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DUNGEE v. NORTHEAST FOODS

October 3, 1996

PATRICIA DUNGEE, Plaintiff,
v.
NORTHEAST FOODS, INC., et al., Defendants.



The opinion of the court was delivered by: IRENAS

 Irenas, District Judge:

 Plaintiff, Patricia J. Dungee ("Dungee"), who unsuccessfully sought employment with defendant, Northeast Foods, Inc. ("Northeast"), has sued Northeast and Judith Dandro ("Dandro"), Northeast's Director of Customer Service, alleging that she was subjected to discrimination on account of her age (50 years old) and sex in violation of Title VII, 42 U.S.C. § 2000e, et seq, the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. § 10:5-12, and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1). Defendants move for summary judgment, pursuant to Fed. R. Civ. P. 56. Because the plaintiff has failed to proffer any evidence from which a reasonable finder of fact could conclude that the rejection of her employment application was motivated in whole or in part by plaintiff's sex or age, defendants' motion will be granted, and the complaint will be dismissed in its entirety.

 I. BACKGROUND

 Plaintiff, a fifty-year-old female, unsuccessfully applied for a position as a customer service representative ("CSR") at Northeast, a company that operates bread bakeries. The CSR serves as a liaison between Northeast and its primary customer, McDonald's. Plaintiff claims that defendants' selection of a "young man," the 33-year-old Victor Desiderio ("Desiderio"), was motivated by plaintiff's age and sex.

 In July 1994, Plaintiff applied for the CSR position after reading a newspaper advertisement placed by Dandro, Director of Customer Service. The advertisement stated that the Northeast was seeking "an aggressive individual with 2-3 years experience in customer service and a Bachelor's Degree. . ." See Pl. Mem. Opp'n Summ. J. at Ex. 3. On August 12, 1994, plaintiff, and all other applicants, were interviewed by Dandro and Anne Nicholson, the outgoing CSR. Dandro had selected plaintiff and 11 other applicants for interviews from a pool of over 200 resumes. Dandro Dep. at 106:17-18. Plaintiff's short resume did not include her birth date, nor was there any other data from which one could determine her age.

 During the interview, Dandro described the position to the plaintiff. Dandro told the plaintiff that the job did not require experience in the bakery industry. Dandro Dep. at 237:18-20. Plaintiff told the interviewers that she had 13 years of sales experience and had attended a training course at a baking school in Pennsylvania. Pl. Mem. Opp'n Summ. J. at 8. At the conclusion of the interview, plaintiff alleges that Dandro told her that she would be contacted either by phone or by letter. Pl. Mem. Opp'n Summ. J. at 11. Plaintiff contends, however, that she thought she had been hired at the interview and therefore ceased her job search. Pl. Mem. Opp'n Summ. J. at 12. Defendants deny that Dandro offered the job to the plaintiff. Dandro Dep. at 177:4-5.

 By letter dated August 19, 1996, defendants informed plaintiff that she had not been selected for the CSR position. Pl. Ex. 35. Plaintiff then sent Dandro a note requesting an explanation for the decision. Dungee Dep. at 133:8-20. By letter dated August 30, 1994, Dandro responded. *fn1" Pl. Ex. 36. It is the content of the August 30 letter that forms the basis of plaintiff's complaint. The letter informed the plaintiff that a "young man" with experience in the bakery industry had been hired to fill the CSR position.

 Desiderio, the "young man" referenced in the letter, had worked for three years at Maier's Bakery, which is an assembly line bakery operation and one of Northeast's competitors. Pl. Mem. Opp'n Summ. J. at 23. Desiderio held the positions of route sales representative and sales representative at Maier's. Desiderio Dep. at 27-28. During his interview Desiderio appeared to be very knowledgeable about the bakery business. Dandro Dep. at 161-62; Nicholson Dep. at 46-47. Dungee never worked in an assembly line bread bakery or in route sales for bread products. Dungee Dep. at 277:8-15. Desiderio had also held several account representative and sales positions prior to his employment at Maier's. Desiderio Dep. at 18-23. At the end of his interview, Dandro also advised Desiderio that she would be contacting him either by phone or by letter. Desiderio Dep. at 86-87. Subsequently, Dandro hired Desiderio.

 On February 14, 1995, plaintiff filed a charge with the Equal Opportunity Employment Commission ("EEOC") under Title VII and the ADEA. On August 2, 1995, the EEOC issued a Dismissal and Notice of Rights, concluding that based upon its investigation, neither Title VII nor the ADEA had been violated. Def. Ex. 12. Plaintiff subsequently filed the instant lawsuit. The claims against Dandro individually under the ADEA and Title VII have been dismissed. Plaintiffs claims are based on pretext, or in the alternative, on a "mixed motive" theory.

 II. SUMMARY JUDGMENT STANDARD

 Under Fed. R. Civ. P. 56(c), a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The non-moving party may not simply rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward with admissible evidence establishing a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. A genuine issue for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987)(Becker, J., concurring).

 Plaintiff proceeds on two distinct theories of disparate treatment discrimination. First, she asserts that the pretext proof framework is applicable to her claim. In the alternative, she argues that her case is one of "mixed motives," where the decision was motivated both by legitimate and by discriminatory considerations. This court finds that plaintiff has failed to produce enough evidence to withstand summary judgment on the pretext theory. Moreover, plaintiff has failed to produce the "direct" evidence needed to trigger the mixed motive analysis, and, therefore, cannot overcome summary judgment on that theory either.

 A. Pretext

 1. Generally

 The seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), established the burden of proof framework in a Title VII failure to hire case. Although the Court in McDonnell Douglas "articulated plaintiff's Title VII burden in the context of racial discrimination, it has been determined that this same standard is applicable in the case of a sex discrimination claim." Baker v. Emery Worldwide, 789 F. Supp. 667, 670 n.1 (W.D. Pa. 1991)(citing Bryant v. International Sch. Services, 675 F.2d 562 (3d Cir. ...


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