MARK A. KEARNEY, District Judge.
Employers should similarly evaluate performance of their salespersons trained and expected to perform at identical levels regardless of their age. When an employer holds its sales team to the same performance standards but then fires an older salesperson outperforming a younger and less experienced salesperson and replaces the older salesperson with a much younger salesperson, the employer should explain its legitimate business reasons for firing the older salesperson to the jury. While we do not find partial statistics on the "age of hires" or anonymous complaints about the supervisor's age bias does not show pretext, the fired salesperson adduces sufficient evidence of disputed facts as to whether the employer's business reasons to fire her are pretext for age discrimination when it fires older salespersons outperforming younger salespersons based on identical standards and replaces the older employee with a younger one. In the accompanying Order, we deny the employer's motion for summary judgment on the employee's age discrimination claim and will allow the jury to resolve these genuine issues of material fact surrounding the firing of an older salesperson who outperformed a younger salesperson who remained employed.
I. Facts in the light most favorable to Ms. Larison.
Justine Larison began working for Fedex Corporate Services, Inc. in 1994.
A. Ms. Larison's job duties.
As a Sales Account Executive, Ms. Larison's job duties included bringing in new business.
B. Ms. Larison's performance reviews consistently note deficiencies in closing new business.
Before Ms. Larison began working under Ms. Nardiello, Ms. Larison enjoyed positive or neutral performance reviews overall from her supervisors James Davis and John Reardon, but they found deficiencies in the area of closing new business.
After Ms. Nardiello began supervising Ms. Larison, she noted deficiencies in Ms. Larison's ability to close new accounts, but otherwise rated her positively or neutrally. In 2013 and June 2014, Ms. Nardiello rated Ms. Larison's overall performance as "Generally Acceptable," but rated her as "Met Some Expectations" in the area of "New Business Development and Implementation."
From 2013 through 2015, Ms. Nardiello consistently told Ms. Larison she needed to focus on closing new business accounts.
C. Ms. Nardiello asks permission to end Ms. Larison's employment in August 2014.
On August 1, 2014, less than two months after Ms. Nardiello rated Ms. Larison's overall performance as "Generally Acceptable," Ms. Nardiello asked human resources if she could discharge Ms. Larison.
Ms. Nardiello then issued Ms. Larison a warning letter regarding her deficiency in closing new business, stating Ms. Larison had only closed one "Field-sized" account in fiscal year 2014.
Fifteen days after issuing the warning letter, Ms. Nardiello asked Mr. Wallace in an email if she could cancel the weekly meetings because Ms. Larison had been complaining about them.
D. Ms. Nardiello issues another warning letter to Ms. Larison based on her sales performance.
> On December 22, 2014, Ms. Nardiello issued Ms. Larison another warning letter, noting Ms. Larison had only closed two "Field sized" accounts for the first two quarters of fiscal year 2015.
By the end of fiscal year 2015, Ms. Larison had closed five "field-sized" accounts-more than she had in any other fiscal year.
E. Ms. Nardiello discharges Ms. Larison for poor performance, and replaces her with a younger employee.
On July 13, 2015, Ms. Nardiello requested permission from human resources to discharge Ms. Larison.
FedEx fired Ms. Larison shortly after Ms. Nardiello's request. Ms. Nardiello hired thirty-eight-year-old Anthony Dell-Aquila to replace Ms. Larison.
F. Ms. Nardiello's hiring practices.
In hiring employees, FedEx uses a recruiting company to vet the top three candidates for a position.
When Ms. Nardiello became Sales Manager, the average age of the nine sales professionals who reported to her was 47.
We do not know the ages of the candidates Ms. Nardiello interviewed but did not hire. Although we have the resumes of three unhired individuals whom Ms. Nardiello interviewed, we lack facts as to the ages of these individuals and which of the nine positions Ms. Nardiello considered them for.
G. Anonymous complaints of age discrimination made against Ms.
After FedEx fired Ms. Larison, FedEx received three internal complaints of age discrimination against Ms. Nardiello from anonymous complainants.
H. FedEx did not discharge younger, less experienced sales employees with fewer closings.
At the time Ms. Nardiello discharged Ms. Larison, two younger, less experienced FedEx employees retained their employment despite closing fewer accounts. During his second year with FedEx, 34-year-old Account Executive Matthew Erb closed three accounts in fiscal year 2015.
Steven Klein, a thirty-one-year-old Account Executive, closed three accounts in fiscal year 2015.
Ms. Nardiello attributes her disparate treatment of Mr. Erb and Mr. Klein to their lack of experience and their limited time in the new territory they worked in.
Despite Ms. Nardiello's explanation as to her disparate treatment, she unequivocally admits all sales employees are held to the same standards, including the same standard for closing business:
Ms. Larison sued FedEx for age discrimination and retaliation under the Age Discrimination in Employment Act of 1967 ("ADEA")
Under the familiar McDonnell Douglas framework, Ms. Larison must establish a prima facie case of age discrimination. If she does so, the burden shifts to FedEx to proffer evidence of legitimate non-discriminatory reasons for its adverse employment actions.
A. Ms. Larison addresses
prima facie evidence of age discrimination.
Ms. Larison demonstrates a prima facie case of age discrimination. To establish a prima facie case of age discrimination, Ms. Larison must prove: (1) she is at least forty years old; (2) she suffered an adverse employment action; (3) she was qualified for the position in question; and (4) FedEx ultimately replaced her with a sufficiently younger employee, or the existence of facts allowing the inference FedEx relied on "impermissible factors."
i. Ms. Larison demonstrates she is qualified.
Ms. Larison provides sufficient evidence she was qualified to perform the work of an Account Executive. Whether Ms. Larison is qualified "will turn on whether plaintiff is able to perform or has satisfactorily performed the job, an issue that entails a subjective evaluation to be evaluated by the factfinder."
ii. Ms. Larison satisfies the fourth element of her
prima facie case.
Ms. Larison also demonstrates facts raising the inference of discrimination under the fourth element. Ms. Larison can satisfy this element by showing a "sufficiently younger" employee replaced her.
B. There is a genuine issue of material fact as to whether FedEx's decision to discharge her is pretextual.
Ms. Larison argues three bases for finding Ms. Nardiello's decision to discharge Ms. Larison: (1) a jury could disbelieve Ms. Nardiello's reasoning based on her demeanor at trial; (2) a jury could conclude Ms. Nardiello has an age bias based on her hiring decisions, her treatment of similarly-situated employees, and employee complaints of age discrimination; and (3) a jury could disbelieve Ms. Nardiello's explanation based on the inconsistent explanations FedEx provided for discharging Ms. Larison. After reviewing the first two bases, we find a genuine issue of material fact as to pretext because there is sufficient evidence Ms. Nardiello treated a younger similarly-situated employee more favorably than Ms. Larison.
i. Ms. Nardiello's prospective demeanor at trial does not create a genuine issue of material fact for trial.
Ms. Larison argues we should deny summary judgment simply because a jury, reviewing her demeanor on the stand, is entitled to disbelieve Ms. Nardiello's testimony she did not discriminate against Ms. Larison. In support, she cites Judge Schmehl's post-verdict decision denying a defendant's renewed motion for judgment as a matter of law.
Ms. Larison provides no evidence of Ms. Nardiello's demeanor while testifying about her decision to discharge Ms. Larison. Absent such evidence, we would be speculating as to the jury's ability to disbelieve Ms. Nardiello based on her demeanor at trial. Judge Schmehl had the benefit of demeanor evidence when he made his post-trial decision, but we do not have such evidence before us. We refuse to find Ms. Nardiello's prospective demeanor at trial raises a genuine issue of material fact precluding summary judgment.
ii. Evidence Ms. Nardiello acted with age bias.
Ms. Larison contends Ms. Nardiello's age bias is reflected by her hiring decisions, and discrimination complaints made against her by anonymous individuals, and her treatment of purported comparator employees. Although we find Ms. Nardiello's hiring decisions and the complaints lodged against her are not probative of age bias, we find sufficient evidence Ms. Nardiello treated similarly-situated employees more favorably than Ms. Larison.
1. The purported statistical evidence of Ms. Nardiello's hiring decisions are not probative of her age bias.
Ms. Larison fails to demonstrate sufficient statistical evidence as to Ms. Nardiello's hiring practices which would allow the factfinder to infer she harbors an age bias. "Statistical evidence of an employer's pattern and practice with respect to minority employment may be relevant to a showing of pretext."
Similarly, in Narin v. Lower Merion School District, our court of appeals found the district court acted within its discretion in excluding evidence of the ages of individuals hired in the school district over a ten-year period, as such evidence is not probative of discriminatory intent.
Ms. Larison's evidence of Ms. Nardiello's hiring practices is not probative of her discriminatory intent. As in Ezold, Ms. Larison failed to put forward evidence of the ages of the candidates Ms. Nardiello considered. Although there is evidence FedEx interviews people of all ages, we lack evidence demonstrating the ages of the individuals Ms. Nardiello interviewed.
Ms. Larison claims a jury could infer the ages of interviewees based on their resumes by viewing the years the applicants graduated from college or held jobs. Even if we accepted this argument, Ms. Larison provides the resumes of only three of the interviewees denied positions, even though Ms. Nardiello considered three individuals for each of the nine positions she filled. Further, Ms. Larison does not identify the individuals Ms. Nardiello hired to the exclusion of these three interviewees. We lack sufficient evidence of the ages of the qualified pool of interviewees Ms. Nardiello considered for these nine positions.
2. Ms. Larison's evidence of anonymous employee complaints of age discrimination against Ms. Nardiello does not demonstrate her age bias.
The anonymous complaints of age discrimination made by other employees against Ms. Nardiello do not demonstrate she harbors an age bias. Ms. Larison can demonstrate pretext by showing FedEx discriminates against other older workers.
3. There is a genuine issue of material fact as to whether FedEx treated a similarly situated employee more favorably.
Ms. Larison provides sufficient evidence Ms. Nardiello treated similarly-situated employees more favorably. Ms. Larison can prove pretext by demonstrating FedEx treated a "similarly situated, substantially younger" employee more favorably.
An employee's experience can constitute a relevant factor in certain circumstances, and an employer is entitled to treat employees differently based on their experience levels. For example, the Court of Appeals for the Tenth Circuit held the employer could rightfully evaluate a senior-level employee "under standards higher than those applied to lower-level, younger" employees.
There is a genuine issue of material fact as to whether Mr. Nardiello treated two similarly-situated employees more favorably. Ms. Larison argues Ms. Nardiello inconsistently fired her for failing to close new business and did not fire younger sales employees—Mr. Erb and Mr. Klein—even though they closed fewer accounts than Ms. Larison in fiscal year 2015. Mr. Erb and Mr. Klein held the same position as Ms. Larison and reported to same supervisor, Ms. Nardiello. Ms. Larison, however, had eight years of experience in sales, while Mr. Klein and Mr. Erb had only one and two years of experience, respectively. Even so, there is a genuine issue of material fact as to whether Ms. Nardiello held these younger, less experienced employees to the same standards as Ms. Larison. Although Ms. Nardiello testified she expected Ms. Larison to close more business than Mr. Erb or Mr. Klein because she had more experience than them, she also testified the "entire sales team" is "held to the same standard," even with regard to "closing business."
There are genuine issues of material fact as to whether Ms. Larison is qualified and whether Ms. Nardiello harbored an age bias based on her disparate treatment of sales employees. We grant FedEx's motion for summary judgment as to Ms. Larison's retaliation claims under the ADEA and PHRA, but deny FedEx's motion as to her ADEA and PHRA age discrimination claims.