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Schoburg v. Dow Jones & Co.

United States District Court, D. New Jersey

March 4, 2014

Dean W. Schoburg, Plaintiff,
Dow Jones & Company, et al., Defendants.


ANNE E. THOMPSON, District Judge.

This matter comes before the Court on the motion of Defendant Dow Jones & Company (hereinafter, "Defendant") for summary judgment. (Doc. No. 42). Plaintiff Dean Schoburg (hereinafter, "Plaintiff") has not filed any opposition.[1] The Court has issued the Opinion below based upon the written submissions and without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons stated herein, the motion is granted and judgment is entered in Defendant's favor.


1. Procedural History

On June 13, 2011, Plaintiff filed a pro se Complaint against Defendant and others over the termination of his employment. (Doc. No. 1). The only two claims remaining are age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 623, 631 (hereinafter, "the ADEA") and race discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (hereinafter, "Title VII"). (Doc. Nos. 1 and 15). On February 15, 2012, Defendant moved to dismiss the Amended Complaint, arguing that Plaintiff failed to file his discrimination claims within 90 days of receipt of his Right-to-Sue letter from the EEOC. On March 27, 2012, the Court granted the motion to dismiss. (Doc. No. 15). Plaintiff appealed the dismissal of his Title VII and ADEA claims, claiming that he incorrectly stated the date he received the Right-to-Sue letter. (Doc. No. 23). The Third Circuit remanded the case to allow for discovery as to whether Plaintiff's initial Complaint was actually timely. (Doc. No. 25).

2. Factual Background

Plaintiff began working as a Tape Editor in 1994 and was later promoted to Radio Anchor at the age of fifty six. (Doc. No. 42, Ex. A, Plaintiff's Deposition Transcript). Plaintiff was tasked with writing short business news summaries that were then broadcast by radio stations. ( Id. ).

In October 2008, Defendant altered Plaintiff's work assignment. (Doc. No. 5 at 2). Plaintiff refused to take the new work assignment and his employment was terminated. (Doc. No. 42 at 10). Defendant contends that this move to a new position was the result of poor work performance and gave the following infractions as proof of poor performance: (1) Plaintiff received a warning letter on October 5, 2005 for missing two separate reports; (2) Plaintiff was late for a report in January 2008; (3) Plaintiff missed a report in its entirety on February 12, 2008; (4) Plaintiff received a written warning for arriving late for a report on May 22, 2008; and (5) Plaintiff received another written warning for two issues regarding incorrect information in his reports on October 13, 2008. ( See Doc. No. 42 at 5-8). In one of these reporting errors, Plaintiff stated that the Dow Jones Industrial Average had made its biggest drop in 17 years, when the actual number was 7. (Doc. No. 42, Ex. A, Plaintiff's Deposition at 69:9-69:22). Plaintiff also reported that the Dow Jones Industrial Average was below the eight hundred level, when it was actually below the eight thousand level. ( Id. at 69:18-69:22). In his deposition, Plaintiff stated that Defendant had the right to terminate him for some of his errors. ( Id. at 70:18-70:20).

In his deposition, Plaintiff agreed that his title, essential duties, salary, and hours at the new position would have remained essentially the same. ( Id. at 86:16-87:1). Plaintiff also admitted that this change was, at least partially, a result of his recent job performance. ( Id. at 84:6-84:18).

When Plaintiff was alerted to the change in work assignment, he told his employer that he would refuse the assignment. ( Id. at 85: 20-85:24). However, Plaintiff believed he could refuse the assignment without being fired. ( Id. at 85: 20-85:24). On October 29, 2008, another employee of Defendant met with Plaintiff to confirm that he was starting the new working assignment. ( Id. at 93:14-93:21). However, Plaintiff reiterated his refusal. ( Id. at 93:14-21). Later that day, Plaintiff received an email informing him that his employment would end in one week because he refused the new assignment. ( Id. at 91:18-25). Plaintiff made no subsequent effort to regain his position or accept the new position. ( See id. at 95:4-95:10). Plaintiff, a 69year-old man, brought claims under the ADEA and Title VII on the grounds that he was discriminated against due to his age and race, respectively.


1. Legal Standard

Summary judgment is appropriate if the record shows "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding a motion for summary judgment, a district court considers the facts drawn from "the pleadings, the discovery and disclosure materials, and any affidavits" and must "view the inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion." Fed.R.Civ.P. 56(c); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). In resolving a motion for summary judgment, the Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986). More precisely, summary judgment should be granted if the evidence available would not support a jury verdict in favor of the nonmoving party. Id. at 248-49. The Court must grant summary judgment against any party "who fails to make a showing sufficient to establish ...

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