The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SYLVIA HELLMAN, :
Plaintiff, : Hon. Joseph H. Rodriguez
v. : Civil Action No. 1:17-cv-12961
AMERICAN WATER WORKS SERVICE :
COMPANY, INC. OPINION
:
Defendant.
This matter is before the Court on Defendant’s Motion for Summary Judgment
on Plaintiff’s claims of age and gender discrimination and retaliation under Title VII of
the Civil Rights Act, the Age Discrimination in Employment Act, and the New Jersey
Law Against Discrimination. The Court has considered the arguments advanced in the
parties’ briefs. For the reasons that follow, Defendant’s motion will be granted with
respect to Plaintiff’s discrimination claims, but denied with respect to her retaliation
claim.
I. Factual and Procedural Background
Sylvia Hellman (“Plaintiff”) worked at American Water Works (“Defendant”)
until she was fifty nine years old. [Dkt. 40-2, Doc. 2 at ¶ 69.] She began working for
Defendant in 2003 after the company acquired her then-place of employment,
Elizabethtown Water Company. (Id. at ¶ 1.) As such, Plaintiff worked for both Defendant
and its predecessor for a combined total of thirty years. [Dkt. 45-12, Doc. 12 at ¶ 2.]
A. Plaintiff works under Mr. Li.
Following the 2003 acquisition, Plaintiff assumed the role of Claims Manager.
[Dkt. 40-2, Doc. 2, at ¶ 2.] In 2008, Plaintiff was hired as a Senior Analyst Risk Manager
and reported to James Li. (Id. at ¶¶ 3, 4.) Her responsibilities in that role included “(1)
procuring insurance; (2) [overseeing] general administrative items; (3) compliance; and
(4) enterprise risk management.” (Id. at ¶¶ 4, 6). Plaintiff was responsible for all the
administrative duties involved with the position including, among other things, taking
minutes at meetings, arranging agendas, inputting invoices, checking insurance policy
accuracy, and coordinating special projects. (Id. at ¶¶ 7-9). In 2014, Plaintiff’s job title
changed to Treasury Analyst III. (Id. ¶ at 10.) However, her responsibilities and
paygrade remained the same and she still reported to Mr. Li. (Id.)
Although Plaintiff testified that Mr. Li was a difficult person to get alone with, she
did not believe that he was biased against anyone based upon age or gender. (Id. at ¶
16.) He also gave Plaintiff consistently positive performance reviews. [Dkt. No. 40-2,
Doc. 2, at ¶ 11; Dkt. No. 45-11, Doc. 11, at ¶ 11.] However, in his 2013, 2014, and 2015
reviews, Mr. Li identified several areas in which Plaintiff’s performance could improve.
[Dkt. No. 40-2, Doc. 2, at ¶ 14.] He mentioned that Plaintiff needed to understand issues
and gather all the facts before responding to inquiries; provide more details in her
communications so as to offer accurate advice; and ensure the accuracy, relevancy and
integrity of the information she provided. (Id.)
B. Roger Hammer becomes Plaintiff’s new manager.
In 2016, Mr. Li retired and Mr. Hammer became Plaintiff’s new manager. (Id. at
¶ 17.) Plaintiff initially had a positive impression of Mr. Hammer. (Id. at ¶¶ 19-20.)
Following Mr. Li’s retirement, however, Plaintiff’s relationship with Mr. Hammer
started deteriorating.
Shortly after assuming his position as Director of Risk Management, Mr.
Hammer began to believe that Plaintiff was not satisfactorily performing the analytical
and “higher functioning” aspects of her job. (Id. at ¶¶ 21-23.) In fact, Hammer asserted
that Mr. Li handled all the analytical aspects of the Treasury Analyst III role, while
Plaintiff handled only the administrative responsibilities. (Id. at ¶ 22.) Consequently,
Hammer felt that she was not proficient in the analytical aspects of the job. (Id.)
Hammer testified that since Plaintiff’s position was a higher level role, he expected her
to perform her analytical responsibilities competently. (Id. at ¶ 23.) Hammer testified,
and Plaintiff confirmed, that he spoke to Plaintiff informally about improving her work
product and tried to give her constructive feedback. (Id. at ¶¶ 41-43.) He marked-up
Plaintiff’s assignments and attempted coaching her to improve her performance. (Id. at
¶¶ 28-30.) However, Hammer explained that he felt as though Plaintiff was not taking
his suggestions seriously. (Id.) Hammer testified that, on one occasion, Plaintiff rolled
her eyes at him after he asked that she revise an executive summary that he had
requested that she write. (Id. at ¶¶ 28-30.)
Hammer also testified that he had several conversations with Human Resources
to try to work with Plaintiff on fixing her performance deficiencies. He asked Laura
Delles for advice on handling the issues he was having with Plaintiff’s performance.
(Hammer Dep. 43:10-35:8.) Delles told him to coach Plaintiff informally to improve her
work product. (Delles Dep. 41:2-10.) She advised Hammer that if the situation did not
improve, placing Plaintiff on a Performance Enhancement Plan (“PEP”) would be the
next step. (Id. at 45:9-12.) Hammer also reiterated his concerns in Plaintiff’s 2016 mid-
year review, and informed her that she was not demonstrating senior level competence
or meeting job expectations. [Dkt. 40-2, Doc.2, at ¶¶ 44-45.]
Plaintiff, on the other hand, testified that she frequently felt as though Hammer
was micromanaging her work. She alleges that Hammer spoke to her condescendingly,
did not communicate regularly with her, and did not copy her on pertinent emails. (Id.
at ¶ 33.) She believed that Hammer was trying to get rid of her and that he constantly
gave her “nonsense assignments, accelerat[ed] deadlines without reason, establish[ed]
impossible deadlines, . . . and set[] Plaintiff up for failure.” [Dkt. 45, at 3.]
Plaintiff also testified about the eye-rolling incident. She stated that she reacted
that way because she was frustrated that Hammer asked her to revise a document that
she had already changed multiple times. (Pl. Dep. 82:7-24.) The next day, Hammer
called her into his office and reprimanded her, stating “there’s a new sheriff in town.”
(Id. at 79:16-17.) Plaintiff was upset by this interaction and believed from that point on
that Hammer was trying to get rid of her. (Id.) She also stated, however, that Hammer
bullied other employees, and treated them harshly as well. (Dkt. 45, at ¶ 34.)
Meanwhile, in 2016 Plaintiff applied for a position as Operations Manager at
American Water. (Id. at ¶ 35.) Although Plaintiff believed that her interview went well,
she ultimately was not selected for the position. (Id. at ¶ 35-36.) She did not know the
age, gender, or qualifications of the selected candidate. (Id. at ¶ 37.) All she stated is that
a Human Resources representative told her that Defendant did not hire her because it
did not want to train her, and that a person younger than Plaintiff, but whose age she
did not know, was ultimately selected. (Id. at ¶¶ 37-39; Pl. Dep. 170:20-172:21; 179:21-
180:6.)
C. Plaintiff is placed on a Performance Enhancement Plan.
After attempting to work with Plaintiff informally, Hammer testified that he still
thought Plaintiff’s performance needed improvement. [Dkt. 40-2, Doc. 2, at ¶ 46.] On
August 30, 2016, after consulting with Human Resources several times, Hammer and
Nicholl Salamone, the Senior Human Resources Business Partner, placed Plaintiff on a
Performance Enhancement Plan (“PEP”). (Id. at ¶ 53.) They also presented her with an
updated job description, “clarifying her roles and responsibilities as Mr. Hammer (and
the Company) viewed necessary for her position.” (Id. at ¶ 54.) Neither Hammer nor
Salamone mentioned Plaintiff’s age or gender at that time. (Id. at ¶ 55.)
The PEP identified several areas where Plaintiff’s improvement was required,
including her need to demonstrate senior analytical ability, more carefully review her
work product, explain all observations and issues clearly, prepare concise reviews of
documents or situations before providing a solution, and ensure that Hammer reviewed
her work before its release. (Id. at ¶ 51.) All of these deficiencies were included in
Plaintiff’s 2016 mid-year review, and several of them were mentioned as areas for
growth in Mr. Li’s performance reviews. (Id. at ¶¶ 49-51.)
The PEP contemplated a series of potential checkpoints at thirty days, sixty days,
and ninety days. (Id. at ¶ 47.) At any of these checkpoints, Plaintiff faced the possibility
of being either removed from the PEP (if performance improved) or terminated (if
performance did not improve). (Delles Dep. 61:15-62:3.) The PEP did not mention
Plaintiff’s age or gender, but focused solely on her perceived performance deficiencies.
[Dkt. 40-2, Doc. 2, at ¶ 52.]
On September 1, 2016, Plaintiff sent an email to Melanie Kennedy, Vice President
of Human Resources and Labor Relations, stating that she did not want to sign the PEP
because she did not agree with Mr. Hammer’s comments regarding her performance.
(Id. at ¶ 58.) Furthermore, she believed that after her many years of dedicated and
competent service to the company, Hammer’s criticism was unjustified. (Id.) She stated
that the PEP was Hammer’s way of trying to get rid of her—an older, female employee—
and that his actions were discriminatory. (Id.) Ms. Kennedy told Plaintiff that refusal to
sign the PEP could result in her ultimate termination. (Id. at ¶ 59.) However, Ms.
Kennedy understood that Plaintiff was upset by these event and informed her that
Human Resources would investigate Plaintiff’s allegations of discrimination. (Kennedy
Dep. 30:19-31:8.) Nevertheless, Kennedy testified that she did not suspect
discrimination at that time. (Id. at 22:2-9.) “[The company] had a new manager who
was setting new expectations for his team, so [she] didn’t have any concerns.” (Id.)
Carol Sibley, Human Resources Business Partner, ultimately conducted the
investigation into Plaintiff’s complaint. [Dkt. 40-2, Doc. 2, at ¶ 61.] Sibley testified that
she spoke with both Hammer and Plaintiff about the situation for approximately an
hour each. (Sibley Dep. 133:9-22.) She also read through the PEP, the new job
description, the 2016 mid-year review, and Mr. Li’s 2014 and 2015 performance
evaluations. (Id. at 99:7-11; 100:19-101:2.) Sibley ultimately found no evidence of age or
gender discrimination. [Dkt. No. 40-2, Doc. 2, at ¶ 63.] Sibley testified that her
impression was that Plaintiff “was not used to having a manager who ‘manages,’ since
she worked under Mr. Li for so long.” (Sibley Dep. 108:5-18.) She further testified that
although Hammer was a little overbearing, Sibley thought that he was genuinely trying
to help Plaintiff, not trying to get rid of her. (Id. at 139:21-141:22.) However, she also
mentioned that Hammer was upset about the accusations. (Id.) Sibley concluded that
Hammer and Plaintiff were simply struggling to communicate with each other and that
she was not worried about any sort of discriminatory or retaliatory behavior. (Id. at ¶
139:21-141:22.)
D. Plaintiff is terminated from American Water.
Hammer stated that despite the PEP and his informal guidance, he felt as though
Plaintiff’s performance was not improving. [Dkt. No. 40-2, Doc. 2, at ¶ 66.] Hammer
further stated that because Plaintiff failed to meet the goals outlined in the PEP, he
advised that Human Resources end Plaintiff’s employment.1 (Id. at ¶ 67.) On October 13,
2016, only a few days after Plaintiff officially began the PEP, Hammer sent documents to
Ms. Salamone recommending Plaintiff’s termination. [Dkt. No. 45-9, Doc. 9, at Ex. 19.]
Plaintiff was terminated from American Water on November 1, 2016. (Id. at ¶
68.) She was then 59 years old. (Id. at ¶ 69.) Plaintiff testified that she was not permitted
to collect her personal belongings and that she was “walked out” of the office. [Dkt. No.
45, at 5.] Hammer subsequently hired two younger female employees to fill Plaintiff’s
1 Although there was initially some dispute about who made the final decision to
terminate Plaintiff’s employment, Defendant submitted a declaration signed by Mr.
Hammer, stating that he ultimately made the final decision and recommendation to
Human Resources. [Dkt. No. 46-1, Doc. 1, at ¶¶ 5-7.]
position; one who eventually left the company of her own accord and one who is still
employed at American Water. (Hammer Dep. 51:23-52:2; 57:8-20.) Hammer also hired
two other male employee, one over the age of 40, and another female employee. (Id. at
55:15-57:17.) Plaintiff is the only employee Hammer has ever terminated. (Id. at 62:19-
23.)
E. Procedural History
Plaintiff filed the Complaint on December 12, 2017, alleging discrimination based
on her age and gender under Title VII of the Civil Rights Act, the Age Discrimination in
Employment Act, and the New Jersey Law Against Discrimination. [Dkt. No. 1.] After
filing for an extension, Defendant filed a timely Answer on April 6, 2018. [Dkt. No. 5;
Dkt. No. 12.] Plaintiff amended the Complaint on April 30, 2018, [Dkt. No. 17] and
Defendant Answered on May 14, 2018. [Dkt. No. 20.] Following a period of discovery,
Defendant moved for Summary Judgment on August 23, 2019. [Dkt. No. 40.]
Specifically, Defendant asserts that Plaintiff does not meet her burden of proof in
showing that Defendant’s reasons for firing Plaintiff, as well as for not hiring her as
Operations Manager after her interview, were pretext. Defendant also states that
Plaintiff does not establish the prima facie case for her retaliation claim, and that even if
she does, she again fails to show pretext.
II. Standard of Review
A court will grant a motion for summary judgment if there is no genuine issue of
material fact and if, viewing the facts in the light most favorable to the non-moving
party, the moving party is entitled to judgment as a matter of law. Pearson v.
Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will
enter summary judgment only when “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
judgment as a matter of law.” Fed. R. Civ. P. 56 (c).
An issue is “genuine” if supported by evidence such that a reasonable jury could
return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit. Id. In determining whether a
genuine issue of material fact exists, the court must view the facts and all reasonable
inferences drawn from those facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
the moving party has met this burden, the nonmoving party must identify, by affidavits
or otherwise, specific facts showing that there is a genuine issue for trial. Id.;
Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to
withstand a properly supported motion for summary judgment, the nonmoving party
must identify specific facts and affirmative evidence that contradict those offered by the
moving party. Andersen, 477 U.S. at 256–57. Indeed, the plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden
of proof at trial. Celotex, 477 U.S. at 322.
In deciding the merits of a party’s motion for summary judgment, the court’s role
is not to evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility
determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
III. Discussion
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Title VII), the
Age Discrimination in Employment Act. 29 U.S.C. § 621, et seq. (ADEA), and the New
Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. (NJLAD) prohibit
discrimination in the work place based on age and gender, among several other
protected classes. Such claims are governed under the familiar McDonnell Douglass
burden shifting framework.2 Pivirotto v. Innovative Sys., 191 F.3d 344, 355-57 (3d Cir.
1999); Keller v. Orix Credit Alliance, 130 F.3d 1101, 1108-12 (3d Cir. 1997); Jackson v.
Trump Entertainment Resorts, Inc., 149 F. Supp. 3d 503, 509 (D.N.J. 2015); Jones v.
Temple Univ., Civil Action No. 12-5349, 2014 WL 3389109 (E.D. Pa. July 10, 2014).
The plaintiff bears the initial burden of establishing the prima facie case.
McDonnell Douglass Corp. v. Green, 411 U.S. 792, 802 (1973). She must show that: “(1)
2 Although McDonnell Douglass specifically addressed racial discrimination under the
Civil Rights Act, the Supreme Court has since applied the same framework to claims of
age and gender discrimination, and the Third Circuit followed suit. See Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002); Sarullo v. United States Postal Serv., 352 F.3d 789,
797 (3d Cir. 2003); Jones v. School Dist., 198 F.3d 403 (3d Cir. 1999).
she belongs to a protected class; (2) she was qualified for the position; (3) she suffered
an adverse employment action; and (4) the adverse employment action occurred ‘under
circumstances that give rise to an inference of unlawful discrimination.’” Sarullo v.
United States Postal Serv., 352 F.3d at 797; Abinyanka v. Cont’l Airlines, Inc., Civ. No.
2:14-7546 (WJM), 2018 WL 1251632 (D.N.J. March 12, 2018) (citing Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 n.6 (1981)). If a plaintiff establishes the prima facie
case for discrimination, the burden then shifts to the defendant to offer a legitimate,
nondiscriminatory reason for the adverse employment action. McDonnell Douglass
Corp., 411 U.S. at 802-03. This burden is relatively light and defendants can easily meet
the threshold in a variety of ways. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).
The burden then shifts back to the plaintiff to show, by a preponderance of the evidence,
that the defendant’s offered reason is merely pretext for discrimination. Sarullo, 352
F.3d at 797.
Here, Defendant concedes for the purpose of this motion that Plaintiff has
established the prima facie case in respect to Defendant’s firing Plaintiff, as well as not
hiring her as Operations Manager. It is also uncontested that Defendant met its
relatively light burden in offering a legitimate reason for firing Plaintiff. Nevertheless,
Defendant, in terminating Plaintiff for failing to meet Hammer’s new work-place
expectations, provides a legitimate non-discriminatory reason for ending her
employment. Therefore, to survive summary judgment under the McDonnell Douglass
framework, Plaintiff must show that she presents evidence of pretext demonstrating a
question of material fact. As the Court will establish below, Plaintiff fails to meet her
burden of proof in regards to her discrimination claims, but succeeds in doing so on her
retaliation claim.
A. Plaintiff does not present sufficient evidence for a reasonable jury to
conclude that Defendant’s proffered reason for firing her was pretext.
Plaintiff’s evidence does not show inconsistencies in Defendant’s offered reason
for her termination or demonstrate that discrimination was a likely motivation for the
adverse employment action. She thus fails to show that Defendant’s legitimate, non-
discriminatory reason for ending her employment is pretext.
To survive summary judgment, plaintiffs must present evidence “from which a
factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate
reasons; or (2) believe that an invidious discriminatory reason was more likely than not
a motivating factor or determinative cause of the employer’s action.” Fuentes, 32 F.3d at
764 (emphasis added). Plaintiffs satisfy the first option by presenting evidence of
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its actions, such that a jury could disbelieve
that it was the real reason behind the negative employment action. Id. at 765; see also
Jones v. School Dist., 198 F.3d 403, 413 (3d Cir. 1999). It is not enough to state that
Defendant’s actions were mistaken, or that the plaintiff disagreed with them. Dunleavy
v. Montville Twp., Civil Action No. 04-1154 (KHS), 2005 WL 1917610, at *9 (D.N.J.
August 9, 2005). Plaintiffs must show that the defendant’s decision was “so plainly
wrong that it cannot have been the employer’s real reason,” and that the only logical
explanation is that defendant was motivated by discrimination. Id. (citing Keller v. Orix
Credit Alliance, 130 F.3d 1101, 1109 (3d Cir. 1997).
Plaintiffs can alternatively survive summary judgment by showing that it is more
likely than not that age or gender was a but-for cause of the adverse employment action.
Fuentes, 32 F.3d at 764. “For example, the plaintiff may show that the employer has
previously discriminated against her, that the employer has previously discriminated
against other persons within the plaintiff’s protected class or within another protected
class, or that the employer has treated more favorably similarly situated persons not
within the same protected class.” Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir.
1998) (citing Fuentes, 32 F.3d at 765).
Here, Plaintiff first claims that her many years of successful work for American
Water, coupled with the positive performance reviews Mr. Li gave her, show that
Defendant could not have terminated her for any reason other than age or gender
discrimination. However, past positive performance reviews from previous supervisors
do not necessarily indicate that a subsequent manager’s negative reviews evidence
discrimination. Turner v. Schering-Plough Corp., 901 F.3d 335, 343-44. This is
especially true where both the previous manager’s and new manager’s reviews highlight
similar deficiencies in the plaintiff’s performance. Id.; Baldwin v. Gramiccioni, Civil
Action No. 16-1675 (FLW) (DEA), 2019 WL 22881580, at *13 (D.N.J. May 29, 2019)
(stating that plaintiff’s previous performance evaluations were not probative of pretext
because he had received several positive and several negative reviews); Anderson v.
Boeing Co., Civil Action No. 15-3073, 2016 WL 9446648, at *18 (E.D. Pa. Aug. 30, 2016)
(“[o]ne favorable review from a previous supervisor under one set of criteria offers
insufficient proof to establish pretext with respect to a later evaluation set by a different
supervisor who was employing a different set of criteria.”)
Here, the issues Hammer identified in the PEP were not new. The areas Plaintiff
needed to improve upon were first identified in Mr. Li’s 2013 and 2015 performance
reviews, despite her overall commendable rating. Hammer then told Plaintiff that he
expected her to improve in these areas as well, first informally and then again in her
2016 mid-year review. He also reiterated his expectations in the PEP. Only after all this
did Defendant terminate Plaintiff for her failure to meet Hammer’s expectations.
Hammer perceived Plaintiff’s deficiencies more negatively than did Mr. Li, particularly
because he was evaluating her performance under different criteria. Hammer never
made discriminatory comments to Plaintiff and did not mention her age or gender in the
PEP. Plaintiff’s earlier performance reviews thus do not prove that Hammer’s reason for
firing her was pretext for discrimination.
Plaintiff next contends that Hammer’s failure to follow the thirty-day PEP plan
also evidences pretext. However, just because Hammer recommended that Human
Resources terminate Plaintiff’s employment before the end of the first thirty day period
on the PEP does not mean that his doing so demonstrated any inconsistencies, or
incoherencies.3 The only reason Hammer and Defendant provide for terminating
Plaintiff is that she was unable to meet the new expectations that he set for her.
Moreover, this does not show that discrimination more likely than not motivated
Hammer’s decision. The PEP itself contemplates the possibility that Plaintiff could be
terminated at any time. But even if Hammer wanted to terminate Plaintiff’s
3 As will be discussed later, this may constitute evidence of retaliation, but does not
clearly speak to discrimination.
employment, that does not inherently mean that age or gender discrimination motivated
him to do so.
Plaintiff also asserts that Hammer’s inability to remember during his deposition
whether he or Human Resources terminated her evidences pretext because it shows
inconsistencies with Defendant’s offered reasons. However, Hammer’s inability to
remember who made the final decision to terminate Plaintiff is not the sort of
inconsistency contemplated in Fuentes. The only reason Hammer, Salamone, Delles,
and Kennedy provide for terminating Plaintiff’s employment is that despite trying to
improve her performance, she failed to meet Hammer’s new employment expectations.
The fact that Hammer could not remember exactly who made the decision to terminate
Plaintiff at the time of his deposition—nearly two years later—does not implicate
Defendant’s proffered reasons for doing so, especially since Hammer eventually
submitted a signed declaration stating that he, in fact, made the decision.
In addition, Plaintiff asserts that both Defendant and Hammer tended to treat
older women poorly, and that this pattern illustrates discriminatory behavior and
pretext under the second Fuentes factor. However, Plaintiff does not present sufficient
comparator evidence for a reasonable jury to conclude that this is the case. Comparators
must be similarly situated in all relevant respects, including “similarities between the
requirements, duties, and responsibilities of the respective jobs . . . [and] the conduct
(or misconduct) in which each employee engaged.” Baldwin, 2019 WL 2281580, at *23-
4 (citing Dill v. Runyon, No. 96-3584, 1997 U.S. Dist. LEXIS 4355, at *12 (E.D. Pa.
1997)).
Here, Plaintiff first attempts to compare herself to another older woman whose
employment at American Water was discontinued. (Pl. Dep. 88:19-90:20.) Ms. Degillio,
American Water’s Treasurer, mentioned to Plaintiff that this woman had worked at
American Water for over twenty years and was terminated because of her attitude. (Id.
at 90:1-20.) However, Plaintiff presents no evidence that this woman held the same
position or had responsibilities similar to those of Plaintiff’s. (Id. at 89:21-90:20). In
fact, she worked in a completely different part of the company. (Id.) Furthermore, Ms.
Degillio did not tell Plaintiff that this woman was not rehired because of her age and
gender, but because of “her attitude.” (Id. at 90:6-7.) Finally, this woman was not
rehired after she was transferred to the New Jersey region from another branch of the
company. (Id. at 89:22-24.) The circumstances were thus entirely different and do not
present sufficient comparator evidence.
Next, Plaintiff attempts to compare herself to Lynn McClenahan, another older
woman working in the treasury department who was also placed on a PEP. However,
McClenahan is not a valid comparator either. She did not have the same job title and did
not work in the same office as Plaintiff. (McClenahan Dep. 10:12-11:20; 19:22-23.) After
working under Mr. Li, McClenahan reported only briefly to Hammer and then primarily
reported to William Roberts. (Id. at 11:13-15.) Although Hammer recommended that
Roberts evaluate McClenahan’s analytical abilities, Roberts made the decision to place
her on a PEP and supervised that process. (Roberts Dep. 26:6-28:14.) Importantly,
McClenahan ultimately completed the PEP successfully and, as of the date of her
deposition, still works as American Water.4 (McClenahan Dep. at 10:3-4; 31:1-2.)
Additionally, Hammer’s supposedly lenient treatment of William Roberts is not
adequate comparator evidence either. Although Roberts was Hammer’s only other
direct report and was over the age of forty, his job title and responsibilities were entirely
different from those of Plaintiff. (Pl. Dep. 98:5-11.) Therefore, none of the parties with
whom Plaintiff attempts to compare herself is a valid comparator.
Furthermore, Plaintiff’s claims that Hammer targeted her because he did not
copy her on pertinent emails, sped up deadlines, and assigned meaningless tasks that
does not show pretext. Plaintiff herself testified that Hammer treated a lot of people like
this; “bullied” them into getting things done and finishing his assignments. (Id. at 174:1-
24.) Hammer never made gender or age-based comments to Plaintiff regarding her
work, and Plaintiff does not present evidence that he did so to anyone else. Plaintiff
therefore fails to present sufficient comparator evidence to show an ongoing pattern of
age or gender discrimination.
The only fact that speaks to a discriminatory motive behind Plaintiff’s firing is the
fact that Hammer hired the “substantially younger” Courtney Gillespie, to replace her.
[Dkt. 45-12, Doc. 12, at ¶ 91.] However, Gillespie’s being “younger” than Plaintiff does
not present inconsistencies in Defendant’s proffered reasoning for firing Plaintiff, since
that alone does not negate the fact that Plaintiff failed to meet Hammer’s expectations.
4 Ms. McClenahan no longer works in the treasury department. Nevertheless, she had
only positive things to say about both Hammer and Roberts as managers, and did not
have any negative experiences with them, despite their rocky start. (McClenahan Dep.
31:2-9.)
Additionally, there is no evidence that Hammer treated Gillespie, or anyone else, better
than he did Plaintiff. Hammer testified that he had some difficulty with Gillespie as well
and even considered placing her on a PEP, but decided against it after speaking with
Human Resources. (Hammer Dep. 244:11-245:20.) Gillespie then left the company of
her own accord shortly thereafter and Hammer hired another “young” woman,
Samantha Ahern, who still works at American Water. [Dkt. 40-2, Doc. 2 at ¶ 72.] But
aside from the fact that the Company still employs Ms. Ahern, Plaintiff offers no
evidence of the way Hammer treats her. Finally, Plaintiff only briefly mentions this fact
in her Additional Facts that Preclude Summary Judgment, and does not rely on it in her
brief. There is thus no evidence indicating that discrimination more likely than not
motivated Hammer’s decision to end Plaintiff’s employment.
Plaintiff does not present sufficient evidence for a reasonable jury to conclude
that Defendant’s offered reasons for firing her were pretext. Therefore, Defendant’s
Motion for Summary Judgment on this claim will be granted.
B. Plaintiff fails to present evidence from which a reasonable jury could
conclude that Defendant discriminated against her by selecting a
different candidate as Operations Manager.
Plaintiff does not present an issue of material fact as to this claim, because she
fails to offer evidence other than her own opinion regarding her qualifications for the
position. The prima facie case for discrimination in hiring practices is the same as
above, and follows the McDonnell Douglass factors. Abaniyanka v. Cont’l Airlines, Inc.,
Civ. No. 2:14-7546(WJM), 2018 WL 1251632, at *6-7 (D.N.J. March 12, 2018).
Defendant again concedes for the purposes of this motion that Plaintiff has satisfied the
prima facie case.
To satisfy the fourth prong of the prima facie case, Plaintiff must show that
“[u]nder circumstances that raise an inference of discriminatory action, the employer
continued to seek out individuals with qualifications similar to plaintiff’s to fill the
position.” Sarullo, 325 F.3d at 797 (citing McDonnell Douglas, 411 U.S. at 802)
(emphasis added). However, Plaintiff does not provide even a scintilla of evidence
regarding the qualifications of the candidate hired to fill the Operations Manager
position. Plaintiff testified in her deposition that a Human Resources representative told
her that a younger person was selected as Operations Manager. But Plaintiff did not
know anything about the qualifications that the chosen candidate possessed or how they
differed from her own.
Furthermore, even if the prima facie case was established here, Plaintiff’s claim
fails because she does not present evidence that Defendant’s offered reasons are pretext.
“A plaintiff’s disagreement with assessment criteria and belief that he or she is better
qualified for the position is not sufficient to avoid summary judgment.” Jackson v.
Trump Entertainment Resorts, Inc., 149 F. Supp. 3d 503, 509 (D.N.J. 2015). Moreover,
“[a]n interview is a subjective process. How an employee presents herself at an interview
is often a determining factor in awarding a position.” Johnson v. Penske Truck Leasing
Co., 949 F. Supp. 1153, 1176 (D.N.J. 1996). A plaintiff’s own opinion or perception of her
interview is irrelevant. Id. “What is critical is the perception of the Interviewers.” Id.
(quoting Billet, 940 F.2d at 825). A company is entitled to make its own business
decisions, absent evidence of discrimination. Id. at 1172. Moreover, plaintiffs generally
must offer evidence demonstrating the qualifications of other promoted candidates.
Baldwin, 2019 WL 2281580, at *37.
Here, Plaintiff fails to show that she was not hired as an Operations Manager
because of her age or gender. Plaintiff testified that she interviewed for the position and
believed that the interview went well. She thought that she was qualified for the position
and that her many years of experience at the company weighed in her favor. (Pl. Dep.
178:8-20.) When she was not chosen for the position, she believed that her age was the
primary explanation, especially after hearing that a younger candidate was selected
instead. (Id.)
However, Human Resources told Plaintiff that she was not chosen for the
position because American Water did not want to take the time to train her for it.
Plaintiff did not know whether the chosen candidate was already trained for the
position, or what his/her qualifications were. In fact, Plaintiff did not know the person’s
name. (Id. at 178:23-24.) And Plaintiff has not presented any evidence other than her
own testimony on the matter. Therefore, Plaintiff’s claim that she was not chosen
because of her age is not supported by the record.
Furthermore, as mentioned above, the interview process is extremely subjective.
Just because Plaintiff felt that her interview went well did not guarantee that Defendant
would choose her for the position. The fact that Plaintiff was not selected for the
position does not, absent any other indicia of discrimination, indicate that her age or
gender was a motivating factor in that hiring decision. Because Plaintiff’s claim is
unsupported by evidence in the record, Defendant’s Motion for Summary Judgment on
this claim will be granted.
C. Plaintiff presents sufficient evidence of retaliation claim to create an
issue of material fact.
Plaintiff finally asserts that Defendant’s firing her after she filed an age and
gender discrimination complaint with Human Resources was retaliatory, and thereby
violated Title VII, the ADEA, and NJLAD. [Dkt. 45, at 13.] Defendant maintains that
Plaintiff does not present evidence to establish the third prong of the prima facie case
and that, even if she has done so, she still cannot show pretext. This Court holds that
Plaintiff offers sufficient evidence to present a material question of fact about both the
prima facie case and pretext. Therefore, Defendant’s motion on this claim is denied.
To successfully establish a prima facie case of retaliation, a plaintiff must show
that: “(1) [s]he engaged in a protected activity; (2) suffered an adverse employment
action; and (3) that there is a causal connection between [her] participation in the
protected activity and the adverse employment action.” Jackson, 149 F. Supp. 3d at 509
(citing Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006). The third
element is established where a plaintiff shows a causal link between her “opposition to . .
. unlawful discrimination,” and the adverse employment action. Moore, 461 F.3d at 342.
Evidence of close temporal proximity between the protected action and Plaintiff’s
termination, as well as an ongoing pattern of antagonism, can satisfy the element of
causation. Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003); Kachmar
v. SunGuard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997). However, these factors are
not exclusive, and where the evidence taken as a whole, supports an inference of
retaliation, causation will be established. Kachmar, 109 F.3d at 177; Jackson, 149 F.
Supp. 3d at 509.
Here, the critical dates to analyze are Plaintiff’s September 1, 2016 complaint to
Human Resources and her ultimate termination exactly two months later, on November
1, 2016. While it is true that Plaintiff’s termination—thirty days after starting the PEP—
occurred shortly after she engaged in a protected activity, that temporal proximity alone
is not sufficiently suggestive of retaliatory motive. Plaintiff had already been placed on
the PEP before she formally complained to Human Resources, and the PEP itself
contemplated the possibility of termination within thirty days of its start. Although
Plaintiff received years of positive performance reviews from Mr. Li, she had also
received multiple warnings from Hammer, both formally and informally, that he was
unsatisfied with her work product. Therefore, that she was terminated at the PEP’s
earliest possible checkpoint does not, in and of itself, establish the required causal link.
Nevertheless, the fact that Hammer knew about Plaintiff’s discrimination
complaint and subsequently recommended that Human Resources terminate Plaintiff
even before the PEP’s thirty day mark does evidence retaliatory motive. Specifically,
Hammer sent Ms. Salamone a copy of Plaintiff’s resume with his thirty day evaluation of
Plaintiff’s progress on the PEP on October 13, 2016. Importantly, this happened two and
a half weeks before the end of the first thirty days that Plaintiff was on the PEP, and only
a month and a half after her complaint. [Dkt. 45-9, Ex. 9.] This short lapse of time
creates a temporal nexus between Plaintiff’s complaint and the negative employment
action.
Similarly, although there is no evidence that Hammer antagonized Plaintiff after
the PEP started, the fact that Hammer had a rocky relationship with Plaintiff before
establishes an ongoing pattern of antagonism. Plaintiff explained that Hammer spoke
condescendingly to her, accelerated deadlines, and gave her nonsense assignments. The
fact that the antagonism seemingly stopped after Plaintiff was put on the PEP does not
mean that an ongoing patter of antagonism did not exist. It is possible that Plaintiff’s
termination was just the final step in a series of antagonistic behaviors, which a
reasonable factfinder could conclude establishes the element of causation. Plaintiff
therefore presents sufficient evidence of the prima facie case to survive summary
judgment.
Since it is undisputed that Defendant meets its relatively light burden in
presenting a legitimate reason for Plaintiff’s termination, the Court next considers
whether Plaintiff sufficiently shows Defendant’s actions were pretext. The pretext
analysis here is the same as above. To survive summary judgment, Plaintiff can either
demonstrate evidence that could make a reasonable factfinder disbelieve the employer’s
reasons, or that would make the factfinder believe that discrimination was more likely
than not the motivating factor. Fuentes, 32 F.3d at 764. Evidence used to prove the
prima facie case is often analyzed under pretext as well. Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 286 (3d Cir. 2000).
Here, Plaintiff proffers enough evidence of pretext to survive summary judgment.
The fact that Hammer recommended two weeks before the first available opportunity
that Human Resources terminate Plaintiff’s employment creates a question of fact as to
whether a retaliatory motive was more likely than not the true reason for the adverse
employment action. The potential presence of an ongoing pattern of antagonism also
prevents the Court from deciding the issue of pretext as a matter of law. As mentioned
above, a reasonable fact finder could conclude that Plaintiff’s termination was just the
last step in a series of antagonistic actions, and that it was more likely than not taken in
response to Plaintiff’s complaint to Human Resources. Defendant’s Motion for
Summary Judgment on Plaintiff’s retaliation claim is thus denied.
IV. Conclusion
For the foregoing reasons, Plaintiff fails to meet her burden of proof in showing
that Defendant’s explanation for firing her, as well as for selecting another candidate as
Operations Manager, was pretext for discrimination. However, she establishes a
question of material fact regarding her retaliation claim. Consequently, Defendant’s
Motion for Summary Judgment will be granted with respect to Plaintiff’s discrimination
claims and denied with respect to her retaliation claims.
An accompanying order shall issue.
Dated: May 6, 2020 s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE