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William J. Ebner v. Sts Tire and Auto Center

September 9, 2011


The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.



Plaintiff Willam Ebner asserts that when defendant Somerset Tire Service, Inc. ("STS")*fn1 bought his former employer McDonough Tire and reopened it under the STS brand, it declined to hire him due to his advanced age. He brought claims under the Age Discrimination in Employment Act of 1967 ("ADEA"), New Jersey Law Against Discrimination ("NJLAD"), and New Jersey common law (Am. Compl. ¶¶ 5--22), and STS now moves for summary judgment [D.E. 18].

I. Statement of Facts

Ebner, who was born on April 30, 1933, began working with McDonough Tire in June 1965, and over the course of 44 years, he rose to the position of assistant manager. (Compl. ¶ 1; Def.'s Statement of Material Facts ¶ 3.) According to Ebner, on March 23, 2009, Michael Connelly, STS's Director of Retail Service and Sales, and Kevin Traier, STS's Vice President of Retail Operations, came to the McDonough Tire store in Montclair and told the staff there that it had purchased McDonough Tire. (Pl.'s Statement of Material Facts ¶9; Def's Statement of Material Facts ¶ 5.) Ebner states that Connelly and Traier assured the McDonough Tire employees that everything would "stay the same" after the purchase, and that the only change would be the name on their paychecks, but STS contends that it told the employees only that some things would stay the same and some things would change. (Pl.'s Statement of Material Facts ¶ 9; Reply Br. at 1--2.) At the same time, STS provided the McDonough Tire employees with applications to work for STS, and Ebner completed one, as did all seven of McDonough Tire's full-time employees. (Def's Statement of Material Facts ¶ 5; Pl.'s Statement of Material Facts ¶ 11.) Although Ebner was "definitely" qualified for the position of assistant manager with STS, he was not offered the position. (Pl.'s Statement of Material Facts ¶ 8.) He was 76 years old at the time. (Pl.'s Statement of Material Facts ¶ 11.) While he alleges in his complaint that he was wrongfully discharged from STS, he concedes that, in fact, he was never employed by STS. (Compl. ¶ 12; Ebner Interog. ¶ 8; Opp'n Br. at 9.) Indeed, STS acquired McDonough Tire via an asset purchase agreement that stated that STS had discretion regarding whether to hire the existing McDonough Tire employees. (Ryan Aff., attached to Leo Certif. as Ex. G, ¶ 5.)

The details surrounding STS's decision not to hire Ebner are convoluted and, in large part, in dispute. Ebner asserts that he was the only McDonough Tire employee not put through the due diligence process and not offered a position with STS. (Compl. ¶ 9; Pl.'s Statement of Material Facts ¶ 16.) He recalls that while meeting with Traier and Connelly, he was asked how long he planned on working, and that STS then told him they had nothing for him. (Pl.'s Statement of Material Facts ¶ 12.) He also states that STS offered the assistant manager position to James Coerper, McDonough Tire's thirty-eight-year-old service manager. (Pl.'s Statement of Material Facts ¶¶ 23--33.) Further, STS eventually hired Kevin McDonough and another younger man, Alberto Sanchez, as assistant managers. (Traier Dep. 62:8--15.)

STS contends that although Ebner was indeed qualified, it made a business decision to staff the Montclair store with STS management from a recently closed branch who had a pre-existing knowledge of STS's operations. (Connelly Dep. 28:6--12.) Because no position was open, STS says, it had nothing to offer Ebner. (Traier Dep. 33:20--34:3.) In addition, Connelly stated that he did not offer Coerper the assistant manager position. (Connelly Dep. 47:20--2.)*fn2

Furthermore, STS management's descriptions of McDonough's position with STS vary depending on whose description it is. Traier stated that McDonough is not an assistant manager, calling McDonough's role a "sales position." (Traier Dep. 43:5-9.) Connelly, however, stated that "I am assuming that we named [McDonough] an assistant manager. I don't know that for a fact." (Connelly Dep. 40:23.) Meanwhile, Michael Ryan, a STS Vice President, stated that McDonough "replaced Mr. Ebner as the assistant manager." (Ryan Aff. 7.)

Nor is it entirely clear who has served as an assistant manager at the Montclair STS store. Connelly stated that, at various times since the acquisition, management positions at the store have been held by several people, including Brian Wieser, a man named Doug whose last name is not provided by the parties, Sanchez, and McDonough, the former owner of McDonough Tire. (Connelly Dep. 30:10--4, 40:23--4, 78:14--79--16.) STS claims that aside from McDonough, it has used only pre-existing employees to fill management positions in Montclair. Id. As it stands today, McDonough and Sanchez appear to share assistant manager responsibilities, with McDonough serving in a less formal, part-time role. (STS Interog. ¶ 19; Traier Dep. 62:8--15.)

Ebner filed an amended complaint in the Superior Court of New Jersey, alleging three causes of action. The first count alleged age discrimination in violation of the NJLAD. N.J.S.A. § 10:5-1, et seq. The second count alleged a "Violation of Public Policy of the State of New Jersey," on the grounds that New Jersey's public policy prohibits discrimination on the basis of age. The final count alleged age discrimination in violation of the ADEA, 29 U.S.C. §§ 621--634. STS removed the suit to federal court on May 4, 2010 [D.E. 1], and subsequently filed the instant motion for summary judgment.

II. Summary Judgment Standard

Summary judgment is only appropriate "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." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must draw "all reasonable inferences from the underlying facts in the light most favorable for the non-moving party." Battaglia v. McKendry, 233 F.3d 720, 722 (3d Cir. 2000). 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 (1986). "A factual dispute is material if it bears on an essential element of the plaintiff's claim, and is genuine if a reasonable jury could find in favor of the nonmoving party." Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002) (citations omitted).

III. ...

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