KAPROWSKI v. ESTI FOODS, LLC

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KENNETH KAPROWSKI

Plaintiff,

Civil Action No.: 21-14693 (ES) (MAH)

v.

OPINION

ESTI FOODS, LLC; and

KONSTANTINOS IFANTIS,

Defendants.

SALAS, DISTRICT JUDGE

Plaintiff Kenneth Kaprowski is a former employee of Defendant Esti Foods, LLC (“Esti”),

the president of which is Defendant Konstantinos Ifantis. Plaintiff sues Defendants and asserts

federal and state law claims of discrimination and retaliation, and state law claims of breach of

contract, wage theft, and unjust enrichment. (D.E. No. 14 (“Am. Compl.”)). Defendants move to

dismiss the complaint, arguing that the federal claims of discrimination and retaliation are

insufficiently pleaded and that the Court should not exercise supplemental jurisdiction over the

remaining state law claims. (D.E. No. 17; D.E. No. 17-2 (“Mov. Br.”)). As set forth below, the

motion is DENIED in part and GRANTED in part.

I. BACKGROUND

A. Plaintiff’s Employment

As alleged in the Amended Complaint, Plaintiff was hired by Esti in September 2017 as

vice president of sales. (Am. Compl. ¶ 15). At the time, he was 66 years old. (See id. ¶¶ 15 &

41–42; Mov. Br. at 7). At his hiring, Esti promised Plaintiff a compensation package that would

include a salary of $130,000 and healthcare coverage on Esti’s company plan. (Am. Compl. ¶ 16).

On August 9, 2019, Esti fired Plaintiff. (Id. ¶ 41). At the time, Plaintiff was 68 years old. (Id. ¶

42).

During his employment, Plaintiff’s supervisor rated his job performance as “exemplary and

outstanding.” (Id. ¶ 83). According to Plaintiff, he helped increase Esti’s U.S. sales and cultivated

new business, created new sales routes, hired and trained new salespeople, established and

managed Esti’s product demonstration team, and directed Esti’s promotional efforts. (Id. ¶ 21).

Plaintiff also increased business accounts in his area from two to approximately 200. (Id. ¶¶ 24 &

87). Plaintiff set up deals with ShopRite warehouses that went into full effect after his termination

and led to increased sales for Esti in the following months. (Id. ¶¶ 28 & 30). Plaintiff claims that

he “diligently performed all tasks with professionalism and an outstanding work ethic” and was

not issued any written or verbal warnings regarding his job performance. (Id. ¶¶ 43–44).

Plaintiff alleges that, despite his exemplary job performance, Esti and its employees made

demeaning comments about his age and otherwise treated him differently due to his age. (Id. ¶¶

32–39). Specifically, Plaintiff alleges that Ifantis told Plaintiff and other employees that Plaintiff

“was an old man and was too old.” (Id. ¶ 34). Throughout Plaintiff’s employment, Ifantis

allegedly denied Plaintiff health coverage under Esti’s plan because, according to Ifantis, Plaintiff

would cause a significant increase in the cost of Esti’s health insurance plan due to his age. (Id.

¶¶ 33, 57–59, 61 & 63–65). Ifantis noted in November 2018 that Plaintiff “was the oldest person”

at Esti and “was older than [his] father,” and in June 2019 that Plaintiff “was in good shape for an

old guy.” (Id. ¶¶ 35–36). Moreover, Ifantis and another Esti employee allegedly approached

Plaintiff in June 2019, about two months before his termination, and asked whether he intended to

retire in the near future. (Id. ¶ 37). In late July or early August 2019, Esti’s Chief Sales Officer,

Chip Rosenberg, told Plaintiff to “come sit up front [to] . . . see and hear better due to his age.”

(Id. ¶ 39). Similarly, in August 2019, Rosenberg instructed Plaintiff not to answer any questions

“because [Plaintiff] was the oldest person in the group.” (Id. ¶ 38). Plaintiff says that he repeatedly

complained directly to Ifantis about these demeaning comments, but neither Ifantis nor Esti took

corrective action. (Id. ¶ 40). Plaintiff further alleges that Esti offered health coverage on its

company plan to younger employees and that younger employees were not terminated for failing

to meet monthly sales goals. (Id. ¶¶ 65 & 91).

B. EEOC Proceedings

On March 28, 2020, Plaintiff filed a charge of discrimination and retaliation with the Equal

Employment Opportunity Commission (“EEOC”). (Id. ¶ 51). In response to the EEOC charge,

Esti denied Plaintiff’s allegations and offered alternative explanations for Plaintiff’s termination.

(Id. ¶¶ 52–55, 66–67, 69, 73, 79, 84, 89–90, 92 & 94).

Plaintiff claims that Esti’s denials and alternative explanations were “false, erroneous, and

inconsistent.” (Id. ¶ 53). For example, Esti falsely asserted, according to Plaintiff, that he was

fired “entirely due to his alleged poor performance in sales and that [he] was allegedly ‘one of the

worst performing employees in the entire company.’” (Id. ¶ 79 (emphasis in original)). Plaintiff

claims, however, that his direct supervisor considered his job performance “exemplary and

outstanding,” believed he was “a diligent, hard-working employee[] who achieved many good

results” for Esti, and was unaware of any verbal or written warnings related to Plaintiff’s job

performance. (Id. ¶¶ 82–83). Esti also falsely claimed, Plaintiff alleges, that he did not increase

its business or meet monthly sales goals, that he allowed shelves to remain bare of Esti products,

and that he mismanaged the product demonstration program. (Id. ¶¶ 84, 90, 92 & 94). Meanwhile,

Plaintiff claims, as allegedly confirmed by his supervisor, that he opened all but two of the

approximately 200 sales accounts that he managed at the time of his termination, that younger Esti

employees were not criticized for failure to meet monthly sales goals, that Esti products were

occasionally absent from shelves due to inventory shortages, and that he did a “very good job”

managing the product demonstration program. (Id. ¶¶ 86–87, 90, 92 & 94). Plaintiff further

alleges that Esti falsely denied that Ifantis and Rosenberg made the above-discussed disparaging

remarks. (Id. ¶¶ 66–68 & 73–78). Finally, Defendants falsely claimed that Plaintiff was offered,

but declined, health insurance. (Id. ¶¶ 55, 59 & 63).

On June 1, 2021, the EEOC issued Plaintiff a notice of right to sue. (Id. ¶ 100).

C. Procedural History

Plaintiff filed the instant action on August 6, 2021, and the Amended Complaint on

November 2, 2021. (D.E. No. 1; D.E. No. 14). In counts one and two of the Amended Complaint,

Plaintiff brings federal claims of age discrimination and retaliation against Esti under the Age

Discrimination in Employment Act of 1967 (“ADEA”). (Am. Compl. ¶¶ 102–10). In counts three

through six, Plaintiff brings analogous state law claims against Esti and Ifantis under the New

Jersey Law Against Discrimination (the “NJLAD”). (Id. ¶¶ 111–30). In counts seven and nine,

Plaintiff brings common law claims for breach of contract and unjust enrichment against Esti. (Id.

¶¶ 131–35 & 143–50). And in count eight, Plaintiff brings a claim for failure to pay wages against

Esti and Ifantis under the New Jersey Wage Payment Law (the “NJWPL”). (Id. ¶¶ 136–42).

Defendants move to dismiss the Amended Complaint (D.E. No. 17), arguing that the

federal claims of discrimination and retaliation are insufficiently pleaded and that the Court should

not exercise supplemental jurisdiction over the remaining state law claims. (Mov. Br. at 1).

II. LEGAL STANDARD

In assessing whether a complaint states a cause of action sufficient to survive dismissal

under Federal Rule of Civil Procedure 12(b)(6), the Court accepts “all well-pleaded allegations as

true and draw[s] all reasonable inferences in favor of the plaintiff.” City of Cambridge Ret. Sys.

v. Altisource Asset Mgmt. Corp, 908 F.3d 872, 878 (3d Cir. 2018). “[T]hreadbare recitals of the

elements of a cause of action, legal conclusions, and conclusory statements” are all disregarded.

Id. at 878–79 (quoting James v. City of Wilkes-Barre, 700 F.3d 675, 681 (3d Cir. 2012)). The

complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face,” and a claim is facially plausible when the plaintiff “pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Zuber v. Boscov’s, 871 F.3d 255, 258 (3d Cir. 2017) (first quoting Santiago v.

Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010); and then quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)).

III. DISCUSSION

A. Age Discrimination

In pertinent part, the ADEA makes it “unlawful for an employer . . . to fail or refuse to hire

or to discharge any individual or otherwise discriminate against any individual with respect to his

compensation, terms, conditions, or such privileges of employment, because of such individual’s

age.” 29 U.S.C. § 623(a). A prima facie case of age discrimination has four elements: “(1) the

plaintiff is at least forty years old; (2) the plaintiff suffered an adverse employment decision; (3)

the plaintiff was qualified for the position in question; and (4) the adverse action occurred under

circumstances that create an inference that plaintiff’s age was a motivating factor.” Dodson v.

Coatesville Hosp. Corp., 773 F. App’x 78, 80 (3d Cir. 2019). However, on a motion to dismiss,

the plaintiff need not formally plead a prima facie case. See Connelly v. Lane Const. Corp., 809

F.3d 780, 789 (3d Cir. 2016) (“A prima facie case is an evidentiary standard, not a pleading

requirement, and hence is not a proper measure of whether a complaint fails to state a

claim.” (internal quotation marks omitted)). Instead, the plaintiff need only “allege enough facts

to ‘raise a reasonable expectation that discovery will reveal evidence of [each] necessary

element.’” Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021) (quoting Fowler

v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009)).

Following this standard, the Court holds that Plaintiff has successfully stated a claim of

age discrimination under the ADEA. First, Plaintiff was 68 years old at the time of his firing and

is covered under the ADEA. Second, Plaintiff suffered an adverse employment action when he

was fired from his job on August 9, 2019. See Muhammad v. Sills Cummis & Gross P.C., 621 F.

App’x. 96, 100 (3d Cir. 2015).

Third, Plaintiff alleges, and the Court accepts as true, that he was qualified for his former

position at Esti. And not only does Plaintiff allege he was qualified. He claims to have been a

stellar employee. For example, Plaintiff increased business accounts in his area from two to

approximately 200, including deals with ShopRite warehouses that went into full effect after his

termination and led to increased sales in subsequent months. (Am. Compl. ¶¶ 24, 28, 30 & 87).

During his employment, Plaintiff’s supervisor described his job performance as “exemplary and

outstanding.” (Id. ¶ 83). Plaintiff created new sales routes, hired and trained new salespeople,

established and managed Esti’s product demonstration team, and directed Esti’s promotional

efforts. (Id. ¶ 21). Plaintiff claims that he “diligently performed all tasks with professionalism

and an outstanding work ethic” and was not issued any written or verbal warnings regarding his

job performance. (Id. ¶¶ 43–44).

Fourth, Plaintiff alleges facts, which the Court accepts as true, that raise a reasonable

expectation that discovery will reveal that age was the reason for his termination. Esti allegedly

denied Plaintiff health coverage, while younger employees received health coverage. (Id. ¶¶ 64–

65). He claims that he faced a barrage of ageist comments from Ifantis and other Esti employees,

extending at least from February 2018 to shortly before his termination in August 2019. (Id. ¶¶

33–39). Finally, Plaintiff alleges that Esti misrepresented to the EEOC facts concerning his job

performance, which plausibly suggests that Esti sought to mask the real reason for Plaintiff’s

termination: his age. (Id. ¶¶ 79–90 & 92–95). These facts are sufficient to “raise a reasonable

expectation that discovery will reveal evidence of” that plaintiff was fired due to his age. Martinez,

986 F.3d at 266.

Defendants argue that it is implausible that Plaintiff was fired due to his age—because he

was hired only two years prior to his termination, when he was already 66 years old. (Mov. Br. at

7). Although this fact may make it appear less likely that age was the reason for Plaintiff’s

termination, it does not make Plaintiff’s age discrimination claim altogether implausible. For one,

the Court cannot assume that the person who hired Plaintiff was Ifantis, the person responsible for

many of the demeaning remarks and for terminating Plaintiff. For another, even if Ifantis was

responsible for hiring Plaintiff, the Amended Complaint does not suggest that Ifantis was aware

of Plaintiff’s age at the time of hiring. Further, even if Ifantis directly hired Plaintiff with

knowledge of his age, the Court cannot assume that Ifantis did not later have a change of heart

concerning the significance of Plaintiff’s age. At bottom, when considering a motion to dismiss,

the Court is not permitted to draw inferences adverse to the non-moving party. In fact, the Court

must draw inferences in favor of the non-moving party. The Court thus agrees with Plaintiff that,

“[a]fter discovery, Defendants could potentially make this argument, but it is not appropriate at

this stage.” (D.E. No. 21 (“Opp. Br.”) at 7–8).

Further, Defendants argue that Plaintiff fails to allege sufficient facts suggesting that age

was the “but for” cause of his termination. (Mov. Br. at 9–10). Although “but-for” causation is

ultimately required “[t]o succeed on an ADEA claim,” Willis v. UPMC Children’s Hosp. of

Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,

177–78 (2009)), it is not necessary for Plaintiff to provide specific support for every element of

the prima facie case at the pleading stage, see Connelly, 809 F.3d at 789. Instead, to survive a

motion to dismiss, Plaintiff need only allege enough facts “that might give rise to an inference that

[plaintiff] was terminated because of [his or her] age.” Dodson, 773 F. App’x at 81. Plaintiff can

successfully state a claim under the ADEA by alleging facts that, “if otherwise unexplained, are

more likely than not based on the consideration of impermissible factors.” Dodson v. Coatesville

Hosp. Corp., No. 16-5857, 2017 WL 2798560, at *2 (E.D. Pa. June 28, 2017) (quoting Willis, 808

F.3d at 644), aff’d, 773 F. App’x 78.

Defendants also assert that Plaintiff’s claim is based on stray remarks that are insufficient

direct evidence to support a claim of age discrimination under the ADEA. (Mov. Br. at 10–17).

It is true that the Third Circuit has consistently declined to accept individual stray remarks as direct

evidence of discrimination. See Dodson, 773 F. App’x at 80 (finding a “single stray remark” not

directed at the plaintiff to be insufficient to “suggest discriminatory animus”); Hyland v. Am. Int’l

Grp., 360 F. App’x 365, 367–68 (3d Cir. 2010) (stating that a single remark recognizing the

plaintiff’s age but unrelated to the plaintiff’s termination is not sufficient direct evidence to support

an inference of age discrimination); Brewer v. Quaker State Oil Refin. Corp., 72 F.3d 326, 333 (3d

Cir. 1995) (finding that a comment by the CEO of employing company that the mid-40s age group

“is our future” “should not be given significant or commanding weight”). But Plaintiff does not

allege one or two stray remarks. Instead, he alleges a barrage of ageist and demeaning comments.

Plaintiff claims that Ifantis told him and other employees that Plaintiff “was an old man and was

too old”; “was the oldest person” at Esti; “was older than his father”; and “was in good shape for

an old guy.” (Am. Compl. ¶¶ 34–36). The Third Circuit has recognized that a series of such

remarks is relevant “evidence of the atmosphere in which [an] employment decision was carried

out.” Walden v. Georgia-Pac. Corp., 126 F.3d 506, 521 (3d Cir. 1997); see also Woodson v. Scott

Paper Co., 109 F.3d 913, 922 (3d Cir. 1997) (stating that one remark, even if it was a “mere stray

remark,” “can constitute evidence of the atmosphere” in which employment decisions were carried

out); Antol v. Perry, 82 F.3d 1291, 1302 (3d Cir. 1996) (finding that a slur uttered by a supervisor

“involved in the [employment] selection process . . . supports an inference of discrimination”).

While there might be innocent explanations for the series of remarks, the Court agrees with

Plaintiff that it must accept his factual allegations as true and draw all reasonable inferences in his

favor. (Opp. Br. at 6). Accordingly, Plaintiff’s allegations of numerous ageist remarks by Ifantis

“allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” See Connelly, 809 F.3d at 786 (quoting Iqbal, 556 U.S. at 678).1

For the above reasons, Plaintiff has alleged sufficient facts to state a claim of age

discrimination under the ADEA.

B. Retaliation

Under the ADEA, it is “unlawful for an employer to discriminate against any of his

employees . . . because such individual . . . has opposed any practice made unlawful by [the

ADEA].” 29 U.S.C. § 623(d). A prima facie case of retaliation under the ADEA has three

elements: “(1) [the plaintiff] engaged in a protected activity; (2) the employer took an adverse

employment action against him; and (3) there is a causal connection between his participation in

1 Defendants also argue that Plaintiff does not allege that he made a formal complaint to “the appropriate

Human Resources personnel,” and that Esti’s failure to take corrective action, therefore, is not suggestive of

discrimination. (Mov. Br. at 4). However, the Court need not address this particular argument because Plaintiff

sufficiently states a claim for age discrimination regardless of how the Court should understand the distinction between

a formal and an informal complaint.

the protected activity and the adverse employment action.” Silver v. Am. Inst. of Certified Pub.

Accts., 212 F. App’x 82, 85–86 (3d Cir. 2006).

Plaintiff’s factual allegations of retaliation consist of two paragraphs of his Amended

Complaint:

40. KAPROWSKI complained directly to IFANTIS, who is

ESTI’s President, about the discriminatory comments repeatedly

and throughout his employment when the discriminatory comments

were made, including shortly before his termination, but ESTI took

no corrective action despite his pleas for help.

41. On the contrary, on or about August 9, 2019, just days after

the last discriminatory comment regarding KAPROWSKI’s age,

Defendants abruptly fired KAPROWSKI.

(Am. Compl. ¶¶ 40–41).2

Defendants argue that Plaintiff’s allegations fail to state a claim of retaliation under the

ADEA. (Mov. Br. at 18–19). The Court agrees.

First, in considering what constitutes protected activity, courts look to “the message being

conveyed rather than the means of conveyance.” Curay-Cramer v. Ursuline Academy of

Wilmington, 450 F.3d 130, 135 (3d Cir. 2006) (citing Barber v. CSX Distrib. Servs., 68 F.3d 694,

702 (3d Cir. 1995)). The message conveyed must make the plaintiff’s opposition to discriminatory

treatment clear by stating, either implicitly or explicitly, “that a protected characteristic was the

basis for the adverse employment action.” Id.

Plaintiff does not satisfy that standard. According to Plaintiff’s minimal allegations in

support of this claim, he “complained . . . about the discriminatory comments.” (Am. Compl. ¶

40). Such a vague statement fails to sufficiently allege that Plaintiff engaged in protected activity.

Moreover, while Plaintiff claims he complained about the demeaning remarks, he appears not to

2 The other paragraphs in which Plaintiff alleges retaliation are comprised of conclusory legal statements that

the Court cannot accept as true. (See id. ¶¶ 45–48).

claim that the demeaning remarks, alone, constituted a practice made unlawful under the ADEA.

Cf. Clark County v. Breeden, 532 U.S. 268, 271 (2001) (per curiam) (rejecting Title VII retaliation

claim where the complained-of conduct clearly did not reasonably violate Title VII’s standards for

unlawful discrimination).3

Second, to plead the causation element, plaintiff may allege “(1) an unusually suggestive

temporal proximity between the protected activity and the alleged retaliatory activity; . . . (2) a

pattern of antagonism coupled with timing; [or (3)] that from the ‘evidence gleaned from the record

as a whole’ the trier of fact should infer causation.” Griesbaum v. Aventis Pharms., 259 F. App’x

459, 466–67 (3d Cir. 2007) (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267

(3d Cir. 2007) (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000))).

Plaintiff has not alleged an unusually suggestive temporal proximity between his allegedly

protected conduct and his termination. Nor does Plaintiff appear to allege a pattern of antagonism

related to his alleged complaints or any other facts from which the trier of fact could infer

causation. Instead, Plaintiff alleges a pattern of antagonism related to his status as an older

employee at Esti. He does not allege facts suggesting that the antagonism was related to his alleged

complaints about the discriminatory treatment. Indeed, contrary to Plaintiff’s suggestion, the

Amended Complaint does not outline a “gradual deterioration” in the employment relationship

after Plaintiff engaged in a protected activity. (Opp. Br. at 23 (quoting Connelly, 809 F.3d at 792–

93)). Instead, the Amended Complaint appears to claim that the employment relationship was

always poor, but consistently so before and after his alleged complaints.

Accordingly, count two of the Amended Complaint is dismissed for failure to state a claim.

3 The Court disagrees with Plaintiff that Defendants concede he engaged in protected activity. (Opp. Br. at

22). Defendants identify his complaints as “vague” and rhetorically refer to them as “some protected action.” (Mov.

Br. at 18).

The dismissal of count two is without prejudice.*

IV. CONCLUSION

For the above stated reasons, Defendants’ motion to dismiss is GRANTED in part and

DENIED in part. An appropriate Order will be entered.

_t OO ee

Dated: June 24, 2022 on. Esttier Salas, U.S.D.J.

4 The Court also dismisses Plaintiff’s retaliation claims brought under the NJILAD—specifically, in counts five

and six of the Amended Complaint. Plaintiff’s claims under the NJLAD are assessed under the same framework as

that under the ADEA. See Dvoskin v. Bio-Reference Lab’ys, Inc., No. 18-10667, 2021 WL 2134938, at *3 (D.N.J.

May 26, 2021). Indeed, “New Jersey courts typically look to federal anti-discrimination law in construing [the]

NJLAD.” Chisolm v. McManimon, 275 F.3d 315, 324 n.9 (3d Cir. 2001). Thus, “[a]ny claim under the NJLAD ...

fail[s] for the same reasons that the ... ADEA... claim[] fail[s].” Buj v. Psychiatry Residency Training, 860 F.

App’x 241, 245 (3d Cir. 2021). Counts five and six are thus dismissed without prejudice.

Plaintiff’s other state law claims may proceed. Those claims are for discrimination under the NJLAD (counts

three and four); for breach of contract and unjust enrichment (counts seven and nine); and for failure to pay wages

under the NJWPL (count eight). Defendants do not move to dismiss those claims for any reason other than for a lack

of supplemental jurisdiction in the event Plaintiff’s federal claims were dismissed. (Mov. Br. at 1 & 20). However,

Plaintiff’s claim for age discrimination under the ADEA may proceed. Accordingly, the Court has supplemental

jurisdiction over the remaining state law claims.

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