Stephen G. Console, Esq., Rahul Munshi, Esq., CONSOLE LAW OFFICES LLC, Philadelphia, PA, Attorneys for Plaintiff.
William F. Cook, Esq., William M. Tambussi, Esq., BROWN & CONNERY, Westmont, NJ, Attorneys for Defendant.
JEROME B. SIMANDLE, Chief District Judge.
Plaintiff James McQuilkin alleges that his employer, Defendant Delaware River Port Authority ("DRPA"), retaliated against him after he questioned whether he had been denied tuition reimbursement for his law school education because of his age. Plaintiff alleges that, after he successfully challenged the DRPA tuition reimbursement decision, Defendant retaliated against him by setting his salary as a grants specialist too low, denying him raises and failing to create the position of grants administrator for him, all in violation of the retaliation provision of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(d).
Defendant brings this motion for summary judgment [Docket Item 35], arguing that the claims are time-barred and, in the alternative, that Plaintiff fails to establish a prima facie case of retaliation. Defendant also argues that Plaintiff is not entitled to liquidated damages.
For the reasons explained below, Defendant is entitled to summary judgment to the extent Plaintiff's claims depend on the initial setting of his salary as a grants specialist or for failing to create the position of grants administrator which did not exist within the DRPA. These claims fail because they are untimely, because Plaintiff cannot establish these are materially adverse actions, or both. However, as further explained below, summary judgment is denied to the extent Plaintiff alleges Defendant denied him a raise as a grants specialist in retaliation for his allegation of age discrimination.
i. Plaintiff's employment & law school tuition reimbursement
Plaintiff James McQuilkin was hired by Defendant DRPA in 1987 as a toll collector and later worked as a toll accountant and purchasing specialist before being promoted to grants specialist in 2005. (Statement of Material Facts ("SMF") [Docket Item 35-2] ¶¶ 1-4.) Plaintiff retired in January 2010. ( Id. ¶ 5.)
In 1997, at the age of 49, while Plaintiff was working for the DRPA, he began attending law school, first at Widener Law and then at Rutgers School of Law - Camden. ( Id. ¶ 6.) When Plaintiff first enrolled, the DRPA offered its employees a tuition reimbursement program that provided for 100 percent reimbursement for tuition, books and registration fees. (Counter-statement of Material Facts ("CMF") [Docket Item 37] ¶ 10.) The reimbursement policy did not require employees to demonstrate that their course of study was related to their jobs. ( Id. ¶ 11.) Plaintiff received reimbursement for his first semester. However, effective January 1, 1998, the DRPA adopted a new, more limited policy that required employees to demonstrate a connection between their course of study and their job, present or prospective. (Def. Ex. D-7 [Docket Item 35-3] at 2, 4; Def. Ex. 12 at 1.) The change in policy was not communicated to all employees until December 1998. ( Id. at 4 n.5.) Plaintiff's request for tuition reimbursement for his second semester was denied in January 1998. (SMF ¶ 9.)
Plaintiff filed an internal grievance, which was denied in February 1998. (CMF ¶ 16.) In a letter explaining the denial, the treasurer and CFO of the DRPA stated that because "there are no current or prospective job opportunities in the Finance Division requiring a law degree, there was no basis for approving the tuition reimbursement request" under the new policy. (Pl. Ex. E [Docket Item 37-2] at 1.) Years later, in 2004, Plaintiff met with Jeffrey Nash, vice chair of the DRPA board of commissioners, and complained to him about what Plaintiff described as "the arbitrary and capricious exclusion of benefits under the DRPA tuition reimbursement program...." (Def. Ex. 12 at 1.) Plaintiff identified other employees who received reimbursements and suggested that some factor other than cost motivated his denial. ( Id. at 1-2.) Plaintiff stated: "I don't profess to understand the actual reason for my exclusion from our tuition reimbursement policy, or even why I have not been able to advance into a more responsible job classification since graduating from Rutgers Law School in 2001." ( Id. at 2.)
DRPA investigated Plaintiff's reimbursement denial. (SMF ¶ 15.) On May 12, 2004, Plaintiff met with Toni Brown, the DRPA's director of office of business development and equal opportunity. (Id.; Def. Ex. D-6 at 1.) As Ms. Brown recounted in an e-mail to Michael Joyce, assistant general counsel for the DRPA, and John Matheussen, CEO of the DRPA, Plaintiff mentioned in the meeting that
1) he thought it [reimbursement denial] might form the basis of an age' discrimination claim, and 2) he thinks the arbitrary and capricious' manner in which Barbara Jones denied his request is systemic' of the way decisions are being made regarding certain policies' within her control through Human Resources.
(Id.) Plaintiff later testified that he told Ms. Brown that he had gone to the Equal Employment Opportunity Commission ("EEOC") to fill out an intake questionnaire, although that fact was not stated in Brown's summary e-mail. (SMF ¶¶ 16-17.) Brown did mention that
Jim believes his age may well have been the reason for the adverse decision; he will be 57 in November, and was about 51 when he first started the law school program. The other four employees were significantly younger than Jim when they started their respective programs (late 20s, early 30s, and late 30s.)
(Def. Ex. D-6 at 2.)
Upon completion of the investigation, and on the recommendation of Ms. Brown, the DRPA reimbursed Plaintiff in full, paying more than $30, 000. ( Id. ¶¶ 21-22.) Plaintiff never filed an EEOC charge in 2004. ( Id. ¶ 29.)
ii. Plaintiff's promotion to grants specialist
Later in 2004, Plaintiff discussed the possibility of joining DRPA's government relations department with the department's director, William ("Bill") Shanahan. ( Id. ¶ 33.) The parties dispute the content of discussions between Plaintiff and Mr. Shanahan as well as how to characterize what promises were made to Plaintiff, if any, relating to his job title, job description, or salary. According to Plaintiff,
Bill had asked me if I would be interested in coming into the Grants Department, but not as a specialist. Bill had actually showed me a document that he was going to submit to the Personnel Document requesting two positions. One as a security administrator, and the second, which he asked me if I would be interested in, was for the grants administrator. And both of those jobs were listed on his document as Grade 10's.
(McQuilkin Dep. [Def. Ex. D-1; Docket Item 35-3] at 154:20-155:6.) By "Grade 10, " Plaintiff was referring to his salary level. At the time, Plaintiff was working as a purchasing specialist, at a salary of Grade 7. (SMF ¶ 34.)
Plaintiff did not join the department as a grants administrator, however; it is undisputed that such a position did not exist at the time, and, to this day, does not exist at the DRPA. ( Id. ¶¶ 65-66.) It is also undisputed by the parties that formal action by the DRPA board of commissioners would have been required to create the grants administrator position. ( Id. ¶ 63; see also McQuilkin Dep. 258:15-22 (acknowledging that the position of grants administrator did not exist and could be created only by the board).) Additionally, the DRPA was in the midst of a reorganization, which affected staffing. (Def. Ex. D-10; SMF ¶ 44; McQuilkin Dep. at 220:11-221:1.) The reorganization resulted in Plaintiff transferring from the purchasing department to the Grants Department, not as a grants administrator, but as a grants specialist at a salary of Grade 8. ( Id. ¶ 42.) The step up in salary grade resulted in a $5, 000 raise for Plaintiff, an increase of 12 percent. (Id.)
Still, Plaintiff asserts that Mr. Shanahan told him, and he was "led to believe, " that his new salary upon joining the department would be at Grade 10. (CSF ¶ 35; McQuilkin Dep. at 240:4-8.) However, Plaintiff does not cite any portion of the record to show that Shanahan told Plaintiff that his position of grants specialist was guaranteed at a salary of Grade 10. To the contrary, Shanahan testified that the most he could do was recommend to human resources where to set Plaintiff's salary and that he had no authority to set Plaintiff's salary. (Shanahan Dep. at 26:4-27:5.) Shanahan testified he did not recall the specifics of his recommendation, but he was "pretty sure" he requested that Plaintiff be placed at Grade 10. ( Id. at 26:24-27:1.) Plaintiff testified that he understood that Shanahan did not have the final authority to set his salary and that Shanahan never offered a "guarantee" of a specific salary grade. (McQuilkin Dep. at 39:17-20, 240:4-11.) Moreover, the salaries for all "specialists" at the DRPA are set at Grade 7 or 8. (Def. Ex. D-13; e-mail from Ms. Brown stating that "At the Authority all specialist' positions are slotted at Grades 7 and 8.")
On December 20, 2004, Plaintiff received a memorandum from Kelly Forbes, director of human resource services, stating that the "reorganization has impacted you as outlined below[.]" (Def. Ex. D-10.) The document showed that the salary for his new job as grants specialist was Grade 8, or $53, 000. (Id.) Plaintiff accepted the grants specialist position at Grade 8 by signing an acceptance form. (SMF ¶ 50.) Plaintiff's Grade 8 salary was made retroactive to October 20, 2004. (Def. Ex. D-11.) Until his retirement in 2010, Plaintiff continued to receive annual merit increases and received a special holiday check equal to 0.5 percent of his base salary. (SMF ¶¶ 54, 58.) Plaintiff was never demoted, disciplined or terminated. ( Id. ¶ 60.)
In December 2004, Mr. Shanahan asked Ms. Brown about Plaintiff's salary being set at Grade 8, not 10. The difference between a mid-point Grade 8 salary and a mid-point Grade 10 salary was approximately $11, 200. (Pl. Ex. Y.) Ms. Brown e-mailed Mr. Matheussen saying, "Bill called me to discuss this one, he wondered why McQuilkin's new position was downgraded' from a 10 to an 8. I gave you a heads up on this one." (Pl. Ex. J.) Later, Brown wrote to Matheussen, indicating that she would request that two other employees have their salaries moved "back to 12 and 11, respectively, " adding, "I'd like to talk to... you again regarding McQuilkin (this one is a real stretch, especially in light of everything that has already been done)." (Pl. Ex. L.) Matheussen responded, "I agree." (Id.) Matheussen clarified this exchange during his deposition, explaining that "everything that has already been done" referred to "[m]oving him [Plaintiff] from the purchasing department into the grants department." (Matheussen Dep. at 96:6-10.) Matheussen added:
Remember, we moved him without posting the position. We felt as though he was qualified to do the job as grants specialist. We didn't post it for anyone else, and we made him a grants specialist and gave him the appropriate job assignment, job description, and job grade level. Now people were subsequently looking to see if he could be paid additional monies on top of that. The job description, the job grade level didn't support it.
(Id. at 97:2-11.)
iii. Supervisors advocate for a raise for Plaintiff, new job title of grants administrator
Mr. Shanahan continued to advocate for the creation of the grants administrator position for Plaintiff. In July 2005, Mr. Nash indicated in an e-mail to Mr. Matheussen that he liked Shanahan's proposal. (Pl. Ex. M.) Mr. Matheussen was not convinced. In an e-mail to Ms. Brown, dated July 22, 2005, Matheussen stated, "I'm concerned about a whole host of issues, none the least of which are Jim's settlement/raise last year (please tell me $ amounts and dates on that), the fact that it is suggested we do it without posting, giving some raises/promotions while we are telling others of our budget problems and the impact it would have on Purchasing." (Pl. Ex. M [Docket Item 39] at 1.)
In February 2006, Mr. Shanahan drafted a proposal for personnel changes in his department, including the creation of a grants administrator position. (Pl. Ex. O. at 1.) Shanahan acknowledged that "[t]his position does not exist in the current structure, " but went on to describe the administrator's duties and stated that, although Plaintiff was a grants specialist, "[h]e has been doing the job as Grants Administrator for the past 8 months." (Id.) He added: "Jim McQuilkin has been to doing [sic] this job admirably and should be recognized for his efforts by establishing the title and promoting him into the position. Jim is currently a Grade 8, and the position should be at least a Grade 10 or 11." ( Id. at 2.) Ms. Brown testified that between December 2005 and May 2007, "the board was at an impasse and there were no meetings and very little to any [sic] business that was being completed." (Brown Dep. at 191:7-11.)
Both Mr. Shanahan and Linda Hayes, the capital grants manager, lobbied again for the creation of a grants administrator position in 2007. (SMF ¶ 65.) Ms. Hayes wrote to Mr. Matheussen to say, "Several months ago, I spoke to you about the need to upgrade Jim McQuilkin to the Grants Administrator position that he was promised when he took the job and that he regularly performs." (Pl. Ex. Q.) She added: "It seems inherently unfair to have someone doing a job on a high professional level, working closely with Legal and Engineering staffs, among others and getting paid at the grade 9 rate." (Id.) The DRPA hired the Hay Group, a consulting firm, to study what the compensation for a grants administrator position should be, if the position were created. ( Id. ¶ 66.) The Hay Group concluded that the "job has an evaluation that places it in grade 10...." (Def. Ex. D-15.) The memo noted that "[w]hile the Grants Administrator position is essentially a new position, the current Grants Specialist incumbent has been performing the duties of this position for quite some time." (Id.)
In late 2007, Shanahan drafted a proposal to create the position for the board of commissioners. (Pl. Ex. Z; CSF ¶¶ 83-84.) The position was not created. Mr. Shanahan testified that on the day of the board meeting, Mr. Matheussen told Shanahan that "the board's pulling this now, you know, as of today." (Shanahan Dep. at 54:20-23.) Shanahan further testified he didn't know why the proposal was not presented to the board. ( Id. at 53:16-18.) Shanahan reported back to Plaintiff that "Mr. Matheussen ...