Plaintiffs argue that the policy revocation disproportionately impacted older floorpeople. We discounted this argument in our examination of plaintiffs' disparate impact case, supra, and, as noted earlier, statistical evidence is not direct evidence of discrimination. Hook, 28 F.3d at 374 (quoting Ostrowski, 968 F.2d at 182).
Defendant's termination criteria were not inextricably linked to age. Seniority and age are not equivalent. Hazen Paper Co. v. Biggins, 123 L. Ed. 2d 338, 113 S. Ct. 1701, 1707 (1993); see also MCI Int'l, Inc., 829 F. Supp. at 1473. A twenty-year-old employee would have more seniority than an individual in the protected class hired one day later. Indeed, a company which had only recently recognized its obligations to hire older workers would adversely impact those workers if a seniority-based termination policy were used exclusively to determine layoffs. An employer's use of a seniority-based termination policy may not shield it from claims of age discrimination. For the same reason, the failure to base layoffs on seniority is not per se discriminatory.
Since plaintiffs offer no direct evidence of age discrimination, this court will not employ the burden-shifting analysis appropriate in a mixed motives case to the instant case.
2. DIRECT EVIDENCE
Plaintiffs may prove discriminatory disparate treatment with either direct or circumstantial evidence. United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir. 1987) (an ADEA case), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987). "When direct evidence is available, problems of proof are no different than in other civil cases." Goodman v. Lukens Steel Co., 777 F.2d 113, 130 (3d Cir. 1985), aff'd, 482 U.S. 656, 96 L. Ed. 2d 572, 107 S. Ct. 2617 (1987); Chipollini, 814 F.2d at 897. Thus, if an employee shows by direct evidence that there is a genuine issue of fact as to whether age was a determinative factor in her discharge, summary judgment is inappropriate. MCI Int'l, Inc., 829 F. Supp. at 1446; Miller v. State Chemical Mfg. Co., 706 F. Supp. 1166, 1170-71 (W.D.Pa. 1988).
We have already evaluated the meaning of direct evidence in a mixed motives framework. Plaintiffs proffer the same two examples for their direct evidence case as for their mixed motives case (the listing of employees showing their ages and the revocation of the seniority-based termination policy). The Court has already determined that there was insufficient evidence to support a mixed motives case (where employment decisions are based on both legitimate and discriminatory considerations). Evidence that is inadequate to support a mixed motives claim is equally inadequate to support a direct evidence disparate treatment claim. Because plaintiffs have failed to point to direct evidence of age discrimination, the Court must consider the circumstantial evidence.
In McDonnell Douglas Corp. v. Green,14 the Supreme Court set forth a detailed method for establishing an inference of discrimination in the absence of direct evidence. 411 U.S. 792, 802-805, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1983). McDonnell Douglas implemented a three-step analysis that allocates the burden of production as follows: (1) plaintiff must come forth with sufficient evidence to establish a prima facie case of discrimination; (2) if plaintiff succeeds in establishing a prima facie case, the burden then shifts to the defendant, who must articulate some legitimate, nondiscriminatory reason for the employee's discharge; (3) if defendant is able to meet this burden, plaintiff must be given the opportunity to come forth with sufficient evidence to show that the legitimate reasons offered by the defendant should not be believed and that the protected characteristic was "the real reason" for the adverse employment action. St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2752 (1993); see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).
(a) The Prima Facie Case
To establish a prima facie case of disparate treatment in a reduction in force context, plaintiffs must prove by a preponderance of the evidence that the plaintiffs (1) were at least forty years of age when terminated, (2) were qualified and (3) unprotected workers were retained or otherwise treated more favorably. Massarsky, 706 F.2d at 118; Seman, 26 F.3d at 431; Armbruster, 32 F.3d at 777. The plaintiffs must also be "similarly situated in terms of qualifications and position" to the younger employees retained. MCI Int'l Inc., 829 F. Supp. at 1452 (citing Hill v. Bethlehem Steel Corp., 729 F. Supp. 1071, 1075 n.6, aff'd without op., 902 F.2d 1560 (3d Cir. 1990)).
There is no dispute that plaintiffs were members of the protected class and were qualified for their positions. Bally's does contend, however, that plaintiffs are not similarly situated to the employees excluded from possible termination. Unlike all of the excluded employees, neither plaintiff was licensed to supervise a second game or had accumulated any hours dealing in a second game.
The Court finds that the plaintiffs' in this case are not similarly situated to those floorpeople who were licensed to supervise more than one game or who had begun the process of qualifying by dealing at least twenty-five hours in a second game. With respect to those employees whose licenses already bore a floorperson endorsement for a second game, the difference is obvious and indisputable.
With respect to those who had only started the qualification process by accumulating time dealing a second game, the difference is also significant, particularly when considering that the floorpeople had been warned by management at least two months earlier of the advisability of being qualified in more than one game. An employee who responds affirmatively to an expressed management need does not stand in the same shoes as one who shows no interest in expanding his job capabilities. And, as noted earlier, the addition of the twenty-five hour requirement ultimately increased by only three the number of terminated employees in the protected class.
Thus, summary judgment could be granted to the defendant solely on the basis that plaintiffs failed to establish a prima facie case.
(b) Non-Discriminatory Reason for Termination
Even if the Court were to assume, arguendo, that plaintiffs have established their prima facie case, we would still find that they are unable to meet their ultimate burden of showing Bally's non-discriminatory reason for termination was a pretext for age discrimination.
The next prong of the McDonnell Douglas analysis shifts the burden of production to the defendant to articulate a legitimate, non-discriminatory reason for the employees' discharge. If the defendant fails to produce evidence which, if taken as true, would permit the conclusion that there was a non-discriminatory reason for the defendant's action, judgment must be entered on behalf of the plaintiff. St. Mary's, 113 S. Ct. at 2747; see also Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992), cert. denied, 126 L. Ed. 2d 56, 114 S. Ct. 88 (1993); Chipollini, 814 F.2d at 898. However, the defendant's burden is not one of persuasion but only of production of evidence logically supporting a reason for the dismissal. Burdine, 450 U.S. 248; Bellissimo v. Westinghouse Elec. Corp., 764 F.2d 175, 179 (3d Cir. 1985), cert. denied, 475 U.S. 1035, 89 L. Ed. 2d 353, 106 S. Ct. 1244 (1986).
Defendant claims that business conditions in 1992 led it to reduce management staff. Sixteen of the forty-one terminated employees were one-game floorpeople who had not dealt a minimum number of hours in a second game. Both cutting corporate expenses and increasing the assignment flexibility of its remaining supervisory staff are certainly non-discriminatory reasons for the March 10, 1992, layoffs. We therefore find that the defendant has met its burden of production.
(c) Proffered Explanation As Pretext for Age Discrimination
The Supreme Court's decision in St. Mary's clarified step three in the McDonnell Douglas framework. Previously, the plaintiff could meet the burden of proof merely by establishing that the non-discriminatory reason proffered by the defendant was not credible. See Ezold, 983 F.2d at 522; Bennun v. Rutgers State University, 941 F.2d 154, 170 (3d Cir. 1991), cert. denied, 502 U.S. 1066, 112 S. Ct. 956, 117 L. Ed. 2d 124 (1992). Under St. Mary's the plaintiff must prove by a preponderance of evidence both that the reason was false and that discrimination was the real reason. 113 S. Ct. at 2752.
In Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), the Third Circuit decided the proper standard for summary judgment since the teachings of St. Mary's. Where plaintiff establishes a prima facie case and the defendant proffers a legitimate nondiscriminatory reason for the employment decision, the plaintiff "must point to some evidence, direct or circumstantial, 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.
Fuentes, 32 F.3d at 764 (citations omitted).
In addressing the quantum of evidence necessary to avoid summary judgment, the Third Circuit stated that the plaintiff's evidence "must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually motivate the employment action[.]" Id. (internal citations omitted) (emphasis in original). Furthermore, the question is not whether the employer's action was wise or prudent. "Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence'[.]" Id. at 765 (quoting Ezold, 983 F.2d at 531).
On August 11, 1992, Bally's promoted fifteen dealers to dual-rate dealers, 80% of whom were under age forty. Plaintiffs acknowledge that dual-rate dealers are licensed to both deal and supervise at least two games. Nevertheless, plaintiffs argue that the supervisory capacity of a dual-rate dealer is the same as that of a floorperson, and thus the younger promoted employees should be considered as replacements for the floorpeople terminated in March, 1992.
Bally's responds that "dual-rate dealers were paid less than floorpeople, did not increase Bally's total number of employees, and unlike plaintiffs, provided the flexibility that Bally's required." (Defendant's Reply Br. at 11.) These post-layoff promotions of employees who were able to deal or supervise in two or more games is totally consistent with Bally's stated desire to increase the flexibility of its supervisory staff without increasing the total number of employees.
Plaintiffs challenge the business necessity for the layoffs by arguing that (1) Bally's had a high volume of customers at the time of layoffs, (2) the number of pits opened at Bally's in 1991 were also open in 1992 and (3) the same number of supervisors worked the pits at Bally's before and after the layoffs. Further, plaintiffs claim that Bally's anticipated the approval of twenty-four hour gambling and additional casino games. Plaintiffs also refer to a July, 1992, memo advising employees not to take extra time off because of understaffing.
Apart from the limited evidential value of a memo prepared almost four months after the layoffs, to the extent that it manifests a management desire to make more intensive use of a smaller supervisor staff, it is consistent with the business purposes underlying the March, 1992, layoffs. We note that plaintiffs have produced a portion of the 1992 annual report of Bally's parent company which clearly shows that it was undergoing major restructuring in 1992 in order to service existing debt. (Plaintiffs' Ex. 1.)
The wisdom or prudence of Bally's action is not at issue. Rather, "the non-moving plaintiff must demonstrate . . . weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons" in order to show discriminatory animus. Fuentes, 32 F.3d at 765. Plaintiffs have presented no proof that Bally's decision was even implausible under the business conditions that existed at the time of layoffs, let alone motivated by age discrimination.
There are likely to be very few business judgments the wisdom of which cannot, with hindsight, be challenged. As noted in a recent decision:
It is difficult to imagine any case in which the plaintiff could not create a genuine factual dispute about whether his performance was satisfactory. That is, almost any litigant could argue that the proffered reasons for his termination were factually incorrect or incomplete. To allow a motion for summary judgment to be defeated simply because there was a dispute concerning the factual premises underlying the employer's termination decision would obviate the McDonnell Douglas/Burdine/St. Mary's framework.
Waldron v. SL Industries, Inc., 849 F. Supp. 996, 1006 (D.N.J. 1994). The business rationale for the layoffs demonstrates neither the "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" from which a reasonable fact finder could infer an age-based animus. Fuentes, 32 F.3d at 765.
Bally's Director of Labor Relations prepared a memo listing not only the employees ages, but also other protected classifications such as race and gender. This document is no more evidence of age discrimination than it is evidence of sex or race discrimination. We earlier held
that this memo was not direct evidence of discriminatory animus. We now hold that this same evidence does not support a claim of pretext.
Plaintiffs also assert proof of aged-based animus in the manner in which Bally's implemented the new layoff policy, including (1) revocation of the seniority-based termination policy only four days before layoffs, (2) disavowal of the existence of the old policy by management, (3) failure to warn employees in writing of a change in job criteria in violation of Bally's progressive discipline policy, (4) failure to require dual-game capacity, (5) failure to consider the performance of individuals, and (6) failure to demote or allow part-time work is evidence of pretext.
We have already found that Bally's retraction of its seniority-based termination policy is not direct evidence of discrimination. Moreover, plaintiff has produced no evidence that the person who actually made the layoff decisions, Richard Knight, was aware of the revoked policy. But even if Knight were aware of that policy and chose to ignore it, that is not evidence of discriminatory intent. As discussed above,
age and years of service are analytically distinct, and the failure to conduct a reduction in force based solely on seniority is not circumstantial evidence of age discrimination. See Hazen, 113 S. Ct. at 1707.
Antidiscrimination laws do not require employers to inform employees of the need for improving their job skills. MCI Int'l, Inc., 829 F. Supp. at 1453. Plaintiffs admit that they were told, at the very least, that getting a second game would be beneficial. This suggestion was more than the law requires.
Neither Bally's failure to require dual-game capacity for all floorpeople, nor its failure to base its layoff decisions on individual performance (beyond hours dealt in a second game), nor defendant's failure to demote or allow part-time work
reflects discriminatory animus. Undoubtedly Bally's had a wide range of options available when deciding to reduce costs. That it chose some of those options and not others provides no basis, in and of itself, to believe that age discrimination motivated the path taken.
Plaintiffs argue that there was no factual justification for the criteria used to designate floorpeople subject to layoff, particularly the exclusion of those who had dealt twenty-five hours or more in a second game. Dr. James Fadigan, an Equal Employment Opportunity consultant retained by plaintiffs, asserts that the twenty-five hour requirement was not rationally related to either job function or performance or to Bally's articulated goal of a more flexible supervisory staff. Although not argued by plaintiffs, we also note that twenty-five hours is only a small part of the 350 or more hours of dealing which would be required for a floorperson to obtain a second game license endorsement. N.J.A.C. 19:41-1.9(c)(3)(i)(2).
Bally's asserts that the twenty-five hour dealing requirement was reliable evidence of a floorperson's good faith efforts to acquire dual game capacity. Whether this was or was not a wise business judgment is not for the Court to say. It is not, however, implausible, incoherent, inconsistent or contradictory and does not support an inference of age discrimination. Fuentes, 32 F.3d at 765.
As already noted, a statistical analysis of the layoffs compels the same conclusion. If Bally's had terminated sixteen one-game floorpeople without the additional dealing hours requirement -- based only on seniority -- only three floorpeople in the protected class would have been spared termination. Maidenbaum himself would have been discharged if the layoffs of one-game floorpeople had been based on seniority alone. Even if the Court could be persuaded that this twenty-five hour requirement was instituted to save two or three particular floorpeople, we do not believe there is any evidence that this policy was devised based on the ages of the people saved from termination or those who were laid off.
Maidenbaum alleges that after his termination Bally's presented him with a release of his rights "under applicable federal and state laws relating to employment discrimination." (Plaintiffs' Ex. 14.) Plaintiff argues that this form of release violates the provisions of 29 U.S.C. § 626(f) which was added to the ADEA as part of the Older Workers Benefit Protection Act, Pub. L. No. 101-433, 104 Stat. 978 (1990) (codified at 29 U.S.C. §§ 621, 621 notes, 623, 623 notes, 626, 626 note, 630), as amended Pub. L. No. 102-236, § 9, 105 Stat. 1816 (1991) (codified at 29 U.S.C. § 623 note).
Section 626(f) provides that a worker may not waive his ADEA rights unless the waiver makes specific reference to those rights, the employee is given at least twenty-one days to consider the release, and the employee is advised in writing to consult an attorney. Maidenbaum never signed the release, which was marked "DRAFT", and defendant has never asserted that plaintiffs ever surrendered their ADEA rights. We have no way of guessing whether Bally's would have made the required disclosures or waited an appropriate period before accepting the signed release. Suffice it to say that there is no logical connection in this case between the draft release and an intent to violate the laws against age discrimination.
Plaintiffs' meager evidence of pretext is insufficient to permit a reasonable fact finder to disbelieve the defendant's articulated legitimate reasons for its reduction in force or to believe that an invidious discriminatory reason was more likely than not a determinative cause of the defendant's actions.
Because we find that plaintiffs have failed to proffer sufficient credible evidence on which a reasonable fact finder could conclude that Bally's termination of the plaintiffs was motivated by an age-based animus, whether under a theory of disparate impact or disparate treatment, defendant's motion for summary judgment will be granted, and plaintiffs' cross-motion for partial summary judgment will be denied.
Plaintiffs' remaining claim, that their discharge breached an implied contract of employment, is a state law cause of action within the Court's supplemental jurisdiction. A district court "may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.A. § 1367. When a federal count is subject to dismissal on a motion for summary judgment, the district court "should ordinarily refrain from exercising jurisdiction in the absence of extraordinary circumstances." Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir. 1976); Simmerman v. Corino, 804 F. Supp. 644, 658 (D.N.J. 1992), aff'd without op., 16 F.3d 405 (3d Cir. 1993); see also United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).
We find no extraordinary circumstances that would justify retention of jurisdiction, and the Court declines to exercise supplemental jurisdiction over the remaining state law claim.
An appropriate order in accordance with this opinion will be entered on even date herewith.
JOSEPH E. IRENAS
DATE: DEC. 28, 1994
Floorpeople who would have been terminated on application of strict seniority (based on list of 209 floorpeople, Plaintiffs' Ex. 6.]
NAME Age on 3/10/92
1. Caesar 36
2. Benzulli 33
3. Brower 36
4. Pharaphan 31
5. Van Twuyver 35
6. Uzzardi 52
7. Langton 35
8. Pace 37
9. Mance 35
10. Fruggiero 41
11. Vance 39
12. Tarewicz 39
13. Derogatis 55
14. Dennis 38
15. Dwyer 35
16. Knight 38
One-game floorpeople who would have been terminated on application of strict seniority (based on list of 39 floorpeople, Plaintiffs' Ex. 7.]
NAME Age on 3/10/92
1. Cutler 42
2. Stanley 34
3. Cooper 34
4. Gibson 39
5. Curran 31
6. Donatucci 32
7. Cella 36
8. Labor 49
9. Bitting 34
10. Friedland 44
11. Restle 49
12. Maidenbaum 53
13. Ocello 35
14. Merlino 35
15. Klunk 42
16. Corbitt 49
One-game floorpeople actually fired:
NAME Age on 3/10/92
1. Stanley 34
2. Cooper 34
3. Curran 31
4. Donatucci 32
5. Labor 49
6. Bitting 34
7. Restle 49
8. Maidenbaum 53
9. Merlino 35
10. Klunk 42
11. Corbitt 49
12. Stanzione 46
13. Fiore 53
14. Benedetto 44
15. Decker 43
16. Daly 42*