1997 WL 38159, at *7. In order to establish a prima facie case of discrimination, DeJoy must prove by a preponderance of the evidence (1) he belongs to a protected class, (2) he was qualified for the Vice President and General Manager positions and/or the Area Vice President position, (3) he was not retained in the positions, despite being qualified, and (4) he ultimately was replaced by someone sufficiently younger to permit an inference of age discrimination. McDonnell Douglas, 411 U.S. at 802; Keller, 105 F.3d 1508 at , 1997 U.S. App. LEXIS 1755, 1997 WL 38159, at *8; Lawrence, 98 F.3d at 65-66; Waldron v. SL Industries, Inc., 56 F.3d 491, 494 (3d Cir. 1995); Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995); Billet, 940 F.2d at 816 n.3 (citing Maxfield v. Sinclair Int'l, 766 F.2d 788, 792 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986)); Chipollini, 814 F.2d 893, 897; Anderson, 89 N.J. at 492; see Burdine, 450 U.S. at 252-53.
Once established, a prima facie case creates a presumption of discriminatory intent by the defendant-employer. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742; see Burdine, 450 U.S. at 254. While the ultimate burden of persuasion remains with the plaintiff, the burden of production shifts to the defendant-employer who must provide a legitimate justification for terminating the employee. Hicks, 509 U.S. at 507; Burdine, 450 U.S. at 254; Lawrence, 98 F.3d at 66; Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596, 538 A.2d 794 (1988); Anderson, 89 N.J. at 492. "To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection." Burdine, 450 U.S. at 255. At this stage, "the defendant bears only the burden of explaining clearly the nondiscriminatory reasons for its actions." Id. at 260 (rejecting lower court decision holding defendant to a preponderance of the evidence standard). Once the employer satisfies this burden, the presumption raised by the prima facie case is "rebutted" and "drops from the case." Burdine, 450 U.S. at 255 & n.10; see Hicks, 509 U.S. at 507.
A plaintiff-employee must then prove "that the employer's proffered reasons are pretextual." Torre, 42 F.3d at 829; see Hicks, 509 U.S. at 507-08; Burdine, 450 U.S. at 253; Keller, 105 F.3d 1508 at , 1997 U.S. App. LEXIS 1755, 1997 WL 38159, at *7; Anderson, 89 N.J. at 492.
At the summary judgment phase, "a plaintiff may defeat a summary judgment motion by either (1) by discrediting the proffered reasons for termination, directly or circumstantially, or (2) by adducing evidence that discrimination was more likely than not a motivating or determinative cause of the adverse action." Lawrence, 98 F.3d at 66; Sempier v. Johnson & Higgins, 45 F.3d 724, 731 (3d Cir.), cert. denied, U.S. , 115 S. Ct. 2611, 132 L. Ed. 2d 854 (1995); Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).
"To discredit the employer's proffered reason[s], the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether a discriminatory animus motivated the employer[.] ... Rather, the ... plaintiff must demonstrate such 'weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reason[s] for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons.'" Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 331 (3d Cir. 1995) (quoting Fuentes, 32 F.3d at 765); see Waldron, 56 F.3d at 495 (rejecting "pretext-plus" standard under which a plaintiff would have to show defendant's reasons were false and the real reason for the employment action was discriminatory).
Once the plaintiff points to evidence sufficient to discredit the defendant's proffered reasons, the plaintiff need not also come forward with additional evidence of discrimination beyond his or her prima facie case to survive a summary judgment motion by the defendant. Brewer, 72 F.3d at 331; Waldron, 56 F.3d at 495.
Curiously, Defendants do not address the McDonnell Douglas -- Burdine analysis in the Moving Brief. Instead, Defendants rely upon a conclusory argument that DeJoy is unable to sustain his burden of proof because he has "failed to adduce any evidence" of age discrimination and an argument that DeJoy should be judicially estopped from making pursuing his age discrimination claims because of inconsistent statements. Moving Brief at 16.
1. Burden of Proof
DeJoy has made out a prima facie case of age discrimination. There is no dispute that DeJoy is in the protected class; at the time of the alleged discrimination, DeJoy was fifty-six years old. See 29 U.S.C. § 631. Additionally, there appears to be no dispute that DeJoy was qualified for the position; as indicated, DeJoy held the position of Vice President and General Manager of Suburban Cablevision, prior to the alleged discrimination. See Keller, 105 F.3d 1508 at , 1997 U.S. App. LEXIS 1755, 1997 WL 38159, at *8 ("At the prima facie stage of the litigation, a plaintiff 'only needs to demonstrate that [he or she] 'possesses the basic skills necessary for the performance of [the] job.'"). Finally, DeJoy, despite being qualified, has been replaced by two younger men. Defendants, moreover, concede, for the purposes of the instant motion, that DeJoy has established a prima facie case of age discrimination. See Reply at 2 n.2.
As explained, because DeJoy has established a prima facie case of age discrimination, the burden of production shifts to Defendants to articulate legitimate, non-discriminatory reasons for their failure to retain DeJoy as Vice President and General Manager of Suburban or appoint him to the position of Area Vice President. See Keller, 105 F.3d 1508 at , 1997 U.S. App. LEXIS 1755, 1997 WL 38159, at *8.
As indicated, Defendants have not addressed the McDonnell Douglas -- Burdine analysis in the Moving Brief. Defendants, moreover, have not articulated legitimate, non-discriminatory reasons for their employment decisions concerning DeJoy in the Moving Brief.
After recognizing Defendants' failure to set forth any legitimate, non-discriminatory reasons for their employment decisions in the Moving Brief, DeJoy addressed the reasons for the decisions, given by Doyle during his deposition:
(1) DeJoy made two inappropriate comments at a dinner on September 1, 1994; (2) DeJoy was uncooperative with Peddrick regarding executive salary information; (3) DeJoy failed to show the cash flow goals Doyle expressed to DeJoy at a budget presentation in Toronto in November 1994; and (4) DeJoy exercised poor judgment in calling Doyle numerous times to discuss issues which Doyle told DeJoy Comcast [Cable] could not address prior to closing.
Opposition Brief at 10-11; see id. at 5.
DeJoy argues the reasons given by Doyle during discovery were pretextual. Opposition Brief at 11-14. DeJoy argues he never made one of the two allegedly inappropriate comments and that Doyle misrepresents the second, which was intended and was received as humorous. Opposition Brief at 11. DeJoy further points out that he continued in his position for three months after these allegedly inappropriate comments were made and that "nothing was said to either DeJoy or anyone else at Maclean Hunter regarding [DeJoy's] allegedly offensive comments." Id.
Finally, DeJoy observes Defendants offered him the position of Director of Business Development after he allegedly made the offensive comments. Opposition Brief at 11. As indicated, the major duties of the position Director of Business Development, according to the job description prepared by Doyle, included "maintaining consistent visitation with community leaders to promote strong community relationships." Moving Brief, Exh. I. According to the job description, moreover, DeJoy would have been responsible, as Director of Business Development, for managing Comcast Cable's interactive businesses, once they were constructed. Id. The argument is that removing Doyle from his position as Vice President and General Manager of Suburban Cablevision because of his alleged inappropriate comments appears inconsistent with offering him a position that requires DeJoy to interact with community leaders and manage newly developed businesses.
DeJoy argues "there are genuine issues of material fact as to whether the other events cited by Doyle even occurred." Opposition Brief at 12. For example, DeJoy argues that neither he nor any Suburban Cablevision manager was informed by Doyle about Comcast Cable's cash flow goals. Id. (citing DeJoy Dep. at 375; Albarella Dep. at 129). Accordingly, DeJoy "could not plausibly have expressed to Doyle that such goals could not be met." Id.
DeJoy argues "there is not a single document to corroborate the claim that Peddrick had difficulty obtaining executive salary information ...." Opposition Brief at 13. DeJoy argues, moreover, he was not authorized to release salary information, prior to closing. Id.
DeJoy asserts that Defendants' argument that DeJoy inappropriately contacted and requested information from Doyle is inconsistent with Comcast Cable's own actions prior to closing. Opposition Brief at 12-13. As indicated, Defendants held employee meetings on 2 December 1994 to introduce themselves to the employees of Suburban Cablevision and Jersey City Cable, prior to the 22 December 1994 closing. Defendants also attended the budget presentation, held in November 1994. Doyle Dep. at 55-59. Accordingly, DeJoy argues, Defendants' activities prior to closing are inconsistent with their removal of DeJoy from his position because of his allegedly inappropriate questions. Moving Brief at 13.
Finally, DeJoy argues the position of Director of Business development was a "post hoc fabrication." Moving Brief at 13. As indicated, the Director of Business Development position does not appear on the table of organization for Suburban Cablevision published on 24 March 1995. Id. ; Blunda Cert., Exh. R. DeJoy argues that "despite the alleged 'importance' and 'critical' nature of this position, Comcast [Cable] has not hired any one individual to perform this job." Id. (citing Fischer Dep. at 159).
In the Reply Brief, Defendants, for the first time, set forth their alleged legitimate, non-discriminatory reasons for removing DeJoy as Vice President and General Manager of Suburban Cablevision. Reply at 3. Defendants argue:
(1) At a September 1, 1994 "get acquainted" meeting with Comcast [Cable] ... DeJoy made two lewd and inappropriate comments ... ; (2) ... DeJoy told ... Doyle that Suburban Cablevision was running as tightly as it could be run and that there was no room for cash flow growth ... ; (3) At the Suburban Cablevision budget presentation in Toronto, ... DeJoy did not present a budget, he showed pictures of ... Patterson juxtaposed on a muscle man's body and the budget showed a negative cash flow growth for the cable system ... ; (4) During a meeting with ... DeJoy, he belittled a Comcast [Cable] executive, David Bridingar ...; (5) ... DeJoy was very difficult to work with regarding salary information of Suburban Cablevision Managers ... (6) ... DeJoy frequently contacted ... Doyle about the same issues requesting decisions from Comcast [Cable], which did not yet own Suburban Cablevision, and ... [DeJoy] would not accept the answer that Comcast [Cable] could not make any decisions until they owned the property ... (7) Comcast [Cable] had the opportunity to hire ... Fischer who had more than 19 years experience in cable television as a government regulator, community relations specialist, and local/regional Chief Operating Officer. In addition, ... Fischer has a law degree.... Doyle and ... Baxter had worked with ... Fischer in the past and were impressed with his qualifications.
Reply Brief at 3-4. Defendants fault DeJoy for failing to address "reasons (4), (5) and (7)." Id. at 4.
As indicated, Defendants bear the burden of demonstrating there exist "no genuine issue as to any material fact and that [they are] entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex, 477 U.S. at 322. Because DeJoy has established a prima facie case of age discrimination, Defendants are required to set forth articulate legitimate, non-discriminatory reasons for their actions. Burdine, 450 U.S. at 253; Keller, 105 F.3d 1508 at , 1997 U.S. App. LEXIS 1755, 1997 WL 38159, at *7. "To accomplish this, [Defendants] must clearly set forth through the introduction of admissible evidence the reasons for [DeJoy's] rejection." Burdine, 450 U.S. at 255. Defendants have failed to meet their burden of production; as indicated, Defendants did not set forth any of their alleged legitimate, non-discriminatory reasons for DeJoy's removal in the Moving Brief. Defendants' failure to set forth their alleged legitimate, non-discriminatory reasons in the Moving Brief denied DeJoy his "'full and fair opportunity' to prove pretext." Burdine, 450 U.S. at 258.
DeJoy, moreover, has cast "substantial doubt" on the proffered reasons he was able to glean from the evidence in the instant case. See Fuentes, 32 F.3d at 764. Contrary to Defendants' argument, see Reply at 4, DeJoy will not be faulted for failing to anticipate all of Defendants' proffered reasons.
Based upon the foregoing, it appears genuine issues of material fact preclude the entry of summary judgment with regard to DeJoy's age discrimination claims. Defendants have not met their burden of coming forward with legitimate, non-discriminatory reasons for their actions. Furthermore, if a jury were to accept DeJoy's evidence and his interpretation of that evidence, it could determine that Defendants' proffered non-discriminatory reasons for removing him from his position were pretextual and that Defendants discriminated against him because of his age. See Torre, 42 F.3d at 833. Accordingly, summary judgment is inappropriate. See Keller, 105 F.3d 1508 at ..., 1997 U.S. App. LEXIS 1755, 1997 WL 38159, at *15; Fuentes, 32 F.3d at 764.
2. Judicial Estoppel
As indicated, Defendants argue DeJoy's allegations and statements "are completely inconsistent with [a claim for age discrimination] and ... DeJoy should therefore be judicially estopped from pursuing his age discrimination claims." Moving Brief at 16 (citing McNemar v. Disney Store, Inc., 91 F.3d 610 (3d Cir. 1996), cert. denied, U.S. , 117 S. Ct. 958, 136 L. Ed. 2d 845 (1997)).
"The doctrine of judicial estoppel serves a consistently clear and undisputed jurisprudential purpose: to protect the integrity of the courts." McNemar, 91 F.3d at 616. Judicial estoppel is an equitable doctrine that a court, in its discretion, may invoke to protect the integrity of the judicial process. Id. at 617. "Judicial estoppel is intended to prevent parties from playing fast and loose with the courts by asserting inconsistent positions." Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 361 (3d Cir. 1996); see McNemar, 91 F.3d at 617; EF Operating Corp. v. American Buildings, 993 F.2d 1046, 1050 (3d Cir.), cert. denied, 510 U.S. 868, 126 L. Ed. 2d 151, 114 S. Ct. 193 (1993).
Judicial estoppel is "factually driven." McNemar, 91 F.3d at 613. As the McNemar court held:
Judicial estoppel is an equitable doctrine, invoked by a court in its discretion (1) to preserve the integrity of the judicial system by preventing parties from playing fast and loose with the courts in assuming inconsistent positions, and (2) with a recognition that each case must be decided on its own particular facts and circumstances.
91 F.3d at 617.
Defendants argue DeJoy's statements in both his EEOC Affidavit and his answers to the court's interrogatories are inconsistent with a claim that Defendants engaged in age discrimination. Moving Brief at 14. In response to an interrogatory asking DeJoy to "state with particularity what [he] contend[s] the Defendant[s] did, or failed to do, which entitles you to obtain relief you seek in this action[,]" DeJoy stated, in relevant part:
It is clear that as of December 7, 1994, [DeJoy] was the designated Area Vice President in good standing and that on December 12, 1994, he was replaced because of his illness and perceived disability. He was replaced by a younger, less experienced person.