Konsavage v. Mondelez Global LLC

Filing 53

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Motion of Defendant, Mondalez Global LLC, for Summary Judgment (Doc. 34) is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to Planitiffs PHRA claims based on her demotion; the motion is DENIED in all other respects. An appropriate Order is filed simultaneously with this Memorandum. Signed by Honorable Richard P. Conaboy on 2/3/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOAN KONSAVAGE,

:
:CIVIL ACTION NO. 3:15-CV-1155
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
MONDELEZ GLOBAL LLC, d/b/a
:
MONDELEZ INTERNATIONAL INC.,
:
:
Defendnat.
:
:
___________________________________________________________________
MEMORANDUM
Motion of Defendant, Mondalez Global LLC, for Summary Judgment
(Doc. 34) is pending before the Court.

With this motion, Defendant

seeks to have this action dismissed in its entirety with prejudice.
(Doc. 35 at 15.)

In her Second Amended Complaint, Plaintiff

alleges that Defendant violated the Age Discrimination in
Employment Act (“ADEA”), Title VII of the Civil Rights Act of 1964
(“Title VII”), and the Pennsylvania Human Relations Act (“PHRA”) in
that she was demoted and terminated because of her age or gender
and/or complaints of discrimination.

(Doc. 8 ¶ 1.)

For the

reasons discussed below, the Court concludes that disputed issues
of material fact preclude the entry of summary judgment and
therefore, Defendant’s motion is granted in part and denied in
part.
I. Background
Defendant’s predecessor company, Nabisco, hired Plaintiff in
July 1983.

(Doc. 32 ¶ 10; Doc. 40-1 ¶ 10.)

Nabisco was later

acquired by Kraft Foods, and Defendant Modelez Global LLC was
formed after Kraft split into two independent companies in October
2012.

(Doc. 32 ¶ 11; Doc. 40-1 ¶ 11.)

Robert Desciak was Plaintiff’s superior responsible for her
performance evaluations through January 2013.1
15.)

(Doc. 40-2 ¶¶ 11-

His evaluations were consistently positive.

11-13.)

(Doc. 40-2 ¶¶

In early 2013, Plaintiff came under the direct supervision

of Mike Peterson, Director of Customer Service Operations, who in
turn reported to David Augustin, Senior Director of Customer
Service and Operations.

(Doc. 40-2 ¶¶ 15-16.)

Plaintiff testified that problems began to develop a few
months later.

(Doc. 40-2 ¶ 17.)

By way of example, Plaintiff

avers the following: Mr. Peterson and Mr. Augustin referred to her
work area and older employees as “dead wood”; Mr. Peterson told
Plaintiff to “step aside [and] let the younger people shine, you’ve

1

In Plaintiff’s Counter Statement of Material and Disputed
Facts (Doc. 40-2), she provides considerable additional factual
material, including detail of the period between the formation of
Modelez Global LLC in October 2012 and her demotion/termination in
2014. The assertions contained in this document include citation
to the record and are included to provide background information
regarding a relevant time period. (Id.) Disputes regarding
matters asserted will be addressed as warranted in the Discussion
section of the Memorandum. Defendant’s request to have the Court
strike Plaintiff’s Counter Statement or, alternatively, to be
allowed permission to respond to the Counter Statement (Doc. 44-2
n.1) is not properly raised and will not be further addressed by
the Court except to note that disputed facts must be viewed in the
light most favorable to the nonmoving party, Scott v. Harris, 550
U.S. 372, 378 (2007), so any dispute Defendant may have with a fact
asserted by Plaintiff would not alter the disposition of the
pending motion.
2

pretty much done everything you can do here”; Mr. Peterson said
“[y]ou have no potential at your age[,] [y]ou lack learning
ability[,] [y]ou lack agility”; Mr. Peterson told Plaintiff she had
“been there too long” and he was building a “new team”; and Mr.
Peterson told Plaintiff not to speak at staff meetings, saying “I
need you to just not talk[,] [w]e don’t really want to hear what
you have to say.”

(Doc. 40-2 ¶¶ 18-23.)

Plaintiff also avers that

Mr. Peterson made derogatory remarks about female employees and
turned regular staff meetings into “a frat house,” passing around
pictures of women, a man in a speedo, discussing that Mr. Peterson
kept a picture of a blonde woman in the top drawer of his desk, he
made additional sexist remarks, told sexist stories, and allowed
others to do the same.

(Doc. 40-2 ¶¶ 27-32.)

These allegations

were denied by Mr. Peterson and Mr. Augustin.

(Doc. 40-2 ¶ 39.)

Plaintiff also alleges that she complained about these matters
directly to Mr. Peterson, relayed her concerns to Mr. Augustin, and
approached Amy Suda-Ruskey, the Assistant Human Resources Manager,
in September/October 2013.

(Doc. 40-2 ¶¶ 34, 40-44.)

Ms. Suda-

Ruskey, who voluntarily left her employment with Defendant in
October 2013, verified that Plaintiff had complained to her about
ageist and sexist behavior and she escalated them to her direct
superior, Sherry Lynch, who, in turn, escalated the complaints
higher up the chain of command and discussed them with Mr.
Augustin.

(Doc. 40-5 at 42.)

3

In or about October of 2013, Sabrina Greenwald took over Ms.
Suda-Ruskey’s position.

(Doc. 40-2 ¶ 49.)

Plaintiff avers that

Mr. Peterson informed his team that they were not to go to Ms.
Greenwald and any concerns should be expressed directly to him.
(Doc. 40-2 ¶ 50.)

Plaintiff also avers that in late spring or

early summer 2014 (shortly before her demotion occurred) she went
to Ms. Greenwald about inappropriate comments made by Mr. Peterson,
Ms. Greenwald told her to work out any issues directly with Mr.
Peterson, and subsequent attempts to meet with Ms. Greenwald
failed.

(Doc. 40-2 ¶¶ 51-53.)

By June 2014, Plaintiff was the Manager of Critical Inventory,
a salary grade 12 position.

(Doc. 32 ¶ 12; Doc. 40-1 ¶ 12.)

She

worked out of Defendant’s Wilkes-Barre location and continued to
report to Mike Peterson.

(Doc. 32 ¶ 12; Doc. 40 at 6.)

Following the split of Kraft foods, many jobs were evaluated for
compensation purposes, including Plaintiff’s.
Doc. 40-1 ¶¶ 13, 15.)

(Doc. 32 ¶¶ 13, 15;

Defendant asserts the purpose was to ensure

that jobs of similar levels of responsibility were compensated in a
consistent manner across the company and were competitive within
the industry; Plaintiff asserts that the actions at issue were not
taken as a result of any legitimate compensation review but rather
at managements’ discretion in an effort to demote her.

(Doc. 32 ¶

14; Doc. 40-1 ¶¶ 14-16.)
In May 2014, Sabrina Greenwald was Defendant’s on-site Human

4

Resources (“HR”) manager at the Wilkes-Barre location.

(Doc. 32 ¶

In e-mail exchanges dated May 5th and 6th, Ms.

16; Doc. 40-1 ¶ 11.)

Greenwald corresponded with Lauren Matloscz, Defendant’s Senior
Compensation Analyst located in New Jersey, regarding the position
description and compensation for the Cash Application/Credit Team
Lead position.

(Doc. 32-9 at 2-3.)

In the last entry of the e-

mail chain, Ms. Greenwald stated “Wilkes-Barre will be looking at
different positions across the organization in the next month or
two so that I will be sending over a few more once we have
completed the evaluations from the business perspective.”
32-9 at 2.)

(Doc.

Plaintiff contends that the review discussed in the

May e-mail chain was a compensation review for an open position,
adding that compensation re-grading occurs and Mr. Augustin
conceded it would be rare that a person’s salary would be
negatively impacted in the re-grading process which is what
happened to Plaintiff.

(Doc. 40-1 ¶ 16 (citing Augustin Dep. 53:7-

9 (Doc. 32-7 at 11).)
Mr. Peterson initiated the request that Plaintiff’s position
be reviewed and Ms. Greenwald corresponded with the compensation
review team, who approved the downgrade of Plaintiff’s position.
(Doc. 32 ¶ 17.)

The compensation team is separate from the Wilkes-

Barre HR team and sits in East Hanover, New Jersey, and Deerfield,
Illinois.

(Doc. 32 ¶ 18.)

Plaintiff states that Mr. Peterson,

together with Ms. Greenwald and Mr. Augustin “made specific

5

alterations in Plaintiff’s then job description (including glaring
falsities) such that her position would align with a grade 10 vs a
12.”

(Doc. 40-1 ¶ 17.)

She also states that the makeup of the

compensation team is immaterial as the information being supplied
to the team “was inaccurate and misleading and a clear manipulation
of Plaintiff’s job description.”

(Doc. 40-1 ¶ 18.)

On June 23, 2014, Plaintiff’s position was downgraded from a
salary level 12 (manager) to a salary level 10 (team lead) and her
compensation was reduced by $9,000 per year (Plaintiff emphasizes
the decrease was over $9,000).

(Doc. 32 ¶ 19; Doc. 40-1 ¶ 19.)

Plaintiff’s position was one of many that was reviewed in the
Wilkes-Barre office.

(Doc. 32 ¶ 20; Doc. 40-1 ¶ 20.)

Plaintiff

adds that
[d]uring discovery, Defendant could not
provide proof that even one other individual
suffered any economic loss in relation to
such compensation reviews as did Plaintiff;
i.e. their positions either increased, or the
position which was downgraded was vacant when
reviewed, or a person was only demoted in
salary as a result of genuine performance
concerns (which was not the case here),
and/or their salary grade changed, but their
actual compensation was not impacted.
(Doc. 40-1 ¶ 20.)

Plaintiff denies Defendant’s averment that her

position downgrade was related solely to the review of Plaintiff’s
job position and its responsibilities.

(Doc. 32 ¶ 21; Doc. 40-1 ¶

21.)
On August 6, 2014, Mr. Peterson received what Defendant

6

characterizes as an “anonymous” letter (Doc. 32 ¶ 22); Plaintiff
contends that a reasonable factfinder would not conclude the letter
was “anonymous” because the contents of the letter readily
identified the author to be Dawn Booth, one of Plaintiff’s
subordinates who was actively being disciplined by her (Doc. 40-1 ¶
22).

The letter expressed “serious concerns” about Plaintiff’s

performance as a manager and condemned Plaintiff’s conduct with
specific examples, including the following:
My first major concern and maybe the biggest
issue was during the unleashment survey.
Joan told the team to make sure they give her
a good rating on all categories because any
negatives will impact the department and the
department may receive a bad rating. My
knowledge of the unleashment survey is to
allow the managers to learn where they can
improve. This has absolutely skewed her
results and impacts the department, while
also devaluing our core values and inspiring
trust with you and her direct reports.
Additionally, the survey was meant to be
confidential and on a volunteer basis. She
violated this by approaching employees and
asking if they completed the survey and
proceeded to called [sic] out another
employee for not completing the survey.
(Doc. 32 ¶ 24 (quoting Ex. 13).)

The letter also criticized

Plaintiff for micromanaging her team, being inflexible with her
team’s schedule, and being out of touch with the company’s values.
(Doc. 32 ¶ 26.)
Defendant avers that Mr. Peterson immediately took the letter
to Ms. Greenwald, who conducted an investigation of the allegations
contained in the letter with input and oversight from her
7

supervisor, Marc Rishor.

(Doc. 30 ¶ 27.)

Plaintiff asserts that

Ms. Greewald denied that she had input and oversight from her
supervisor.

(Doc. 40-1 ¶ 27.)

Defendant states that the

investigation consisted of interviewing the members of Plaintiff’s
team and Plaintiff, obtaining follow up information from Mr.
Peterson, ensuring consistent treatment across the company, and
forming a recommendation for action.

(Doc. 32 ¶ 28.)

Plaintiff

responds that Ms. Greenwald interviewed everyone on her team before
anyone spoke with her about the letter, Plaintiff denies that the
goal of the investigation was to ensure consistent treatment across
the company, and Mr. Peterson contends he was never made privy to
the nature of the interviews conducted by these team members.
(Doc. 40-1 ¶ 28.)
The interviews were confidential and conducted without notice.
(Doc. 32 ¶ 30; Doc. 40-1 ¶ 30.)

Defendant asserts that three of

the eight subordinates of Plaintiff (Booth, Lesnesky and Reese)
confirmed the allegation that Plaintiff had requested only positive
feedback on the survey.

(Doc. 40-1 ¶ 31.)

Plaintiff responds

that the statements referenced are based on Ms. Greenwald’s own
“notes summary” which does not accurately reflect the original
handwritten notes she generated during the interviews.
¶ 31.)

(Doc. 40-1

The three individuals who confirmed allegations were

deposed and testified that Plaintiff had attempted to skew the
survey results.

(Doc. 32 ¶ 35.)

Plaintiff does not dispute this

8

averment but points to the fact that the opinion that Plaintiff was
“coercing” her team is not based on interviews with all team
members.

(Doc. 40-1 ¶ 35.)

As part of her investigation, Ms. Greenwald interviewed
Plaintiff; beyond agreeing that the survey was discussed, the
parties disagree about what transpired at the meeting, including
Defendant’s averment that Plaintiff denied that she worked from
home.

(Doc. 32 ¶¶ 37-43; Doc. 40-1 ¶¶ 37-43.)

The parties also

disagree about the meeting follow-up, including the reason
proffered for Plaintiff’s termination: Defendant asserts that
Plaintiff’s alleged dishonesty during her interview and her
attempts to change survey results prompted Ms. Greenwald to
recommend to Mr. Peterson and Mr. Augustine that Plaintiff be
terminated, a recommendation with which they agreed; Plaintiff
specifically denies any dishonesty during her interview and any
contention that she attempted to change survey results.

(Doc. 32

¶¶ 45-47; Doc. 40-1 ¶¶ 45-47.)
Plaintiff was terminated on September 26, 2014.
48; Doc. 40-1 ¶ 48.)

(Doc. 32 ¶

The termination letter cited Defendant’s Code

of Conduct and included the following content:
A formal investigation was conducted
surrounding allegations that you asked your
team to give good ratings during an
unleashment survey because any negatives will
impact the department and the department’s
ratings. This claim was substantiated that
you asked your team to provide you feedback
directly versus providing this on the
9

Bringing Out the Best in Others Survey.
In addition, during our conversation on
August 27, 2014 where you were informed of
the investigation and as an employee of
Mondelez International, you were informed to
be honest, not retaliate, and maintain strict
confidentiality. We have determined that you
were not honest during the investigation in
multiple situations.
As a result, your employment with the
Company is terminated immediately.
(Doc. 32-34 at 2; Doc. 32 ¶ 49; Doc. 40-1 ¶ 49.)
Regarding exhaustion of administrative remedies, Plaintiff
agrees with Defendant’s timeline, including that her EEOC Charge of
Discrimination was filed on March 9, 2015–-259 day after the
position downgrade.
n.3.)

(Doc. 32 ¶ 55; Doc. 40-1 ¶ 55; Doc. 40-1 at 9

Plaintiff concedes that her PHRA claim related to her

demotion was not timely and, therefore, she does not proceed on
that PHRA claim.

(Doc. 40-1 at 9 n.3.)
II. Discussion

Defendant asserts that this case should be dismissed in its
entirety for the following reasons: 1) the Court should enter
summary judgment on Plaintiff PHRA claims related to the downgrade
of her position because she failed to timely exhaust her
administrative remedies; 2) the Court should enter summary
judgement on Plaintiff’s claims of age discrimination under the
ADEA and PHRA and her claims of gender discrimination under Title
VII and the PHRA because she cannot overcome the legitimate and

10

non-discriminatory reasons proffered by Defendant for Plaintiff’s
termination and position downgrade; and 3) the Court should enter
summary judgment on Plaintiff’s retaliation claims because there is
no temporal proximity between the protected activity (complaints
about discriminatory comments) and the adverse employment action
(termination) and there is no other protected activity at issue.
(Doc. 35 at 2.)
Summary judgment is appropriate when the movant demonstrates
there is no “genuine issue as to any material fact.”
P. 56(a).

Fed. R. Civ.

“[T]his standard provides that the mere existence of

some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect
the outcome of the suit under governing law.”

Kaucher v. County of

Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S.
at 248).

In determining whether a genuine issue of fact exists, a

court must resolve all factual doubts and draw all reasonable
inferences in favor of the nonmoving party.

Scott v. Harris, 550

U.S. 372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d
Cir. 2014).

Such inferences “must flow directly from admissible

11

evidence.”

Halsey, 750 F.3d at 287.

The initial burden is on the moving party to show an absence
of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477

U.S. 317, 330 (1986) (citations omitted).

The moving party may

meet this burden by “pointing out to the district court [] that
there is an absence of evidence to support the nonmoving party’s
case when the nonmoving party bears the ultimate burden of proof.”
Id. at 325.

The non-moving party may not rest on the bare

allegations contained in his or her pleadings, but is required by
Federal Rule of Civil Procedure 56 to go beyond the pleadings by
way of affidavits, depositions, answers to interrogatories or the
like in order to demonstrate specific material facts which give
rise to a genuine issue.

Id. at 324.

“The non-moving party must

show where in the record there exists a genuine dispute over a
material fact.’”

Hankins v. Wetzel, 640 F. App’x 130, 132 (3d Cir.

Jan. 6, 2016) (not precedential) (quoting Doe v. Abington Friends
Sch., 480 F.3d 252, 256 (3d Cir. 2007)).

“A mere ‘scintilla of

evidence in support of the [non-moving party]’s position will be
insufficient’ to create a genuine issue of fact.”

Hankins, 640 F.

App’x at 132 (quoting Anderson, 477 U.S. at 252)).
“In considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any
weighing of evidence.”

Anderson, 477 U.S. at 255.

Therefore, when

evidentiary facts are in dispute, when the credibility of witnesses
12

may be in issue, or when conflicting evidence must be weighed, a
full trial is usually necessary.
A.

PHRA Demotion Claim
Plaintiff agrees that her PHRA demotion claims are untimely

and she does not proceed on basis.

(Doc. 40 at 13 n.5.)

Therefore

summary judgment is warranted on PHRA claims based on Plaintiff’s
demotion.
B.

Age and Gender Discrimination
Defendant contends that, assuming arguendo, Plaintiff has

established a prima facie case of discrimination, she cannot show
that Defendant’s proffered legitimate reasons for its actions were
pretextual.

(Doc. 35 at 6-10; Doc. 44 at 1-7.)

that she has presented ample evidence of pretext.

Plaintiff responds

30; Doc. 52 at 2-6.)

(Doc. 40 at 20-

The Court concludes Defendant has not shown

it is entitled to summary judgment on this issue.
The parties agree that the three-part burden-shifting analysis
set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
applies to Plaintiff’s claims of gender discrimination (Doc. 35 at
6; Doc. 40 at 15) but they differ as to the standard to be used in
analyzing Plaintiff’s age discrimination claims: Defendant asserts
that McDonnell Douglas applies because there is no direct evidence
of age discrimination (Doc. 35 at 6); Plaintiff responds that the
Court need not proceed under the McDonnell Douglas standard when
analyzing her age discrimination claims because she has presented
13

direct evidence of age discrimination (Doc. 40 at 15 (citing
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002))).

Because

of this discrepancy we will first look at the standard applicable
to Plaintiff’s age discrimination claims.
ADEA and PHRA claims are analyzed under the same standard.
See, e.g., Colwell v. Rite Aid Corp., 602 F.3d 495, 500 n.3 (3d
Cir. 2010).

As a result, the Court generally references only the

ADEA in this Memorandum.
As summarized in Palmer v. Britton Industries, Inc., No. 161010, —--F. App’x—--, 2016 WL 6575073 (3d Cir. Nov. 7, 2016) (not
precedential), “[t]he Federal Age Discrimination in Employment Act
prohibits employers from taking adverse action against an employee
who is at least 40 years old, 29 U.S.C. § 631(a), ‘because of such
individual’s age.’ 29 U.S.C. § 623(a).”

The “[p]laintiff ha[s]

the burden to show that his ‘age was the ‘but-for’ cause of the
employer’s adverse action.’”

Id. at *2 (quoting Gross v. FBL Fin.

Servs., Inc., 557 U.S. 167, 177 (2009)).

Palmer further explained

that
[i]t was not enough to show that his age was
a factor motivating the decision to fire him.
Instead, [the plaintiff] had to point to
summary judgment evidence supporting an
inference that his age had a ‘determinative
influence’ on the decision. [Gross, 557 U.S.]
at 176 . . . (quoting Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610 . . . (1993))
(emphasis omitted). This burden remained
with [the plaintiff]; he could meet it
through direct or circumstantial evidence.
Id. at 177.
14

2016 WL 6575073, at *2.
Plaintiff agrees that absent direct evidence the McDonnell
Douglas analysis applies to age discrimination cases.
15, 18.)

(Doc. 40 at

Following Gross, the Court of Appeals for the Third

Circuit confirmed that the McDonnell Douglas burden shifting
framework is used when a plaintiff does not present direct evidence
of discrimination.

Smith v. City of Allentown, 589 F.3d 684, 691

(3d Cir. 2009).
Considering whether the plaintiff had presented direct
evidence of age discrimination, in Palmer the Circuit Court
concluded the District Court did not err in finding that the
employer’s remark that the plaintiff might be “too old to change
industries” was not legally sufficient direct evidence of age
discrimination.

Id.

In doing so, the Circuit Court set out the

meaning of “direct evidence” in the ADEA context following Gross:
“Direct evidence must be sufficient on its own to allow a
factfinder to determine that age was the but-for cause of the
termination decision.

This is a high hurdle; the evidence must

demonstrate “without inference or presumption” that age
discrimination was the but-for cause of termination.”
Torre v. Casio, Inc., 42 F.3d 825, 829 (3d Cir. 1994)).

Id. (quoting
Palmer

distinguished direct-evidence definitions formulated before and
after Gross, clarifying that the earlier formulations preceded

15

Gross’s “but-for” standard.

Id. at *3.

Therefore, comments which

were held to be direct evidence under the earlier “less stringent
Price Waterhouse [v. Hopkins, 490 U.S. 228 (1998)], mixed-motive
causation standard and burden shifting analysis, do not stand for
the proposition that the comments at issue in those cases . . . are
properly viewed as direct evidence that age was the but-for cause
of the firing decision.”

Palmer, 2016 WL 6575073, at *3.

Although

direct evidence relieves the plaintiff of making a prima facie
showing of age discrimination under the burden shifting standard
(showing the plaintiff was forty years of age or older, the
defendant took an adverse employment action against the plaintiff,
the plaintiff was qualified for the position, and the plaintiff was
replaced by another employee who was sufficiently younger to
support an inference of discriminatory animus, Smith v. City of
Allentown, 589 F.3d 684, 689 (3d Cir. 2009)), in a pretext case the
plaintiff still has the “burden of raising a factual dispute that
the defendant’s proffered reason [for the adverse action] was a
pretext and that age was the but-for cause of the decision.

2016

WL 6575073, at *4.
In this case Plaintiff cites numerous examples of statements
held to be direct evidence, and argues that statements made here
were more direct.

(Doc. 52 at 3-4.)

Because the cited cases

predate Gross’s more stringent standard and because this is a
pretext case where Defendant assumes arguendo that Plaintiff has
16

established a prima facie case of age discrimination (Doc. 35 at
6), the Court will not decide whether evidence proffered satisfies
the “direct evidence” standard.

The proper focus in this case is

whether Plaintiff has presented sufficient evidence to show that
Defendant’s proffered reasons for its adverse actions are
pretextual.
Once a defendant satisfies the burden of production of
offering “evidence that is sufficient, if believed, to support a
finding that it had a legitimate, nondiscriminatory reason for the
[adverse action],” the burden shifts back to the plaintiff.
Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.
1997).

The plaintiff may then survive summary judgment “by

submitting evidence ‘from which a factfinder could reasonably
either (1) disbelieve the employer’s articulated legitimate
reasons; or (2) believe that an invidious discriminatory reason was
more likely than not a motivating or determinative cause of the
employer’s action.’”

Keller, 130 F.3d at 1108 (quoting Fuentes v.

Perskie, 32 F.3d 759, 763 (3d Cir. 1994)).
Keller then sets out the requirements for satisfying the first
prong of the pretext analysis.

Id.

“To discredit the employer’s proffered
reason . . . the plaintiff cannot simply show
that the employer’s decision was wrong or
mistaken, since the factual dispute at issue
is whether discriminatory animus motivated
the employer, not whether the employer is
wise, shrewd, prudent, or competent. Rather,
the nonmoving plaintiff must demonstrate such
17

weaknesses implausibilities, inconsistencies,
incoherencies, or contradictions in the
employer’s proffered legitimate reasons for
its actions that a reasonable factfinder
could rationally find them unworthy of
credence.” [Fuentes 32 F.3d] at 765. As
another court of appeals has put it, “federal
courts are not arbitral boards ruling on the
strength of ‘cause’ for discharge. The
question is not whether the employer made the
best, or even a sound, business decision; it
is whether the real reason is
[discrimination].” Carson v. Bethlehem Steel
Corp., 82 F.3d 157, 159 (7th Cir. 1996).
130 F.3d at 1108-09.
Under the second Fuentes prong, the plaintiff “must identify
evidence in the summary judgment record that ‘allows the fact
finder to infer that discrimination was more likely than not a
motivating or determinative cause of the adverse employment
action.’”

Keller, 130 F.3d at 1111 (quoting Fuentes, 32 F.3d at

762).
Although Defendant argues that Plaintiff’s age and gender
discrimination claims cannot survive summary judgment because she
relies heavily on her own testimony and that testimony is not
adequate to withstand summary judgment (Doc. 44 at 3), the Court
concludes that Plaintiff has raised questions and come forward with
evidence which would allow a reasonable factfinder to conclude that
Defendant’s proffered reasons for demotion and discharge were
pretextual.

Asserting that the reasons given for her demotion and

termination are not worthy of credence, Plaintiff first points to
her employment tenure which included numerous promotions and
18

positive reviews prior to Mr. Peterson becoming her supervisor and,
more importantly, she points to Mr. Peterson’s numerous disparaging
remarks about her age, his disdain for working with older women,
and derogatory statements about females in general.
23.)

(Doc. 40 at

Testimony about comments made by decision makers in this

case, if believed, would be indications that age and/or gender
played a role in the decisions to regrade Plaintiff’s position
and/or terminate her.

Furthermore, as set out in the Background

section of this Memorandum, the parties’ assertions about the
regrading of Plaintiff’s position, the survey investigation and
interviews, and the reasons for Plaintiff’s ultimate termination
readily demonstrate that operative facts are at issue.
Defendant’s reliance on Pamintuan v. Nanticoke Mem’l Hosp.,
192 F.3d 378, 387 (3d Cir. 1999), for the proposition that the case
must be dismissed because Plaintiff relies only on her own
testimony is misplaced.

(Doc. 44 at 3, 5.)

First, Ms. Suda-

Ruskey’s verification of Plaintiff’s complaints about ageist and
sexist behavior (Doc. 40-5 at 42) must be viewed at this stage of
the proceedings as evidence supportive of Plaintiff’s testimony.
Second, in Pamintuan, the Circuit Court affirmed the grant of
summary judgment on the basis that the plaintiff’s testimony was
limited to the claim that her job performance was not deficient–she did not claim that criticisms of her performance were incorrect
or that the internal review process produced findings that were

19

untrue.

192 F.3d at 387.

Here, Plaintiff claims both.

As noted

in Weldon v. Kraft, Inc., 896 F.2d 793 (3d Cir. 1990), a
plaintiff’s deposition testimony may be sufficient to create a
genuine issue of material fact about a disputed issue-“[d]iscriminatory conduct is often subtle and difficult to prove.
For this reason, our legal system permits discrimination plaintiff
to prove their cases wtih circumstantial evidence.”

896 F.3d at

800 (citing Jackson v. Univ. of Pittsburgh, 826 F.2d 230, 236 (3d
Cir. 1987); Graham v. F.B. Leopold Co., Inc., 779 F.2d 170, 173 (3d
Cir. 1985)).
Here, as in Wright, the issue of pretext turns largely on the
issue of credibility.

See 896 F.3d at 800.

Therefore, the Court

must deny summary judgment on Plaintiff’s age and gender
discrimination claims.
C.

Retaliation
Defendant argues it is entitled to summary judgment on

Plaintiff’s retaliation claims because she cannot demonstrate a
causal connection between any protected activity and Defendant’s
actions and, therefore, she cannot establish a prima facie case of
retaliation.

(Doc. 35 at 10-13; Doc. 44 at 7-8.)

Plaintiff

responds that she has submitted sufficient evidence to sustain her
claims for retaliation based on her complaints of age and gender
discrimination.

(Doc. 40 at 18-20; Doc. 52 at 6-10.)

The Court

concludes Defendant has not shown it is entitled to summary

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judgment on Plaintiff’s retaliation claims.
Absent direct evidence, a court is to use the McDonnell
Douglas burden shifting framework to analyze retaliation claims
under the ADEA, Title VII, and the PHRA.

Daniels v. School Dist.

of Philadelpia, 776 F.3d 181, 193 (3d Cir. 2015) (citations
omitted).
Under the McDonnell Douglas framework,
a plaintiff asserting a retaliation claim
must first 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.”
Id. (quoting Marra v. Phila. Housing Auth., 497 F.3d 286, 300 (3d
Cir. 2007).
Here Defendant primarily focuses its argument on the assertion
that Plaintiff cannot satisfy the third element of a prima facie
claim: the claim fails the causal connection reguirement based on
the lack of temporal proximity between her complaints of alleged
discrimination and her demotion and/or termination.2

(Doc. 35 at

11-13; Doc. 44 at 7-8.)

2

Defendant asserts that any claim of retaliation related to
Plaintiff’s feedback regarding Mr. Peterson on the leadership
survey is barred because it was not protected activity and
Plaintiff did not include such a claim in her EEOC and PHRC charge
of discrimination. (Doc. 35 at 13.) Plaintiff does not appear to
pursue a retaliation claim on this basis (see Docs. 40, 52) and,
therefore, the Court will not address Defendant’s related
arguments.
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Daniels notes that retaliation cases often turn on whether a
plaintiff can establish the causal connection requirement.

776

F.3d at 196.
“We consider a ‘broad array of evidence’
in determining whether a sufficient causal
link exists [for a plaintiff] to survive a
motion for summary judgment.” LeBoon [v.
Lancaster Jewish Community Center, 503 F.3d
217, 232 (3d Cir. 2007)]. To demonstrate a
link between protected activity and an
employer’s adverse action, a plaintiff may
rely on the temporal proximity between the
two if “unusually suggestive.” Id.; Marra,
497 F.3d at 302. In the absence of a such a
close temporal proximity, we consider the
circumstances as a whole, including any
intervening antagonism by the employer,
inconsistencies in the reasons the employer
gives for its adverse action, and any other
evidence suggesting that the employer had a
retaliatory animus when taking the adverse
action. See LeBoon, 503 F.3d at 232-33;
Marra, 497 F.3d at 302; Farrell [v. Planters
Lifesavers Co., 206 F.3d 271, 280-81 (3d Cir.
2000)]. The plaintiff, however, cannot
establish that there was a causal connection
without some evidence that the individuals
responsible for the adverse action knew of
the plaintiff’s protected conduct at the time
they acted. See Andrioli v. Gates, 482 F.3d
641, 650 (3d Cir. 2007); Moore [v. City of
Philadelphia, 461 F.3d 331, 351 (3d Cir.
2006)]; cf. Ambrose v. Twp. of Robinson, 303
F.3d 488, 493 (3d Cir. 2002) (“It is only
intuitive that for protected conduct to be a
substantial or motivating factor in a
decision, the decisionmakers must be aware of
the protected conduct.”)
776 F.3d at 196-97.
Defendant’S argument that Plaintiff’s retaliation claim fails
for lack of temporal proximity is unavailing for several reasons.

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First, Defendant’s own chart indicates that Plaintiff’s complaints
into “early summer 2014" may have sufficient temporal proximity to
the June 23, 2014, position downgrade to alone satisfy the
causation requirement.

(Doc. 44 at 7.)

Second, Defendant’s chart

measures the time period between the 2014 complaints and the
downgrade and termination to be periods as short as one month.
(Id.)

A one-month time period coupled with other evidence has been

found suggestive of discrimination.

See, e.g., Shenk v.

Pennsylvania, No. 1:11-CV-1238, 2013 WL 1969311, at *8 (M.D. Pa.
May 13, 2013); see also Stewart v. Bally Total Fitness, No. 993555, 2000 WL 1006936, at *5 (E.D. Pa. July 20, 2000).

Third,

Plaintiff has pointed to evidence suggesting inconsistencies in the
reasons for Defendant’s adverse actions which is evidence relevant
to the causal connection inquiry.

Daniels, 776 F.3d at 196.

Similarly, evidence of pretext discussed above can be considered
“evidence suggesting that the employer had a retaliatory animus
when taking the adverse action.”

Id.

These considerations clearly show that Defendant has failed to
show it is entitled to summary judgment of Plaintiff’s retaliation
claims on the bases alleged.

Therefore, Plaintiff’s retaliation

claims go forward.
III. Conclusion
For the reasons discussed above, Motion of Defendant, Mondalez
Global LLC, for Summary Judgment (Doc. 34) is GRANTED IN PART and

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DENIED IN PART.

The motion is GRANTED as to Planitiff’s PHRA

claims based on her demotion; the motion is DENIED in all other
respects. An appropriate Order is filed simultaneously with this
Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: February 3, 2017

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