JACKSON v. TRUMP ENTERTAINMENT RESORTS, INC. et al

Filing 68

OPINION FILED. Signed by Judge Joseph H. Rodriguez on 12/21/15. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MICHAEL JACKSON,
Plaintiffs,
v.

:
:

Hon. Joseph H. Rodriguez

:

Civil Action No. 13-1605

TRUMP ENTERTAINMENT RESORTS, :
INC.; TRUMP ENTERTAINMENT
RESORTS HOLDINGS, LP; TRUMP
:
MARINA ASSOCIATES, LP;
LANDRY’S RESTAURANTS, INC.;
:
LANDRY’S GAMING, INC.; and
LANDRY’S A/C GAMING, INC.
:
Defendants.

OPINION

:

This is an employment discrimination suit filed by Michael Jackson (“Plaintiff” or
“Jackson”), against Landry’s Inc. (“Defendant” or “Landry’s”), formerly known as
Landry’s Restaurants, Inc. Jackson alleges that he was discriminated against because of
his disability and age in violation of the Americans with Disabilities Act (“ADA”) and the
Age Discrimination in Employment Act (“ADEA”) and was terminated in retaliation for
his complaints of disability discrimination in violation of the New Jersey Law Against
Discrimination (“NJ LAD”). Landry’s moves for summary judgment pursuant to Federal
Rule of Civil Procedure 56. The Court heard oral argument on November 5, 2015. For the
reasons set forth below, Defendant’s Motion for Summary Judgment will be granted in
part and denied in part.
I. Background
On May 28, 1985, Plaintiff Michael Jackson (“Jackson”) was hired by Trump Castle
(succeeded later by Trump Marina) as a casino dealer. Compl. ¶ 33. After ten years,
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Trump Marina promoted Jackson to the position of “dual-rate floorperson” requiring
Jackson to work some shifts as a dealer and some as a floorperson supervising dealers.
Id. ¶ 34-35.
Over the course of twenty-five years through the end of 2010, Jackson received six
written notifications for violating company policies. Among these written warnings are
violations for 1) failing to use the elevator, entrance, or exit designated for employees
(2010); 2) performing job duties carelessly (2009); 3) failing to maintain satisfactory
interpersonal relations with co-workers (2008); 4) entering an unauthorized area to drink
a soda (2006); 5) misconduct toward a customer (1992); and 6) poor job performance
(1991). See Def.’s Stmt. Facts ¶ 3, Exs. D, E, F, G, H, I. Despite these warnings, each of
Jackson’s performance evaluations for the last five years of his employment (2007-2011)
indicated he “performs at a satisfactory level and is considered a standard or consistent
employee.” Pl.’s Resp. Def.’s Stmt. Facts 5, Exs. E, F; Def.’s Stmt. Facts ¶ 5, Exs. J, K, L.
Around October 2009, Jackson was diagnosed with cancer of the face and neck
and underwent surgery in January 2010. Compl. ¶ 39-40. Jackson took a medical leave of
absence and returned to work on or around July 1, 2010 but suffered from dryness of
mouth arising from his radiation treatments. See id. ¶ 41; see also Def.’s Stmt. Facts ¶ 12.
Jackson alleges that upon his return to work he requested and was granted
reasonable accommodations to carry a bottle of water and chew gum while working.
Compl. ¶ 43-44. However, Defendant claims that no reasonable accommodations were
granted but rather, Jackson was advised to contact Human Resources (“HR”)
immediately upon learning that he was violating company policy by having bottled water
and chewing gum. See Wilson Dep., 20:5-20:11.

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In March 2011, Jackson formally requested reasonable accommodations with HR
and was denied accommodations. Compl. ¶ 49-50. Plaintiff alleges that he contacted the
Equal Employment Opportunity Commission (“EEOC”) around March 18, 2011, to
initiate the charge-filing process. Id. ¶ 29. However, the earliest EEOC filing on record
indicates that the charges were made on December 8, 2011. Compl. Ex. A.
Around February 14, 2011, Landry’s announced that it would be purchasing the
Trump Marina Casino. See Compl. ¶ 45; see also Pohlman Dep., 9:24-10:3. Pursuant to
the asset purchase agreement, Landry’s was obligated to retain eighty-five percent (85%)
of Trump Marina’s employees. Def.’s Stmt. Facts ¶ 29. Accordingly, on or about March 21,
2011, Trump Marina issued notices to all employees that their employment would be
terminated on May 25, 2011. Id. ¶ 24.
Karen Lew (“Lew”), Casino Manager, and Donald Browne (“Browne”), Senior Vice
President of Casino Operations, were responsible for making decisions regarding
retention of employees in the Games Department of the casino and selected employees to
be recommended to Landry’s for employment offers. Def.’s Stmt. Facts ¶ 30. Lew and
Browne did not select Jackson for recommendation to Landry’s, and thus, Jackson’s
employment officially terminated on May 25, 2011. Compl. ¶ 54; Def.’s Stmt. Facts ¶ 45.
Jackson brings claims under the ADA, the ADEA, and the NJ LAD alleging that
Landry’s discriminated against him based on his disability, age, and in retaliation of his
filing a complaint with the EEOC. Compl. ¶ 2.
II. Summary Judgment Standard
A court will grant a motion for summary judgment if there is no genuine issue of
material fact and if, viewing the facts in the light most favorable to the non-moving

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party, the moving party is entitled to judgment as a matter of law. Pearson v.
Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will
enter summary judgment only when “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
judgment as a matter of law.” Fed. R. Civ. P. 56 (c).
An issue is “genuine” if supported by evidence such that a reasonable jury could
return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute
about the fact might affect the outcome of the suit. Id. In determining whether a genuine
issue of material fact exists, the court must view the facts and all reasonable inferences
drawn from those facts in the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
the moving party has met this burden, the nonmoving party must identify, by affidavits
or otherwise, specific facts showing that there is a genuine issue for trial.

Id.;

Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). 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. Andersen, 477 U.S. at 256-57. Indeed, the plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and upon
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motion, against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden
of proof at trial. Celotex, 477 U.S. at 322.
In deciding the merits of a party’s motion for summary judgment, the court’s role
is not to evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility
determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
In an employment discrimination case, the burden of persuasion on summary
judgment remains unalterably with the employer as movant. The employer must
persuade the court that even if all of the inferences which could reasonably be drawn from
the evidentiary materials of record were viewed in the light most favorable to the plaintiff,
no reasonable jury could find in the plaintiff’s favor. Doe v. C.A.R.S., 527 F.3d 358, 362
(3d Cir. 2008).
III. Analysis
Defendant Landry’s moves for summary judgment on the basis that no reasonable
factfinder could conclude, on this record, that Plaintiff can establish a prima facie case
for any of his alleged claims of discrimination – disability discrimination, age
discrimination, and retaliation. Furthermore, Defendant moves for summary judgment
asserting that, even if Plaintiff can make out a prima facie case of discrimination, no
reasonable factfinder could conclude, on this record, that Plaintiff will be able to show
that Landry’s’ proffered nondiscriminatory reason for not hiring Plaintiff is a pretext for
discrimination. As set forth below, viewing the facts in the light most favorable to
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Plaintiff, the Court disagrees with Landry’s as to Plaintiff’s claims or retaliation and
disability discrimination; Landry’s Motion for Summary Judgment is denied with respect
to those claims. Summary judgment is granted as to Jackson’s age discrimination claim.
In this case the parties offer somewhat conflicting views on the framework of the
analysis of the cause of action. Because Landry’s was obligated to retain 85% of the work
force, pursuant to the asset purchase agreement governing the sale of the casino, Plaintiff
argues that the relaxed standard applied in reduction of force (RIF) cases may govern his
claims. See Pivirotto v. Innovation Systems, 191 F.3d 344, 357 (3d Cir. 1999) (noting
relaxation of the fourth element of a prima facie case when there is a reduction in force).
Under this theory, even though Landry’s terminated the entire work force and then
selectively rehired the required 85%, the end result is essentially a reduction in force, as
opposed to either a termination and/or a failure to hire. Although termination and failure
to hire seem to apply with equal force. During oral argument, the parties agreed that the
circumstances were unique and were unable to supply any authority on the framework
under which the claims must be construed.
Recognizing the dearth of case law and the unique circumstances of this case, the
difference between the two frameworks must be explored. To resolve claims of
employment discrimination, the Third Circuit utilizes the analytical framework
pronounced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See
Olson v. General Electric Astrospace, 101 F.3d 947, 951 (3d Cir. 1996). “[D]iscrimination
claims resulting from a RIF differ from a decision to fire an employee[.]” Tomasso v.
Boeing Co., 445 F.3d 702, 711-12 (3d Cir. 2006) (citations omitted). Pursuant to
McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie
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case of unlawful discrimination. “The fourth element of a prima facie case is intended to
be flexible and must be relaxed in certain situations, as when there is a reduction in force.”
Pivirotto, 191 F.3d at 357 (internal quotation omitted). In a RIF case “subjective criteria
take on a greater significance as the employer looks to draw finer distinctions between
employees. Thus, subjective categories such as “attitude” and “teamwork” need to be
viewed not just in light of the warning against such criteria articulated in Goosby, 228
F.3d at 313, but also in light of the fact that employers must distinguish otherwise
competent employees.” Id.
The Court will analyze the claims as a termination/ failure to hire with
consideration of the subjective criteria permissible in a RIF.
A. Disability Discrimination and Retaliation
The first Count of Plaintiff’s Complaint alleges that Landry’s discriminated against
Jackson based on his disability in violation of the ADA. The ADA prohibits discrimination
by covered entities, including private employers, against qualified individuals with a
disability. 42 U.S.C. § 12112(a). Under McDonnell Douglas, an employee must first
establish by a preponderance of the evidence a prima facie claim of discrimination by
showing (1) the plaintiff is a member of a protected class; (2) he or she was qualified for
the position sought; (3) he or she was subject to an adverse employment action despite
being qualified; and (4) the employer treated more favorably those not in the protected
class or, under circumstances that raise an inference of discriminatory action, the
employer continued to seek out individuals with qualifications similar to plaintiff's to fill
the position. Sarullo v. United States Postal Service, 352 F.3d 789, 797 (3d Cir.2003)

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(citations omitted). The prima facie test is a flexible one which must be tailored to fit the
specific context in which it is applied. Id. at 797–98.
Once a plaintiff establishes a prima facie case, the burden shifts to the employer to
articulate a legitimate, non-discriminatory reason for its adverse employment decision.
McDonnell Douglas, 411 U.S. at 802. The employer may satisfy this burden “by
introducing evidence which, taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the unfavorable employment decision.” Fuentes v. Perskie,
32 F.3d 759, 763 (3d Cir. 1994) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509,
113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). However, “[a]n employer cannot successfully
defend a hiring decision against a Title VII challenge merely by asserting that the
responsible hiring official selected the man or woman who was ‘the right person for the
job.’ ” Iadimarco v. Runyon, 190 F.3d 151, 166 (3d Cir. 1999).
Once the employer meets this “relatively light burden,” “the burden of production
rebounds to the plaintiff, who must now show by a preponderance of the evidence that
the employer's explanation is pretextual.” Fuentes, 32 F.3d at 763. A plaintiff may
establish pretext directly, by persuading the court that a discriminatory reason more
likely motivated the employer, or indirectly, by showing that the employer's proffered
reason is unworthy of credence. Ezold, 983 F.2d at 523. One of these is sufficient; the
employee does not have to prove both that the explanation is implausible and that
discrimination was a motivating factor. Waldron v. SL Indus., Inc., 56 F.3d 491, 494–95
(3d Cir. 1995). On the other hand, the employee cannot carry his burden by showing that
the employer's decision was “wrong or mistaken.” Fuentes, 32 F.3d at 765. Rather, he
must demonstrate such “weaknesses, implausibilities, inconsistencies, incoherencies, or
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contradictions in the employer's proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence,” id. (citing Ezold,
983 F.2d at 531), “and hence infer ‘that the employer did not act for [the asserted] nondiscriminatory reasons,’ ” id. (citing Josey v. John R. Hollingsworth Corp., 996 F.2d 632,
638 (3d Cir. 1993)).
A plaintiff's subjective belief that his qualifications should have been accorded
more weight is not probative of pretext. See, e.g., Valdes v. Union City Bd. Of Ed., 186 Fed.
Appx. 319, 323 (3d Cir. 2006). An employer is entitled to evaluate which qualifications
best fit its needs in selecting a candidate. See Sarmiento v. Montclair State Univ., 513
F.Supp.2d 72, 89 (D.N.J .2007) (finding legitimate reasons for not selecting the more
experienced candidate because it was up to the university to evaluate which qualifications
best fit departmental needs). That is, a plaintiff's disagreement with assessment criteria
and belief that he or she is better qualified for the position is not sufficient to avoid
summary judgment. Langley v. Merck & Co., 186 Fed. Appx. 258, 261 (3d Cir. 2006).
The third Count of the Complaint alleges that, by not offering to continue his
employment, Landry’s effectively terminated Jackson
in retaliation for objections he raised after the HR department denied his request
for reasonable accommodations. This alleged retaliatory behavior is a violation of the NJ
LAD. Retaliation claims raised under the NJ LAD are analyzed under the same McDonnell
Douglas burden-shifting framework utilized in the discrimination context. Here, Jackson
claims that Landry’s supervisors retaliated against him on the basis of internal complaints
to supervisors and to HR.

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In order to successfully assert a retaliation claim, the plaintiff must demonstrate
that he: (1) engaged in a protected activity; (2) suffered an adverse employment action;
and (3) that there is a causal connection between his participation in the protected activity
and the adverse employment action. Moore v. City of Philadelphia, 461 F.3d 331, 340-41
(3d Cir. 2006). Here Defendant only disputes whether Plaintiff can produce evidence of
a causal connection between his internal complaints alleging disability discrimination
and his termination. A causal connection may be established by circumstantial evidence,
such as temporal proximity, a pattern of antagonism, and pretext. Kachmar v. SunGard
Data Sys., 109 F.3d 173, 177 (3d Cir. 1997).
In Kachmar, the Third Circuit explained that proof of a causal connection between
a protected activity and an adverse employment action involves a highly specific inquiry
into the motives of an employer and may be established in a number of ways. 109 F.3d at
177. Causation may depend on the temporal proximity between the employee’s protected
activity and the adverse employment action. Id. Temporal proximity can serve as
circumstantial evidence “sufficient to raise the inference that [the plaintiff’s] protected
activity was the likely reason for the adverse action.” Id. (quoting Zanders v. Nat’l R.R.
Passenger Corp., 898 F.2d 1127, 1135 (6th Cir. 1990)). Absent temporal proximity,
“circumstantial evidence of a ‘pattern of antagonism’ following the protected conduct can
also give rise to the inference.” Kachmar, 109 F.3d at 177. Temporal proximity and a
pattern of antagonism, however, “are not the exclusive ways to show causation, as the
proffered evidence, looked at as a whole, may suffice to raise the inference.” Id.

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Here an inference of discrimination exists and there is evidence in the record
from which a jury could determine that discrimination influenced the decision to
terminate Plaintiff.
The record shows that Jackson formally requested and reasonable
accommodations for his dry mouth on March 7, 2011 and was denied on March 17, 2011.
SOF, ¶¶16-17. Although the decision to sell, and therefore be bound by the RIF in the
asset purchase agreement, occurred around February 14, 2011, Landry’s announced that
it would be purchasing the Trump Marina Casino and, on March 21, 2011, Trump
Marina issued notices to all employees that their employment would be terminated on
May 25, 2011. See Compl. ¶¶ 24, 45; see also Pohlman Dep., 9:24-10:3. Ultimately,
Plaintiff was terminated/ not rehired on May 25, 2011. Thus, there are several dates to
consider in regards to the temporal proximity of his termination to his request/denial
for accommodations.
Plaintiff's termination coming only a few weeks following his request for an
accommodation makes causation plausible, especially in light of lack of evidence
regarding Plaintiff’s alleged recent behavior problems. The record does not reflect a
“constant barrage of written and verbal warnings” after 2007. While there is ample
evidence that many employees subjectively felt that Jackson was a problem, he was not
written up and he continued to be evaluated positively on his performance reviews.
Given the timing of Jackson’s termination relative to his request for an ultimately
unapproved accommodation, the temporal proximity between the protected activity and
the adverse action is “unusually suggestive” and is sufficient standing alone to create an
inference of causality and defeat summary judgment. See Clark County School Dist. v.

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Breeden, 532 U.S. 268, 273–74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (temporal
proximity alone, when “very close,” can in some instances establish a prima facie case of
retaliation); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (reversing summary
judgment in favor of the defendant where plaintiff had been discharged two days after
his employer's receipt of his EEOC claim). LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n,
503 F.3d 217, 232 (3d Cir. 2007). In addition, the Court notes the criteria used to
evaluate “re-hire” was subjective and Browne and Lew gave different criteria to be
considered. Browne testified that agreeableness, teamwork, and adaptability to change
were the only criteria Browne Dep. at 10:23-11:11. Ms. Lew claimed performance,
employee related skills, paperwork, and capabilities were the criteria. Lew Dep. at 59:16, 59:19 to 60:3.
Landry’s rebuts the prima facie case with evidence that Jackson was a difficult
employee. However, given the timing of his request for an accommodation and the fact
that he was not written up for many of the alleged “difficulties” put forth by Landry’s,
there is evidence in the record from which a jury could determine that, in Jackson’s
case, discrimination was at play. For these reasons, the temporal proximity, the
circumstances, and the inconsistencies in the reasons that Browne and Lew gave for
Jackson’s termination may suggest retaliatory animus and summary judgment is
denied.
For the same reasons, summary judgment is denied as to Jackson’s disability
discrimination claim; Count I in the Complaint. There is ample evidence and data in the
record to demonstrate that Landry’s rehired everyone with an approved disability
accommodation.

However, this evidence may be construed to suggest the inverse
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conclusion; that because Jackson’s accommodation request was not approved, he was not
rehired on the basis of his disability. While the Court recognizes that this claim is thin,
summary judgment is denied for the same reasons set forth in the retaliation claim.
B. Age Discrimination
Plaintiff also alleges he was terminated because of his age. In order to establish a
prima facie case of discrimination under the ADEA, a plaintiff must prove that: (1) the
plaintiff belongs to a protected class-over age 40; (2) the plaintiff was qualified for the
position in question; (3) the plaintiff suffered an adverse employment decision; and (4)
the position was filled by someone sufficiently younger to permit an inference of age
discrimination. See Narin v. Lower Merion Sch. Dist., 206 F.3d 323, 331 (3d Cir. 2000);
Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995). In an age discrimination
case where the plaintiff is terminated as a result of a RIF, the plaintiff must show “that
the employer retained a sufficiently younger similarly situated employee.” Monaco v.
Am. Gen. Assurance Co., 359 F.3d 296, 301 (3d Cir. 2004); Anderson v. Consol. Rail
Corp., 297 F.3d 242, 250 (3d Cir. 2002). An employee is “similarly situated” when the
evidence supports a claim that the plaintiff and a retained employee shared comparable
duties. Id. “This determination requires a court to undertake a fact-intensive inquiry on
a case-by-case basis rather than in a mechanistic and inflexible manner.” Monaco, 359
F.3d at 305; see also Opsatnik v. Norfolk S. Corp., 335 Fed. Appx. 220, 222–23 (3d Cir.
2009) (“While ‘similarly situated’ does not mean identically situated, the plaintiff must
nevertheless be similar in ‘all relevant respects.’ ”) (quoting Holifield v. Reno, 115 F.3d
1555, 1562 (11th Cir. 1997)); Lepore v. Lanvision Sys., Inc., 113 Fed. Appx. 449, 452 (3d
Cir. 2004) (opining that similarly situated employees “work in the same area in
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approximately the same position”) (citing Anderson, 297 F.3d at 249–50); Johnson v.
Kroger Co., 319 F.3d 858, 867 (6th Cir. 2003) (“In the context of personnel actions, the
relevant factors for determining whether employees are similarly situated often include
the employees' supervisors, the standards that the employees had to meet, and the
employees' conduct.”) (citation omitted); Milliron v. Pilot Travel Cntrs., LLC, No. 06–
0262, 2009 WL 2579200, at *10 (W.D.Pa. Aug. 20, 2009) (citing Monaco and collecting
other Circuit cases); Armstead v. Norfolk S. Corp., 2006 WL 544403, at *5 (W.D.Pa.
Mar. 3, 2006) (holding that a supervisor was not similarly situated to another
supervisor with the same title where the former could not perform the latter's duties).
Defendant challenges Plaintiff’s ability to satisfy the fourth prong of the prima
facie case and, if Plaintiff can establish a prima facie case, that Landry’s proffered
reason is not a pretext for discrimination. The Court finds that the Plaintiff has not put
forth sufficient evidence to establish a prima facie case of age discrimination claim and
summary judgment is granted. 1
Plaintiff argues that his comparators are comprised of only the Dual Rate
Supervisors in the gaming department, as opposed to comparing him to the entire
gaming department which includes the dual rate supervisors, the dealers, and the
supervisors. Landry’s put forth evidence tending to show that after the rehiring, the
average age of the entire gaming department increased by almost three years. Plaintiff
argues that his true comparators are only the dual rate supervisors and that evidence
shows that the average age of the dual rate supervisors decreased by only .98 percent.

1

In so finding the Court need not reach Landry’s argument that the claim is not properly before the Court for
failure to exhaust administrative remedies.

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Plaintiff is 58. Plaintiff contends that a different view of the demographic evidence of
the retained dual rate supervisor shows a correlation between age and retention.
Specifically, the Duttera Affidavit can be read to show that forty percent (40%; 2 of 5) of
employees in their sixties were retained, over twenty five percent (25.9%; 7 of 27) and
less than four percent of the forty year old (3.9%; 1 of 27) were terminated. No one in
their thirties was terminated. See, generally¸ Duttera Aff.
Plaintiff’s appropriate comparators in this case are the smaller subset of the
gaming department; those employees in the role of dual rate supervisor. Lepore, 113
Fed. Appx. at 452 (opining that similarly situated employees “work in the same area in
approximately the same position[.]”) A dual rate supervisor performs both the dealer
job and the supervisor job. So, in some respects the information with respect to those
classes of employees in the dealer or supervisor role is relevant to the inquiry, but not
determinative. The gaming department is larger and therefore the average age of the
department’s employees is less impacted by the “RIF.” While these employees
separately perform the same job as the dual rate supervisor, they are not charged with
the overriding responsibility inherent in both job classifications. In other words, the
dual rate supervisor is a unique classification and therefore Plaintiff should be
compared to that group of employees.
Under the evidence presented, Plaintiff cannot establish a prima facie case of age
discrimination. While Plaintiff’s attack of Landry’s data presents a different theory, it is
at most speculation and conjecture. Looking at the group of retained employees in the
Dual Rate Supervisor Role, there is not a sufficient difference in the average age to
suggest that Plaintiff’s age was a motivating factor in his termination.
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“In order for a plaintiff to satisfy the ‘sufficiently younger’ standard, ... there is no
‘particular age difference that must be shown,’ but while ‘[d]ifferent courts have held ...
that a five year difference can be sufficient, ... a one year difference cannot.’ ” Showalter
v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231, 236 (3d Cir. 1999) (quoting Sempier, 45
F.3d at 729 (citations omitted)). To the extent that one could argue that Plaintiff was
“replaced,” under the unique facts of this case, the Court finds that Jackson cannot show
that he “was ultimately replaced by another employee who was sufficiently younger to
support an inference of discriminatory animus.” Smith, 589 F.3d at 689 (citing Potence
v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004); see also Duffy v. Paper
Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001) (fourth element is “his or her
replacement was sufficiently younger to permit a reasonable inference of age
discrimination.”); Showalter, 190 F.3d 231, 234 (3d Cir. 1999) (fourth element is “the
plaintiff was replaced by a sufficiently younger person to create an inference of age
discrimination”) (quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d
Cir. 1997)).
Comments about Plaintiff’s inability to adapt to change and reluctance to accept a
new role can be related to age and therefore impermissible discrimination. However,
this record does not support such an inference of age discrimination given the minimal
shift in the average age of employees retained in Plaintiff’s position. For these reasons,
summary judgment is granted.

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IV. Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment will be
granted in part as it relates to Plaintiff’s age discrimination claim and denied in part as it
relates to Plaintiff’s disability and retaliation claims.
An appropriate ORDER shall issue.

Dated: December 21, 2015

s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE

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