ANDUJAR v. GENERAL NUTRITION CORPORATION

Filing 40

OPINION. Signed by Magistrate Judge Joel Schneider on 5/26/2017. (TH, )

[Doc. No. 34]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
SANTOS ANDUJAR,
Plaintiff,
v.

Civil No. 14-7696 (JS)

GENERAL NUTRITION CORPORATION,
Defendant.
OPINION
This matter is before the Court on the “Motion for Summary
Judgment” [Doc. No. 34] filed by defendant General Nutrition
Corporation. Defendant seeks summary judgment on plaintiff Santos
Andujar’s age discrimination claim under the New Jersey Law Against
Discrimination,

N.J.S.A.

10:5-1

et

seq.

(“LAD”).

The

Court

received plaintiff’s opposition [Doc. No. 36] and defendant’s
reply [Doc. No. 37].1 Pursuant to 28 U.S.C. § 636(c), the parties

The Court is also in receipt of defendant’s January 12, 2017
letter [Doc. No. 38] attaching a recent Opinion by the Honorable
Freda L. Wolfson, U.S.D.J, in Bals v. Trump Nat’l Gold Club Colts
Neck LLC, C.A. No. 14-6055 (FLW/DEA), 2016 WL 7325475 (D.N.J. Dec.
16, 2016). As plaintiff correctly asserts in his response [Doc.
No. 39], defendant’s letter filed without leave of Court
constitutes an impermissible sur-reply pursuant to L. Civ. R.
7.1(d)(6). Tucker v. Sebelius, C.A. No. 07-2230 (RBK), 2010 WL
2761525, at *5 n.3 (D.N.J. July 12, 2010). While the Court does
not look favorably upon defendant’s failure to comply with L. Civ.
R. 7.1(d)(6), the Court will exercise its discretion to consider
defendant’s sur-reply for the sake of completeness. See Westmont
Dev. Grp., LLC v. Twp. of Haddon, 625 F. Supp. 2d 178, 190 n.24
1

1

consented to the jurisdiction of this Court to hear the case. [Doc.
No. 10]. The Court exercises its discretion to decide defendant’s
motion without oral argument. See Fed. R. Civ. P. 78; L. Civ. R.
78.1. For the reasons to be discussed defendant’s motion is DENIED.
This Opinion addresses whether plaintiff makes out a viable
claim

under

the

LAD

for

age

discrimination

in

employment.

Plaintiff’s claim arises out of his termination as a store manager
at one of defendant’s stores in 2014. The crux of plaintiff’s claim
is that defendant wrongfully terminated him based on his age in
violation of the LAD.
I.

Background
Plaintiff began his employment with defendant in 1999 as a

sales associate.2 Plaintiff was promoted to the position of store

(D.N.J. 2009), aff’d sub nom., Westmont Dev. Grp. v. Twp. Of
Haddon, 373 Fed. Appx. 310 (3d Cir. 2010).
The Court will start this Opinion by providing a summary of
the background facts. As required in the present context, plaintiff
will be given the benefit of all reasonable inferences from the
facts of record and the evidence will be viewed in the light most
favorable to plaintiff. See Startzell v. City of Phila., 533 F.3d
183, 192 (3d Cir. 2008) (citations omitted).
The Court also notes that defendant’s Statement of Undisputed
Facts (“SOF”) [Doc. No. 34-1] is incorporated in its opening brief
in violation of L. Civ. R. 56.1(a). Rule 56.1(a) provides in
pertinent part: “Each statement of material facts shall be a
separate document (not part of a brief) and shall not contain legal
argument or conclusions of law.” Such deficiencies in format may
be excused if the purpose of the rule to narrow the issues before
the Court in deciding a motion for summary judgment is met. The
Court will excuse defendant’s failure and accept defendant’s
statement included as part of its opening brief; however, defendant
is advised that it “must strictly comply with the Local Civil Rules
2

2

manager in 2001 and kept the position until his termination on
February 26, 2014 at age 58. During his employment with defendant,
plaintiff received numerous awards and accolades from the company.
For

instance,

Christian

Gosseaux

(“Gosseaux”)3

testified

that

plaintiff received a “Sales Leader Award” and “Certificate of
Appreciation” for his sales performance in 2013. Pl.’s SOF ¶¶ 5,
11 [Doc. No. 36-2]; Pl.’s Exs. E, F [Doc. No. 36-4]; see also
Gosseaux Deposition Transcript (“Gosseaux Dep.”) 37:2-18, 43:2125

[Doc.

No.

34-11].

Plaintiff

also

received

a

letter

from

defendant’s Chief Executive Officer dated February 26, 2014, the
date of his termination, acknowledging that plaintiff’s efforts
and hard work contributed to defendant’s success in 2013. In
recognition of plaintiff’s achievements, defendant promised a
“discretionary match” to plaintiff’s 2013 401(k) contribution.
Pl.’s SOF ¶ 14; see also Pl.’s Ex. G. Further, defendant classified
each store as “A, B, C or D” based on sales, profits and store
growth. During plaintiff’s employment as a store manager, he
improved his store’s classification from “D” to “B” prior to being
terminated. Pl.’s SOF ¶ 28.

in connection with any future submissions to this Court.” Safar v.
Cox Enters., Inc., C.A. No. 10-3069 (JLL), 2013 WL 4084636, at *1
n.1 (D.N.J. Aug. 12, 2013).
Gosseaux was defendant’s regional sales director and
plaintiff’s supervisor who plaintiff references as “Goose.” See
Pl.’s SOF ¶ 1 [Doc. No. 36-2].
3

3

Plaintiff was also evaluated annually for his performance as
a store manager from 2002 to 2014 through defendant’s Performance
Evaluation Process (“PEP”). Def.’s SOF ¶¶ 7-9; see also Def.’s
Exs. 1-12 [Doc. Nos. 37-4, 37-5]; Def.’s Ex. H [Doc. No. 34-5].
According to defendant, PEP scores below 300 indicate that an
“employee is not meeting performance expectations and as a result,
the

employee

may

be

disciplined

and

terminated

for

poor

performance.” Def.’s SOF ¶ 7. The record indicates plaintiff
received PEP scores below 300 in 2006, 2008 and 2014.4 See Def.’s
Exs. 5, 7, H. However, Gosseaux acknowledged that in his experience
of supervising 25-30 managers, any manager can have good and bad
years, including himself. Gosseaux Dep. 38:3-39:6.
In

addition

to

the

PEP,

each

of

defendant’s

stores

is

evaluated annually through an assessment known as Critical Point
Audit (“CPA”). The passing score on a CPA is 90%. Def.’s SOF ¶ 10.
The store managed by plaintiff received CPA scores of 88% in 2010,
68% in 2011 and 79% in 2012. Id. ¶¶ 11-13. According to defendant,
as result of the three consecutive failing CPA scores, Gosseaux

Defendant also asserts plaintiff received a PEP score of
299 in 2013. See Def.’s SOF ¶ 8. However, defendant’s 2013 PEP
evaluation for plaintiff indicates a score of 299.5 which defendant
rounded-up to 300 as “Final Score Review.” Def.’s Ex. 12. In light
of defendant’s own document and as required in the present context,
the Court deems plaintiff’s PEP score for 2013 to be 300. See
Mullen v. New Jersey Steel Corp., 733 F. Supp. 1534, 1539 n.5
(D.N.J. 1990) (declining to follow the parties’ arguments when
“common sense and the document state otherwise”).
4

4

issued

a

written

warning

to

plaintiff

on

June

21,

2012.

In

particular, the warning specified that plaintiff failed to perform
“Store Specific Cycle Counts” for 2010-2012 despite being directed
to do so. In response, plaintiff acknowledged the written warning
and responded in writing: “Will work on ALL problems.” Id. ¶¶ 1415; see also Def.’s Ex. L [Doc. No. 34-9]. However, plaintiff’s
store received a CPA score of 88% in 2013 and, as a result, Gosseaux
placed plaintiff on the “Red Store Action Plan” on January 23,
2014. Def.’s SOF ¶¶ 16-17; see also Def.’s Ex. M [Doc. No. 34-9].
Approximately one month later, Gosseaux terminated plaintiff for
failure to improve the performance of his store despite being
placed on notice of the store’s poor performance scores. Plaintiff
was replaced by Nicholas Librizzi (“Librizzi”) who was in his 20’s
in 2014. Def.’s SOF ¶¶ 20-21.
The parties’ dispute largely centers on the “Red Store Action
Plan” (“Plan”). The crux of plaintiff’s argument is that he was
treated differently than other store managers with sub-300 PEP
scores because of his age. Plaintiff further argues that the
passing score of 300 was determined subjectively and disputes the
objective nature of defendant’s performance evaluations. Pl.’s
Opp’n at 5 [Doc. No. 36]. In support, plaintiff points to the
Chart5 listing the names, age and status of employment of other

In response to plaintiff’s July 12, 2016 letter application
[Doc. No. 29], the Court Ordered defendant to produce all the
5

5

store managers in the same region as plaintiff with sub-300 PEP
scores in 2011-2015. See Pl.’s Ex. D. The Chart indicates that the
six store managers listed were all younger than plaintiff by at
least ten years and none of them were placed on the Red Store
Action

Plan

nor

terminated

within

30

days

of

receiving

the

evaluation. Id. According to the Red Store Action Plan issued to
plaintiff and the blank standard form of the Plan, an employee
subject to the Plan has 30 days to improve the store’s performance
or face disciplinary action including termination. See Pl.’s Exs.
B, C.
Plaintiff

disputes

the

assertion

that

the

Plan

was

defendant’s standard procedure when an employee receives a PEP
score below 300. Pl.’s Opp’n at 4. In particular, plaintiff argues
the 30-day reevaluation period in the Plan was unilaterally used
by Gosseuax and deviated from defendant’s policy of reevaluating
an employee with a sub-300 PEP score in 60-90 days. Id. at 11; see
also Pl.’s Exs. A, B. Plaintiff also points out Gosseaux included
certain ageist language in the Plan, (e.g., “following old ways”

information necessary to complete the Chart attached to
plaintiff’s application [Doc. No. 29-2]. The Chart lists the names,
age and status of employment of six store managers in the same
local region as plaintiff who received PEP scores below 300 in
2011-2015. The Court further Ordered defendant to confirm that the
six store managers listed on the Chart are the only store managers
who fit the above description. See July 19, 2016 Text Order [Doc.
No. 31].
6

and

“not

growing

with

the

times”),

to

characterize

his

performance.6 According to plaintiff, this language demonstrates
defendant’s discriminatory motive in terminating his employment.
Pl.’s Opp’n at 12.
Defendant does not dispute plaintiff was “proficient in his
performance in sales”; however, it argues that sales performance
is

one

of

many

performance.

factors

Def.’s

Reply

used
at

to
3

evaluate
[Doc.

No.

a

store

37].

manager’s

According

to

defendant, plaintiff “was not terminated solely on the basis of
the Red Store Action Plan, but rather as a result of his lack of
performance and failed store evaluations.” Id. at 2. Defendant
also disputes the alleged ageist nature of the language used by
Gosseaux, arguing plaintiff misrepresents the statement by quoting
selectively. Id. at 2-3. The crux of defendant’s argument is that
plaintiff

was

terminated

for

a

legitimate,

nondiscriminatory

reason, i.e., plaintiff’s failure to improve his performance as a
store manager despite being on notice of his deficiencies. Def.’s
Reply at 4-5.
On November 19, 2014, plaintiff filed suit in state court,
alleging wrongful termination based on age discrimination under

To be clear, the Court notes that the actual language in
the Plan issued to plaintiff states, “it is not ok to just show up
to work each day and do the same old things . . . must grow and
perform to keep up with the company standards.” Pl.’s Ex. C.
6

7

the LAD. On December 10, 2014, defendant removed this matter to
federal court based on diversity jurisdiction pursuant to 28 U.S.C.
§ 1332. See Notice of Removal [Doc. No. 1]. The Rule 16 conference
was held on February 4, 2015 and defendant filed the instant motion
at the conclusion of discovery.
II.

Discussion7
A. Summary Judgment Standard
Pursuant

to

Fed.

R.

Civ.

P.

56,

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 . . . demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal citations omitted). Summary
judgment is not appropriate if the dispute about a material fact
is “genuine,” that is, if the evidence is such that a reasonable
jury could return a verdict in favor of the non-moving party.

Defendant also requests the Court to strike plaintiff’s
claim for intentional infliction of emotional distress for failure
to file an affidavit of merit. Mot. at 17-19 [Doc. No. 34-1].
Defendant is mistaken. Plaintiff did not plead a separate cause of
action for intentional infliction of emotional distress. See
generally Compl. [Doc. No. 1-2]. Damages for “emotional distress”
are recoverable under the LAD. McKenna v. Pac. Rail Serv., 32 F.3d
820, 833 (3d Cir. 1994) (citations omitted); see also N.J.S.A.
10:5-3 (“The Legislature intends that [damages for emotional
distress] be available to all persons protected by this act and
this act shall be liberally construed in combination with other
protections available under the laws of this State.”).
7

8

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
materiality

of

a

fact

turns

on

whether

under

the

governing

substantive law a dispute over the fact might have an effect on
the outcome of the suit. Id. The Court must view all evidence and
draw all reasonable inferences in the light most favorable to the
non-moving

party.

See

Startzell,

533

F.3d

at

192

(citation

omitted).
The moving party bears the initial burden of informing the
Court of the basis for its motion and demonstrating the absence of
a genuine issue of material fact. Celotex, 477 U.S. at 322-23.
Once the burden is met, the burden shifts to the non-moving party
to “set forth specific facts showing that there [are] . . . genuine
factual issues that properly can be resolved only by a finder of
fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250. The party opposing summary
judgment may not “rest upon mere allegation[s] or denials of his
pleading,”

but

must

set

forth

specific

facts

and

present

affirmative evidence demonstrating that there is a genuine issue
for

trial.

Additionally,

Id.
“if

at
the

256-57;

Fed.

non-moving

R.

Civ.

party’s

P.

evidence

56(c)(1)(A).
‘is

merely

colorable, . . . or is not significantly probative, . . . summary
judgment may be granted.’” Trap Rock Indus., Inc. v. Local 825,
Int’l Union of Operating Engineers, AFL-CIO, 982 F.2d 884, 890-91

9

(3d Cir. 1992) (quoting Gray v. York Newspapers, Inc., 957 F.2d
1070, 1078 (3d Cir. 1992)).
B. Age Discrimination Under LAD
“The purpose of the LAD is to ban employment discrimination
on the basis of certain enumerated attributes including, at issue
here, age.” Bergen Commercial Bank v. Sisler, 723 A.2d 944, 949
(N.J. 1999) (citation omitted); see also N.J.S.A. 10:5-12(a). LAD
claims of employment discrimination based on age are assessed under
the

same

three-step

burden-shifting

framework

outlined

in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Sisler, 723
A.2d at 954-55 (“This Court has adopted the McDonnell Douglas
approach ‘as a starting point’ in analyzing claims under the LAD.”)
(citation omitted); Kremp v. Wachovia Bank, N.A., 451 Fed. Appx.
151, 155 (3d Cir. 2011) (“Following the McDonnell Douglas framework
in employment discrimination cases, New Jersey Law requires a three
step inquiry in analyzing LAD claims.”) (citations omitted).
Under the McDonnell Douglas framework, plaintiff has the
initial

burden

of

establishing

a

prima

facie

claim

of

age

discrimination by showing that: (1) he was a member of a protected
class;8 (2) qualified for the position he held; (3) he suffered an

While the LAD does not establish an age limit of forty or
older like its federal counterpart (Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.), a plaintiff
pursuing a LAD claim for age discrimination in employment must
still demonstrate that he is a member of a protected class. Sisler,
723 A.2d at 958 (“Notwithstanding our conclusion that the LAD does
8

10

adverse employment action; and (4) he “ultimately was replaced by
a person sufficiently younger to permit an

inference of age

discrimination.” See Monaco v. Am. Gen. Assur. Co., 359 F.3d 296,
300-01 (3d Cir. 2004); see also Duffy v. Paper Magic Grp., Inc.,
265 F.3d 163, 167 (3d Cir. 2001) (noting that plaintiff may
establish a prima facie case by direct or indirect evidence, and
that

plaintiff

must

present

indirect

evidence

“sufficient

to

convince a reasonable factfinder to find all of the elements of
the prima facie case.”) (citations omitted). As to the last element
for a prima facie case under the LAD, “[t]he focal question is not
necessarily how old or young the claimant or his replacement was,
but rather whether the claimant’s age, in any significant way,
‘made a difference’ in the treatment he was accorded by his
employer.” Arenas v. L’Oreal USA Prod., Inc., 790 F. Supp. 2d 230,
237 (D.N.J. 2011), aff’d, 461 Fed. Appx. 131 (3d Cir. 2012)
(citations omitted).
Once plaintiff satisfies the initial burden of establishing
a prima facie case of age discrimination, the burden shifts to
defendant “to articulate some legitimate, nondiscriminatory reason
for the employee’s [termination].” McDonnell Douglas, 441 U.S. at
802. “Once the employer answers its relatively light burden by

not foreclose an action for discrimination based on youth, that
older workers form the presumptive protected class under the antiage-discrimination provisions of the LAD is clear.”).
11

articulating a legitimate reason for the unfavorable employment
decision, 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 (thus meeting the plaintiff’s
burden of persuasion).” Fuentes v. Perskie, 32 F.3d 759, 763 (3d
Cir. 1994); see also Bowles v. City of Camden, 993 F. Supp. 255,
262 (D.N.J. 1998) (“Pretext is a purpose or motive alleged or an
appearance assumed in order to cloak the real intention or state
of affairs; in essence, pretext is a cover-up for a discriminatory
purpose.”)
Plaintiff

(internal
may

quotation

demonstrate

marks

and

defendant’s

citation

articulated

omitted).
reason

is

pretextual by pointing to some evidence, direct or circumstantial,
that would lead a factfinder to either disbelieve defendant’s
articulated reason or believe that an invidious discriminatory
reason was more likely than not a motivating or determinative cause
of defendant’s action. See Willis v. UPMC Children’s Hosp. of
Pittsburgh, 808 F.3d 638, 644-45 (3d Cir. 2015).
In

attempting

pretextual,

to

plaintiff

show
may

defendant’s
not

merely

articulated

assert

that

reason

is

defendant’s

decision was “wrong or mistaken.” This is true because the ultimate
issue is whether defendant acted with “discriminatory animus” in
making the decision. Abramson v. William Paterson Coll. of New
Jersey, 260 F.3d 265, 283 (3d Cir. 2001). If plaintiff can satisfy
his burden of demonstrating pretext, then he need not present
12

“affirmative evidence of discrimination beyond [his] prima facie
showing if a rational factfinder could conclude from the evidence
of pretext that [defendant’s] actions were discriminatory.” Id.
(citing Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
147 (2000)).
The Court will now proceed to discuss each step of the
McDonnell Douglas burden-shifting framework.
1. Prima Facie Case
The Court begins its analysis by finding that plaintiff
presents sufficient facts to establish a prima facie case of age
discrimination pursuant to the LAD. As a preliminary matter, it is
undisputed that plaintiff was 58-years-old when he was terminated
by defendant and replaced with Librizzi who was in his 20’s.9
Therefore, plaintiff has established he is a member of a protected
class under the LAD. See Sisler, 723 A.2d at 958 (noting that older
workers

form

a

presumptive

protected

class

under

the

LAD).

While defendant concedes that plaintiff was replaced by
someone younger (Librizzi), defendant attempts to discredit
plaintiff’s prima facie case by asserting Librizzi was also
subsequently terminated from the position for poor performance.
See Def.’s Reply at 2. The Court rejects defendant’s argument. The
relevant consideration at the first step of the McDonnell Douglas
framework is whether plaintiff was replaced by a “person
sufficiently
younger
to
permit
an
inference
of
age
discrimination.” See Duffy, 265 F.3d at 167. Whether the
replacement employee was subsequently terminated for poor
performance is not relevant to plaintiff’s prima facie case.
Defendant cites no case law to support its argument.
9

13

Moreover,
employment

plaintiff
action

has

and

he

established
was

he

ultimately

suffered
replaced

an

adverse

by

someone

sufficiently younger to raise the inference that his age made a
difference. See Monaco, 359 F.3d at 300-01; see also Arenas, 790
F. Supp. 2d at 237-38 (noting that under the more flexible standard
pursuant to the LAD, plaintiff need not show that he was replaced
by someone younger but rather a “logical basis on which to find
that a plaintiff’s termination was significantly affected by his
or her age”). Accordingly, the only issue left for the Court to
determine at the first step of the McDonnell Douglas framework is
whether plaintiff was qualified as a store manager, i.e., whether
he was actually performing his job prior to his termination. See
Zive v. Stanley Roberts, Inc., 867 A.2d 1133, 1135-36, 1143 (N.J.
2005) (“All that is necessary

is that the plaintiff produce

evidence showing that [he] was actually performing the job prior
to the termination.”).
In determining whether plaintiff was performing at his job,
plaintiff’s qualification for the position he held is judged by
objective standards, e.g., education and experience. See Red v.
Potter, 211 Fed. Appx. 82, 84 (3d Cir. 2006) (citing Sempier v.
Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995)). At the prima
facie stage, plaintiff need only point to evidence that he was
actually performing his job prior to his termination to raise an
inference that plaintiff’s claim is plausible. Zive, 867 A.2d at
14

1143 (“Because performance markers like poor evaluations are more
properly debated in the second and third stages of the burdenshifting test, they do not come into play as part . . . of the
prima facie case.”) (citation omitted); see also Thomasian v. New
Jersey Inst. of Tech., C.A. No. 08-2218 (FSH), 2010 WL 1032653, at
*4 n.16 (D.N.J. Mar. 16, 2010) (giving the plaintiff the benefit
of the doubt at the summary judgment stage and moving past the
prima facie step upon a showing that he was actually performing
his job prior to

his termination

despite the record showing

plaintiff was repeatedly admonished for his job performance).
In attempting to demonstrate his prima facie case, plaintiff
points to the awards he received, his increase in compensation and
the positive comments regarding his performance. Pl.’s Opp’n at
10; see also

Pl.’s Exs. E-H. While defendant disputes these

accolades are reflective of plaintiff’s performance as a store
manager and, thus, irrelevant in deciding defendant’s motion,
plaintiff will be given all reasonable inferences as the Court is
required to do in the present context. Startzell, 533 F.3d at 192
(citation omitted).
Defendant points to plaintiff’s lack of performance as a store
manager as reflected in plaintiff’s annual PEP and CPA reviews.
The Court declines to impose an arduous burden on plaintiff at the
initial stage of the McDonnell Douglas framework. See Sluka v.
Landau Uniforms, Inc., 383 F. Supp. 2d 649, 657 (D.N.J. 2005) (“At
15

the prima facie stage ‘even if a plaintiff candidly acknowledges,
on his own case, that some performance issues have arisen, so long
as he adduces evidence that he has . . . performed in the position
up to the time of termination, the slight burden of the [prong] is
satisfied.’”) (quoting Zive, 867 A.2d at 1143). Further, the Court
notes that the February 26, 2014 letter from defendant’s CEO does
not limit defendant’s recognition of plaintiff’s performance to
sales. The letter recognizes “all of [plaintiff’s] hard work in
2013.” See Pl.’s Ex. G. Accordingly, the Court finds that plaintiff
has made a prima facie showing he was qualified for the position,
i.e., actually performing the duties of a store manager. Plaintiff
has

demonstrated

more

than

a

mere

showing

of

a

“continued

employment.” See Zive, 867 A.2d at 1144 (“Simple proof of continued
employment is not enough.”).
Having found that plaintiff has satisfied the initial burden
of establishing a prima facie case of age discrimination and, thus,
creating an inference of unlawful discrimination, the Court will
proceed to the next step in the McDonnell Douglas burden-shifting
framework, i.e., articulated legitimate, nondiscriminatory reason
for termination. See Willis, 808 F.3d at 644 (internal quotation
marks and citation omitted).

16

2. Articulated
Termination

Legitimate,

Nondiscriminatory

Reason

for

The Court finds that defendant has satisfied its “relatively
light burden” of articulating
reason

for

Defendant

terminating

“satisfies

a legitimate, nondiscriminatory

plaintiff.

its

burden

Fuentes,

of

32

production

F.3d
by

at

763.

introducing

evidence which, taken as true, would permit the conclusion that
there

was

a

nondiscriminatory

reason

for

the

unfavorable

employment decision.” Id. (citing St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 509 (1993)). The ultimate burden of proving age
discrimination always remains with the plaintiff. Id. (citing
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253-56
(1981)).
Defendant argues its decision to terminate plaintiff was
based on plaintiff’s poor performance as a store manager. In
support,

defendant

points

to

the

warning

notice

provided

to

plaintiff in 2012 (Def.’s Ex. L) and plaintiff’s PEP scores in
2006, 2008 and 2014 (Def.’s Exs. 5, 7, H). Defendant also points
to plaintiff’s written acknowledgment of the 2012 warning and his
promise to work on all problems. In addition, defendant points to
the Red Store Action Plan issued to plaintiff in January 2014
(Def.’s Ex. M). Def.’s Reply at 7. Based on this evidence, the
Court finds that defendant has produced sufficient evidence “that
will allow the factfinder to determine that the decision [to

17

terminate] was made for nondiscriminatory reasons.” Willis, 808
F.3d at 644 (citing Fuentes, 32 F.3d at 763). Having found that
defendant has satisfied its burden of articulating a legitimate,
nondiscriminatory reason for plaintiff’s termination, the burden
shifts back to plaintiff to demonstrate defendant’s explanation is
pretextual. Bals, 2016 WL 7325475, at *10 (citing Fuentes, 32 F.3d
at 763; Willis, 808 F.3d at 644).
3. Pretext for Age Discrimination
The Court finds there is a genuine issue of material fact
precluding granting summary judgment in favor of defendant. This
is so because plaintiff has presented sufficient evidence for a
reasonable

factfinder

to

find

that

defendant’s

articulated

legitimate, nondiscriminatory reason for terminating plaintiff is
a pretext.
In order to satisfy his burden of persuasion at the last step
of the McDonnell Douglas framework, plaintiff must “point to some
evidence, direct or circumstantial, from which a factfinder could
reasonably
legitimate

either

(1)

reasons;

disbelieve
or

(2)

the

believe

employer’s
that

an

articulated
invidious

discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action.” Fuentes, 32 F.3d at
764 (citations omitted). Stated differently, “to avoid summary
judgment, [plaintiff’s] evidence rebutting [defendant’s] proffered
legitimate reasons must allow a factfinder reasonably to infer
18

that [they] were either a post hoc fabrication or otherwise did
not actually motivate [plaintiff’s termination].” Id. (citations
omitted).
In opposing the present motion, plaintiff argues defendant’s
criticism of plaintiff’s poor performance as a store manager is
“unworthy

of

credence”

for

several

reasons.

First,

plaintiff

disputes the Red Store Action Plan, which includes ageist language
added by Gosseaux. The ageist language states it is “not ok to .
. . do the same old thing” and plaintiff “must grow and perform to
keep up with the company.” Pl.’s Ex. C. Second, plaintiff points
out Gosseaux fired him after only 30 days which is a deviation
from defendant’s established policy of providing a 60-90 day time
period for performance reevaluations. Pl.’s Opp’n at 11. Plaintiff
directs the Court’s attention to the 30-day reevaluation period
provided in the Plan and the 60-90 day reevaluation period provided
in the “Performance Evaluation Process Overview.” See Pl.’s Exs.
A, B.

Third, plaintiff points to the numerous accolades and

recognitions he received from defendant for his job performance.
See Pl.’s Exs. E, F, G. Four, plaintiff argues he was the only
store manager in his area with a sub-300 PEP score who was
subjected

to

the

Red

Store

Action

Plan,

demonstrating

the

subjective nature of the PEP evaluations and the passing score of
300. See Pl.’s Ex. D; see also Pl.’s Opp’n at 11-12. Five,
plaintiff points out he was the only store manager with a PEP score
19

less than 300 who was fired after being placed on the Plan and
that he was the oldest store manager listed on the defendant’s
Chart. Pl.’s Ex. D. Six, plaintiff was replaced by an employee in
his 20’s. Pl.’s Opp’n at 4.
The crux of defendant’s argument on the issue of pretext is
that plaintiff simply disagrees with defendant’s reason for his
termination,

plaintiff

failed

to

offer

any

evidence

that

defendant’s stated reason is pretextual, and plaintiff merely
attempts to create a factual dispute where none exists. Def.’s
Reply at 3, 7-8. Defendant concedes plaintiff was proficient in
sales performance as indicated by various accolades plaintiff
received. According to defendant, however, plaintiff’s performance
as a sales associate is not determinative because plaintiff’s poor
performance as a store manager, which includes tasks and duties
beyond what is required of a sales associate, was the legitimate
reason for plaintiff’s termination.10 Id. at 3-4.

Defendant relies on Molnar v. Covidien LP, C.A. No. 135338 (WJM), 2016 WL 1597242, at *1 (D.N.J. Apr. 21, 2016), aff’d,
C.A. No. 16-2537, 2017 WL 1405733 (3d Cir. Apr. 19, 2017), for the
proposition that plaintiff “cannot establish pretext simply
because he disagrees with the assessment criteria.” Def.’s Reply
at 11 (citing Molnar, 2016 WL 1597242, at *4). Defendant further
relies on Molnar to argue that plaintiff fails to offer any
evidence to show that his performance evaluations “were anything
other than accurate.” Id. Defendant also relies on Bals v. Trump
Nat’l Golf Club Colts Neck LLC, C.A. No. 14-6055 (FLW/DEA), 2016
WL 7325475, at *1 (D.N.J. Dec. 16, 2016), for the same proposition.
Def.’s Sur-reply at 3 [Doc. No. 38].
Defendant, however, ignores plaintiff’s evidence summarized
herein. This evidence allows the factfinder to reasonably
10

20

i. Pretext – Post Hoc Fabrication
In

order

to

raise

sufficient

disbelief

in

defendant’s

articulated reason for terminating plaintiff, “the evidence must
indicate

‘such

incoherencies,

weaknesses,
or

implausibilities,

contradictions

in

the

inconsistencies,

employer’s

proffered

legitimate reasons’ to satisfy the factfinder that the employer’s
actions

could

not

have

been

for

nondiscriminatory

reasons.”

Willis, 808 F.3d at 644-45 (quoting Fuentes, 32 F.3d at 765).
Plaintiff may not merely disagree with defendant’s decision to
terminate him as “wrong or mistaken” but must present sufficient
evidence to raise the question whether the real reason for the
termination was age discrimination. Keller v. Orix Credit All.,
Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (quoting Carson v.
Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996)).
As noted, plaintiff points to the fact that he improved his
store’s performance from a “D” to a “B” classification. Plaintiff
also points to the accolades he received for his performance in
support of his claim that defendant was motivated by discriminatory

disbelieve
defendant’s
articulated
reason
for
terminating
plaintiff or to find that defendant’s discriminatory intent was
the motivating or determinative factor for its decision. Fuentes,
32 F.3d at 764 (“We have stated that a plaintiff may avoid summary
judgment by pointing to ‘some’ evidence from which a factfinder
could reasonably conclude that the defendant’s proffered reasons
were fabricated (pretextual).”); see also Abramson, 260 F.3d at
283. Accordingly, the Court finds that defendant’s reliance on
Molnar and Bals is misplaced.
21

intent. More significantly, plaintiff disputes his PEP scores and
the Red Store Action Plan. Plaintiff points to the Chart indicating
there were six other store managers in 2011-2015 who had PEP scores
below 300 but who were not subjected to the Plan. Nor were these
similarly situated store managers terminated within 30-days of
their performance review. Pl.’s Ex. D. The Court also notes the
alleged ageist comments added by Gosseaux which appear in the Plan
issued to plaintiff (Pl.’s Ex. C). Likewise, defendant’s February
26, 2014 letter, which is dated the day of plaintiff’s termination,
recognizes that plaintiff’s “efforts and hard” work contributed to
defendant’s

successful

year

in

2013.

The

letter

provides

additional compensation for plaintiff’s performance in 2013 and
does not mention “sales” or “sales performance.” Pl.’s Ex. G.
Defendant disputes that plaintiff’s accolades are relevant here
because plaintiff’s poor performance as a sales manager is the
reason plaintiff was fired. Defendant also disputes the alleged
ageist nature of the language Gosseaux added to the Plan, arguing
plaintiff misrepresents the statement contained therein. Def.’s
Reply

at

2-3.

The

parties

have

a

clear

fact

dispute

as

to

plaintiff’s job performance which precludes summary judgment.
Viewing the record and drawing all reasonable inferences in
the light most favorable to plaintiff, the Court finds that
plaintiff has done more than assert conclusory or self-serving
denials of his poor performance as a store manager. See Slater v.
22

Susquehanna Cty., 465 Fed. Appx. 132, 137 (3d Cir. 2012) (“A
reasonable

jury

could

not

conclude,

from

[the

plaintiff’s]

testimony alone, that the defendants’ legitimate reasons were
implausible, inconsistent, incoherent, contradictory or otherwise
a pretext for discharging her because of her age.”). Plaintiff has
presented

sufficient

evidence

for

a

reasonable

factfinder

to

disbelieve defendant’s articulated reason of poor performance. In
particular, the Court finds that plaintiff’s evidence sufficiently
indicates

“weaknesses,

implausibilities,

inconsistencies,

incoherencies, or contradictions” to create a question of fact
sufficient to deny summary judgment. Fuentes, 32 F.3d at 764; see
also Marzano v. Computer Sci. Corp. Inc., 91 F.3d 497, 508 (3d
Cir. 1996) (“[I]f the employer proffers a reason and the plaintiff
can produce enough evidence to enable a reasonable factfinder to
conclude that the proffered reason is false, plaintiff has earned
the right to present his . . .

case to the jury.”); Robinson v.

Armadillo Automation, Inc., C.A. No. A-5927-13T3, 2016 WL 3909575,
at *6 (N.J. Super. Ct. App. Div. July 20, 2016) (“If plaintiff’s
proofs

are

believed

at

trial,

reasonable

jurors

can

readily

disbelieve defendants’ stated reasons for the adverse employment
actions. Accordingly, defendants’ summary judgment should have
been denied.”) (citing Zive, 867 A.2d at 1140).
Accordingly,

the

Court

will

deny

defendant’s

motion

for

summary judgment. While the Court need not discuss the second
23

method

of

demonstrating

pretext,

i.e.,

that

“an

invidious

discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action,” the Court will do
so for the sake of completeness.
ii.

Pretext – Motivating or Determinative Cause

In addition to presenting sufficient evidence to allow a
reasonable factfinder to disbelieve defendant’s stated reason for
plaintiff’s

termination,

the

Court

finds

that

plaintiff

has

presented sufficient evidence to allow a reasonable factfinder to
believe that defendant was more likely than not motivated by a
discriminatory

reason.

In

demonstrating

pretext

this

way,

plaintiff may present three types of evidence: “(1) the defendant
previously discriminated against the plaintiff; (2) the defendant
discriminated against others within the plaintiff’s protected
class;

or

(3)

the

defendant

has

treated

similarly

situated,

substantially younger individuals more favorably.” Willis, 808
F.3d at 645 (citations omitted).
In opposing the present motion, plaintiff points to the Chart
demonstrating he was the only store manager in the region with a
sub-300 PEP score who was subjected to the Red Store Action Plan.
The Chart further shows the age of six other managers with sub300 PEP scores in 2011-2015 to be between 25 to 47 years old, at
least ten years younger than plaintiff. The Chart indicates that
none of the six other managers were terminated within 30 days of
24

being

evaluated.

Pl.’s

Ex.

D.

Plaintiff

also

points

to

the

discrepancy between the 30-day reevaluation period contained in
the Red Store Action Plan and the 60-90 day reevaluation period
provided in “Performance Evaluation Process Overview.” See Pl.’s
Exs. A, B. In support of its motion, defendant repeats its argument
that plaintiff fails to present any evidence demonstrating its
articulated reason of poor performance for terminating plaintiff
is a pretext.
Viewing the record and drawing all reasonable inferences in
the light most favorable to plaintiff as required, the Court finds
that plaintiff has met his burden of producing evidence that
defendant

treated

“similarly

situated,

substantially

younger

individuals more favorably,” i.e., the six younger store managers
with sub-300 PEP scores who were not subjected to the Red Store
Action Plan and who were not fired. Willis, 808 F.3d at 645. This
evidence, if believed, allows a reasonable factfinder to believe
that “an invidious discriminatory reason was more likely than not
a motivating factor or determinative cause of the employer’s
action.” Zive, 867 A.2d at 456 (quoting Fuentes, 32 F.3d at 764).
Plaintiff

must

[legitimate,

convince

the

factfinder

nondiscriminatory]

reason

at

trial

“that

the

was

false

and

that

discrimination was the real reason.” Fuentes, 32 F.3d at 763. To
survive summary judgment, however, plaintiff need only point to
“evidence sufficient[] to discredit . . . defendant’s proffered
25

reasons, . . . plaintiff need not also come forward with additional
evidence of discrimination beyond his . . . prima facie case.”
Fuentes, 32 F.3d at 764 (citing Anderson v. Baxter Healthcare
Corp., 13 F.3d 1120, 1122-24 (7th Cir. 1994);

Washington v.

Garrett, 10 F.3d 1421, 1433 (9th Cir. 1993)). The Court finds that
a fact question exists as to whether plaintiff has satisfied his
burden of demonstrating that age discrimination was more likely
than not a “motivating or determinative cause” of plaintiff’s
termination. Willis, 808 F.3d at 645 (quoting Fuentes, 32 F.3d at
764).

This

finding

further

supports

the

Court’s

denial

of

defendant’s motion for summary judgment.
III. Conclusion
In conclusion, genuine issues of material fact remain to be
decided. Therefore, defendant’s motion for summary judgment will
be denied. An appropriate Order will be separately entered.11

/s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: May 26th, 2017

To be clear, the Court is not weighing in on the merits of
the case. The Court is merely deciding that defendant’s motion for
summary judgment should be denied.
11

26