this accommodation technically violated the lease, PRD had
an obligation, under federal law, to offer the resident
reasonable accommodation to ensure the resident’s safety. (Id.
¶¶ 8, 10). Accordingly, Plaintiff gave the individual eight
weeks to provide assistance while the social worker obtained
replacement services or found an alternative solution. (Id.).
McGrath acknowledged that PRD has a general duty to provide
reasonable accommodations and could be held liable in the event
that it failed to do so. [Dkt. No. 38 at Ex. 9 Transcript of
Deposition of McGrath (“McGrath Dep.”) at 59:3-20].
2.

Failure to Account for Overtime

Defendants’ second proffered reason for terminating
Plaintiff’s employment involved an alleged failure to properly
count and pay for overtime work by Richard Laird (“Laird”), a
maintenance employee, per PRD policy. Laird resided at MSAA
Manor but worked full-time at another of PRD’s facilities.
(DSUMF ¶¶ 17-19). In June 2006, Plaintiff requested, without
first contacting PRD’s central office, that Laird perform afterhours maintenance on a ceiling fan at MSAA Manor. (Id. ¶¶ 2021).
5

The parties dispute whether that request potentially
exposed PRD to a wage and hour violation.

According to McGrath,

Laird was only responsible for maintaining his own unit at the
MSAA Manor and any additional work performed by Laird needed to
be documented and paid through payroll. (Id. ¶ 22).
Plaintiff contends that Laird’s lease required Laird to
perform on-site maintenance for the entire MSAA Manor facility
in exchange for free use of the unit. (PCSF ¶ 18); [Dkt. No. 38,
Ex. 10 (the “Lease”) p. 14]. The language in the lease appears to
support Plaintiff’s position.

By the terms of the lease, Laird paid

no rent, and signed indicating that he understood “that residing in
the premises is compensation for duties [described] in the lease and
attachments to the lease.”

(Lease at 2). Included in the duties

listed in the lease addendum are to be on call for emergency calls
after 5:00 PM on a rotating schedule of three weeks on call, one week
off duty. (Id. at 14, 17).

Plaintiff also contends that the policy

she is accused of violating did not issue until July 2006, after
the incident in question. (PCSF ¶ 22).
3.

Poor Handling Of Employee Discipline

Third, Defendants assert that Plaintiff was fired, in part,
due to her handling of an employee’s discipline. In February
2008, Plaintiff was contacted by Linda Wilson (“Wilson”), a
social worker at the MSAA Manor facility, who believed that
another employee Clayton Schantz (“Schantz”) was drunk. (DSUMF ¶

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24). Plaintiff approached Schantz and, concurring with Wilson’s
assessment4, sent Schantz home, issued a formal Employee Warning
for being under the influence, and sent a copy to PRD central
offices. (Id. ¶ 25).
According to Defendants, this action violated PRD internal
policy because site managers are required, and Plaintiff failed,
to discuss employee discipline with PRD’s central office prior
to issuing discipline. (Id. ¶¶ 26-28). Schantz later denied that
he was drunk and stated that he was hung over. (Id. ¶ 31).
Defendants contend that this episode reflected poor judgment by
Plaintiff because the write-up was potentially slanderous, given
that Plaintiff lacked concrete physical evidence of Shantz’s
inebriation. (Id. ¶ 60).
Plaintiff maintains that PRD had no written policy
regarding employee discipline and that individual administrators
had some authority to issue employee warnings independently.
(PCSF ¶ 28). Plaintiff further maintains there was no PRD policy
that required her to test the employee for alcohol. (Id. ¶ 29);
[Dkt. No. 38 at Ex. 3 Transcript of Deposition of Wolf (“Wolf
Dep.”) 170:12-14). Schantz was later fired for drinking while
working. (Wolf Dep. 171:18-20).
4.

Plaintiff’s Alleged Racially Discriminatory

4

Plaintiff personally observed that Schantz was slurring his words, had
red eyes, was “acting stupid,” and smelled strong (PCSF ¶ 24; Wolf Dep.
at 170:2-3).

7

Comments And Interference In Hiring Process
The fourth proffered reason for Plaintiff’s dismissal was
racist remarks allegedly made by Plaintiff to Nahill and her
alleged interference in another site’s hiring process.
In April 2008, Plaintiff had a discussion with her
Daughter, Mary Anne Varesio (“Varesio”), a property manager at
PRD’s Mullen Manor facility, regarding a job applicant for a
position at Mullen Manor that “gave [Varesio] the creeps.”
(DSUMF ¶¶ 37-38). Plaintiff indicated that the description of
the applicant sounded exactly like an individual who had
previously applied for a position at Plaintiff’s facility, MSAA
Manor. (Id. ¶ 39).
On April 2, 2008, Plaintiff contacted Nahill about the
applicant. (Id. ¶ 40).

According to Nahill, during the call,

Plaintiff referred to the applicant as a “darkie,” (Id. ¶ 47).
Nahill believed that this was not the same individual, and later
reported the incident to McGrath, believing that Plaintiff had
improperly interfered with the management of the Mullen Manor
facility. (Id. ¶¶ 45, 47).
Plaintiff disputes Nahill’s account.

According to

Plaintiff, she contacted Nahill to express concern that a
possible candidate for a maintenance position at the Mullen
Manor facility had made inappropriate and suggestive comments
during his interview with Vareiso. (PCSF ¶ 40). Plaintiff was
8

concerned that it was the same applicant that had made similar
inappropriate comments during an interview for a position at
MSAA Manor approximately two weeks before. (Id.; Wolf Dep.
175:21-176:7). Plaintiff contends that she was unable to recall
the applicant’s name and referred to him as the “black fellow”
that she interviewed. (Wolf Dep. at 178:5-10). Plaintiff
maintains she never used the term “darkie” (Id. 178:13-19). When
Nahill responded that she did not believe it was the same
person, Plaintiff replied that “it sounded like it and I just
wanted to be sure.” (Id. 187:17-21).
McGrath tasked Dunn to investigate the matter. (DSUMF ¶
47). After investigating, Dunn came to the conclusion that
Plaintiff had inappropriately “interjected herself in the
business of a separate property” and felt her actions were
discriminatory. (Id. ¶ 51). McGrath was provided with a written
report of the incident and stated he was concerned about
Plaintiff’s bias from an employment and fair housing
perspective. (Id. ¶¶ 51-52).
According to Plaintiff, Dunn failed to interview Plaintiff,
Wilson, or Vareiso, or any employee beside Nahill during her
investigation. (PCSF ¶ 50). Plaintiff further claims that,
despite McGrath’s purported concern over Plaintiff’s bias, he
continued to allow Plaintiff to conduct interviews for the
position after learning of the phone call between Plaintiff and
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Nahill (Id. ¶ 52). McGrath also admitted that his investigation
did not reveal any evidence of racial bias or discrimination in
Plaintiff’s acceptance or rejection of tenants. (McGrath
Deposition 105:21-106:6).
II.

Standard
Summary judgment should only be granted if “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. P. 56(a).
“An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect
the outcome of the suit under governing law.” Mollo v. Passaic
Valley Sewerage Comm’rs, 406 F. App’x 664, 667 (3d Cir. 2011)
(quotation and citation omitted).
When deciding the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.” Meyer v. Riegel Prods.
Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983). However, “[t]he
mere existence of a scintilla of evidence,” without more, will
not give rise to a genuine dispute for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In the face of
such evidence, summary judgment is still appropriate “[w]here
the record. . . could not lead a rational trier of fact to find
10

for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment motions
thus require judges to ‘assess how one-sided evidence is, or
what a ‘fair-minded’ jury could reasonably decide.’” Williams v.
Borough of W. Chester, Pa., 891 F.2d 458, 460 (3d Cir. 1989)
(quoting Anderson, 477 U.S. at 265).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the pleadings, dispositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323. (1986)(internal quotations and
citations omitted). Then, “when a properly supported motion for
summary judgment [has been] made, the adverse party must set
forth specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 250 (internal citations and
quotations omitted).
III. Analysis
Defendants argue that they are entitled to summary judgment
on Plaintiff’s age discrimination claim.
Age discrimination claims under the ADEA are evaluated
under the three-step, burden shifting framework established by

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McDonnell Douglas.5 At the first step of this analysis, a
plaintiff must establish a prima facie case of discrimination.6
If the plaintiff succeeds, the burden of production shifts
to the defendant-employer to articulate a legitimate, nondiscriminatory motive for its action. Kremp v. Wachovia Bank,
N.A., 451 F. App’x 151, 155 (3d Cir. 2011). Finally, if the
defendant is able to articulate such a motive, the burden shifts
back to the plaintiff to show that the articulated motive was a
pretext for discrimination. Id. (citing Bergen Commercial Bank
v. Sisler, 723 A.2d 944 at 954-55).
Here, there is no dispute that Plaintiff has established a
prima facie case of discrimination and Defendants have advanced
legitimate non-discriminatory reasons for Plaintiff’s
termination – the four episodes of alleged poor judgment.
Therefore, to survive summary judgment, Plaintiff must show that
the given reasons were pretext for unlawful age-based
discrimination. Kremp, 451 F. App’x at 156.
Pretext can be established directly, by persuading the
court that a discriminatory reason more likely motivated the

5

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

6

A prima facie case of discrimination requires a plaintiff to show: (1)
that she belongs to a protected class; (2) that she was qualified for
the position; (3) that she suffered an adverse employment action; and
(4) that the adverse action occurred under circumstances that could
give rise to an inference of intentional discrimination. Lowe v. Medco
Health Solutions of Willingboro, LLC, No. 10-4823, 2012 WL 1495440, at
*7 (D.N.J. Apr. 27, 2012) (citing Makky v. Chertoff, 541 F.3d 205, 214
(3d Cir. 2008).

12

employer, or indirectly, by showing the employer’s proffered
reasons are unworthy of credence. Maclean v. Shoes, 863 F. Supp.
2d 387, 392 (3d Cir. 2012). Either of these is sufficient; if
the employee provides evidence to discredit the proffered
reasons, she does not need to adduce additional evidence beyond
her prima facie case. Baker v. United Def. Indus., 403 F. App’x
751, 756 n.6 (3d Cir. 2012) (stating that some evidence pointing
to age-inspired animus would bolster the plaintiff’s case, but
his inability to do so was “not damning at the summary judgment
phase”); Fuentes v. Perskie, 32 F.2d 759, 764 (3d Cir. 1994)
(the plaintiff “need not also come forward with additional
evidence of discrimination beyond his or her prima facie case”
when evidence sufficiently discredits proffered reasons).
Evidence relating to the credibility of the employer's
proffered justification 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.” Burton v. Teleflex, Inc., 707
F.3d 417, 427 (3d Cir. 2013) (internal quotations omitted).
However, when an employer presents a “bagful” of legitimate
reasons, a plaintiff need not discredit each reason articulated,
but he must "cast substantial doubt on a fair number of them" so
that "the factfinder's rejection of some of the defendant's
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proffered reasons may impede the employer's credibility
seriously enough so that a factfinder may rationally disbelieve
the remaining proffered reasons. Abels v. Dish Network Serv.,
LLC, 507 F. App’x 179, 184 (3d Cir. 2012) (quoting Fuentes, 32
F.2d at 764 n.7); Hood v. Pfizer, Inc., 2009 U.S. App. LEXIS
8062, at *7 n.1 (3d Cir. Apr. 16, 2009).
Here, Plaintiff has produced sufficient evidence to
demonstrate pretext for three main reasons.7
First, the lack of any mention of the four episodes in
Plaintiff’s personnel file, and staleness of the two episodes
that occurred in 2006, broadly calls into question the
legitimacy and seriousness of these episodes.
Second, Plaintiff has put forth evidence that would allow a
jury to outright reject at least two of the four reasons
proffered by Defendants: (1) Plaintiff’s handling of Schantzthe allegedly drunk employee; and (2) Plaintiff’s use of Laird
for maintenance.

With respect to the Schantz issue, Defendants

claim that Plaintiff improperly issued discipline without first
consulting PRD’s central office and that Plaintiff should have
first obtained concrete physical evidence of Schantz’s
inebriation.

But there is a genuine issue of fact as to whether

7

Plaintiff argues that “[t]he one direct evidence of age discrimination,
the comments of [McGrath] with regard to Wolf’s age and retirement, has
not been contradicted.” [Docket No. 38 at 6]. This Court does not
rely on that evidence in its analysis, as it does not find this
innocuous statement to be probative of discriminatory intent.   

14

supervisors were permitted to issue discipline without first
contacting PRD’s central office.

And, assuming supervisors

could issue discipline without first contacting PRD’s central
office, Plaintiff’s handling of the situation appears to be
entirely appropriate.

The notion that it would be improper to

send Schantz home, after two supervisors observed him to be
visibly intoxicated, is absurd.

With respect to the Laird

issue, Plaintiff has put forth sufficient evidence that this
reason was pretextual, given that: (1) according to Plaintiff,
the policy she was accused of violating did not yet exist; and
(2) the lease agreement appears to support Plaintiff’s position.
Third, Plaintiff has put forth sufficient evidence, in
toto, to discredit the remaining proffered rationales.

The

remaining two rationales each had serious weaknesses.

With

respect to the live-in-aide issue, McGrath admitted that PRD had
an obligation to make reasonable accommodations in similar
situations or could be liable.

With respect to the allegedly

racist comment and “alleged interference,” Defendants’ failure
to conduct more than a cursory investigation8 and McGrath’s

8
Defendants argue that it is irrelevant if the investigation was
correct as long as their reliance on its findings was reasonable.
But an overly cursory investigation may suggest pretext. See
Scanlon v. Jeanes Hosp., 319 F. App’x 151, 154 (3d Cir. 2009)
(stating the defendant’s investigation into employee misconduct
was so cursory that it suggested more than mere mistake); see
also Lewis v. Genesis HealthCare Corp., 826 F. Supp. 2d 765, 777
(E.D. Pa. 2011)(denying summary judgment due to genuine issues of

15

decision to have Plaintiff continue interviewing candidates
casts doubts upon the legitimacy of this proffered rationale.
While the weakness in these rationales might not be sufficient
alone for them to be discredited, their weakness, combined with
the fact that a jury could reject the other rationales, would
allow a jury to reasonably discredit these rationales too.9
IV.

Conclusion
For the reasons set forth above, Plaintiff has provided

sufficient evidence from which a reasonable factfinder could
rationally find Defendants’ proffered reasons unworthy of
credence. Accordingly, Defendant’s motion for summary judgment
is DENIED.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Date: July 31, 2013

material fact stemming, inter alia, from an inadequate cursory
investigation into employee misconduct).
9

See Ball v. Einstein Community Health Assocs., No. 12-1729, 2013 U.S.
App. LEXIS 3114, at *13 n.8 (3d Cir. Feb. 14, 2013) (examining both
employer reasons, even though the first alone would generally be fatal
to the plaintiff’s claim, because weaknesses in the second reason could
undermine the employer’s credibility as a whole); Santiago v. City of
Vineland, 107 F. Supp. 2d 512, 538 (D.N.J. 2000) (stating the
plaintiff’s ability to sufficiently cast doubt on three nondiscriminatory reasons was enough to doubt the employer’s overall
credibility and relieved his need to discredit the fourth reason);
Kelly v. U.S. Steel Corp., No. 11-00193, 2012 U.S. Dist. LEXIS 107475,
at *17-19 (W.D. Pa. Aug. 1, 2012) (a review of the totality of the
evidence presented issues of material fact and could allow a reasonable
jury to find the “bagful” of proffered reasons pretextual).

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