NATALE v. EAST COAST SALON SERVICES, INC. et al
Filing
39
OPINION. Signed by Judge Noel L. Hillman on 9/30/2014. (drw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
Plaintiff,
:
:
v.
:
:
EAST COAST SALON SERVICES, INC.:
and STAN KLET
:
:
Defendants.
:
:
______________________________ :
CAROL E. NATALE
Civil Action No.
13-1254
OPINION
Appearances:
ARI R. KARPF
JEREMY M. CERUTTI
MARK THOMAS SOTTILE
KARPF, KARPF & CERUTTI, P.C.
3331 STREET ROAD, SUITE 128
TWO GREENWOOD SQUARE
BENSALEM, PA 19020
Attorneys for Plaintiff
MICHAEL S. HANAN
MICHAEL THOMAS MIANO
RONALD A. GILLER
ELIOR DANIEL SHILOH
GORDON & REES LLP
18 COLUMBIA TURNPIKE
SUITE 220
FLORHAM PARK, NJ 07932
Attorneys for Defendants
HILLMAN, District Judge
Plaintiff filed a complaint alleging violations of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et.
1
seq., and the New Jersey Law against Discrimination (NJLAD).
Before the Court is defendants’ motion for summary judgment.
Plaintiff does not contest defendants’ motion to dismiss her
NJLAD claim or to dismiss her claims against defendant Stan
Klet.
Therefore, defendants’ motion will be granted as to both.
However, plaintiff does contest dismissal of her ADEA claim.
For reasons explained below, defendants’ motion will be denied
as to plaintiff’s ADEA claim.
I. BACKGROUND
Plaintiff, Carol E. Natale, was employed by East Coast
Salon Services, Inc. (“ECE”). 1
ECE is a family-owned wholesale
distributor of beauty supplies that sells exclusively to
licensed cosmetologists.
ECE's wholesale stores are generally
serviced by a manager and sales associates, whose
responsibilities include customer service, sales, answering the
telephone, stocking, cleaning and packing orders.
ECE hired
plaintiff as a sales associate at its Bensalem, Pennsylvania,
store starting on November 6, 2006.
when she was hired.
Plaintiff was 59 years old
Plaintiff’s supervisor was Faith Fritz who
made the decision to hire Plaintiff.
1
Defendants use the initials “ECE” rather than “ECS” or “ECSS”.
For continuity, the Court will adopt defendants’ abbreviation of
their company name.
2
During her employment, plaintiff received (1) a written
warning on December 3, 2009, for sitting in the back room and
doing personal work on company time; (2) a written warning on
September 8, 2010, for opening the store late; and (3) a written
warning on October 18, 2011, for excessive time off.
Plaintiff
states that the October 18, 2011 written warning was never
received by her or discussed with her by Fritz.
She states the
first time she saw the October 18, 2011 warning was at her
deposition and that she did not refuse to sign it even though
those words were written on the document.
In October 2011, plaintiff states that her hours were cut,
and that she was not scheduled to work more than two Tuesdays in
the final months of her employment. 2
Plaintiff states that a
younger employee, Kathi Timney, who was 49 years old at the time
of plaintiff’s termination and 15 years younger than plaintiff,
began to work on Tuesdays in place of plaintiff.
Plaintiff states that Fritz sought part-time employees in
anticipation of terminating plaintiff’s employment.
An email
dated October 17, 2011, from Fritz to ECE Regional Manager Sonya
Protack states in part, “I wanted to ask a few questions. I want
to know what I have to do to let Carol go."; and "I (Ms. Fritz)
2
Defendants state that plaintiff’s overall hours increased in
November and December – the two months prior to her termination.
Whether there is any significance to working on Tuesdays is
unclear.
3
really do want to look into hiring two part-time people."; “I
really don’t want to be left with just Kathi and myself.”
On December 5, 2011, Fritz emailed Street and Protack about
a “possible new hire” and states that after interviewing she
narrowed it down to one person, Celeste Mariano, and asks “what
can I offer her?”
Mariano was hired on January 3, 2013, and was
40 years old at the time of her hire.
On January 12, 2012, ECE’s owner, defendant Stan Klet,
called the Bensalem store to talk to Faith Fritz about a sale.
Protack was with Klet and heard the entire conversation because
the call was on speakerphone.
Plaintiff answered the telephone
by saying "East Coast Salon, how can I help you?”
not identify herself by name.
Plaintiff did
Plaintiff states that she has
answered the phone this way during her entire five years of
employment.
Klet asked plaintiff for her name, but plaintiff
asked, "Is this Ralph?" because she thought it was ECE’s IT
person.
Klet responded “it’s Stan” to which plaintiff stated
“Mr. Klet?” to which Klet replied, “no, it’s not Mr. Klet; it’s
Stan.”
Klet then stated "Obviously, you missed the training
protocol on how to properly answer the telephone."
Plaintiff
states that there was no telephone protocol or training. 3
3
She
Other employees testified that they gave their name when
answering the phone. Whether this was an official telephone
protocol is a factual dispute.
4
also testified that Klet's comment "set a battle line right
there" and that she became defensive.
Klet told plaintiff to
state her name when answering the telephone.
Defendants maintain that plaintiff challenged Klet’s
instructions about stating her name when answering the phone,
was recalcitrant and argued with Klet.
Plaintiff maintains that
she apologized to Klet, did not argue with him and that it was
Klet who “escalated” the conversation.
Klet then asked to speak with Fritz and plaintiff told him
she was out to lunch.
Plaintiff states that Klet “badgered” her
about questions regarding Fritz’s whereabouts.
Klet told
plaintiff he was displeased with her demeanor toward him, that
the call was on speakerphone, and that someone (Protack) was
with him and heard the entire conversation.
Plaintiff responded
that she would continue the conversation at a later date.
Klet
stated that there was nothing else to discuss, and that
plaintiff needed to answer the ECE telephone in the manner he
had instructed.
Plaintiff responded to Klet that they can
"discuss it over tomatoes."
Klet then told plaintiff to tell
Fritz to call him when she returned and the call ended.
Defendants state that Protack and the ECE Human Resources
Director Joanne Street decided to terminate plaintiff based on
the telephone incident with Klet on grounds that she was
disrespectful and showed insubordinate behavior towards the
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owner of ECE.
Street emailed the formal discharge to Fritz who
was instructed to immediately terminate plaintiff.
Plaintiff
argues that although the termination notice only lists the
insubordination as the reason for termination, defendants later
in discovery responses stated that she was terminated for
several reasons including doing personal work on December 2,
2009, opening the store late on August 30, 2010, and excessive
time off.
Plaintiff argues that prior to her termination, several
discriminatory remarks concerning her age were made by Fritz
towards her during her employment.
Specifically, that Fritz
said plaintiff was wearing "old lady pull up pants," (a
reference to plaintiff’s jeans with an elastic insert); that she
told plaintiff a couple times that she "would look younger if
(her) nails were squared off."; that Fritz would send plaintiff
home for wearing "old lady shoes."; that when plaintiff showed
Fritz a new pair of sneakers, Fritz told her "Don't wear those
in here. You look like a retarded old nurse."; that plaintiff
was "old enough to be her grandmother" after plaintiff said she
was not "trying to be (Ms. Fritz's) mother" in discussing
personal matters. 4
Plaintiff maintains that Fritz recommended to
HR that she be terminated prior to the phone call with Klet.
4
There is a factual dispute over whether these comments were
made.
6
II.
JURISDICTION
Alleged violations of the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et seq., implicates federal question
jurisdiction and, therefore, this matter is properly before the
Court pursuant to 28 U.S.C. § 1331.
III. DISCUSSION
A.
Summary Judgment Standard
Summary judgment is appropriate where the Court is
satisfied that “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 330 (1986); Fed. R. Civ. P. 56.
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
outcome of the suit.
Id.
In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
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instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving
party has the burden of demonstrating the absence of a genuine
issue of material fact.
323 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317,
Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise,
specific facts showing that there is a genuine issue for trial.
Id.
Thus, to withstand a properly supported motion for summary
judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving
party.
Anderson, 477 U.S. at 256-57.
A party opposing summary
judgment must do more than just rest upon mere allegations,
general denials, or vague statements.
Saldana v. Kmart Corp.,
260 F.3d 228, 232 (3d Cir. 2001).
Plaintiff filed a complaint alleging violations of the
ADEA.
Defendants now move to dismiss plaintiff’s ADEA claim.
B. AEDA Claim
In Showalter v. University of Pittsburgh Medical Center,
190 F.3d 231, 234-35 (3d Cir. 1999), the Third Circuit outlined
how to properly apply the burden-shifting standard in AEDA
8
claims. 5
“First, the plaintiff must produce evidence that is
sufficient to convince a reasonable factfinder to find all of
the elements of a prima facie case.... When the plaintiff
alleges unlawful discharge based on age, the prima facie case
requires proof that (i) the plaintiff was a member of the
protected class, i.e., was 40 years of age or older (see 29
U.S.C. § 631(a)), (ii) that the plaintiff was discharged, (iii)
that the plaintiff was qualified for the job, and (iv) that the
plaintiff was replaced by a sufficiently younger person to
create an inference of age discrimination.”
Id. (quoting Keller
v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.
1997)); see Maresca v. Blue Ridge Communications, 363 F. App’x
5
In 2009, the Supreme Court declined to apply the “mixed motive”
burden shifting analysis of Price Waterhouse for disparate
treatment claim pursuant to the ADEA, and held that a plaintiff
must prove “by a preponderance of the evidence, that age was the
‘but—for’ cause of the challenged adverse employment action,”
such that the burden of persuasion “does not shift to the
employer to show that it would have taken the action regardless
of age, even when a plaintiff has produced some evidence that
age was one motivating factor in that decision.” Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 180, 129 S.Ct. 2343, 2352, 174
L.Ed.2d 119 (2009). In Johnson v. Delaware County Juvenile
Detention Center, 545 Fed.App’x 135, 139 (3d Cir. 2013), the
Third Circuit limited the holding in Gross to mixed motive
cases, not pretext theory cases (“Johnson's claims of
discrimination are based on a pretext theory, not mixed-motive
and, thus, Gross is inapplicable.”). In this case, the
plaintiff does not present direct evidence of discrimination and
both parties proceed under the McDonald Douglass burden shifting
paradigm. Thus, the Court follows Johnson and applies the
McDonald Douglass burden shifting paradigm.
9
882, 885 (3d Cir. 2010) (commenting that this is a modified
version of the McDonnell Douglas burden-shifting framework).
“If the plaintiff establishes a prima facie case, then
‘[t]he burden of production (but not the burden of persuasion)
shifts to the defendant, who must then offer evidence that is
sufficient, if believed, to support a finding that it had a
legitimate, nondiscriminatory reason for the discharge.’”
Showalter, 190 F.3d at 234-35 (quoting Keller, 130 F.3d at 1108
(citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07
(1993)).
“... [I]f the defendant satisfies this burden, then
the burden of production shifts back to the plaintiff to proffer
evidence ‘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. (quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d
Cir. 1994)).
Plaintiff has plead a prima facie case: i) she is 66 years
old; (ii) she was discharged, (iii) she was qualified for the
job, and (iv) she was replaced by a sufficiently younger person
– a 40 year old woman - to create an inference of age
discrimination.
See Showalter, 190 F.3d at 234-35.
Defendants argue that plaintiff was discharged for her
disrespectful, argumentative and insubordinate conduct towards
10
ECE owner and president, Stan Klet.
As outlined above, the
interchange between plaintiff and Klet indicates that the two
engaged in hostilities over the telephone, and testimony by
those who overhead the conversation concur that the conversation
was not an amicable one.
Firing an employee for rude or
disrespectful behavior or comments is a legitimate, nondiscriminatory reason for termination.
See Jalil v. Avdel
Corp., 873 F.2d 701, 708 (3d Cir. 1989) (finding employer easily
met burden by introducing evidence that employee fired for
insubordination).
Therefore, defendants have met their burden.
Plaintiff, however, has presented sufficient evidence to
put to a jury that defendants’ proffered reason was pretext.
Plaintiff has alleged that Fritz made discriminatory comments
about her age and recommended that plaintiff be terminated prior
to the phone call with Klet.
Plaintiff has also alleged
disparate treatment of her in cutting her Tuesday hours to the
benefit of a younger employee.
Plaintiff has further alleged
that defendant hired a substantially younger replacement
about a week before plaintiff was terminated, a hiring process
begun by Fritz after she recommended plaintiff’s termination. 6
6
Plaintiff also argues that defendants varied in their reasons
for terminating plaintiff. Although defendants presented
additional reasons (lateness, doing personal work on employer
time, and excessive time off), they have not wavered in their
position that plaintiff was fired for insubordination following
her phone call with Klet.
11
Although defendants argue that Fritz did not make the
decision to fire plaintiff, “discriminatory comments by
nondecisionmakers, or statements temporally remote from the
decision at issue, may properly be used to build a
circumstantial case of discrimination.”
Lockhart v.
Westinghouse Credit Corp., 879 F.2d 43, 54 (3d Cir.
1989)(citations omitted).
However, “[s]tray remarks by non-
decision makers or by decisionmakers unrelated to the decision
process are rarely given great weight, particularly if they were
made temporally remote from the date of decision.”
Ezold v.
Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir.
1992).
Whether Fritz’s comments towards plaintiff based on age
is circumstantial evidence of a decision to terminate based on
age discrimination, or whether they were just stray remarks, is
a question for the jury.
Accordingly, plaintiff has met her burden in alleging
facts sufficient to show that defendants’ proffered reason for
her termination was pretext.
Therefore, defendants’ motion for
summary judgment is denied.
IV. CONCLUSION
For the foregoing reasons, defendants’ motion for summary
judgment will be granted in part and denied in part.
Plaintiff’s NJLAD claim and claims against defendant Stan Klet
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shall be dismissed.
Defendants’ motion will be denied as to
plaintiff’s ADEA claim.
An Order consistent with this Opinion shall be entered.
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
Dated:
September 30, 2014
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