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Andujar v. General Nutrition Corp.

United States District Court, D. New Jersey, Camden Vicinage

May 26, 2017



          JOEL SCHNEIDER United States Magistrate Judge.

         This matter is before the Court on the “Motion for Summary Judgment” [Doc. No. 34] filed by defendant General Nutrition Corporation. Defendant seeks summary judgment on plaintiff Santos Andujar's age discrimination claim under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”). The Court received plaintiff's opposition [Doc. No. 36] and defendant's reply [Doc. No. 37].[1] Pursuant to 28 U.S.C. § 636(c), the parties consented to the jurisdiction of this Court to hear the case. [Doc. No. 10]. The Court exercises its discretion to decide defendant's motion without oral argument. See Fed.R.Civ.P. 78; L. Civ. R. 78.1. For the reasons to be discussed defendant's motion is DENIED.

         This Opinion addresses whether plaintiff makes out a viable claim under the LAD for age discrimination in employment. Plaintiff's claim arises out of his termination as a store manager at one of defendant's stores in 2014. The crux of plaintiff's claim is that defendant wrongfully terminated him based on his age in violation of the LAD.

         I. Background

         Plaintiff began his employment with defendant in 1999 as a sales associate.[2] Plaintiff was promoted to the position of store manager in 2001 and kept the position until his termination on February 26, 2014 at age 58. During his employment with defendant, plaintiff received numerous awards and accolades from the company. For instance, Christian Gosseaux (“Gosseaux”)[3] testified that plaintiff received a “Sales Leader Award” and “Certificate of Appreciation” for his sales performance in 2013. Pl.'s SOF ¶¶ 5, 11 [Doc. No. 36-2]; Pl.'s Exs. E, F [Doc. No. 36-4]; see also Gosseaux Deposition Transcript (“Gosseaux Dep.”) 37:2-18, 43:21-25 [Doc. No. 34-11]. Plaintiff also received a letter from defendant's Chief Executive Officer dated February 26, 2014, the date of his termination, acknowledging that plaintiff's efforts and hard work contributed to defendant's success in 2013. In recognition of plaintiff's achievements, defendant promised a “discretionary match” to plaintiff's 2013 401(k) contribution. Pl.'s SOF ¶ 14; see also Pl.'s Ex. G. Further, defendant classified each store as “A, B, C or D” based on sales, profits and store growth. During plaintiff's employment as a store manager, he improved his store's classification from “D” to “B” prior to being terminated. Pl.'s SOF ¶ 28.

         Plaintiff was also evaluated annually for his performance as a store manager from 2002 to 2014 through defendant's Performance Evaluation Process (“PEP”). Def.'s SOF ¶¶ 7-9; see also Def.'s Exs. 1-12 [Doc. Nos. 37-4, 37-5]; Def.'s Ex. H [Doc. No. 34-5]. According to defendant, PEP scores below 300 indicate that an “employee is not meeting performance expectations and as a result, the employee may be disciplined and terminated for poor performance.” Def.'s SOF ¶ 7. The record indicates plaintiff received PEP scores below 300 in 2006, 2008 and 2014.[4] See Def.'s Exs. 5, 7, H. However, Gosseaux acknowledged that in his experience of supervising 25-30 managers, any manager can have good and bad years, including himself. Gosseaux Dep. 38:3-39:6.

         In addition to the PEP, each of defendant's stores is evaluated annually through an assessment known as Critical Point Audit (“CPA”). The passing score on a CPA is 90%. Def.'s SOF ¶ 10. The store managed by plaintiff received CPA scores of 88% in 2010, 68% in 2011 and 79% in 2012. Id. ¶¶ 11-13. According to defendant, as result of the three consecutive failing CPA scores, Gosseaux issued a written warning to plaintiff on June 21, 2012. In particular, the warning specified that plaintiff failed to perform “Store Specific Cycle Counts” for 2010-2012 despite being directed to do so. In response, plaintiff acknowledged the written warning and responded in writing: “Will work on ALL problems.” Id. ¶¶ 14-15; see also Def.'s Ex. L [Doc. No. 34-9]. However, plaintiff's store received a CPA score of 88% in 2013 and, as a result, Gosseaux placed plaintiff on the “Red Store Action Plan” on January 23, 2014. Def.'s SOF ¶¶ 16-17; see also Def.'s Ex. M [Doc. No. 34-9]. Approximately one month later, Gosseaux terminated plaintiff for failure to improve the performance of his store despite being placed on notice of the store's poor performance scores. Plaintiff was replaced by Nicholas Librizzi (“Librizzi”) who was in his 20's in 2014. Def.'s SOF ¶¶ 20-21.

         The parties' dispute largely centers on the “Red Store Action Plan” (“Plan”). The crux of plaintiff's argument is that he was treated differently than other store managers with sub-300 PEP scores because of his age. Plaintiff further argues that the passing score of 300 was determined subjectively and disputes the objective nature of defendant's performance evaluations. Pl.'s Opp'n at 5 [Doc. No. 36]. In support, plaintiff points to the Chart[5] listing the names, age and status of employment of other store managers in the same region as plaintiff with sub-300 PEP scores in 2011-2015. See Pl.'s Ex. D. The Chart indicates that the six store managers listed were all younger than plaintiff by at least ten years and none of them were placed on the Red Store Action Plan nor terminated within 30 days of receiving the evaluation. Id. According to the Red Store Action Plan issued to plaintiff and the blank standard form of the Plan, an employee subject to the Plan has 30 days to improve the store's performance or face disciplinary action including termination. See Pl.'s Exs. B, C.

         Plaintiff disputes the assertion that the Plan was defendant's standard procedure when an employee receives a PEP score below 300. Pl.'s Opp'n at 4. In particular, plaintiff argues the 30-day reevaluation period in the Plan was unilaterally used by Gosseuax and deviated from defendant's policy of reevaluating an employee with a sub-300 PEP score in 60-90 days. Id. at 11; see also Pl.'s Exs. A, B. Plaintiff also points out Gosseaux included certain ageist language in the Plan, (e.g., “following old ways” and “not growing with the times”), to characterize his performance.[6] According to plaintiff, this language demonstrates defendant's discriminatory motive in terminating his employment. Pl.'s Opp'n at 12.

         Defendant does not dispute plaintiff was “proficient in his performance in sales”; however, it argues that sales performance is one of many factors used to evaluate a store manager's performance. Def.'s Reply at 3 [Doc. No. 37]. According to defendant, plaintiff “was not terminated solely on the basis of the Red Store Action Plan, but rather as a result of his lack of performance and failed store evaluations.” Id. at 2. Defendant also disputes the alleged ageist nature of the language used by Gosseaux, arguing plaintiff misrepresents the statement by quoting selectively. Id. at 2-3. The crux of defendant's argument is that plaintiff was terminated for a legitimate, nondiscriminatory reason, i.e., plaintiff's failure to improve his performance as a store manager despite being on notice of his deficiencies. Def.'s Reply at 4-5.

         On November 19, 2014, plaintiff filed suit in state court, alleging wrongful termination based on age discrimination under the LAD. On December 10, 2014, defendant removed this matter to federal court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. See Notice of Removal [Doc. No. 1]. The Rule 16 conference was held on February 4, 2015 and defendant filed the instant motion at the conclusion of discovery.

         II. Discussion[7]

         A. Summary Judgment Standard

         Pursuant to Fed.R.Civ.P. 56, summary judgment is appropriate where the Court is satisfied that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any . . . demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal citations omitted). Summary judgment is not appropriate if the dispute about a material fact is “genuine, ” that is, if the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The materiality of a fact turns on whether under the governing substantive law a dispute over the fact might have an effect on the outcome of the suit. Id. The Court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. See Startzell, 533 F.3d at 192 (citation omitted).

         The moving party bears the initial burden of informing the Court of the basis for its motion and demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322-23. Once the burden is met, the burden shifts to the non-moving party to “set forth specific facts showing that there [are] . . . genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250. The party opposing summary judgment may not “rest upon mere allegation[s] or denials of his pleading, ” but must set forth specific facts and present affirmative evidence demonstrating that there is a genuine issue for trial. Id. at 256-57; Fed.R.Civ.P. 56(c)(1)(A). Additionally, “if the non-moving party's evidence ‘is merely colorable, . . . or is not significantly probative, . . . summary judgment may be granted.'” Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Engineers, AFL-CIO, 982 F.2d 884, 890-91 (3d Cir. 1992) (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992)).

         B. Age Discrimination Under LAD

         “The purpose of the LAD is to ban employment discrimination on the basis of certain enumerated attributes including, at issue here, age.” Bergen Commercial Bank v. Sisler, 723 A.2d 944, 949 (N.J. 1999) (citation omitted); see also N.J.S.A. 10:5-12(a). LAD claims of employment discrimination based on age are assessed under the same three-step burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Sisler, 723 A.2d at 954-55 (“This Court has adopted the McDonnell Douglas approach ‘as a starting point' in analyzing claims under the LAD.”) (citation omitted); Kremp v. Wachovia Bank, N.A., 451 Fed.Appx. 151, 155 (3d Cir. 2011) (“Following the McDonnell Douglas framework in employment discrimination cases, New Jersey Law requires a three step inquiry in analyzing LAD claims.”) (citations omitted).

         Under the McDonnell Douglas framework, plaintiff has the initial burden of establishing a prima facie claim of age discrimination by showing that: (1) he was a member of a protected class;[8] (2) qualified for the position he held; (3) he suffered an adverse employment action; and (4) he “ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination.” See Monaco v. Am. Gen. Assur. Co.,359 F.3d 296, 300-01 (3d Cir. 2004); see also Duffy v. Paper Magic Grp., Inc.,265 F.3d 163, 167 (3d Cir. 2001) (noting that plaintiff may establish a prima facie case by direct or indirect evidence, and that plaintiff must present indirect evidence “sufficient to convince a reasonable factfinder to find all of the elements of the prima facie case.”) (citations omitted). As to the last element for a prima facie case under the LAD, “[t]he focal question is not necessarily how old or young the claimant or his replacement was, but rather whether the ...

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