GREEN v. VF JEANSWEAR LIMITED PARTNERSHIP

Filing 51

ORDER denying 28 Motion for Summary Judgment. AND NOW, this 22nd day of August, 2011, it is hereby ORDERED, ADJUDGED, and DECREED that Defendant's Motion for Summary Judgment (Docket No. 28) is DENIED. A pre-trial/settlement conference will be held on Thursday, September 1, 2011 at 11:00 a.m.Signed by Judge Donetta W. Ambrose on 8/22/11. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
R. MASON GREEN,
Plaintiff,
VF JEANSWEAR LIMITED
PARTNERSHIP,

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) No. 10-264
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Defendant

OPINION AND ORDER
SYNOPSIS
In this civil action, Plaintiff alleges that Defendant, his former employer, discharged him
in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. 621, et seq.,
and the Pennsylvania Himan Relations Act (“PHRA”), 43 P.S. § 951, et seq.

Defendant has

filed a Motion for Summary Judgment, on grounds that Plaintiff cannot demonstrate either a
reasonable inference of age discrimination or pretext.
For the following reasons, Defendant’s Motion will be denied.
OPINION
I. APPLICABLE STANDARDS
Summary judgment shall be granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the Court must
examine the facts in a light most favorable to the party opposing the motion. International Raw
Materials, Ltd. v. Stauffer Chem . Co., 898 F. 2d 946, 949 (3d Cir. 1990). The moving party
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bears the burden of demonstrating the absence of any genuine issues of material fact. United
States v. Omnicare Inc., 382 F. 3d 432 (3d Cir. 2004). Rule 56, however, mandates the entry of
judgment against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
II.

DISCUSSION
A. McDonnell-Douglas
In this case, I apply the burden-shifting paradigm established in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Under that paradigm, the plaintiff bears the initial burden of proving by a preponderance
of the evidence a prima facie case of discrimination: "1) he is within the protected class…; 2) he
was qualified to have been retained; 3) he suffered from an 'adverse employment action'; and 4)
the employer retained a 'sufficiently younger' and 'similarly situated' individual to permit a
reasonable inference of age discrimination." Embrico v. United States Steel Corp., 404 F. Supp.
2d 802, 818 (E.D. Pa. 2005) (citation omitted).
If the plaintiff succeeds in proving a prima facie case, the burden then shifts to the
defendant to produce some legitimate, non-discriminatory reason for the employee's rejection. In
pretext discrimination cases, when the burden shifts to defendant, "the employer need not prove
that the tendered reason actually motivated its behavior, as throughout this burden-shifting
paradigm the ultimate burden of proving intentional discrimination always rests with the
plaintiff." Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
Should the defendant produce such an explanation, the plaintiff must then establish by a
preponderance of the evidence that the legitimate reasons offered by the defendant were not the

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true reasons, but were a pretext for discrimination. Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). To rebut the
defendant's legitimate reason for its conduct, plaintiff must provide sufficient evidence from
which a fact finder could either reasonably reject the defendant's explanation, or believe that an
invidious discriminatory reason was more likely than not a motivating cause of the employer's
decision. Fuentes, 32 F.3d at 763-64.
Specifically, a plaintiff must "demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's proferred [sic] legitimate
reasons for its action that a reasonable factfinder could rationally find them unworthy of
credence." Evans v. Pennsylvania Power & Light Co., 98 Fed. Appx. 151, 155 (3d Cir. 2004).
"In simpler terms, the plaintiff must show, not merely that the employer's proffered reason was
wrong, but that it was so plainly wrong that it cannot have been the employer's real reason."
Keller v. Orix Credit Alliance, 130 F.3d 1101, 1111 (3d Cir. 1997).
Moreover, "[a]lthough the presumption of discrimination drops out of the picture once
the [Defendant meets its] burden of production, the trier of fact may still consider the evidence
establishing the Plaintiff's prima facie case and inferences properly drawn therefrom . . . on the
issue of whether the [Defendant's] explanation is pretextual." Chisholm v. National Corp. for
Housing Ptnshp., No. 99-3602, 2001 U.S. Dist. LEXIS 1137, at *11 (E.D. Pa. Jan. 31, 2001).
B. Retention of Younger Personnel
First, I address Defendant’s contention that Plaintiff, who was sixty years old at the time
of his termination, cannot demonstrate that he was replaced by a younger employee. Plaintiff
asserts that a twenty-eight year old sales trainee replaced him. The parties do not dispute that the
younger sales trainee performed certain of Plaintiff’s responsibilities following Plaintiff’s

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termination. Defendant contends, however, that the trainee did not permanently replace Plaintiff,
but only temporarily covered Plaintiff’s territory due to the reorganization and consolidation.
Replacement with a younger person is not a requirement of the plaintiff’s prima facie case.
Sarullo v. United States Postal Serv., 352 F.3d 789, 798 n. 7 (3d Cir. 2003). Moreover, a
temporary replacement, such as the one at issue here, may support a prima facie case:
Third Circuit precedent mandates that this court is "not limited to
considering only [Plaintiff's] final replacement" as the age comparator for
purposes of Plaintiff's prima facie case. In Sempier, [45 F. 3d 724 (3d Cir. 1995)]
the court looked to the age of the individual who had taken on a substantial
portion of the plaintiff's responsibilities in the immediate aftermath of his
termination; that person was "well over ten years younger" than the plaintiff. This
showing satisfied the fourth prong of the plaintiff’s prima facie case in Sempier.
Burtman v. Lance, No. 06-1507, 2008 U.S. Dist. LEXIS 21278, at **39-40 (M.D. Pa. Mar. 17,
2008) (citations omitted).
For those reasons, Plaintiff has met his prima facie elements, and Defendant is not
entitled to judgment as a matter of law on grounds that Plaintiff was not permanently replaced.
C. Pretext
Next, I address the issue of pretext. Defendant has met its initial burden, by explaining
that Plaintiff was terminated as part of a reduction in force. Defendant asserts that Plaintiff was
included in the RIF due to the low sales volume of his territory, and his territory’s proximity to
other existing territories. Plaintiff contends, however, that he has proffered sufficient evidence
bearing on pretext to call that explanation into question. I agree. For example, there is evidence
that two supervisory or managerial employees had a discussion about the Defendant’s aging
sales force, and knew that “something needed to be done.” In addition, there is undisputed
evidence that Plaintiff was told, shortly after his termination, “that it was designed for [the sales
trainee] to take over” Plaintiff’s sales territory. In addition, relative to the territories of the other
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two terminated sales representatives, there was a delay in dividing or reassigning Plaintiff’s sales
territory. These and other facts of record, taken together with the facts underlying Plaintiff’s
prima facie case, are sufficient to preclude the entry of judgment in Defendant’s favor.
CONCLUSION
In sum, Defendant’s Motion for Summary Judgment will be denied. An appropriate
Order follows.
ORDER
AND NOW, this 22nd day of August, 2011, it is hereby ORDERED, ADJUDGED, and
DECREED that Defendant’s Motion for Summary Judgment (Docket No. 28) is DENIED.
A pre-trial/settlement conference will be held on Thursday, September 1, 2011 at 11:00
a.m.
BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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