HEIM v. CAPE RESORTS MANAGEMENT COMPANY, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JILL HEIM, : CIVIL ACTION

: NO. 19-16845

Plaintiff, :

:

v. :

:

CAPE RESORTS MANAGEMENT CO., :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. August 19, 2021

I. INTRODUCTION

After five years of employment, on March 20, 2019, Plaintiff

Jill Heim was terminated at forty-nine years old from her position

as Director of Group Sales for Defendant Cape Resorts Management

Company. The stated reason for her termination was that

“[p]laintiff had arranged to meet with the general manager of a

competing property without requesting permission to do so and

without substantiating the meeting on her weekly sales report.”

Def.’s Mot. Summ. J. 10, ECF No. 24. Plaintiff now brings this

civil action for age discrimination under the New Jersey Law

Against Discrimination (“LAD”).

Defendant moves for summary judgment, contending that

Plaintiff fails to (1) establish a prima facie case of age

discrimination, and (2) persuade the Court that the reason for her

termination was mere pretext. For the reasons explained below,

Defendant’s motion for summary judgment will be denied.

II. BACKGROUND1

A. Defendant’s Business and Management

Defendant is a New Jersey corporation with approximately

eight hundred employees. Among the forty-five senior managers

Defendant had, “27 percent [were] 55-plus and 62 percent [were]

over 40.” Bashaw Dep. 33:23-34:1, ECF No. 25-5. Curtis Bashaw (CEO

for Defendant) described Defendant’s core business as “95 percent

or more transient revenue” reflected by approximately $50 million

in annual revenue. Bashaw Dep. 20:14-21:15. Plaintiff, as the

Director of Group Sales, worked on corporate sales, which brought

in approximately “[$]500,000 a year,” which is considered by Bashaw

to be “a de minimis part of our revenue.” Bashaw Dep. 18:4-6.

According to Bashaw, the most important aspect of Defendant’s

Sales Department after launching a new website in 2018 was to

ensure that “transient e-mails and website are all in ship-shape.”

Bashaw Dep. 20:25-21:3. Bashaw stated that “[n]obody worked on

outreach for sales since [Plaintiff] left” in March 2019 because

“there was really not a lot of growth in the department, it was

1 The facts set forth herein are either uncontested or, if contested, are

viewed in the light most favorable to the non-moving party, i.e., Plaintiff.

pretty static, for many years.” Bashaw Dep. 19:13-21. Although

Jessica Nagel, “a junior event coordinator-type person,” was

receiving Plaintiff’s emails, Bashaw testified that Defendant was

“hoping to hire a more global senior salesperson in 2020.” Bashaw

Dep. 16:8-11.

Patrick Logue, who hired and supervised Plaintiff, was

Defendant’s Vice President of Operations until September 30, 2019.

Until November 2019, Marc Lubchansky was the General Manager

of Congress Hall, a Cape Resorts property where the sales office

was located. His job responsibilities included, inter alia,

“overseeing the . . . food and beverage departments, the hotel

itself, front desk, housekeeping, engineering, [and] checking with

all of those managers,” including Plaintiff. Lubchansky Dep. 9:16-

20, ECF No. 25-5. He participated in weekly sales meetings with

Plaintiff, Nagel, and Logue. At Logue’s recommendation, Lubchansky

extended Nagel’s employment and promoted her to a sales coordinator

working with Plaintiff. Logue also approved of Nagel replacing

Plaintiff on Plaintiff’s days off.

In October 2019, Defendant on-boarded a new President of

Operations, Cindy D’Aoust, who is approximately fifty years old

and had been a consultant for Defendant since at least July 2019.

D’Aoust also became the acting general manager of Congress Hall

when Lubchansky left in November 2019.

B. Plaintiff’s Employment with Defendant

In 2014 Defendant hired Plaintiff, a woman with twenty years

of experience in the hotel industry, in a full-time position as

Director of Group Sales. Plaintiff signed a non-compete agreement

stipulating that she “will not be employed by, contract with,

consult or otherwise advise any company based in Cape May County,

NJ for a period of two (2) years” following her termination with

Defendant, and would not disclose, at any time, “information

obtained during employment that is not publicly available.” Pl.’s

Resp. Opp’n Def.’s Mot. Summ. J. Ex. S, ECF No. 25-9.

Plaintiff was also bound by Defendant’s Executive Handbook of

policies and procedures that specified, inter alia, that an

employee’s performance is continuously evaluated throughout

employment, that Defendant has four forms of disciplining

employees for misconduct (verbal counseling, written warnings,

suspension, and employment termination), and that an employee’s

act of “gross misconduct,” such as “[b]latant disregard of

supervisor’s direction,” could lead to termination. Pl.’s Resp.

Opp’n Def.’s Mot. Summ. J. Ex. L, at 8-11, ECF No. 25-7.

Logue created Plaintiff’s position and job description.

Plaintiff’s job functions were to generate sales leads, create and

negotiate contracts for incoming groups, communicate with clients,

follow up on proposals, go to networking events, create budgets

and forecasts, report on sales, and work on the annual marketing

report and budget. Plaintiff reported to Lubchansky, who reported

to Logue, but Plaintiff dealt with both supervisors daily.

Plaintiff worked remotely but was required to be on site once a

week for sales meetings or as needed.

Although Logue gave Plaintiff high recommendations in August

2017 when she applied for a tourism and hospitality management

Master’s Degree, specifically commending her team spirit and

dedication to Defendant’s business, Logue testified that Plaintiff

“needed a lot of coaching . . . consistent[ly] throughout her

employment.” Logue Dep. 20:14-16, ECF No. 25-4. Lubchansky

described Plaintiff as a “very nice” person who was “very familiar

with the business.” Lubchansky Dep. 11:11-15, ECF No. 25-5.

Plaintiff’s performance was measured by the total group

revenue target for the year. Logue testified that Plaintiff’s

annual targets were generally met and sometimes exceeded, and that

Defendant’s top-line revenue grew during her employment.

Plaintiff always handed the sign-up group contracts to sales

coordinators in the sales team. When one of the sales coordinators

retired, Nagel, an intern at the time, was promoted to sales

coordinator and took over those responsibilities in July 2018.

Nagel complained that Plaintiff “was difficult to reach and was

pushing back when requested to assist in particular areas” of

Nagel’s work. Logue Dep. 31:3-9. Nagel had also complained about

another employee in June 2017.

Logue stated that he received similar complaints about

Plaintiff from the retired sales coordinator. Logue allegedly

addressed the “[in]flexibility” and “difficult to reach”

complaints with Plaintiff on several occasions. Logue Dep. 34:15-

35:18. In response, Plaintiff “offered reasons why she was away

from her phone, that she would be running errands or going to

meetings or taking her son to school.” Logue Dep. 35:19-24. Logue

believed that Nagel’s concerns were legitimate because his office

was in the same sales office and he could hear Nagel’s

conversations and see her frustration.

Plaintiff alleged that Logue made statements in September and

October 2018 that he was on “team [Nagel]” and was going to make

sure she succeeded. Pl.’s Dep. 59:1-9, ECF No. 25-2. Logue disputes

making those statements.

Lubchansky testified that October 2018 at Congress Hall was

“very, very busy,” and Nagel had “a lot of issues that she needed

to get in touch with [Plaintiff]” about but could not reach her by

phone or email. Lubchansky Dep. 18:9-16. On October 31, 2018, when

Logue could not reach Plaintiff, he and Lubchansky decided to ask

Plaintiff to meet with them. Logue and Lubchansky met with

Plaintiff at a diner to recount their concerns and found that

Plaintiff was “defensive,” “emotional,” and “met that kind of

feedback with resistance.” Logue Dep. 36:21-37:10. Plaintiff and

Defendant dispute whether Plaintiff stated during the October 31

meeting that she wasn’t going to keep her phone on during weekends.

Logue testified that he noticed marked improvement in Plaintiff’s

attitude after that meeting.

A follow-up meeting between Plaintiff, Nagel, and Lubchansky

occurred on November 7, 2018, to create a “reset” between Plaintiff

and Nagel and try to get them to work better together. Logue Dep.

41:1-12. Logue testified that there were no similar meetings after

the November 7 meeting because the issues had been sufficiently

addressed. Lubchansky testified that those issues “never went

away.” Lubchansky Dep. 24:22-25.

Plaintiff was never officially disciplined during her

employment with Defendant except when she met with HR regarding

her dress code in 2015. Logue countered that HR and Lubchansky’s

lack of awareness of any written warnings issued to Plaintiff did

not mean there weren’t any; Logue, however, did not provide

evidence in support of any written warnings.

C. Plaintiff’s Termination

In March 2018, General Manager Francesca Santoro (“Santoro”)

of La Mer (a resort in the area not owned by Defendant) invited

Plaintiff to dinner to “pick her brain” about La Mer renovations,

mentioning that Bashaw was “aware” of the dinner. Pl.’s Resp. Opp’n

Def.’s Mot. Summ. J. Ex. M, at 19, ECF No. 25-7. Logue reached out

to Bashaw for advice on whether Plaintiff could “see the

renovations at La Mer so that we might refer summer groups we may

not be able to handle.” Id. Bashaw answered that “parameters”

should be discussed. Id. Neither Logue nor Bashaw remember whether

they discussed the parameters. There was no written directive given

to Plaintiff in 2018 not to go to La Mer on her own, but Logue

allegedly advised her orally not to meet with the general manager

of a competing hotel without first bringing in her supervisors or

a general manager. Def.’s Resp. Pl.’s S. Undisputed Material Facts

¶¶ 53, 55, ECF No. 26-1. Plaintiff never met with Santoro in 2018.

Logue testified that “it is important for directors of a hotel

to know who the competition is and know what resources the

competition has,” but denied that Plaintiff made a case that her

visit with Santoro would have been useful “to determine if [La

Mer] were becoming a competitor.” Id. ¶¶ 41-42. Because competing

hotels have poached employees from them in the past, Bashaw and

Lubchansky were concerned that Santoro wanted to recruit

Plaintiff. Lubchansky believed that Plaintiff meeting with Santoro

without telling anyone at their hotel would be interpreted as the

competition “trying to poach to steal clients, to steal business,”

a typical “sales game.” Lubchansky Dep. 50:13-20, ECF No. 25-5.

Lubchansky was not aware that Plaintiff’s non-compete agreement

prohibited her from being involved with a competitor during her

employment or for some time thereafter.

Santoro invited Plaintiff again in February 2019 and

Plaintiff agreed to go and see La Mer’s renovated meeting space.

Logue heard about the meeting from another staff and was “a little

bummed” that Plaintiff had not informed him about it, so he

proposed to accompany Plaintiff together with Lubchansky at the

arranged meeting. Def.’s Resp. Pl.’s S. Undisputed Material Facts

¶ 59. Santoro ultimately cancelled the meeting. On March 8, 2019,

Logue emailed HR that he and Lubchansky were going to terminate

Plaintiff because of the 2019 La Mer meeting issue and “other

dissatisfactory and ongoing behavior related to poor performance

and collegial relations.” Id. ¶ 70.

Plaintiff was fired on March 20, 2019, after a brief meeting

between Plaintiff, Logue, Lubchansky, and Rue from HR. Logue

informed Bashaw that Logue and Lubchansky decided to terminate

Plaintiff. Bashaw testified that “[p]erformance wasn't the issue.

The issue was taking a meeting with a competitor and being

insubordinate to Patrick Logue's directive and I know that there

was a history of other performance-related issues in terms of

cooperation and teamwork that had been a problem for [Plaintiff].”

Bashaw Dep. 22:7-14, ECF No. 25-5.

Lubchansky testified that the decision to terminate Plaintiff

was warranted by the fact that she continued to be unreachable

over the phone. He also believed that Plaintiff’s decisions to not

turn her phone on during the weekends and to not clear her 2019 La

Mer meeting with management were acts of “blatant disregard of Mr.

Logue's direction” and “terminable offenses.” Lubchansky Dep.

36:6-37:5. He testified, however, that he never called her on the

weekends, and whenever he called her during the week, she would

always call him right back if she didn’t answer.

On March 20, 2019, HR sent out an email advising Defendant’s

main operations teams that Plaintiff was no longer with the

company, that all inquiries should be directed to Nagel, who “will

be the main point of contact moving forward,” and that

“[Plaintiff’s] email has been pointed to [Nagel’s] email address.”

Def.’s Resp. Pl.’s S. Undisputed Material Facts ¶ 74. Plaintiff

and Nagel were the only employees that handled group sales at the

time of Plaintiff’s termination.

D. After Plaintiff’s Termination

After terminating Plaintiff, Defendant divided her

responsibilities “up amongst the members of the sales team” and

the tasks previously handled by Plaintiff “were taken over by the

sales team staff that plaintiff previously worked directly with.”

Def.’s Mot. Summ. J. 18, ECF No. 24. Bashaw testified that

“[t]here’s been no proactive sales outreach, there’s been response

to inquiries.” Bashaw Dep. 16:24-25, ECF No. 25-5. “Nobody worked

on outreach for sales since [Plaintiff] left. The team has

facilitated inquiries and tried to book inquiries that come in on

the telephone . . . .” Bashaw Dep. 19:13-16. Lubchansky testified

that Nagel took over Plaintiff’s duties after she was terminated

because they “had no one else. So it was just [Nagel].” Lubchansky

Dep. 49:1-5, ECF No. 25-5.

After Plaintiff left, Nagel reported to Logue and assumed the

responsibility of “weekly reports to the General Manager outlining

leads received, follow-up calls, emails, client interactions,

client outcomes, confirmed contracts, and contracts pending.”

Pl.’s S. Undisputed Material Facts ¶¶ 76, 78, ECF No. 25-1. After

Nagel left Defendant in August 2019, the position was filled by

Karen Knoblock, “age 22-23,” who became a sales manager, had the

same duties as Nagel, and was “the first point of contact for any

corporate groups looking to come in for a meeting.” Id. ¶¶ 81-83.

After Knoblock left Defendant in March 2020, the position was

filled by Jennifer O’Neill, age thirty-two, who remains

responsible for group and conference sales.

In terms of allocating Plaintiff’s other responsibilities,

the vice-president of revenue took over the responsibilities of

reviewing sales forecasts and interacting with the sales manager

to decide if group business is appropriate. The vice-president of

marketing took over the responsibility of monitoring marketing and

advertising budgets related to group sales.

In July 2019, Plaintiff requested a release from her non-

compete agreement to accept a job offer as a corporate and group

sales executive for one of Defendant’s competitors in Cape May.

Logue did not approve the request, and Bashaw stated that “[i]f I

was asked, I would have said no,” Bashaw Dep. 26:23-27:2, despite

the fact that a much younger former wedding and social sales

coordinator in the sales team had been released from her non-

compete agreement, upon request, when she was terminated in January

2019. Plaintiff, a single mother, worked as a floater and remained

without a full-time job for thirteen months.

III. LEGAL STANDARD

Summary judgment is appropriate if no genuine dispute as to

any material fact exists and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is

“material” if proof of its existence or nonexistence might affect

the outcome of the litigation, and a dispute is “genuine” if “the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). At the summary judgment stage, the Court must

view the facts “in the light most favorable” to the nonmoving party

and “draw all reasonable inferences in favor” of that party. Young

v. Martin, 801 F.3d 172, 174 n.2 (3d Cir. 2015) (citing Tri-M Grp.,

LLC v. Sharp, 638 F.3d 406, 415 (3d Cir. 2011)).

In employment discrimination cases, “a defendant employer is

not entitled to summary judgment merely by showing the plaintiff's

inability to prove [discrimination] by direct evidence” because

the plaintiff may also proffer circumstantial evidence that the

employer’s explanation of the discriminatory act is pretextual.

Chipollini v. Spencer Gifts, 814 F.2d 893, 895 (3d Cir. 1987).

IV. DISCUSSION

A. Unlawful Age Discrimination Under the LAD

To prevail in an age discrimination action under the LAD, an

employee must “show that [age] played a role in the decision making

process and that it had a determinative influence on the outcome

of that process.” Bergen Com. Bank v. Sisler, 732 A.2d 944, 953

(N.J. 1999) (first quoting Maiorino v. Schering-Plough Corp., 695

A.2d 353, 363 (N.J. Super. Ct. App. Div. 1997); and then quoting

Greenberg v. Camden Cnty. Vocational & Tech. Sch., 708 A.2d 460,

465 (N.J. Super. Ct. App. Div. 1998)).

New Jersey courts apply the same burdens of proof and

persuasion to LAD discrimination cases as those that apply to

federal anti-discrimination cases. See Erickson v. Marsh &

McLennan Co., 117 N.J. 539, 550 (1990) (applying the federal anti-

discrimination methodology from McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), to a case under the LAD); Clowes v. Terminix

Int’l, Inc., 109 N.J. 575, 595 (1988) (same). Under the McDonnell

Douglas framework, “if the plaintiff establishes the elements of

a prima facie case, the employer must articulate a legitimate,

non-discriminatory reason for its employment decision.” Smith v.

Borough of Wilkinsburg, 147 F.3d 272, 278 (3d Cir. 1998). “Once

such a justification is proffered, the burden then reverts to the

plaintiff to prove by a preponderance of the evidence that the

articulated reason is a pretext.” Id.

1. Plaintiff has established a prima facie case of age

discrimination

The McDonnell Douglas framework requires four elements for

Plaintiff to establish a prima facie case of unlawful

discrimination: (1) that she belongs to a protected class; (2)

that she “applied and was qualified for a job for which the

employer was seeking applicants”; (3) that, despite her

qualifications, she was rejected; and (4) that, after her

rejection, “the position remained open and the employer continued

to seek applicants from persons of complainant’s qualifications.”

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Under New Jersey law, in relation to the fourth element,

Plaintiff must show that her employment responsibilities survived,

together with proof that either (1) there was a replacement with

a similarly situated sufficiently younger candidate, or (2) the

employer sought others to perform the work after she was

terminated. See Zive v. Stanley Roberts, Inc., 867 A.2d 1133, 1145

(N.J. 2005); Bergen Com. Bank, 732 A.2d at 959; Reynolds v. Palnut

Co., 748 A.2d 1216, 1219 (N.J. Super. Ct. App. Div. 2000).

“The evidentiary burden at the prima facie stage is ‘rather

modest: it is to demonstrate to the court that [under] plaintiff's

factual scenario . . . discrimination could be a reason for the

employer’s action.’” Zive, 867 A.2d at 1139 (quoting Marzano v.

Comput. Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)) (first citing

Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981);

then citing Torre v. Casio, Inc., 42 F.3d 825, 829 (3d Cir. 1994);

then citing McKenna v. Pac. Rail Serv., 32 F.3d 820, 825 (3d Cir.

1994); and then citing Peper v. Princeton Univ. Bd. of Trs., 389

A.2d 465, 478 (1978)).

Here, Heim alleges age discrimination because Defendant

terminated her but retained substantially younger individuals to

perform the same duties. Defendant does not dispute that Plaintiff

has established the first three prima facie elements. Instead,

Defendant argues that she cannot establish the fourth element

because her position was “never filled by a younger employee

subsequent to plaintiff's termination,” and although the position

remains open, there are “presently no plans for defendant to fill

the position in the future.” Def.’s Mot. Summ. J. 17, ECF No. 24.

Defendant alleges that even though “Plaintiff's work was divided

up amongst the members of the sales team” due to business

necessity, the sales team collectively assuming her duties does

not constitute “replacement” because nobody was promoted to her

position. Def.’s Mot. Summ. J. 18-19.

Defendant’s arguments are unpersuasive for the reasons

explained in Ehmann v. Sea Spa, LLC:

There is only a subtle difference between replacement

and retention. To differentiate based upon the

replacement of a new employee or the substitution of an

existing employee is, at best, to rely on semantics. The

issue is not whether the protected individual is

replaced by a new employee or an existing employee is

retained to do the work following the departure, rather,

the issue to be decided is whether an adverse employment

action took place under circumstances that give rise to

an inference of unlawful discrimination. Here, defendant

retained substantially younger employees to do the job

performed by plaintiff.

No. L-1165-03, 2005 WL 3439935, at *4 (N.J. Super. Ct. App. Div.

Dec. 16, 2005).

Plaintiff has established the fourth element of her prima

facie case because the functions of her former position as Director

of Group Sales survived her termination and three sufficiently

younger, similarly situated employees consecutively replaced her.

The record demonstrates that the functions of the Director of

Group Sales position survived Plaintiff’s termination and were

reallocated immediately thereafter, except for the outreach for

sales, a task that was put on hold to prioritize other things,

such as ensuring Defendant’s new website successfully launched.

After Plaintiff was terminated, the sales team “facilitated

inquiries” and booked “inquiries that c[a]me in on the telephone,”

and Nagel made the “weekly reports to the General Manager outlining

leads received, follow-up calls, emails, client interactions,

client outcomes, confirmed contracts, and contracts pending.”

Bashaw Dep. 19: 13-16, ECF No. 25-5; Pl.’s S. Undisputed Material

Facts ¶ 76, ECF No. 25-1. After Nagel left in August 2019, Karen

Knoblock became “the first point of contact for any corporate

groups looking to come in for a meeting,” followed by Jennifer

O'Neill. Pl.’s S. Undisputed Material Facts ¶¶ 81-84. Each one of

these individuals, in their sales management position, was focused

on group sales.

Only a few tasks that Plaintiff performed in collaboration

with upper management have been completely reallocated to upper

management: the decisions on group business rates versus rack

rates, the overall group sales strategy, and the review of sales

forecasts went to the vice-president of revenue. But the group

sales manager would still present the vice president of revenue

with those decisions. Logue Dep. 72:1-9, ECF No. 25-4. The vice-

president of marketing completely took over monitoring marketing

and advertising budgets for group sales.

The evidence that Plaintiff’s job functions survived and were

reallocated to other sales managers supports an inference that

Defendant “had a continued need for ‘someone to perform the same

work after’” Plaintiff’s termination. See Pivirotto v. Innovative

Sys., 191 F.3d 344, 354 (3d Cir. 1999) (quoting Cumpiano v. Banco

Santander P.R., 902 F.2d 148, 155 (1st Cir. 1990)). In fact,

Defendant’s own argument supports this “continued [business] need”

inference: “[The reallocation] was only done because business

necessity required their continuation and the sales team were the

only employees of Defendant that had experience and understanding

of the Plaintiff’s duties so that they could seamlessly complete

those tasks without significant interruption to Defendant’s

business.” Def.’s Reply Pl.’s Opp’n to Mot. Summ. J. 5, ECF No.

26. Further, an HR email sent on March 20, 2019, advised

Defendant’s teams involved with sales that Plaintiff was no longer

with the company, informed them that the group sales business was

transitioning to Nagel, and stated that “Lubchansky will be working

closely with [Nagel] through this transition.” Pl.’s Resp. Opp’n

Def.’s Mot. Summ. J. Ex. Q, ECF No. 25-9. Thus, this email further

attests to the continuity of the group sales position in the sales

team.

The record also supports an inference that Plaintiff’s

responsibilities were reallocated to sufficiently younger

employees. Both Nagel, who took over Plaintiff’s duties the day

she was terminated, and Knoblock, who took over after Nagel’s

departure in August 2019, were in their twenties. O’Neill was

thirty-two years old. This evidence, combined with other facts

accepted in the light most favorable to Plaintiff (e.g.,

Plaintiff’s assertion that Logue stated that he was on “team

[Nagel]” multiple times to Plaintiff), creates a prima facie case

of age discrimination against Plaintiff.

Defendant’s argument that Plaintiff’s job was eliminated

because no sales employees were proactively seeking out business

in Philadelphia or South Jersey is unpersuasive. Seeking out

business was only one aspect of Plaintiff’s job, and the record

shows that Defendant still has one sales manager focused on group

sales, paired with another manager for wedding and social sales.

Lastly, Defendant argues that Plaintiff’s position was unique

and the other employees are not similarly situated because no other

employees had the remote work privileges that Plaintiff had.

However, employees are similarly situated not when they have the

same privileges, but when they handle comparable duties or there

is routine job shuffling among them. Monaco v. Am. Gen. Assur.

Co., 359 F.3d 296, 303 (3d Cir. 2004) (citing Anderson v. Consol.

Rail Corp., 297 F.3d 242, 250 (3d Cir. 2002)). Nagel, Knoblock,

and O’Neill, all substantially younger than Plaintiff, each

negotiated group contracts, communicated with clients, followed up

on proposals, and reported on group sales, just like Plaintiff

did. Thus, a reasonable jury could conclude that Nagel, Knoblock,

and O’Neill were similarly situated to Plaintiff even though their

work privileges may have differed. See id. at 306.

As a result of the foregoing, Plaintiff has established a

prima facie case of age discrimination, and Defendant’s motion for

summary judgment on this basis will be denied.

2. Defendant has proffered a legitimate,

nondiscriminatory reason for Plaintiff’s termination

Once the prima facie burden is met, the burden shifts to the

employer to produce a “legitimate, nondiscriminatory reason” for

its disparate treatment of the employee. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802 (1973). Defendant need not prove that

the articulated reason actually motivated the discharge. Fuentes

v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

Here, Defendant’s first proffered nondiscriminatory reason

for Plaintiff’s termination is Plaintiff’s “gross misconduct” in

failing to follow Logue’s directive not to arranging a meeting

with Santoro without first clearing such a meeting with senior

management. Def.’s Mot. Summ. J. 17, ECF No. 24. Defendant’s second

proffered nondiscriminatory reason is Logue’s dissatisfaction with

Plaintiff refusing to answer her phone on weekends and Plaintiff’s

general unavailability.

Plaintiff does not dispute that Defendant has proffered a

potential legitimate nondiscriminatory reason due to her agreeing

to an unapproved meeting with Santoro in March 2019.2 However, she

2 Although Plaintiff disputes the admission of Defendant’s second

nondiscriminatory reason because Defendant did not raise it in its

interrogatory answers, the Court need not consider this argument because

Plaintiff’s evidence raises a triable issue of material fact as to whether

argues this reason is pretextual. Thus, the Court will move on to

the pretext issue.

3. Plaintiff has raised a triable issue of material

fact as to whether Defendant’s nondiscriminatory

reasons for her termination were pretextual

The standard for evaluating pretextual nondiscriminatory

reasons under the LAD is whether the “inconsistencies and

implausibilities in the employer’s proffered reasons for discharge

reasonably could support an inference that the employer did not

act for nondiscriminatory reasons, not whether the evidence

necessarily leads to [the] conclusion that the employer did act

for discriminatory reasons.” Chipollini v. Spencer Gifts, 814 F.2d

893, 900 (3d Cir. 1987) (citing Graham v. F.V. Leopold Co., 779

F.2d 170, 172-73 (3d Cir. 1985)). Plaintiff can show that each of

Defendant’s nondiscriminatory reasons for termination were

pretextual by presenting evidence which demonstrates that the

Defendant’s reasons are “weak, implausible, contradictory, or

incoherent.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).

Defendant’s first nondiscriminatory reason for terminating

Plaintiff is her alleged “gross misconduct” in 2019 when she

disobeyed Logue’s directive not to arrange a meeting with Santoro,

a directive that was apparently given to Plaintiff in 2018.

both of Defendant’s nondiscriminatory reasons for her termination were

pretextual, as explained below.

A reasonable jury may find it implausible that Plaintiff

received a directive from Logue in 2018 not to arrange a meeting

with Santoro. Plaintiff alleges Logue told her not to “waste her

time” by going to dinner with Santoro, which is not a clear

directive. Pl.’s Dep. 29:5-23, ECF No. 25-2. Although Logue did

not admit to saying that, but rather to advising Plaintiff that

she was not to arrange a meeting with Santoro without first

bringing in her supervisors or a general manager, there is no

evidence that he actually gave this directive to Plaintiff. Neither

Plaintiff’s contract nor Defendant’s Employee Handbook contains

such a directive, and even though Logue knew that it was “not

unusual for an incoming general manager to get to know the

competition,” neither he nor Bashaw put a directive in writing to

preempt a misconduct such as Plaintiff’s from happening. Logue

Dep. 48:2-9, ECF No. 25-4.

Furthermore, Logue’s stated reason for not allowing the

meeting, i.e., “[c]oncerns about proprietary exchange of

information from our company to a general manager of a competing

hotel,” Logue Dep. 45:2-4, is arguably weak because Plaintiff had

already signed a non-compete agreement that addressed those exact

concerns. Thus, Plaintiff’s evidence has demonstrated sufficient

weaknesses and implausibilities in Defendant’s first proffered

reason for discharge that could reasonably support an inference

that Defendant did not act for nondiscriminatory reasons.

Defendant’s second proffered nondiscriminatory reason for

terminating Plaintiff is her “unwillingness to answer her phone on

days off and Plaintiff not being available and supporting other

members of the sales staff.” Def.’s S. Undisputed Material Facts

¶ 19, ECF No. 24. Lubchansky testified that Plaintiff said she

“didn't have to answer the phone” and that she shuts her phone off

on weekends and doesn’t keep it on. Lubchansky Dep. 21:1-25, ECF

No. 25-5. Plaintiff testified, however, that she was regularly

checking her email “on nights and throughout weekends,” that she

“did not advise Logue or Lubchansky that her phone was going to be

off on weekends,” Pl.’s S. Undisputed Material Facts ¶ 27, ECF No.

25-1, and that she always kept her phone “on and with her at all

times.” Pl.’s Resp. Def.’s S. Undisputed Material Facts ¶ 16, ECF

No. 25-11.

Regardless of this he said, she said issue, Defendant’s

argument concerning Plaintiff’s availability and support is

blatantly inconsistent with both Lubchansky and Logue’s

testimonies. Lubchansky testified that whenever he called

Plaintiff and she did not answer, she would immediately call him

back. Lubchansky Dep. 61:7-10. Logue testified that after the

October 31 meeting, he saw a “marked improvement” in Plaintiff’s

communication and that the matter between her and Nagel was

“addressed sufficiently.” Logue Dep. 41:1-42:8, ECF No. 25-4.

Thus, Plaintiff’s evidence has demonstrated sufficient

inconsistencies in Defendant’s second proffered reason for

discharge that could reasonably support an inference that

Defendant did not act for nondiscriminatory reasons.

To the extent Defendant argues that age discrimination was

clearly not a factor in Plaintiff’s termination because sixty-two

percent of Defendant’s senior managers are over forty years old,

this argument is unpersuasive. Evidence of a “governing majority”

of the same kind did not dispel the presumption of intentional

discrimination against one of that kind in Castaneda v. Partida,

430 U.S. 482, 500 (1977), because: (1) that evidence did not

demonstrate that there was no reason to discriminate, and (2) the

presumption that “human beings would not discriminate against

their own kind” is patently false. Id.

As a result of the foregoing, Defendant’s nondiscriminatory

reasons for discharging Plaintiff have been placed in substantial

doubt by evidence of weaknesses, implausibilities, and

inconsistencies. See Chipollini, 814 F.2d at 900. Thus, Plaintiff

has raised a triable issue of material fact as to whether

Defendant’s nondiscriminatory reasons for her termination were

pretextual.

V. CONCLUSION

As a result of the foregoing, Defendant’s motion for summary

judgment will be denied. An order consistent with this memorandum

shall issue.