BULIFANT et al v. DELAWARE RIVER AND BAY AUTHORITY
Filing
34
OPINION FILED. Signed by Judge Noel L. Hillman on 9/29/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHAWN BULIFANT, GARY HUGHES,
DANIEL LOPER, JAMES
MCCLINTOCK, and CHRISTOPHER
VERNON,
1:14-cv-07384-NLH-JS
OPINION
Plaintiffs,
v.
DELAWARE RIVER AND BAY
AUTHORITY,
Defendant.
APPEARANCES:
NEELIMA VANGURI
WILLIAM RIESER
LAW OFFICES OF SIDNEY L. GOLD & ASSOCIATES
1835 MARKET STREET
SUITE 515
PHILADELPHIA, PA 19103
On behalf of plaintiffs
WILLIAM F. COOK
WILLIAM M. TAMBUSSI
CHRISTOPHER ALBERT REESE
BROWN & CONNERY
360 HADDON AVENUE
WESTMONT, NJ 08108
On behalf of defendant
HILLMAN, District Judge
Plaintiffs Shawn Bulifant, Gary Hughes, Daniel Loper, James
McClintock, and Christopher Vernon allege age discrimination and
retaliation by defendant Delaware River and Bay Authority
(“DRBA”) under the Age Discrimination in Employment Act, 29
U.S.C. § 621, et seq. (“ADEA”).
Plaintiffs allege that they
were not hired for permanent full-time positions on the Cape
May-Lewes Ferry due to their age or in retaliation for
complaining about age discrimination.
Presently before the
Court is the motion of DRBA for summary judgment on plaintiffs’
age discrimination and retaliation claims.
For the reasons
expressed below, DRBA’s motion will be granted.
BACKGROUND
DRBA is a bi-state agency that was created in 1962 by an
interstate compact between the states of New Jersey and
Delaware.
Ferry. 1
DRBA is responsible for operating the Cape May-Lewes
The Cape May-Lewes Ferry is an approximately 17-mile,
85-minute trip between Cape May, New Jersey and Lewes, Delaware.
The Ferry operates 365 days per year, subject to weather
conditions and other factors, and consists of three vessels: the
M/V Jersey, the M/V Delaware, and the M/V Henlopen.
For any
given Ferry trip between Cape May and Lewes, the boat will be
staffed by DRBA crew members.
The crew members for a Ferry trip
will include the positions of Captain, Pilot, Boatswain, AbleBodied Seaman, Ordinary Seaman, Chief Engineer, and Assistant
1
DRBA also operates the Delaware Memorial Bridge, the Forts
Ferry Crossing, the Salem County Business Center, and five
regional airports, including the New Castle Airport, the Civil
Air Terminal at Dover Air Force Base, and the Delaware Airpark
in Delaware as well as the Millville and Cape May Airports in
New Jersey.
2
Engineer.
Each Ferry trip will typically include several Able-
Bodied Seamen, or AB, and Ordinary Seamen, or OS.
In the winter, the Ferry will have four crews to staff its
vessels, with each crew consisting of ten permanent employees.
The Ferry’s busy season is Memorial Day through Labor Day,
during which time the Ferry will supplement its permanent fulltime crew with seasonal employees.
Seasonal employees hired by
the DRBA for the Ferry’s busy season will usually be seasonal
Able-Bodied Seaman and seasonal Ordinary Seaman.
Generally, seasonal employees at DRBA may work no more than
1000 hours per calendar year, except if there is a demonstrated
need.
Seasonal employees at DRBA do not receive health benefits
or pension benefits.
Seasonal employees at the Ferry may be
assigned to a Ferry crew, or they may be assigned to a “call-in”
list where they will fill in for sick or otherwise unavailable
employees.
The permanent, full-time Ferry employees who work on
Ferry vessels are part of the Ferry’s union, the Marine
Engineers Beneficial Association, but seasonal employees are not
eligible for membership in MEBA.
Plaintiffs were seasonal employees, over the age of 40, who
had worked for DRBA for four to seven years as seasonal
employees when they applied for three full-time crew positions
in 2012 and 2013, but were not hired for any of those positions.
Plaintiffs claim that DRBA declined to hired them because they
3
were over 40 years old. 2
Plaintiffs also claim that their
applications were rejected because they sent a letter to DRBA’s
executive director, Scott Green, in which they complained about
age discrimination in DRBA’s hiring process.
DRBA has moved for summary judgment on all of plaintiffs’
claims, arguing that many are time-barred, and otherwise fail to
support their claims that age was the but-for reason in DRBA’s
hiring choices.
Plaintiffs have opposed DRBA’s motion.
DISCUSSION
A.
Subject matter jurisdiction
This Court has jurisdiction over plaintiffs’ claims for
violations of the Age Discrimination in Employment Act, 29
U.S.C. § 621, et seq., under 28 U.S.C. § 1331.
B.
Summary Judgment Standard
Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate 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.
2
Celotex Corp. v.
The year of birth of each plaintiff is: Shawn Bulifant, 1957;
Gary Hughes, 1951; Dan Loper, 1954; James McClintock, 1959; and
Chris Vernon 1970.
4
Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
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;
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.
v. Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp.
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.
57.
Anderson, 477 U.S. at 256-
A party opposing summary judgment must do more than just
rest upon mere allegations, general denials, or vague
5
statements.
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001).
C.
Analysis
1.
Job postings at issue
The three full-time job postings 3 at issue in this case are
as follows:
1. February 10, 2012 posting for a full-time Ordinary Seaman.
Bulifant, Hughes, Loper, and McClintock were four of the fifteen
applicants interviewed.
DRBA hired four people whose ages were
23, 27, 31, and 49.
2. September 13, 2012 posting for a full-time Ordinary
Seaman.
All of the plaintiffs interviewed for the position
along with twenty-three others.
DRBA hired seven people, whose
ages were 24, 27, 33, 36, 52, 53, and 53.
3. January 24, 2013 posting for a full-time Able-Bodied
Seaman, Second Class.
Seventeen applicants were interviewed for
the position, including Bulifant, Hughes, Loper, and McClintock.
DRBA hired two people whose ages were 22 and 55.
For each of these postings, candidates were interviewed
according to the same criteria: functional and technical skills,
3
DRBA’s brief describes two internal-only job postings for a
full-time OS – November 30, 2011 and January 20, 2012 – that do
not form the basis for plaintiffs’ claims. Plaintiffs did not
apply for these positions because only full-time employees could
apply. DRBA hired five employees for the two jobs, all of whom
were over 40 (male 44, male 49, female 49, male 54, female, 59).
6
safety, customer service, and peer relationships.
All
candidates are asked the same pre-set questions, and the
interviewers could not deviate from the set questions.
The
interviewers provided a score for each category for each
candidate.
DRBA then generated a detailed report which set
forth the scoring, rankings, and justifications for those hires.
2.
Whether plaintiffs’ claims based on these job postings
are time barred
Before assessing the particular circumstance of each job
posting, the Court must first determine whether plaintiffs’
claims are time barred.
A Title VII plaintiff raising claims of
discrete discriminatory or retaliatory acts must file his charge
with the EEOC within the appropriate time period - 180 or 300
days - set forth in 42 U.S.C. § 2000e–5(e)(1).
National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002).
If the
EEOC finds that that it sees no reason to take action on the
complaint, it will issue a “right-to-sue” letter.
A complainant cannot file a Title VII suit without having
first received a right-to-sue letter, and the suit must be filed
within 90 days of the date on which the complainant receives the
letter.
Burgh v. Borough Council of Borough of Montrose, 251
F.3d 465, 470 (3d Cir. 2001) (citations omitted).
“Both the
180–day [or 300-day] period for filing the administrative
complaint and the 90–day period for filing the court action are
7
treated as statutes of limitations.”
Id.
In deferral states, such as New Jersey and Pennsylvania,
the ADEA requires filing of a charge with the EEOC within 300
days, and not 180 days, after the alleged unlawful employment
practice occurred.
Miller v. Beneficial Mgmt. Corp., 977 F.2d
834, 842 (3d Cir. 1992) (citing Seredinski v. Clifton Precision
Prods. Co., 776 F.2d 56, 63 (3d Cir. 1985) (Pennsylvania);
Bihler v. Singer Co., 710 F.2d 96, 97 (3d Cir. 1983) (New
Jersey)).
The DRBA, however, has not expressly consented to the
application of New Jersey’s and Pennsylvania’s antidiscrimination laws.
Spence-Parker v. Delaware River & Bay
Auth., 616 F. Supp. 2d 509, 520 (D.N.J. 2009).
Thus, unlawful
discrimination charges against DRBA must be filed within 180
days of the alleged unlawful practice, because such charges are
not subject to either state’s own age discrimination law or own
authority administering that law.
Id.
In this case, plaintiffs’ claims arising out of the
February 10, 2012 job posting are time barred.
The deadline for
filing a charge related to this job posting was August 10, 2012. 4
Loper filed his charge of age discrimination on March 25, 2013;
Hughes filed his charged on April 3, 2013; McClintock and
4
Even if the 300-day filing deadline (December 8, 2012) was
applicable, plaintiffs’ claims related to the February 10, 2012
job posting would be barred.
8
Bulifant filed their charges on May 6, 2013; and Vernon filed
his charge on October 7, 2013. 5
Thus, the Court may only assess
plaintiffs’ age discrimination and retaliation claims related to
the September 13, 2012 and January 24, 2013 job postings.
3.
Whether plaintiffs have provided direct or
circumstantial evidence of age discrimination relating
to the September 13, 2012 and January 24, 2013 job
postings.
The ADEA prohibits employers from “discharg[ing] any
individual or otherwise discriminat[ing] against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age.”
U.S.C. § 623(a)(1).
29
To succeed on an ADEA claim, a plaintiff
must establish, by a preponderance of the evidence, that age was
the “but-for” cause of the adverse employment action.
FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009).
Gross v.
A plaintiff
can prove his age discrimination claim through direct or
circumstantial evidence.
Under the framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the plaintiff must first establish a prima
facie case of discrimination, which creates an inference of
unlawful discrimination.
Willis v. UPMC Children's Hosp. of
5
Vernon’s claims relating to the September 13, 2012 and
January 24, 2013 job postings are also time barred. Moreover,
his charge with the EEOC only concerned age discrimination and
not retaliation.
9
Pittsburgh, 808 F.3d 638, 643–45 (3d Cir. 2015).
The elements
of a prima facie case of age discrimination 6 are that: (1) the
plaintiff is at least forty years old; (2) the plaintiff
suffered an adverse employment decision; (3) the plaintiff was
qualified for the position in question; and (4) the plaintiff
was ultimately replaced by another employee who was sufficiently
younger so as to support an inference of a discriminatory
motive.
Id. (citations omitted).
Once the plaintiff has successfully established a prima
facie case creating an inference of discrimination, the burden
shifts to the employer who must articulate a legitimate
nondiscriminatory reason for the adverse employment action.
(citations omitted).
Id.
This second step of McDonnell Douglas does
not require that the employer prove that the articulated
legitimate, nondiscriminatory reason was the actual reason for
the adverse employment action, but instead the employer must
provide evidence that will allow the factfinder to determine
6
Retaliation claims brought for violations of the ADEA follow a
similar burden shifting analysis, with only a slight alteration
to the elements of the prima facie case. See Marra v. Phila.
Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007) (quoting Fogleman
v. Mercy Hosp. Inc., 283 F.3d 561, 567–68 (3d Cir. 2002))
(“‘Under the McDonnell Douglas framework, a plaintiff asserting
a retaliation claim first must establish a prima facie case by
showing (1) [that she engaged in] protected employee activity;
(2) adverse action by the employer either after or
contemporaneous with the employee's protected activity; and (3)
a causal connection between the employee's protected activity
and the employer's adverse action.’”).
10
that the decision was made for nondiscriminatory reasons.
Id.
(citations omitted).
If the employer satisfies this second step, the burden
shifts back once more to the plaintiff to show, by a
preponderance of the evidence, that the employer's proffered
legitimate, nondiscriminatory reason was pretextual – that not
only was the employer's proffered reason false, but the real
reason was impermissible discrimination.
in two ways:
Id.
This can be done
(1) by pointing to evidence that would allow a
factfinder to disbelieve the employer's reason for the adverse
employment action by showing such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons, or (2) by pointing to
evidence that would allow a factfinder to believe that an
invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer's action,
which can be shown by (1) the defendant having previously
discriminated against the plaintiff; (2) the defendant having
discriminated against others within the plaintiff's protected
class; or (3) the defendant has treated similarly situated,
substantially younger individuals more favorably.
Id.
(citations and quotations omitted).
In contrast to circumstantial evidence, direct evidence of
discrimination is so revealing of discriminatory animus that it
11
is unnecessary to rely on the McDonnell Douglas burden-shifting
framework.
Anderson v. Wachovia Mortgage Corp., 621 F.3d 261,
269 (3d Cir. 2010).
Once a plaintiff produces such evidence,
the defendant has the burden of producing evidence to show that
it would have made the same decision in the absence of
discriminatory animus.
Id. (citation omitted).
To qualify as
direct evidence, the evidence must be such that it demonstrates
that the decision-makers placed substantial negative reliance on
an illegitimate criterion in reaching their decision.
Direct evidence must satisfy two requirements:
Id.
(1) the
evidence must be strong enough to permit the factfinder to infer
that a discriminatory attitude was more likely than not a
motivating factor in the defendant's decision; and (2) the
evidence must be connected to the decision being challenged by
the plaintiff.
Id. (citations omitted).
Moreover, any
statements made by a defendant’s employees must be made at a
time proximate to the challenged decision and by a person
closely linked to that decision.
Id. (citation omitted).
requirements are a high hurdle for plaintiffs.
These
Id. (citation
omitted).
Plaintiffs argue that the following pieces of direct
evidence that support their age discrimination claims:
(1)
Loper testified that after the February 10, 2012 job
posting, the result of which DRBA hired a 23 year old female and
12
males ages 27, 31, and 49, the ship captain Stan Hansen said,
“Dan, it’s a young man’s game now . . . that’s the young coming
in.”
(Docket No. 24-13 at 28.)
(2)
Loper testified that six months to a year before his
deposition on September 9, 2015, Captain Dave Macomber told him
that another captain, Pete Dudley, told Macomber that Dudley no
longer wanted to be on the interview panel because people in the
office were changing the panel members’ scores in favor of
younger, less qualified people.
(3)
(Docket No. 24-13 at 26.)
The combined scoring sheet for the February 10, 2012
job opening has notations of the applicants’ age only for seven
of the fifteen individuals interviewed, including plaintiffs
Hughes, McClintock, Bulifant, and Loper.
The ages next to the
other three interviewees were 60, 50, and 30.
There is no
notation next to the individuals hired, three of whom were under
40, and three other candidates whose ages were unknown.
Plaintiffs claim that these notations were made by Sue Polak,
DRBA’s human resources representative.
(4)
(Docket No. 29-12 at 1.)
Another copy of the combined scoring sheet for the
February 10, 2012 job opening contains notations of all the ages
of the interviewees written down by an “unknown scrivener.”
(Docket No. 29-13 at 1.)
(5)
The combined scoring sheet for the September 2012 job
posting has handwritten notations of the ages of each
13
interviewee by an “unknown scrivener.”
The score sheet contains
summaries of all the interviews and the interviewers’
impressions, with the notes for 24 year old hired candidate
referring to his youth.
(6)
(Docket No. 29-21 at 1-5.)
DRBA’s administrative assistant, Peggy McCann, coached
younger individuals prior to their interviews, but she never
coached any of the plaintiffs or other older individuals.
None of this evidence supports a finding that DRBA failed
to hire plaintiffs for the September 13, 2012 or the January 24,
2013 job postings because of their age. 7
First, putting aside
the hearsay issues with Loper’s testimony about the alleged
statements of three captains, two of whom were not deposed in
this case, 8 and even accepting those statements as true, such
7
Even though the Court recognizes that “freedom from
discrimination is an individual rather than a group
entitlement,” Simpson v. Kay Jewelers, 142 F.3d 639 (3d Cir.
1998) (citations and quotations omitted), and the Court is
obligated to assess each plaintiffs’ claims of age
discrimination and retaliation independently, because
plaintiffs’ proof is presented collectively for all plaintiffs
instead of individually, the Court will perform its analysis in
more global fashion.
8
In its reply, DRBA submitted a certification of Peter Dudley,
the captain of the Cape-May Lewes Ferry for DRBA. He states,
“At no point in time did I inform anyone that I was no longer
sitting on interview panels. In fact, I have sat on several
interview panels following the January 24, 2013 interview
process.” (Docket No. 32-3 at 3.)
Plaintiffs take issue with the propriety of DRBA providing the
certifications of Dudley, along with certifications of Sue
Polak, and Gregory Chambers, see infra notes X and X, in its
14
stray remarks temporally removed from the September 13, 2012 or
the January 24, 2013 job postings cannot support a finding that
age was more likely than not a motivating factor in DRBA’s
hiring decision in September 2012 and January 2013.
Sometime shortly after February 10, 2012, Stan Hansen said
“it’s a young man’s game now,” and sometime in September 2014 or
after Dave Macomber told him that Pete Dudley no longer wanted
to be on the interview panel because people in the office were
changing the panel members’ scores in favor of younger, less
qualified people.
One alleged comment occurred seven months
before the September 2012 posting, and ten months before the
January 2013 job posting.
The other alleged comment occurred a
year and nine months after the January 2013 job posting, and two
years after the September 2012 job posting.
“‘Stray remarks
.
reply brief, arguing that it is procedurally improper and such
evidence should have been provided in DRBA’s moving papers.
Plaintiffs also argue that the Court should credit plaintiffs’
version of the issues over the version contained in these
certifications because they are the non-moving party. The Court
notes the existence and contents of these certifications, but
the Court does not rely upon them in its analysis of plaintiffs’
claims. The Court further notes, however, that in opposing a
summary judgment motion, a plaintiff cannot make unsupported
statements attributed to witnesses whom the plaintiff has not
deposed or otherwise sought affidavits from, and then argue that
the defendant’s rebuttal of those unsupported statements should
be ignored by the Court and weighed in plaintiffs’ favor. 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).
15
. . by decisionmakers unrelated to the decision process are
rarely given great weight, particularly if they were made
temporally remote from the date of decision.’”
Geltzer v.
Virtua W. Jersey Health Sys., 804 F. Supp. 2d 241, 247 (D.N.J.
2011) (quoting Fuentes v. Perskie, 32 F.3d 759, 767 (3d Cir.
1994)) (other citation omitted). 9
Such is the case here.
9
Plaintiff rely upon Fakete v. Aetna, Inc., 308 F.3d 335 (3d
Cir. 2002) to support their contention that the comments by the
two captains constitute direct evidence of age discrimination.
The court in Geltzer v. Virtua W. Jersey Health Sys., 804 F.
Supp. 2d 241, 247 (D.N.J. 2011) rejected an identical argument:
[The interview panel member] Grigioni’s lone comment that
Geltzer did not “want” a full time position because he was
“getting old”—which occurred before Geltzer had even
applied or interviewed for a full-time position—is
insufficient evidence to support a conclusion that but for
Geltzer's age, Virtua would have hired him for a full time
position and would not have fired him.
Geltzer's reliance on Fakete v. Aetna, Inc., 308 F.3d 335
(3d Cir.2002) is misplaced. In Fakete, the Third Circuit
reversed the grant of summary judgment to an employer in an
ADEA case based on a single conversation where Fakete's
supervisor stated that, after a recent corporate
reorganization, he was “looking for younger single people”
and that consequently Fakete “would not be happy there in
the future.” Fakete, 308 F.3d at 336. Geltzer thus
analogizes his case to Fakete, arguing that Grigioni's
comment is very similar to the supervisor's comment to
Fakete. However, even if this Court assumes arguendo that
the comments are substantially similar, Fakete was decided
before [Gross v. FBL Fin. Servs., Inc., 557 U.S. 167
(2009)]. Fakete's holding is clear: “a reasonable jury
could find, based on [the supervisor's] statement, that
Fakete's age was more likely than not a substantial factor
in [the supervisor's] decision to fire him.” 308 F.3d at
339. After Gross, the bar is higher. It is not sufficient
to establish that age was a substantial motivating factor
in Virtua's decisions with regard to Geltzer. See Gross,
16
As for the score sheets, plaintiffs contend that the
notations of “unknown scriveners” and of a human resources
129 S.Ct. at 2350 (“Our inquiry must therefore focus on the
text of the ADEA to decide whether it authorizes a mixedmotives age discrimination claim. It does not.”). As
stated before, Geltzer must prove that but for his age,
Virtua's decisions would have been different. His evidence
cannot satisfy this standard.
Geltzer v. Virtua W. Jersey Health Sys., 804 F. Supp. 2d 241,
247–48 (D.N.J. 2011). This Court rejects plaintiffs’ reliance
upon Fakete for the same reasons.
Plaintiffs also rely on this Court’s decision in Natale v. E.
Coast Salon Servs., Inc., No. CIV.A. 13-1254, 2014 WL 4854442,
at *2 (D.N.J. Sept. 30, 2014), which the Court finds
distinguishable to the case here. In Natale, the Court denied
summary judgment on a plaintiff’s age discrimination claim and
found that it was for the jury to decide whether a supervisor’s
comments towards the plaintiff based on age was circumstantial
evidence of a decision to terminate based on age discrimination,
or whether they were just stray remarks. The remarks, which her
employer denied, included that 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 she
would be sent home for wearing “old lady shoes”; that when
plaintiff showed a new pair of sneakers, she was told “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 her mother” in discussing
personal matters. The case also included claims that her hours
were cut to the benefit of a younger employee, and that
defendant hired a substantially younger replacement about a week
before plaintiff was terminated. Natale, 2014 WL 4854442, *4.
The Court denied summary judgment not simply because remarks
about a plaintiff’s age were at issue in the case. The nature
of these remarks, whether they were even said, and whether
plaintiff’s age was the true reason for her termination, were
subject to credibility determinations the Court could not make,
thus requiring the submission to the jury. The same scenario is
not present here.
17
representative evidence that age was a determinative factor in
hiring.
Putting aside the fact that two of the score sheets are
for the February 2012 job posting, and plaintiffs’ claims
relating to that job posting are time barred, plaintiffs have
not set a foundation for the authentication and admissibility of
those documents.
Plaintiffs did not depose Sue Polak and ask
her if she made those notations, and if so, when and for what
purpose. 10
The markings of “unknown scriveners” are even less
probative or demonstrative of any age discrimination. 11
The
burden of proof for authentication is slight, and “[a]ll that is
required is a foundation from which the fact-finder could
legitimately infer that the evidence is what the proponent
claims it to be.”
McQueeney v. Wilmington Trust Co., 779 F.2d
91684 (3d Cir. 1985).
requirement.
Plaintiffs have not met this most basic
Without any idea of how and when these documents
came to have the ages of the interviewees, the Court cannot
10
DRBA also includes a certification of Sue Polak, who states,
“Had plaintiffs taken my deposition in this matter, I would have
explained that the handwritten notes on DRBA l0924 were not
placed on the document until after the June 8, 2012 meeting
[with Scott Green and Loper] for purposes of following up on the
meeting.” (Docket No. 32-4 at 4.)
11
In its reply, DRBA explains that the “unknown scriveners”
might be EEOC employees, because the documents were obtained in
response to a subpoena to the EEOC. (Docket No. 32 at 10 n.10.)
18
consider them as evidence of anything, let alone direct evidence
of age discrimination. 12
With regard to the comment on the interview of a 23-year
old candidate, the context of the reference to his “youth” is
telling.
The comment provides,
[Candidate] has been a seasonal AB for 3 years and has
worked as an OS for a tug company, in commercial fishing
and as an OS for shipping companies. Candidate was very
professional and confident, good qualities in a mariner.
He indicated that he saw youth as an advantage, commenting
“I will advance”. Ranked in the top tier of candidates at
#3 – a very good candidate for an OS position.
(Docket No. 29-21 at 5.)
The reference to “youth” is clearly
the applicant’s efforts of selling himself to a seasoned panel
of interviewers.
Ironically, it appears that he perceived his
youth to be a detriment rather than a desired trait.
12
That the
Simply because a document exists with ages on it does not
automatically evidence discriminatory intent. See E.E.O.C. v.
MCI Int'l, Inc., 829 F. Supp. 1438, 1447 (D.N.J. 1993)
(citations omitted) (explaining that documents that “list
employees' ages, even documents which relate to a reduction in
force, are not per se direct evidence of discrimination and may,
indeed, be innocuous”); see also Narin v. Lower Merion Sch.
Dist., 206 F.3d 323, 335 (3d Cir. 2000) (“The lists Narin sought
to introduce provided the ages of the individuals Lower Merion
actually hired. In addition, the lists reflected that Lower
Merion hired more individuals younger than forty years of age
than older. However, we think these figures could only be
probative of discriminatory intent if, at the very least, it
also were shown that roughly equivalent numbers of over-forty
and under-forty individuals applied for employment with Lower
Merion. Otherwise, the lists simply show that Lower Merion hires
young individuals—not that Lower Merion hires young individuals
to the exclusion of older ones.”).
19
DRBA noted a young applicant’s own observation of his “youth”
and how he felt it was an advantage does not suggest that the
DRBA discriminated against older applicants because of their
age.
Finally, an administrative assistant who helped to coach
“younger individuals,” even if true, 13 is not evidence that she
refused to coach plaintiffs because of their age, and by
extension, lead to the older applicants’ rejection.
Because none of plaintiffs’ purported direct evidence
infers that a discriminatory attitude was more likely than not a
motivating factor in not hiring them for the September 13, 2012
and January 24, 2013 job postings, the Court must undertake the
burden shifting analysis to assess all the evidence as a whole
with regard to plaintiffs’ discrimination and retaliation
claims.
Accepting for the purposes of resolving DRBA’s motion that
plaintiffs have established a prima facie case for their
discrimination and retaliation claims, the burden is placed on
13
Contrary to plaintiffs’ contention that she never coached them
or other older employees, McCann testified that she coached
Bulifant, Loper, and Vernon regarding what to wear and to study
“SOP’s” which the Court assumes to have been a reminder to
review applicable work standards and procedures. (Docket No. 2914 at 52-56.) She also coached her son, including taking him
shopping for an interview suit. For purposes of this motion, we
have assumed the truth of Plaintiff’s version of this factual
dispute and determine the dispute to be immaterial.
20
DRBA to articulate a legitimate nondiscriminatory reason for not
hiring plaintiffs for the September 13, 2012 and January 24,
2013 job postings.
DRBA explains that for the September 13,
2012 posting, twenty-eight interviews were conducted, a panel of
four interviewers comprised of three people over the age of 40
asked the same questions of each candidate, and after averaging
the interviewers’ scores, a ranking sheet was created.
Seven
people were hired, with three of them being over the age of 40.
Even though McClintock ranked 5th and Hughes ranked 6th,
and the 7th, 8th, and 9th-ranked candidates, all under 40, were
offered the positions instead, DRBA explains that the
justification for hiring those other candidates is detailed in
the comments section of the scoring chart, and nothing concerns
those candidates’ ages.
(Docket No. 29-21 at 1-5.) 14
DRBA also
argues that when asked whether these individuals were improperly
hired regardless of age, plaintiffs could not explain how their
hire was not otherwise justified.
14
Although McClintock and Hughes’s rankings and comments reflect
positive impressions, so do the other candidates. Number 7 had
first aid and CPR skills and “excellent” safety knowledge, as
well as a “100 ton captain license.” Number 8 obtained a
relevant professional certification on his own, was “emphatic”
about safety, and expressed a desire to remain employed locally.
Number 9 was “precise” in her answers to safety questions, and
received the highest scores of all candidates from two reviewers
on the subject of “Customer Focus” competency.
21
Similarly, for the January 24, 2013 job postings, seventeen
interviews were conducted, a panel of four interviewers
comprised of three people over the age of 40 asked the same
questions of each candidate, and after averaging the
interviewers’ scores, a ranking sheet was created.
Two people
were hired, with one of them being over the age of 40.
DRBA
contends that plaintiffs could not explain how the hiring of
these two candidates was not justified.
With regard to plaintiffs’ retaliation claims based on the
May 29, 2012 letter to the executive director Scott Green, 15 the
letter concerned: (1) Blood Borne Pathogen Exposure
Control/Hepatitis B Vaccine; (2) Clarification of employment
status – part-time vs. seasonal; (3) Opportunity for full-time
status and advancement within the DRBA; (4) Fair Pay – payment
of wages for performing the same position/duties as a full-time
employee with significantly less hourly wage; (5) No performance
evaluations received; (6) No cost of living or merit increases
in these positions since 2006; (7) Eligibility for
Pension/401(k) Plan; and (8) Expectation to be treated with
respect and fairness regardless of employment status.
15
(Docket
DRBA disputes that the letter was “protected activity” because
there are questions about who drafted and signed the letter.
For the purposes of resolving DRBA’s motion, the Court accepts
that the letter constitutes protected activity sufficient to
establish a prima facie case of retaliation.
22
No. 24-20 at 1-5.)
DRBA argues that the letter does not contain
any specific complaints about age discrimination, and that the
complaints contained in the letter concerned all seasonal
employees, regardless of age.
Having set forth its legitimate, nondiscriminatory reasons
for DRBA’s employment decisions, it now becomes plaintiffs’
burden to show that those reasons were pretextual - that the
real reason for their decision was impermissible discrimination
based on plaintiffs’ ages.
Plaintiffs argue that they were all
more qualified for the February 2012 position than the younger
people hired.
Plaintiffs contend that the 49 year-old hire was
not a ferry employee at the time, and plaintiff Hughes had to
train him on how to perform the position; the 27 year-old hire
was a painter with limited sea time and was trained by plaintiff
Vernon; and the 23 year-old hire did not have experience on
boats prior to her selection for the position.
Moreover, two of
the interview members testified that plaintiffs were qualified
for the position.
Plaintiffs argue that this shows that age was
really the motivating factor in DRBA’s hiring decision for the
February 2012 posting. 16
16
Even though claims relating to the February 2012 job positing
are time barred, the Court will consider plaintiffs’ arguments
related to this job posting as their attempt to show that DRBA
had previously discriminated against plaintiffs or had treated
similarly situated, substantially younger individuals more
favorably.
23
Plaintiffs also argue that aside from the combined scoring
sheet, there is no other documentation explaining DRBA’s hiring
decisions, which shows pretext.
Plaintiffs also take issue with
the subjective nature of the hiring process, and the credibility
of DRBA’s witnesses, including Green, who plaintiffs claim lied
during his deposition when he said he had not read plaintiffs’
letter until he met with Loper.
Plaintiffs assert he read it
when he received it by email, as evidenced by his reply to
Loper.
Plaintiffs also contend that DRBA never followed up on
the letter’s request to investigate age discrimination
complaints. 17
Plaintiffs further argue that it is unclear who
actually made the hiring decisions, with DRBA saying it is the
interview panel and the interview panel saying it is not them,
which evidences pretext.
In addition to these alleged pretextual actions by the
DRBA, plaintiffs rely upon six charges of age discrimination
17
In contrast to this contention, in its reply brief DRBA
includes a certification of Gregory Chambers, the EEO/AA and
Diversity Manager, to refute plaintiffs’ unsupported contention
that DRBA did not investigate plaintiffs’ claims. Chambers, who
was not deposed, represents that he performed two separate
internal investigations regarding complaints of discrimination
that included meeting with the complainants - Loper, Bulifant,
Hughes, McClintock and two others - and witnesses. An
attachment to his certification is an April 8, 2013 memorandum
to Loper, Bulifant, Hughes, McClintock and two others regarding
his investigation into their claims of age and race
discrimination. (Docket No. 4-12.)
24
filed by other employee between March 2013 and August 2013, as
well as the evidence they contend constitutes direct evidence,
discussed above.
The Court finds that the evidence in the record does not
support that age was the but-for reason plaintiffs were not
hired for the full-time positions for which they applied.
Surveying the landscape of the hiring process from February 2012
through January 2013, sixty people were interviewed, thirteen
people were hired, and five of those hired were well over 40
years old (49, 50, 52, 53, 53). 18
Each of the sixty interviewees
were asked the exact same questions regarding functional and
technical skills, safety, customer service, and peer
relationships.
Each interview panel consisted of DRBA employees
who were over the age of 40.
Comprehensive rankings were
compiled in each category, and detailed narrative reviews of
each candidate were documented in the comments section.
Plaintiffs contend that they were more experienced than
many of the younger hires, but the majority of the hires, even
the ones plaintiffs argue were less experienced, ranked higher
on the score sheets.
The two instances that DRBA hired the 7th,
8th, and 9th ranked candidates over 5th-ranked McClintock and
18
“While not conclusive, an employer's favorable treatment of
other members of a protected class can create an inference that
the employer lacks discriminatory intent.” Ansell v. Green
Acres Contracting Co., 347 F.3d 515, 524 (3d Cir. 2003).
25
6th-ranked Hughes, DRBA noted that they were qualified for the
position, but determined to hire the other candidates for
reasons not related to age, including a strong emphasis on their
focus on safety.
(Docket No. 24-17 at 30-32.)
Even though the hiring process contains an aspect of
subjectivity by the employer, and “an employer may not use
evaluating criteria which lacks any relationship at all to the
performance of the employee being evaluated,” a court should
“not second guess the method an employer uses to evaluate its
employees.”
Kautz v. Met-Pro Corp., 412 F.3d 463, 468 (3d Cir.
2005) (citing Simpson v. Kay Jewelers, Div. of Sterling, Inc.,
142 F.3d 639, 647 (3d Cir. 1998) (“Whether sales quotas or
evaluation scores are a more appropriate measure of a manager's
performance is not for the court (or factfinder) to decide.”);
Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1109 (3d Cir.
1997) (citation omitted) (“The question is not whether the
employer made the best or even a sound business decision; it is
whether the real reason is discrimination.”); Healy v. New York
Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir. 1988) (“[O]ur
inquiry must concern pretext, and is not an independent
assessment of how we might evaluate and treat a loyal
employee.”); Logue v. Int'l Rehab. Associates, Inc., 837 F.2d
150, 155 n.5 (3d Cir. 1988) (“[O]ur task is not to assess the
overall fairness of [the] ... employer's actions.”)).
26
We recognize that “informal, secretive and subjective
hiring practices are suspect because they tend to facilitate the
consideration of impermissible criteria,” E.E.O.C. v. Metal
Serv. Co., 892 F.2d 341, 350 (3d Cir. 1990) and like Plaintiffs
the Court does not have a crystal clear picture as to who made
the ultimate hiring determination. 19
Nonetheless, the records
before the Court are clear that the DRBA’s interview procedure
was formal, open, objective, and documented.
More importantly,
that documentation does not support an inference that the
process was pretextual.
Rather it supports the opposite.
For example, with regard to the December 2012 process in
which Plaintiffs McClintock and Hughes argue they were “skipped
over” for younger applicants, plaintiffs ignore the fact that
DRBA hired the first four ranked employees, three of whom were
over the age of 50. (Docket No. 29-21 at 1-5.)
Clearly, the
rankings were a substantial factor in the hiring decision but if
age had been a but-for factor, then it would follow that DRBA
would have also “skipped” the number 1 ranked candidate (age
53), the number 2 ranked candidate (age 54) and the number 4
ranked candidate (age 54) instead of hiring them.
19
In short,
The use of a ranking system goes a long way in rebutting
allegations of unlawful employment practices. However, if
Defendant uses such a system it would be well advised to
document the precise reasons why it might deviate from the
rankings in making its ultimate hiring decision or risk on
different facts an inference of pretext or discrimination.
27
Plaintiffs McClintock and Hughes were skipped over but age does
not appear to be the reason why.
Rather, the only rational
inference from DRBA’s interviewing procedure and supporting
documentation is that the decision to not hire plaintiffs was
not based on their age.
With regard to plaintiffs’ May 29, 2012 letter to the DRBA
executive director, the record does not connect the act of
sending the letter or the contents of the letter to DRBA’s
employment decisions.
The letter presents concerns regarding
vaccinations, unfair pay for part-time employees doing the same
duties as full-time employees, the lack of performance
evaluations, lack of retirement or pension options, and concerns
about hiring new employees who have never worked for DRBA.
As
succinctly stated in the letter, “The problem may be that our
dependability is being exploited and we are being subject to
oppression because of the blatant mismanagement that exists.
What we do not want to believe is that we are victims of
discrimination due to our race, age, or second class status as a
part timer.”
(Docket No. 24-20 at 5.)
Clearly, this letter
depicts the discrimination felt by all the part-time DRBA
employees, regardless of age, due to their part-time status.
When viewing the hiring process for the September 2012 and
January 2013 positions, which occurred six to eight months
later, it cannot be found that the reasons for DRBA’s hiring
28
decisions were motivated by discriminatory animus due to
plaintiffs’ age and their expression of dissatisfaction of
DRBA’s treatment of them as part-time employees.
Finally, the fact that six other seasonal or part-time
employees filed age discrimination charges with the EEOC,
without more information as to the nature of their claims, is
not evidence that plaintiffs were not hired for full-time
positions based on their age. 20
See, e.g., Williams v. Costco
Wholesale Corp., 2012 WL 762133, at *7 (N.J. Super. Ct. App.
Div. Mar. 12, 2012) (excluding charges filed before the EEOC by
three other Costco employees, where the EEOC dismissed all
charges, informing the parties that it “[was] unable to conclude
that the information obtained establishe[d] violations of the
statutes [that it enforces],” and because plaintiff had no
20
DRBA states in its reply brief that the EEOC found that none
of the complaints were substantiated. In a sur-reply brief,
plaintiffs argue that DRBA’s representation of the resolution of
the charges is improper because it is not supported by
documentation. To support its statement that the EEOC charges
were deem unsubstantiated, DRBA’s reply brief cites to
plaintiffs’ opposition brief and Exhibit V. Plaintiffs’ brief
states that between March 2013 and August 2013, six additional
employees filed charges of age discrimination with the EEOC, and
cites to Exhibit V. (Docket No. 29 at 46.) Exhibit V is a
March 31, 2013 letter to DRBA’s EEO/AA and Diversity Manager
from Loper, Bulifant, Hughes, McClintock, Vernon, Kyra Jarmon,
and Al Laird complaining about age, race, and sexual identity
discrimination. (Docket No. 29-23.) The parties do not direct
the Court to any EEOC charges by the “six other employees” or
the EEOC’s resolution of those charges. This is another reason
why the purported EEOC charges filed by other employees does not
serve as evidence in support of plaintiffs’ pretext argument.
29
personal knowledge of the charges, two of which were filed by
employees in warehouses where he did not work and one predated
his employment in Union).
A hiring decision adversely affecting an older employee
does not become a discriminatory decision merely because a
younger person is hired instead.
See Simpson v. Kay Jewelers,
Div. of Sterling, Inc., 142 F.3d 639, 646 (3d Cir. 1998)
(citation omitted).
“The ultimate inquiry is whether the
decision was motivated by the affected employee’s age.”
(citation omitted).
Id.
In this case, plaintiffs’ evidence does not
show that DRBA’s reasons for not hiring plaintiffs for full-time
positions were because of their age or complaints about age
discrimination.
Plaintiffs may disagree with the wisdom of
hiring certain employees without similar experience, but even if
DRBA’s hiring decisions were not wise, it has not been shown
that they were discriminatory.
CONCLUSION
Plaintiffs’ evidence in this case does not support their
claims that they were not hired for full-time positions at DRBA
because of their age.
It appears that certain seasonal
employees felt unappreciated and undervalued, and unfairly
rejected from full-time employment status.
Indeed, plaintiffs
informed DRBA that the “part time marine crew at CMLF” are
“employees that are dependable, qualified, experienced in the
30
operation of the CMLF, professional and excellent customer
service representatives that always strive to give the CMLF all
that we have and then some.
exploited . . . .”
Our dependability is being
(Docket No. 24-20 at 5.)
The Court does not discount plaintiffs’ view that the
seasonal and part-time employees were being exploited by DRBA.
But, even if DRBA’s hiring practices discriminated against the
seasonal and part-time staff as a group, the seasonal staff is
not a protected class under the law.
Consequently, summary
judgment must be entered in DRBA’s favor on plaintiffs’ age
discrimination and retaliation claims.
An appropriate Order will be entered.
Date:
September 29, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
31
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