JACKSON v. TRUMP ENTERTAINMENT RESORTS, INC. et al, No. 1:2013cv01605 - Document 68 (D.N.J. 2015)
Court Description: OPINION FILED. Signed by Judge Joseph H. Rodriguez on 12/21/15. (js)
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JACKSON v. TRUMP ENTERTAINMENT RESORTS, INC. et al Doc. 68 U N ITED S TATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY MICHAEL J ACKSON, : Plaintiffs, : v. Hon. J oseph H. Rodriguez : Civil Action No. 13-160 5 TRUMP ENTERTAINMENT RESORTS, INC.; TRUMP ENTERTAINMENT RESORTS HOLDINGS, LP; TRUMP MARINA ASSOCIATES, LP; LANDRY’S RESTAURANTS, INC.; LANDRY’S GAMING, INC.; and LANDRY’S A/ C GAMING, INC. : : Defendants. : : : OPINION This is an em ploym ent discrim ination suit filed by Michael J ackson (“Plaintiff” or “J ackson”), against Landry’s Inc. (“Defendant” or “Landry’s”), form erly known as Landry’s Restaurants, Inc. J ackson alleges that he was discrim inated against because of his disability and age in violation of the Am ericans with Disabilities Act (“ADA”) and the Age Discrim ination in Em ploym ent Act (“ADEA”) and was term inated in retaliation for his com plaints of disability discrim in ation in violation of the New J ersey Law Again st Discrim ination (“NJ LAD”). Landry’s m oves for sum m ary judgm ent pursuant to Federal Rule of Civil Procedure 56. The Court heard oral argum ent on Novem ber 5, 20 15. For the reasons set forth below, Defendant’s Motion for Sum m ary J udgm ent will be granted in part and denied in part. I. Backgro u n d On May 28, 1985, Plaintiff Michael J ackson (“J ackson”) was hired by Trum p Castle (succeeded later by Trum p Marina) as a casino dealer. Com pl. ¶ 33. After ten years, 1 Dockets.Justia.com Trum p Marina prom oted J ackson to the position of “dual-rate floorperson” requiring J ackson to work som e shifts as a dealer and som e as a floorperson supervising dealers. Id. ¶ 34-35. Over the course of twenty-five years through the end of 20 10 , J ackson received six written notifications for violating com pany policies. Am ong these written warnings are violations for 1) failing to use the elevator, entrance, or exit designated for em ployees (20 10 ); 2) perform ing job duties carelessly (20 0 9); 3) failing to m aintain satisfactory interpersonal relations with co-workers (20 0 8 ); 4) entering an unauthorized area to drink a soda (20 0 6); 5) m isconduct toward a custom er (1992); and 6) poor job perform ance (1991). See Def.’s Stm t. Facts ¶ 3, Exs. D, E, F, G, H, I. Despite these warnings, each of J ackson’s perform ance evaluations for the last five years of his em ploym ent (20 0 7-20 11) indicated he “perform s at a satisfactory level and is considered a standard or consistent em ployee.” Pl.’s Resp. Def.’s Stm t. Facts 5, Exs. E, F; Def.’s Stm t. Facts ¶ 5, Exs. J , K, L. Around October 20 0 9, J ackson was diagnosed with cancer of the face and neck and underwent surgery in J anuary 20 10 . Com pl. ¶ 39-40 . J ackson took a m edical leave of absence and returned to work on or around J uly 1, 20 10 but suffered from dryn ess of m outh arising from his radiation treatm ents. See id. ¶ 41; see also Def.’s Stm t. Facts ¶ 12. J ackson alleges that upon his return to work he requested and was granted reasonable accom m odations to carry a bottle of water and chew gum while working. Com pl. ¶ 43-44. However, Defendant claim s that no reasonable accom m odations were granted but rather, J ackson was advised to contact Hum an Resources (“HR”) im m ediately upon learning that he was violating com pany policy by having bottled water and chewing gum . See Wilson Dep., 20 :5-20 :11. 2 In March 20 11, J ackson form ally requested reasonable accom m odations with HR and was denied accom m odations. Com pl. ¶ 49-50 . Plaintiff alleges that he contacted the Equal Em ploym ent Opportunity Com m ission (“EEOC”) around March 18, 20 11, to initiate the charge-filing process. Id. ¶ 29. However, the earliest EEOC filing on record indicates that the charges were m ade on Decem ber 8, 20 11. Com pl. Ex. A. Around February 14, 20 11, Landry’s announced that it would be purchasing the Trum p Marina Casino. See Com pl. ¶ 45; see also Pohlm an Dep., 9:24-10 :3. Pursuant to the asset purchase agreem ent, Landry’s was obligated to retain eighty-five percent (85%) of Trum p Marina’s em ployees. Def.’s Stm t. Facts ¶ 29. Accordingly, on or about March 21, 20 11, Trum p Marina issued notices to all em ployees that their em ploym ent would be term inated on May 25, 20 11. Id. ¶ 24. Karen Lew (“Lew”), Casino Manager, an d Donald Browne (“Browne”), Senior Vice President of Casino Operations, were responsible for m aking decisions regarding retention of em ployees in the Gam es Departm ent of the casino and selected em ployees to be recom m ended to Landry’s for em ploym ent offers. Def.’s Stm t. Facts ¶ 30 . Lew and Browne did not select J ackson for recom m endation to Landry’s, and thus, J ackson’s em ploym ent officially term inated on May 25, 20 11. Com pl. ¶ 54; Def.’s Stm t. Facts ¶ 45. J ackson brings claim s under the ADA, the ADEA, and the NJ LAD alleging that Landry’s discrim inated against him based on his disability, age, and in retaliation of his filing a com plaint with the EEOC. Com pl. ¶ 2. II. Su m m ary Ju d gm e n t Stan d ard A court will grant a m otion for sum m ary judgm ent if there is no gen uine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving 3 party, the m oving party is entitled to judgm ent as a m atter of law. Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter sum m ary judgm ent only when “the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56 (c). An issue is “genuin e” if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “m aterial” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ in in g whether a genuin e issue of m aterial fact exists, the court m ust view the facts and all reasonable inferen ces drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absen ce of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the n onm oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum m ary judgm ent, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon 4 m otion, against a party who fails to m ake a showing sufficient to establish the existen ce of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determ inations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). In an em ploym ent discrim ination case, the burden of persuasion on sum m ary judgm ent rem ains unalterably with the em ployer as m ovant. The em ployer m ust persuade the court that even if all of the inferences which could reasonably be drawn from the evidentiary m aterials of record were viewed in the light m ost favorable to the plaintiff, no reason able jury could find in the plaintiff’s favor. Doe v. C.A.R.S., 527 F.3d 358, 362 (3d Cir. 20 0 8). III. An alys is Defendant Lan dry’s m oves for sum m ary judgm ent on the basis that no reasonable factfinder could conclude, on this record, that Plaintiff can establish a prim a facie case for any of his alleged claim s of discrim ination – disability discrim ination, age discrim ination, and retaliation. Furtherm ore, Defendant m oves for sum m ary judgm ent asserting that, even if Plaintiff can m ake out a prim a facie case of discrim ination, no reasonable factfinder could conclude, on this record, that Plaintiff will be able to show that Landry’s’ proffered nondiscrim in atory reason for not hiring Plaintiff is a pretext for discrim ination. As set forth below, viewing the facts in the light m ost favorable to 5 Plaintiff, the Court disagrees with Landry’s as to Plaintiff’s claim s or retaliation and disability discrim ination; Landry’s Motion for Sum m ary J udgm ent is denied with respect to those claim s. Sum m ary judgm ent is granted as to J ackson’s age discrim ination claim . In this case the parties offer som ewhat conflicting views on the fram ework of the analysis of the cause of action. Because Landry’s was obligated to retain 8 5% of the work force, pursuant to the asset purchase agreem ent governing the sale of the casino, Plaintiff argues that the relaxed standard applied in reduction of force (RIF) cases m ay govern his claim s. See Pivirotto v. Innovation System s, 191 F.3d 344, 357 (3d Cir. 1999) (noting relaxation of the fourth elem ent of a prim a facie case when there is a reduction in force). Under this theory, even though Landry’s term inated the entire work force and then selectively rehired the required 85%, the end result is essentially a reduction in force, as opposed to either a term ination and/ or a failure to hire. Although term ination and failure to hire seem to apply with equal force. During oral argum ent, the parties agreed that the circum stances were unique and were unable to supply any authority on the fram ework under which the claim s m ust be construed. Recognizing the dearth of case law and the unique circum stances of this case, the difference between the two fram eworks m ust be explored. To resolve claim s of em ploym ent discrim ination, the Third Circuit utilizes the analytical fram ework pronounced in McDon nell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See Olson v. General Electric Astrospace, 10 1 F.3d 947, 951 (3d Cir. 1996). “[D]iscrim in ation claim s resulting from a RIF differ from a decision to fire an em ployee[.]” Tom asso v. Boeing Co., 445 F.3d 70 2, 711-12 (3d Cir. 20 0 6) (citations om itted). Pursuant to McDonnell Douglas, the plaintiff bears the initial burden of establishing a prim a facie 6 case of unlawful discrim ination. “The fourth elem ent of a prim a facie case is intended to be flexible and m ust be relaxed in certain situations, as when there is a reduction in force.” Pivirotto, 191 F.3d at 357 (internal quotation om itted). In a RIF case “subjective criteria take on a greater significance as the em ployer looks to draw fin er distinctions between em ployees. Thus, subjective categories such as “attitude” and “team work” need to be viewed not just in light of the warning against such criteria articulated in Goosby, 228 F.3d at 313, but also in light of the fact that em ployers m ust distinguish otherwise com petent em ployees.” Id. The Court will analyze the claim s as a term ination/ failure to hire with consideration of the subjective criteria perm issible in a RIF. A. D is ability D is crim in atio n an d Re taliatio n The first Count of Plaintiff’s Com plaint alleges that Landry’s discrim inated against J ackson based on his disability in violation of the ADA. The ADA prohibits discrim ination by covered entities, including private em ployers, against qualified individuals with a disability. 42 U.S.C. § 12112(a). Under McDonnell Douglas, an em ployee m ust first establish by a preponderance of the evidence a prim a facie claim of discrim ination by showing (1) the plaintiff is a m em ber of a protected class; (2) he or she was qualified for the position sought; (3) he or she was subject to an adverse em ploym ent action despite being qualified; and (4) the em ployer treated m ore favorably those not in the protected class or, under circum stances that raise an inference of discrim inatory action, the em ployer continued to seek out individuals with qualifications sim ilar to plaintiff's to fill the position. Sarullo v. United States Postal Service, 352 F.3d 78 9, 797 (3d Cir.20 0 3) 7 (citations om itted). The prim a facie test is a flexible one which m ust be tailored to fit the specific context in which it is applied. Id. at 797– 98. Once a plaintiff establishes a prim a facie case, the burden shifts to the em ployer to articulate a legitim ate, non-discrim inatory reason for its adverse em ploym ent decision. McDonnell Douglas, 411 U.S. at 80 2. The em ployer m ay satisfy this burden “by introducing eviden ce which, taken as true, would perm it the conclusion that there was a nondiscrim in atory reason for the unfavorable em ploym ent decision.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (citing St. Mary's Honor Ctr. v. Hicks, 50 9 U.S. 50 2, 50 9, 113 S.Ct. 2742, 125 L.Ed.2d 40 7 (1993)). However, “[a]n em ployer cannot successfully defend a hiring decision against a Title VII challenge m erely by asserting that the responsible hiring official selected the m an or wom an who was ‘the right person for the job.’ ” Iadim arco v. Runyon, 190 F.3d 151, 166 (3d Cir. 1999). Once the em ployer m eets this “relatively light burden,” “the burden of production rebounds to the plaintiff, who m ust now show by a preponderance of the evidence that the em ployer's explanation is pretextual.” Fuentes, 32 F.3d at 763. A plaintiff m ay establish pretext directly, by persuading the court that a discrim inatory reason m ore likely m otivated the em ployer, or indirectly, by showing that the em ployer's proffered reason is unworthy of credence. Ezold, 983 F.2d at 523. One of these is sufficient; the em ployee does not have to prove both that the explanation is im plausible and that discrim ination was a m otivating factor. Waldron v. SL Indus., Inc., 56 F.3d 491, 494– 95 (3d Cir. 1995). On the other hand, the em ployee cannot carry his burden by showing that the em ployer's decision was “wrong or m istaken.” Fuentes, 32 F.3d at 765. Rather, he m ust dem onstrate such “weaknesses, im plausibilities, inconsistencies, incoheren cies, or 8 contradictions in the em ployer's proffered legitim ate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence,” id. (citing Ezold, 98 3 F.2d at 531), “and hence infer ‘that the em ployer did not act for [the asserted] nondiscrim inatory reasons,’ ” id. (citing J osey v. J ohn R. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993)). A plaintiff's subjective belief that his qualifications should have been accorded m ore weight is not probative of pretext. See, e.g., Valdes v. Union City Bd. Of Ed., 186 Fed. Appx. 319, 323 (3d Cir. 20 0 6). An em ployer is entitled to evaluate which qualifications best fit its needs in selecting a candidate. See Sarm iento v. Montclair State Univ., 513 F.Supp.2d 72, 89 (D.N.J .20 0 7) (finding legitim ate reasons for not selecting the m ore experienced candidate because it was up to the university to evaluate which qualifications best fit departm ental n eeds). That is, a plaintiff's disagreem ent with assessm ent criteria and belief that he or she is better qualified for the position is not sufficient to avoid sum m ary judgm ent. Langley v. Merck & Co., 186 Fed. Appx. 258, 261 (3d Cir. 20 0 6). The third Count of the Com plaint alleges that, by not offering to continue his em ploym ent, Landry’s effectively term inated J ackson in retaliation for objections he raised after the HR departm ent den ied his request for reasonable accom m odations. This alleged retaliatory behavior is a violation of the NJ LAD. Retaliation claim s raised under the NJ LAD are analyzed under the sam e McDonnell Douglas burden-shifting fram ework utilized in the discrim ination context. Here, J ackson claim s that Landry’s supervisors retaliated against him on the basis of internal com plaints to supervisors and to HR. 9 In order to successfully assert a retaliation claim , the plaintiff m ust dem onstrate that he: (1) engaged in a protected activity; (2) suffered an adverse em ploym ent action; and (3) that there is a causal connection between his participation in the protected activity and the adverse em ploym ent action. Moore v. City of Philadelphia, 461 F.3d 331, 340 -41 (3d Cir. 20 0 6). Here Defendant only disputes whether Plaintiff can produce evidence of a causal connection between his internal com plaints alleging disability discrim ination and his term in ation. A causal connection m ay be established by circum stantial evidence, such as tem poral proxim ity, a pattern of antagonism , and pretext. Kachm ar v. SunGard Data Sys., 10 9 F.3d 173, 177 (3d Cir. 1997). In Kachm ar, the Third Circuit explained that proof of a causal connection between a protected activity and an adverse em ploym ent action involves a highly specific inquiry into the m otives of an em ployer and m ay be established in a num ber of ways. 10 9 F.3d at 177. Causation m ay depend on the tem poral proxim ity between the em ployee’s protected activity and the adverse em ploym ent action. Id. Tem poral proxim ity can serve as circum stantial evidence “sufficient to raise the inference that [the plaintiff’s] protected activity was the likely reason for the adverse action.” Id. (quoting Zanders v. Nat’l R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir. 1990 )). Absent tem poral proxim ity, “circum stantial evidence of a ‘pattern of antagonism ’ following the protected conduct can also give rise to the inference.” Kachm ar, 10 9 F.3d at 177. Tem poral proxim ity and a pattern of antagonism , however, “are not the exclusive ways to show causation, as the proffered eviden ce, looked at as a whole, m ay suffice to raise the inference.” Id. 10 Here an inference of discrim in ation exists and there is evidence in the record from which a jury could determ ine that discrim ination influenced the decision to term inate Plaintiff. The record shows that J ackson form ally requested and reasonable accom m odations for his dry m outh on March 7, 20 11 an d was denied on March 17, 20 11. SOF, ¶¶16-17. Although the decision to sell, and therefore be bound by the RIF in the asset purchase agreem ent, occurred around February 14, 20 11, Landry’s announced that it would be purchasing the Trum p Marina Casino and, on March 21, 20 11, Trum p Marina issued notices to all em ployees that their em ploym ent would be term inated on May 25, 20 11. See Com pl. ¶¶ 24, 45; see also Pohlm an Dep., 9:24-10 :3. Ultim ately, Plaintiff was term inated/ not rehired on May 25, 20 11. Thus, there are several dates to consider in regards to the tem poral proxim ity of his term ination to his request/ denial for accom m odations. Plaintiff's term ination com ing only a few weeks following his request for an accom m odation m akes causation plausible, especially in light of lack of evidence regarding Plaintiff’s alleged recent behavior problem s. The record does not reflect a “constant barrage of written and verbal warnings” after 20 0 7. While there is am ple eviden ce that m any em ployees subjectively felt that J ackson was a problem , he was not written up and he continued to be evaluated positively on his perform ance reviews. Given the tim ing of J ackson’s term ination relative to his request for an ultim ately unapproved accom m odation, the tem poral proxim ity between the protected activity and the adverse action is “unusually suggestive” and is sufficient standing alone to create an inference of causality and defeat sum m ary judgm ent. See Clark County School Dist. v. 11 Breeden, 532 U.S. 268, 273– 74, 121 S.Ct. 150 8, 149 L.Ed.2d 50 9 (20 0 1) (tem poral proxim ity alone, when “very close,” can in som e instances establish a prim a facie case of retaliation); J alil v. Avdel Corp., 8 73 F.2d 70 1, 70 8 (3d Cir. 1989) (reversing sum m ary judgm ent in favor of the defendant where plaintiff had been discharged two days after his em ployer's receipt of his EEOC claim ). LeBoon v. Lancaster J ewish Cm ty. Ctr. Ass'n, 50 3 F.3d 217, 232 (3d Cir. 20 0 7). In addition , the Court notes the criteria used to evaluate “re-hire” was subjective and Browne and Lew gave different criteria to be considered. Browne testified that agreeableness, team work, and adaptability to change were the only criteria Browne Dep. at 10 :23-11:11. Ms. Lew claim ed perform ance, em ployee related skills, paperwork, and capabilities were the criteria. Lew Dep. at 59:16, 59:19 to 60 :3. Landry’s rebuts the prim a facie case with evidence that J ackson was a difficult em ployee. However, given the tim ing of his request for an accom m odation and the fact that he was not written up for m any of the alleged “difficulties” put forth by Landry’s, there is evidence in the record from which a jury could determ ine that, in J ackson’s case, discrim ination was at play. For these reasons, the tem poral proxim ity, the circum stances, an d the inconsistencies in the reasons that Browne and Lew gave for J ackson’s term ination m ay suggest retaliatory anim us and sum m ary judgm ent is denied. For the sam e reasons, sum m ary judgm ent is denied as to J ackson’s disability discrim ination claim ; Count I in the Com plaint. There is am ple evidence and data in the record to dem onstrate that Landry’s rehired everyone with an approved disability accom m odation. However, this evidence m ay be construed to suggest the inverse 12 conclusion; that because J ackson’s accom m odation request was not approved, he was not rehired on the basis of his disability. While the Court recognizes that this claim is thin, sum m ary judgm ent is denied for the sam e reasons set forth in the retaliation claim . B. Age D is crim in atio n Plaintiff also alleges he was term inated because of his age. In order to establish a prim a facie case of discrim ination under the ADEA, a plaintiff m ust prove that: (1) the plaintiff belongs to a protected class-over age 40 ; (2) the plaintiff was qualified for the position in question; (3) the plaintiff suffered an adverse em ploym ent decision; and (4) the position was filled by som eone sufficiently younger to perm it an inference of age discrim ination. See Narin v. Lower Merion Sch. Dist., 20 6 F.3d 323, 331 (3d Cir. 20 0 0 ); Sem pier v. J ohnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995). In an age discrim in ation case where the plaintiff is term inated as a result of a RIF, the plaintiff m ust show “that the em ployer retained a sufficiently younger sim ilarly situated em ployee.” Monaco v. Am . Gen. Assurance Co., 359 F.3d 296, 30 1 (3d Cir. 20 0 4); Anderson v. Consol. Rail Corp., 297 F.3d 242, 250 (3d Cir. 20 0 2). An em ployee is “sim ilarly situated” when the eviden ce supports a claim that the plaintiff and a retained em ployee shared com parable duties. Id. “This determ ination requires a court to undertake a fact-intensive inquiry on a case-by-case basis rather than in a m echanistic and inflexible m anner.” Monaco, 359 F.3d at 30 5; see also Opsatnik v. Norfolk S. Corp., 335 Fed. Appx. 220 , 222– 23 (3d Cir. 20 0 9) (“While ‘sim ilarly situated’ does not m ean identically situated, the plaintiff m ust nevertheless be sim ilar in ‘all relevant respects.’ ”) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)); Lepore v. Lanvision Sys., Inc., 113 Fed. Appx. 449, 452 (3d Cir. 20 0 4) (opining that sim ilarly situated em ployees “work in the sam e area in 13 approxim ately the sam e position”) (citing Anderson, 297 F.3d at 249– 50 ); J ohnson v. Kroger Co., 319 F.3d 8 58, 867 (6th Cir. 20 0 3) (“In the context of personnel actions, the relevant factors for determ ining whether em ployees are sim ilarly situated often include the em ployees' supervisors, the standards that the em ployees had to m eet, and the em ployees' conduct.”) (citation om itted); Milliron v. Pilot Travel Cntrs., LLC, No. 0 6– 0 262, 20 0 9 WL 257920 0 , at *10 (W.D.Pa. Aug. 20 , 20 0 9) (citing Monaco and collecting other Circuit cases); Arm stead v. Norfolk S. Corp., 20 0 6 WL 54440 3, at *5 (W.D.Pa. Mar. 3, 20 0 6) (holding that a supervisor was not sim ilarly situated to another supervisor with the sam e title where the form er could not perform the latter's duties). Defendant challenges Plaintiff’s ability to satisfy the fourth prong of the prim a facie case and, if Plaintiff can establish a prim a facie case, that Landry’s proffered reason is not a pretext for discrim ination. The Court finds that the Plaintiff has not put forth sufficient eviden ce to establish a prim a facie case of age discrim ination claim an d sum m ary judgm ent is granted. 1 Plaintiff argues that his com parators are com prised of only the Dual Rate Supervisors in the gam ing departm ent, as opposed to com paring him to the entire gam ing departm ent which includes the dual rate supervisors, the dealers, and the supervisors. Landry’s put forth evidence tending to show that after the rehiring, the average age of the entire gam ing departm ent increased by alm ost three years. Plaintiff argues that his true com parators are only the dual rate supervisors and that evidence shows that the average age of the dual rate supervisors decreased by only .98 percent. 1 In so finding the Court need not reach Landry’s argument that the claim is not properly before the Court for failure to exhaust administrative remedies. 14 Plaintiff is 58. Plaintiff contends that a different view of the dem ographic eviden ce of the retained dual rate supervisor shows a correlation between age and retention. Specifically, the Duttera Affidavit can be read to show that forty percent (40 %; 2 of 5) of em ployees in their sixties were retained, over twenty five percent (25.9%; 7 of 27) and less than four percent of the forty year old (3.9%; 1 of 27) were term inated. No one in their thirties was term inated. See, gen erally¸ Duttera Aff. Plaintiff’s appropriate com parators in this case are the sm aller subset of the gam ing departm ent; those em ployees in the role of dual rate supervisor. Lepore, 113 Fed. Appx. at 452 (opining that sim ilarly situated em ployees “work in the sam e area in approxim ately the sam e position[.]”) A dual rate supervisor perform s both the dealer job and the supervisor job. So, in som e respects the inform ation with respect to those classes of em ployees in the dealer or supervisor role is relevant to the inquiry, but not determ inative. The gam ing departm ent is larger and therefore the average age of the departm ent’s em ployees is less im pacted by the “RIF.” While these em ployees separately perform the sam e job as the dual rate supervisor, they are not charged with the overriding responsibility inherent in both job classifications. In other words, the dual rate supervisor is a unique classification and therefore Plaintiff should be com pared to that group of em ployees. Under the evidence presented, Plaintiff cannot establish a prim a facie case of age discrim ination. While Plaintiff’s attack of Landry’s data presents a different theory, it is at m ost speculation and conjecture. Looking at the group of retained em ployees in the Dual Rate Supervisor Role, there is not a sufficient difference in the average age to suggest that Plaintiff’s age was a m otivating factor in his term ination. 15 “In order for a plaintiff to satisfy the ‘sufficiently younger’ standard, ... there is no ‘particular age difference that m ust be shown,’ but while ‘[d]ifferent courts have held ... that a five year differen ce can be sufficient, ... a one year difference cannot.’ ” Showalter v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231, 236 (3d Cir. 1999) (quoting Sem pier, 45 F.3d at 729 (citations om itted)). To the extent that one could argue that Plaintiff was “replaced,” under the unique facts of this case, the Court finds that J ackson cannot show that he “was ultim ately replaced by another em ployee who was sufficiently younger to support an inference of discrim inatory anim us.” Sm ith, 589 F.3d at 689 (citing Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 20 0 4); see also Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 20 0 1) (fourth elem ent is “his or her replacem ent was sufficiently younger to perm it a reasonable inference of age discrim ination.”); Showalter, 190 F.3d 231, 234 (3d Cir. 1999) (fourth elem ent is “the plaintiff was replaced by a sufficiently younger person to create an inference of age discrim ination”) (quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 110 1, 110 8 (3d Cir. 1997)). Com m ents about Plaintiff’s inability to adapt to change and reluctance to accept a new role can be related to age and therefore im perm issible discrim ination. However, this record does not support such an inference of age discrim ination given the m in im al shift in the average age of em ployees retained in Plaintiff’s position. For these reasons, sum m ary judgm ent is granted. 16 IV. Co n clu s io n For the foregoing reasons, Defendant’s Motion for Sum m ary J udgm ent will be granted in part as it relates to Plaintiff’s age discrim ination claim an d denied in part as it relates to Plaintiff’s disability and retaliation claim s. An appropriate ORDER shall issue. Dated: Decem ber 21, 20 15 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 17
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