DAVIS v. SUPERVALU, INC. et al

Filing 61

OPINION. Signed by Chief Judge Jerome B. Simandle on 10/16/2014. (drw)

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

TAMMY R. DAVIS,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 13-414 (JBS/JS)

v.
SUPERVALU, INC. d/b/a ACME
MARKETS, et al.,

OPINION

Defendants.

APPEARANCES:
Robert J. Hensler, Esq.
ROBERT HENSLER, LLC
601 Haddon Avenue
Collingswood, NJ 08108
Attorney for Plaintiff Tammy R. Davis
Andrew John Shapren, Esq.
BUCHANAN, INGERSOLL & ROONEY, PC
Two Liberty Place
50 S. 16th Street, Suite 3200
Philadelphia, PA 19102
Attorney for Defendants Supervalu, Inc. and Acme Markets,
Inc.

SIMANDLE, Chief Judge:
I.

INTRODUCTION
This matter comes before the Court on a motion for summary

judgment by Defendants Supervalu, Inc. and Acme Markets, Inc.
[Docket Item 34.] In this action, Plaintiff Tammy Davis, alleges
that after 28 years of employment at Acme Markets, she was fired
on the basis of her age in violation of the New Jersey Law

Against Discrimination. Defendants contend that Plaintiff was
terminated for violating Acme’s Honesty and Accuracy Policy
after she allowed a customer to leave the store without paying
for an item. Defendants seek summary judgment on the grounds
that Plaintiff is unable to show that she was replaced by a
younger employee and that she cannot show that Defendants’
purported reason for terminating her employment is pretext.
For the reasons discussed below, the Court will grant
Defendants’ motion for summary judgment.
II.

BACKGROUND
A. Facts
Acme Markets, Inc. (“Acme”) operates retail grocery stores

and pharmacies. (Def. Statement of Material Facts (“SMF”)
[Docket Item 34-2] ¶ 1.) Supervalu was Acme’s parent company
from June, 2006 to March, 2013. (Id. ¶ 2.) Plaintiff Tammy Davis
was employed by Acme from April, 1984 until Acme terminated her
employment effective January 12, 2012. (Id. ¶ 3.) At the time of
her termination, Plaintiff was 46 years-old and had worked for
Acme for nearly 28 years. (Id. ¶ 4.) Plaintiff worked at various
Acme stores in New Jersey performing duties as a cashier and in
the bakery department. (Id. ¶ 5.) At the time of her
termination, Davis worked as a cashier at Acme’s Mount Holly,
New Jersey store. (Id. ¶ 6.) Throughout her employment Davis was

2

a member of the United Food and Commercial Workers Local 1360
(“the Union”). (Id. ¶ 7.)
Acme’s Store Work Rules contain a section entitled “Honesty
and Accuracy.” This section provides as follows:
Honesty and Accuracy
Each associate must follow Acme policies and procedures
concerning the handling of cash, food stamps, coupons and
any other valuables. Associates involved in any acts of
dishonesty, including those described below, will subject
themselves to termination, no matter what is later claimed
to have been the intent. They may also subject themselves
to possible arrest and prosecution.
1. Removing or attempting to remove from the store any
Company property or merchandise without full payment and
receipt.
2. Consuming or using merchandise on Company property
without first paying the correct price for it and retaining
the receipt.
3. Failing to record sales properly on the cash register at
the time of sale.
4. Theft of cash or any substitute for cash, for example,
food stamps, WIC checks, credit cards, debit cards, etc.,
or any Company property.
5. Engaging in coupon fraud or refund misappropriation.
6. Damaging merchandise or equipment or allowing someone
else to do so, discarding damaged merchandise without
authorization, and/or failure to report damage to the Store
Manager.
7. Checking out your own purchase or the purchase of a
relative or a member of a common household.
8. False or improper receiving of merchandise, such as
falsification
of
receiving
records,
receiving
less
merchandise than the amount listed, etc.
9. Failing to charge all customers and associate shoppers
the correct prices and give accurate weights on all goods.
No discounting or price reduction will be permitted except
as authorized by the Store Manager or someone designated by
the Store Manager.
10.
Conspiring
with
another
associate,
salesperson,
delivery driver or customer to do any of the above.
11. Falsification of information on any application, claim,
record or report, written or verbal.

3

(Ex. 1 to Davis Dep. [Docket Item 34-5.])1 Acme’s Company Retail
Policies Addendum contains nearly identical policies pertaining
to “Honesty and Accuracy.” (SMF ¶ 11.)
Plaintiff initiated this action to challenge Acme’s
termination of her employment. (Id. ¶ 13.) On December 30, 2011,
an Acme customer complained at the customer service desk that
Plaintiff had allowed the customer in front of him to leave
without paying. (Declaration of Nicholas Miceli (“Miceli Decl.”)
[Docket Item 34-6] ¶ 3.) Minutes later, Stephanie, the store’s
front-end manager, approached Plaintiff to inform her of the
complaint and asked Plaintiff to produce the receipt, which she
did. (Davis Dep. [Docket Item 34-5] 26:20-27:23.) After
receiving the complaint, Acme conducted an investigation. Acme
Loss Prevention Manager Nicholas Miceli was the lead
investigator and he prepared an investigation report. (Miceli
Decl. ¶ 5.) Miceli’s report notes that the complaint was first
investigated by Acme Loss Prevention Specialist Melvin
Singleton, who “pulled the log” and found that “the order was
not voided and had been paid for with a master card.” (Ex. 2 to
Miceli Decl. [Docket Item 34-6.]) However, Acme Loss Prevent
Manager Mike Porte “felt that the matter was not looked into
thoroughly enough” and asked Miceli to investigate further.

1

Defendants inaccurately quote this document in their 56.1
statement.
4

After reviewing a video of the transaction and a copy of the
receipt, Miceli determined that seven items were scanned, but
only six items were paid for. (Id.) The receipt showed a voided
item for $7.49, which was a box of Aleve tablets. (Id.)
On January 6, 2012, Miceli met with Plaintiff to interview
her about the transaction at issue. (Davis Dep. 38:4-7.)
Plaintiff explained that she was unaware that she had voided any
items. (Id. 35:1-7.) Miceli asked Plaintiff to recreate her
actions (id. 35:15-18) and Davis demonstrated how to complete a
credit card transaction. (Ex. 2 to Miceli Decl.) Miceli’s report
notes that, after swiping his personal credit card for the
demonstration, Plaintiff hit two keys and the receipt printed.
(Id.) Plaintiff did not push the toggle key repeatedly as Miceli
contends she did on the video. (Id.) Miceli then asked the Acme
office coordinator to put the register in test mode and they
scanned seven items. (Id.) Miceli asked the office coordinator
to void the first item scanned, which they did by hitting to the
toggle key six times, then the void key. (Id.) Miceli notes that
these key strokes are consistent with what he observed in the
video of the transaction at issue. (Id.) Miceli admits that he
was unable to see what was on the register screen during his
review of the video. (Miceli Dep. 70:17-20.) Miceli’s report
also notes that Plaintiff maintained throughout that she must

5

have hit a wrong key by mistake due to “the new POS system.”2
(Id.)
Also on January 6, 2012, after Miceli advised Acme
Associate Relations Manager Laura Rober of his findings, Acme
suspended Plaintiff for violating the Honesty and Accuracy
Policy. (Miceli Decl. ¶ 6.) Acme terminated Davis’ employment
for violating the Honesty and Accuracy Policy effective January
12, 2012. (SMF ¶ 25.)
After Plaintiff was suspended, the Union filed a grievance
with Acme for failing to show good cause for her termination
under the collective bargaining agreement. (Davis Dep. 38:1839:5.) A grievance meeting was held on January 17, 2012, at
which Plaintiff and two Union representatives appeared. (Davis
Dep. 39:20-40:9.) At the meeting, Plaintiff again asserted that
she did not void the item intentionally. Instead, she stated, “I
am human, and I made a mistake. If they got voided off, it was
an honest mistake. I am human.” (Id. 42:4-5.) During the
grievance meeting, the Union representatives tried to recreate
2

Defendants reject Plaintiff’s contention that the item could
have been voided by accident. Defendants also explain that there
was only one issue with the new cash register system. The “cash”
key on the new system is located in the same place as the
“credit” key on the old system. Occasionally, a clerk would
mistakenly hit the “cash” key to finalize the order of a
customer using credit, thus finalizing the order, but failing to
charge the credit card. (Miceli Dep. 35:18-36:18.) Defendants
contend that this issue could not have caused Plaintiff to
mistakenly void a single item as occurred in the transaction at
issue.
6

the transaction, but according to Miceli, neither the
representatives nor Plaintiff could do so in a manner that
supported her assertion that voiding the item was a mistake.
(Miceli Dep. 81:10-14; 110:5-17.) After the meeting, Rober and
Acme Labor Relations Manager Joan Williams determined that
Plaintiff’s employment would remain terminated. (Declaration of
Laura Rober (“Rober Decl.”) [Docket Item 34-4] ¶ 7.) On February
1, 2012, the Union notified Plaintiff that it was withdrawing
her grievance because it concluded that she would not be
successful. (Davis Dep. 46:19-47:6.) Subsequently, Plaintiff was
deemed eligible for unemployment benefits. (Ex. A-2 to Davis
Cert. [Docket Item 43.]) Acme appealed, but the Appeal Tribunal
rejected Acme’s argument that Plaintiff was discharged for
misconduct and upheld Plaintiff’s eligibility for benefits.
(Id.)
Acme contends that it did not replace Plaintiff after
terminating her employment. (Kavanaugh Dep. 30:23-31:2.)
Instead, her hours were distributed among numerous part-time
clerks each week. (Id. 21:19-24.) Tim Kavanaugh, Store Director
at the Mount Holly store, identified two individuals who
received additional hours after Davis’ termination, one younger
and one older than Plaintiff. (Id. 29:16-31:17; see also Rober
Decl. ¶ 14.)

7

From January, 2008 to January, 2013, grievances were filed
on behalf of 193 employees that Acme disciplined for violating
the Honesty and Accuracy Policy. (Rober Decl. ¶ 11.) Acme
terminated the employment of 184 of these 193 employees. (Id. ¶
12.) Of the 184 employees who were terminated, 141 were under
forty years old. (Id.) In addition to those who filed
grievances, Acme terminated the employment of 300 other
employees for violating the Honesty and Accuracy Policy during
this same period. (Id. ¶ 13.)
Plaintiff asserts that, after the initial investigation
found no wrongdoing, Acme used Miceli to “target” Plaintiff and
take the opportunity to “get rid of an older cashier, making a
significant hourly rate, with a full package of benefits.”
(Davis Cert. ¶ 20.) Plaintiff notes that a co-worker in the meat
department, Betsy Bartum, told her that Plaintiff had a “target
on her back.” (Id. ¶ 29.) Plaintiff maintains that a problem
with the new computerized cash register system allowed the
customer to leave without paying for the Aleve tablets and that
Acme had been experiencing problems with the new system, which
had only been in place for roughly six months at the time. (Id.
¶ 21.) Plaintiff recalls numerous occasions when the system
would not allow her to finalize payment and she knows that other
cashiers experienced similar problems. (Id. ¶ 24.) As for her
replacement, Plaintiff recalls the store training a 17 or 18
8

year-old employee named Brittany shortly before her termination.
(Id. ¶ 33.) Plaintiff continued to shop at the store following
her termination and observed younger cashiers working the hours
she would have worked, including “at least one ‘new face.’” (Id.
¶ 34.) After Plaintiff was terminated, she told her family that
she was fired because of her gender. (Davis Dep. 11:2-22.)
Plaintiff has submitted numerous affidavits from friends and
family attesting to Plaintiff’s love for her job with Defendants
and her honesty and integrity. (Pl. Exs. B-H [Docket Item 44.])
The customer involved in the transaction at issue, Victor
Boland, was unaware that any item failed to scan properly or was
voided. (Certification of Victor Boland (“Boland Cert.”) [Docket
Item 43] ¶ 7.) After learning that Plaintiff was suspended,
Boland returned to the store with his receipt and offered to pay
for the omitted item, but Kavanaugh rejected payment and said
the situation was out of his hands. (Id. ¶ 15.) Acme never
contacted Boland as part of its investigation. (Id. ¶ 17.)
B. Procedural history
Plaintiff initially filed this action on December 10, 2012
in the Superior Court of New Jersey, Burlington County, Law
Division, docket number 3346-12. Defendants filed a notice of
removal on January 22, 2013, invoking the Court’s diversity
jurisdiction. [Docket Item 1.] Plaintiff’s initial Complaint
contained four counts: (1) age discrimination in violation of
9

NJLAD; (2) retaliation for filing a workers’ compensation claim
in violation of the Conscientious Employee Protection Act
(“CEPA”), N.J.S.A. § 34:19-1 et seq., and NJLAD; and (3) common
law wrongful discharge in violation of public policy. Count four
asserted these same claims against fictitious parties.
Defendants filed a motion to dismiss Counts I and II, which the
Court granted on April 18, 2013. [Docket Items 13 & 14.]
Subsequently, Plaintiff filed a motion to amend which
attempted to replead her claim that her termination was in
retaliation for filing a workers’ compensation claim. [Docket
Item 17.] The Court denied Plaintiff’s motion [Docket Item 27]
and permitted Plaintiff to file the operative Amended Complaint,
which asserts only a claim for age discrimination under NJLAD.3
[Docket Item 28.]
Defendants filed the instant motion for summary judgment on
June 30, 2014. [Docket Item 34.] Plaintiff filed opposition
[Docket Items 41 & 42] and Defendants filed a reply [Docket Item
60].
III. STANDARD OF REVIEW
Summary judgment is appropriate “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.

3

The Court also permitted Plaintiff to name Acme Markets, Inc.
as a separate defendant in her Amended Complaint.
10

P. 56(a). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Essentially, “summary
judgment will not lie if the dispute about a material fact is
‘genuine,’ that is, if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. The
Court will view any evidence in favor of the nonmoving party and
extend any reasonable favorable inferences to be drawn from that
evidence to that party. Scott v. Harris, 550 U.S. 372, 378
(2007).
IV.

DISCUSSION
Defendants argue that Plaintiff cannot establish a prima

facie showing of age discrimination under NJLAD because she was
not replaced by a person sufficiently younger to permit an
inference of discrimination. Defendants contend that, in fact,
Plaintiff was not replaced at all, but instead, her hours were
distributed to various part-time employees, both older and
younger than Plaintiff. Defendants also assert that, even if
Plaintiff could establish a prima facie showing of age
discrimination, she cannot show that Defendants’ reason for
terminating her employment was pretext.
Plaintiff contends that there are disputed facts as to
whether Plaintiff was replaced by a younger employee and that
11

Defendants terminated Plaintiff under false pretenses to reduce
labor costs. Moreover, Plaintiff argues that Defendants’ stated
reason for her termination is pretext because Plaintiff was
fired after 28 years of service without incident for making a
mistake caused by a new cash register system.
A. Plaintiff cannot establish a prima facie case of age
discrimination
The Court first considers whether Plaintiff can establish a
prima facie showing of age discrimination under the NJLAD.
Under N.J.S.A. § 10:5-12, it is an unlawful employment
practice, “[f]or an employer . . . to refuse to hire or employ
or to bar or to discharge or require to retire” because of an
individual’s age. N.J.S.A. § 10:5-12(a).
As a result of the inherent “difficulty of proving
discriminatory intent,” the New Jersey Supreme Court adopted the
McDonnell Douglas burden-shifting framework to analyze whether
an employer engaged in unlawful discrimination when there is
only circumstantial evidence of such discrimination. Zive v.
Stanley Roberts, Inc., 182 N.J. 436, 446–47 (2005); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under the
McDonnell Douglas test:
(1) the plaintiff must come forward with sufficient
evidence
to
constitute
a
prima
facie
case
of
discrimination; (2) the defendant then must show a
legitimate non-discriminatory reason for its decision; and
(3) the plaintiff must then be given the opportunity to

12

show that defendant’s stated reason was merely a pretext or
discriminatory in its application.
Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 442
(1988).
A plaintiff’s evidentiary burden in establishing a prima
facie case is “rather modest: it is to demonstrate to the court
that plaintiff's factual scenario is compatible with
discriminatory intent—i.e., that discrimination could be a
reason for the employer's action.” Zive, 182 N.J. at 447
(quoting Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d
Cir. 1996)). However, if an employer comes forward with
admissible evidence of a legitimate, non-discriminatory reason
for its adverse employment action, the presumption of
discrimination disappears and the burden of production shifts
back to the plaintiff. Bergen Commer. Bank v. Sisler, 157 N.J.
188, 211 (1999). The plaintiff employee must then show by a
preponderance of the evidence that the reason given by the
employer was pretext for discrimination by demonstrating “that
the employer’s reason was both false and motivated by
discriminatory intent.” Henry v. New Jersey Dept. of Human
Services, 204 N.J. 320, 331 (2010). “Although the burden of
production shifts throughout the process, the employee at all
phases retains the burden of proof that the adverse employment

13

action was caused by purposeful or intentional discrimination.”
Sisler, 157 N.J. at 211.
To establish a prima facie case of age discrimination under
federal law, a plaintiff must show that he or she (1) was a
member of a protected class (i.e., he or she was forty years of
age or older); (2) was qualified for the position at issue; (3)
suffered an adverse employment action; and (4) was replaced by
someone sufficiently younger, raising an inference of age
discrimination.4 Anderson v. Consol. Rail Corp., 297 F.3d 242,
249 (3d Cir. 2002).
It is undisputed that Plaintiff satisfies the first three
prongs of the prima facie showing. Defendants only argue that
Plaintiff has failed to show that she was replaced by someone
sufficiently younger such that raises an inference of age
discrimination.
Defendants rely on Young v. Hobart W. Grp., 385 N.J. Super.
448 (App. Div. 2005) and Horan v. Verizon New Jersey Inc., A-

4

In cases involving a reduction-in-force, i.e., a situation in
which plaintiff was not replaced by another employee, but
instead was terminated in the context of a company-wide
reduction in staffing, the Third Circuit has recognized that
“the fourth element is satisfied by showing that the employer
retained a ‘sufficiently younger’ employee.” Showalter v. Univ.
of Pittsburgh Med. Ctr., 190 F.3d 231, 235 (3d Cir. 1999). In
addition, “to present a prima facie case raising an inference of
age discrimination in a reduction in force situation, the
plaintiff must show, as part of the fourth element, that the
employer retained someone similarly situated to him who was
sufficiently younger.” Anderson, 297 F.3d at 250.
14

1643-12T2, 2014 WL 1672366, at *7 (N.J. Super. Ct. App. Div.
Apr. 29, 2014), for the proposition that an inference of age
discrimination does not arise where a terminated employee’s work
is distributed to younger employees. In Young, the Appellate
Division noted that “[t]he focal question is not necessarily how
old or young the claimant or his replacement was, but rather
whether the claimant’s age, in any significant way, ‘made a
difference’ in the treatment he was accorded by his employer.”
Young, 385 N.J. Super. at 459 (quoting Petrusky v. Maxfli Dunlop
Sports Corp., 342 N.J. Super. 77, 82 (App. Div. 2001)). The
court then found that plaintiff could not establish that her age
played a significant role in her termination because the record
demonstrated that plaintiff was terminated as a cost reduction
measure, that no one was hired to replace her, and that her
duties were assumed by other employees who previously reported
to her. Young, 385 N.J. Super. at 459-60. As such, the court
held that plaintiff “cannot show either that she was replaced by
someone sufficiently younger, or that ‘age in any significant
way made a difference’ in the treatment she was accorded by her
employer.” Id. at 460. Similarly, in Horan, the Appellate
Division concluded that “[t]he simple distribution of a
terminated employee’s work among existing employees, who may be
younger, by itself, does not rise to the level of a prima facie

15

showing that the discharge was because of age, and thus
unlawful.” Horan, 2014 WL 1672366, at *7.
Defendants also note similar conclusions by federal courts
in the Third Circuit. See Kaluza v. PNC Bank, Civ. 11-1646, 2013
WL 1830933 (W.D. Pa. Mar. 11, 2013) report and recommendation
adopted, Civ. 11-1646, 2013 WL 1826432, at *7 (W.D. Pa. Apr. 30,
2013) (“A redistribution of duties among current employees does
not, without more, constitute a ‘replacement’ of a former
employee[,]” and “[t]he fact that some of the employees that
received some of [plaintiff’s] former duties were younger does
not demonstrate discrimination under the ADEA.”); Millard v.
Corestates Fin. Corp., Civ. 98-5028, 2001 WL 1175135, at *3
(E.D. Pa. July 30, 2001) (finding plaintiff’s allegation that
two existing employees assumed the majority of plaintiff’s
duties after his termination “does not equate to ‘replacement’
for purposes of the prima facie age discrimination test, and
therefore, Plaintiff is unable to meet the fourth prong of the
traditional age discrimination test”).
In the present case, as in those cited above, Plaintiff is
unable to satisfy the fourth prong of the prima facie showing.
First, evidence that Plaintiff’s work was distributed to younger
employees is insufficient on its own to show that Plaintiff was
replaced and to raise an inference of age discrimination.
Indeed, Plaintiff’s work was distributed to both younger and
16

older employees. A reasonable jury could not be persuaded by
speculation that Plaintiff may have been replaced by a bagger
named Brittany and Plaintiff’s vague recollections of seeing
younger cashiers with less seniority working hours she used to
work. Moreover, Defendants have provided documentation showing
that the only employee named Brittany at the Mount Holly store
did not received a significant increase in her hours after
Plaintiff’s termination. (Supplemental Declaration of Laura
Rober [Docket Item 60-4] ¶ 6.) Second, Plaintiff has not
identified any other evidence in the record sufficient to raise
an inference of age discrimination. Plaintiff emphasizes that
the employees who assumed Plaintiff’s hours following her
termination likely allowed Defendants to save money on labor
costs because Plaintiff earned a significant salary and benefits
after her 28 years of service. However, Kavanaugh testified that
Plaintiff’s hourly rate of $17.50 was actually less than the
average earning rate in the store and that Plaintiff’s
termination may have been more costly to Defendants because it
may have required Acme to permit more overtime to cover
Plaintiff’s hours. (Kavanaugh 20:16-24; 31:12-24.) Moreover,
cost reduction and employee’s salaries are permissible
considerations in employment decisions. See Lovett v.
Flemington-Raritan Reg’l Bd. of Educ., A-0991-12T1, 2013 WL
5925615, at *9 (N.J. Super. Ct. App. Div. Nov. 6, 2013) (“New
17

Jersey courts have recognized cost reduction measures and
employees’ salaries as legitimate considerations in making
termination decisions.”). Even when viewed most favorably to
Plaintiff, there is nothing in the record from which a
reasonable jury could conclude that Plaintiff’s age was a factor
in Defendants’ decision to terminate her employment. Moreover,
the fact that Plaintiff was deemed eligible for unemployment
benefits is informative, but not entitled to collateral estoppel
effect.5 Although the Appeal Tribunal found that Plaintiff was
not discharged for misconduct connected to work, N.J.S.A. §
43:21-5(b) requires a showing of intent or willful disregard,
which Defendants’ Honesty and Accuracy Policy does not.
Therefore, the Court finds that Plaintiff cannot establish a
prima facie showing of age discrimination under NJLAD.
B. Plaintiff cannot show that Defendants’ legitimate,
nondiscriminatory reason is pretext
Even if Plaintiff could establish a prima facie showing of
age discrimination, she is unable to show that Defendants’
reason for terminating her employment is pretext.
Defendants assert that Plaintiff’s employment was
terminated for violating the store’s Honesty and Accuracy
Policy. There is no question that Defendants’ have satisfied
5

The New Jersey Supreme Court has held that unemployment
compensation determinations are not entitled to collateral
estoppel effect. Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511,
529 (2006).
18

their burden of articulating a legitimate, nondiscriminatory
reason for Plaintiff’s termination. See Fuentes v. Perskie, 32
F.3d 759, 763 (3d Cir. 1994). To defeat summary judgment when
the defendant answers the plaintiff’s prima facie case with
legitimate, non-discriminatory reasons for its action, “the
plaintiff must 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.”
Id. at 764. Pretext “is not demonstrated by showing simply that
the employer was mistaken . . . . Instead, the record is
examined for evidence of inconsistencies or anomalies that could
support an inference that the employer did not act for its
stated reasons.” Sempier v. Johnson & Higgins, 45 F.3d 724, 731
(3d Cir. 1995).
Plaintiff is unable to show that Defendants’ reason for
terminating her employment is pretext. Defendants investigated a
claim and concluded that Plaintiff allowed a customer to leave
with an item without proper payment. During the initial
investigation by Miceli and at the grievance hearing where
Plaintiff was represented by two Union representatives,
Plaintiff was given an opportunity to recreate the transaction
at issue. Miceli and Acme’s labor relations personnel determined
19

that Plaintiff could not do so in a manner that supported her
assertion that she made an honest mistake. Instead, Defendants,
after granting Plaintiff an opportunity to explain her conduct,
concluded that Plaintiff’s actions on the video were consistent
with intentionally voiding the first item scanned and allowing
the customer to leave without payment. Notably, the Union
ultimately informed Plaintiff that it was withdrawing her
grievance because she was unlikely to be successful in
challenging her termination. Defendants have submitted evidence
showing that Acme uniformly and consistently enforces its
Honesty and Accuracy Policy and that roughly 75 percent of the
individuals who filed grievances after being accused of
violating the Policy were under age forty. Even if Plaintiff
made an honest mistake as she contends, she still could be found
in violation of the Honesty and Accuracy Policy because the
Policy does not require intent. Moreover, it is not enough to
show that Plaintiff indeed made a mistake or that Defendants
erroneously concluded that she intentionally allowed a customer
to leave without paying. See Fuentes, 32 F.3d at 765 (“To
discredit the employer’s proffered reason, however, the
plaintiff cannot simply show that the employer's decision was
wrong or mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent.”). Plaintiff
20

has presented no additional evidence of age-based animus or more
favorable treatment of younger employees that would allow a
reasonable jury to believe age was the real reason for
Plaintiff’s termination.6 Plaintiff’s impressive tenure with
Defendants is insufficient on its own to raise an inference of
age discrimination. See Hazen Paper Co. v. Biggins, 507 U.S. 604
(1993) (“Because age and years of service are analytically
distinct, an employer can take account of one while ignoring the
other, and thus it is incorrect to say that a decision based on
years of service is necessarily ‘age based.’”). However
unfortunate the result for an employee with an otherwise
impeccable work record over a 28-year period, Plaintiff has not
submitted any evidence from which a reasonable jury could find
that Defendants’ legitimate non-discriminatory reason is
pretext.
V.

CONCLUSION
For the foregoing reasons, the Court will grant Defendants’

motion for summary judgment. An accompanying Order will be
entered.

October 16, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

6

Plaintiff’s reliance on Buchholz v. Victor Printing, Inc., 877
F. Supp. 2d 180, 191 (D.N.J. 2012) is misplaced because
Plaintiff in the present case has not shown any inconsistency in
Defendants’ reason for terminating her employment.
21