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Argue v. David Davis Enterprises

March 20, 2009

ROBERT E. ARGUE, III, PLAINTIFF
v.
DAVID DAVIS ENTERPRISES, INC., TRADING AS DAVIS ACURA, DEFENDANT



The opinion of the court was delivered by: Pratter, J.

MEMORANDUM AND ORDER

Robert E. Argue, III sued his former employer, David Davis Enterprises, t/a Davis Acura ("Davis Acura"), David Davis, the owner, president and Chief Executive Officer of Davis Acura, and Joseph Daino, Davis Acura's general manager and sales manager. Mr. Argue invoked the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. § 955, and the Pennsylvania Wage Payment and Collection Law ("WPCL"), 43 Pa. Cons. Stat. Ann. § 260.1 et seq. Specifically, Mr. Argue claimed that Davis Acura and the named defendants discriminated against him on the basis of his age when they terminated his employment in January 2001. The Court granted summary judgment in favor of Defendants on all but two claims, his ADEA and PHRA claims against Davis Acura.

On February 29, 2008, following an 8-day trial, the jury returned a verdict in favor of Mr. Argue, awarding him backpay in the amount of $107,000, car related expenses in the amount of $18,000, and health insurance premiums in the amount of $2,500. The jury did not find that Davis Acura had "willfully" discriminated against Mr. Argue, so no liquidated damages were awarded.

The parties filed a number of post-trial motions. Davis Acura seeks (1) judgment as a matter of law, (2) a new trial, and/or (3) alteration of the judgment. Mr. Argue asks the Court (1) to mold the judgment to compensate him for negative income tax consequences, (2) to mold the judgment to increase the lost wages component of the award, (3) to mold the judgment to include pre- and post-judgment interest, and (4) to recover attorney's fees and costs. The Court resolves these motions as discussed below.

FACTUAL BACKGROUND*fn1

In September 1998, Mr. Davis interviewed Mr. Argue for the position of service advisor at Davis Acura, a car dealership. Mr. Davis offered, and Mr. Argue accepted, the position. At this interview, Messrs. Davis and Argue did not discuss Mr. Argue's age.

Among other duties, the service advisor supported the service manager. Before Mr. Argue interviewed for the service advisor position, Davis Acura had offered the service manager position to Mark Hartman, a 34-year-old. Mr. Hartman declined the offer, and, before Mr. Argue started his new job as service advisor, Mr. Davis invited Mr. Argue to come for another interview, this time for the service manager position.

At this second interview, Mr. Davis did ask Mr. Argue about his age. Mr. Argue replied that he was 52 years old. Mr. Davis himself was 56 at the time. According to Mr. Argue, Mr. Davis seemed surprised to find out that Mr. Argue was 52; Mr. Davis told Mr. Argue that he did not look his age, which was "good." Mr. Davis offered Mr. Argue the position of service manager, and Mr. Argue accepted, understanding that his full job at Davis Acura would include the responsibilities of both the service advisor and service manager positions.

As service manager, Mr. Argue replaced Glen Davis, David Davis's son, who was 30 years old at the time. From his hire date in September 1998 until November 2000, Mr. Argue's immediate supervisor was Mr. David Davis. From November 2000 until his discharge in January 2001, Mr. Argue's immediate supervisor was Mr. Joseph Daino, General Manager of the dealership.

In October 2000, Mr. Daino and Randi Levin, Controller for Davis Acura, approached Mr. Davis about terminating Mr. Argue's employment. On January 2, 2001, Mr. Daino, in the presence of Ms. Levin, fired Mr. Argue, citing poor performance and poor attitude as the reasons for the decision. Davis Acura hired James Mann, a 34 year-old, to replace Mr. Argue.

On December 31, 2002, Mr. Argue commenced this suit.*fn2

TESTIMONY AT TRIAL*fn3

A. Mr. Robert Argue

On direct examination, Mr. Argue testified that after accepting the offer to be service advisor at Davis Acura but before beginning work there, Mr. Davis called Mr. Argue and informed him that Mark Hartman, the person who was originally offered the job as service manager, had decided not to take the position. 2/20/08 Tr. at 40. Mr. Davis and Mr. Argue then had a meeting about the open service manager position, during which Mr. Davis asked Mr. Argue if Mr. Argue felt he could do that job. 2/20/08 Tr. at 41. Both agreed that he could, despite Mr. Argue's lack of knowledge of handling paperwork concerning warranties and of financial statements. Mr. Davis assured Mr. Argue that Mr. Argue would be trained in those areas. Id.

Mr. Argue also testified that at that second interview, Mr. Davis asked Mr. Argue his age. 2/20/08 Tr. at 44-45. When Mr. Argue responded that he was 52, Mr. Davis expressed surprise and said that Mr. Argue did not look or act his age, and that that was a "good" thing. Id. at 45. Mr. Davis went on to elaborate, saying that "men just get old, they get set in their ways, they can't do the job any more." Id. at 45.

Mr. Argue explained that when he started his job at Davis Acura, he took the position of service manager, but understood that he would have to temporarily serve as service advisor as well, until another employee could be hired for that position. Id. at 47-48.

Mr. Argue testified that Mr. Davis had the final say in all personnel decisions, such as hiring and firing. Id. at 52-53. He also testified that Mr. Davis told him that before firing anyone, the employee in question should be given an opportunity to change and at least 2 corrective interviews. Id. at 54.

Mr. Argue testified that other older employees had been either demoted or fired during his tenure at Davis Acura. For instance, he testified that Mr. Blatnick went from shop foreman to technician, and that the new shop foreman was James Mann, who was in his early 30's. Id. at 61-62. (Mr. Mann was later to become Mr. Argue's replacement as service manager.) Mr. Argue testified that Mr. Baltrush, who was parts manager when Mr. Argue started at Davis Acura, was demoted to assistant service and parts manager. Id. at 61. Mr. Argue told the jury that Mr. Davis said that Mr. Baltrush had become "too old to do the job, that he was unable to manage any more, that he just couldn't get the job done." Id. at 64-65. Mr. Argue also testified that Mr. Sabona, an older gentleman, was fired, but Mr. Argue acknowledged that Mr. Sabona had a number of performance deficits. Id. at 63-64. According to Mr. Argue, Mr. Davis had commented that "he didn't believe that Mario [Sabona] could do his job, that he was -- he was an old guy with a young wife and kids, and he felt that that was -- between them and the job, it was too much for him." Id. at 64.

Mr. Argue recounted a number of other comments Mr. Davis made either in favor of youth or against age (or both). Mr. Davis also talked about Mr. Mann's youth as an asset, and made "frequent" comments about managers getting old and set in their ways. Id. at 69-70. Mr. Argue also testified about Mr. Davis's use of the term "prune brigaders" to describe older employees, usually retired individuals, who worked part time at the dealership delivering cars from one dealership to another. Id. at 72-73. At one point in late 2000, after a misunderstanding regarding the hiring of "prune brigaders," Mr. Davis told Mr. Argue that he would consider Mr. Argue for a prune brigader job because Mr. Argue was old enough. Id. at 73, 79. Mr. Argue also reported another comment of Mr. Davis's regarding Mr. Argue's age: after a customer problem arose, also in late 2000, Mr. Davis's first comment to Mr. Argue about the situation was, "Are you getting too old to do this job?" Id. at 79. Mr. Argue also testified that Mr. Davis commented that Mr. Mann, the person 21 years Mr. Argue's junior who eventually replaced him as service manager, "would make a good replacement for [him] when the time came." Id. at 75.

As to his own performance, Mr. Argue testified that he felt that he got along well with his co-workers. Id. at 88. He also noted that under his leadership the Davis Acura service department earned the Acura home office distinction of "precision team" status in 1999 and received number 1 ratings while he worked in Davis Acura's service department. Id. at 88-89. Mr. Argue testified that prior to being fired, no one approached him about any attitude problems or warned him about his job performance. Id. at 101.

Mr. Argue described the circumstances surrounding his termination. He recalled that Mr. Daino was the person who actually gave him the news that he was fired, but stated that Mr. Daino told him that Mr. Davis "wanted [him] to go." Id. at 104. Mr. Argue testified that Mr. Daino referred him to Acura's district management to make inquiry about jobs at other area Acura dealerships. Id. at 104-05.

As to damages, Mr. Argue testified that in addition to lost wages, medical insurance, and emotional anguish, he also had to spend $10,000 on a car to replace the dealership demonstration car he drove while employed by Davis Acura. Id. at 113-114. He testified that he made efforts to find another similar job in the auto industry. Id. at 116. Not long after his termination from Davis Acura, Mr. Argue was hired by Ardmore Acura as a service advisor (at a salary lower than his salary at Davis Acura), and he held that position for about 6 months. Id. at 117. After that, he was unable to find another comparable job in the auto industry, so he got a commercial driver's license and had a series of jobs driving commercial vehicles. 2/20/08 Tr. at 117-125.

On the issue of falsified customer surveys,*fn4 Mr. Argue testified that Mr. Davis knew that the surveys were being falsified and actually directed Mr. Argue to do it. 2/21/08 Tr. at 42-44.

B. Mr. Davis

David Davis was called as a witness in the Plaintiff's case-in-chief. Mr. Davis confirmed that he asked Mr. Argue his age when he interviewed Mr. Argue for the service manager position. 2/21/08 Tr. at 188. He testified that he did so because he wanted to know whether Mr. Argue was a "can-do [person] with energy." Id. at 189. Mr. Davis testified that Mr. Argue was most qualified to be a service advisor when he was hired, but that they were "going to develop" his service management skills. 2/22/08 Tr. at 50. Mr. Davis also admitted that he was familiar with the term "prune brigaders" and that he had used the term. Id. at 8.

At trial Mr. Davis cited competence issues as the "major issue" behind Mr. Argue's termination. Id. at 16. At his deposition, however, Mr. Davis had said that Mr. Argue would not have been terminated if it had not been for attitude problems. Id. at 16-17. The deposition testimony was used for impeachment purposes and for substantive evidence. Mr. Davis testified at trial that there were "rumblings" regarding interpersonal problems between Mr. Argue and others, but that he never personally observed any such problems. Id. at 4.

Mr. Davis admitted that as owner of the dealership, he had the power to hire and fire as he pleased. Id. at 29-30. He testified that he would have preferred it if Mr. Argue had been moved to a different position rather than fired, but that the ultimate decision was left to Mr. Daino. Id. at 30. Mr. Davis confirmed that he had not given Mr. Argue any warning that there were performance and/or attitude problems. Id. at 31. He testified that Mr. Daino and Ms. Levin came to him to discuss Mr. Argue before terminating Mr. Argue's employment. Id. at 31-32.

Mr. Davis admitted that he was actively recruiting James Mann, Mr. Argue's eventual replacement, for Mr. Argue's position before Mr. Argue was terminated. Id. at 33. He testified that Mr. Daino contacted Mr. Mann first, but that he (Mr. Davis) had between one and three conversations with Mr. Mann about the job before Mr. Argue was terminated. Id. at 34-35.

Regarding the practice of manipulating customer service surveys, Mr. Davis testified that he found out that the practice was going on at his dealership from Mr. Daino after Mr. Argue was fired. 2/21/08 Tr. at 150. His deposition testimony (which was used by Mr. Argue to reflect a prior inconsistent statement and/or admission as well as possibly to impeach Mr. Davis) reflected, however, that he discussed the practice with Mr. Argue, and possibly with Mr. Daino and Ms. Randi Levin, prior to Mr. Argue's termination. Id. at 151-165.

C. Bernie Blatnick

Mr. Bernie Blatnick, testifying for the defense, said that although he did work as shop foreman and was replaced as shop foreman by James Mann, he did not consider that change in title to be a demotion. 2/25/08 Tr. at 98-99. He also testified that in 21 years of working with Mr. Davis, Mr. Davis never made any comments to him regarding his age, and that, in fact, he never heard Mr. Davis make any age-related comments at all. Id. at 99-100.

D. Phyllis Levin

Phyllis Levin, a cashier at Davis Acura, testified for the defense. Ms. Levin worked nearby Mr. Argue for three months in 1998. Id. at 125. For six more months, she filled in for other cashiers nearby Mr. Argue at lunch time 3 or 4 times a week. Id. at 124-25. She testified that Mr. Argue asked her many times to explain to customers the work done on their cars, which she asserted was the responsibility of the service department, not of the cashiers. Id. at 113-14. She also testified that Mr. Argue occasionally was rude to her and to other cashiers, and that on one or two occasions he so upset a cashier that she cried. Id. at 116-17.

Ms. Phyllis Levin testified that she never heard Mr. Davis make age-related comments to Mr. Argue, Mr. Baltrush, or Mr. Blatnick. Id. at 121.

E. Gail Hoffman

Gail Hoffman, a former Davis Acura employee, also took the stand for the defense. Ms. Hoffman was a cashier at Davis Acura while Mr. Argue worked there. Id. at 177. She testified that Mr. Argue asked cashiers to explain things to customers, when it was his responsibility to explain them. Id. at 177. She frequently complained about this to Randy Levin. Id. at 179. She admitted that she could not remember Mr. Argue speaking harshly to cashiers. Id. at 178. She said that he did not speak to her in a rude or condescending manner. Id. at 181.

Ms. Hoffman testified that she never heard Mr. Davis make any age-related comments. Id. at 184.

F. James Mann

James Mann, who replaced Mr. Argue as service manager, was called by the defense. He said that when he worked for Mr. Argue as shop foreman in 1999, Mr. Argue was a good manager who wanted "to do the right thing." Id. at 192-93. Mr. Mann said that when he worked with Mr. Argue, he never saw him "having a bad attitude" or mistreating co-workers. Id. at 215.

Mr. Mann testified that Mr. Davis called him in late October or early November 2000 to discuss the possibility of returning to Davis Acura as service manager. Id. at 195, 201-02. Mr. Mann said that he went on to talk to Mr. Davis more than five times about the subject. Id. at 202. After Mr. Davis called him, Mr. Daino also called Mr. Mann once to discuss the service manager job. Id. at 196.

Mr. Mann testified that he never heard Mr. Davis make any age-related comments. Id. at 194.

G. Debra Mattis

Ms. Mattis, a current employee of Davis Acura, testified for the defense. While Mr. Argue was also employed there, she served as an office clerk and as a warranty clerk. Id. at 233. As warranty clerk, Ms. Mattis was supervised by Mr. Argue. Id. at 235. She testified that Mr. Argue "wasn't any help" when she had warranty questions for him. Id. at 235. She stated that Mr. Argue was condescending and rude to her. Id. at 238. She often complained about Mr. Argue, and on more than one occasion she became very upset or cried as a result of having to deal with him. Id. at 240. Ms. Mattis testified that she surreptitiously took a test about warranties for Mr. Argue so that he would appear to have passed the test. Id. at 241.

Ms. Mattis testified that the only age-related comments she ever heard Mr. Davis make were comments about himself. Id. at 245.She also testified that she never spoke with Ms. Levin about the customer survey manipulations. 2/26/08 Tr. at 39.

H. Randi Levin

Ms. Randi Levin, Controller at Davis Acura, testified on behalf of the defense. Ms. Levin testified that she only heard Mr. Davis make one age-related comment and that it was about himself. Id. at 52. She testified that she had problems with Mr. Argue's failure to close out repair orders at the end of each month. Id. at 56. She stated that on one occasion, when she approached Mr. Argue about closing out repair orders, she found him playing "Free Cell" on the computer rather than working on the open orders. Id. at 72.

Ms. Levin told the jury that Mr. Argue made some of the younger cashiers cry, and that she had to talk to him about it. Id. at 58-59. She testified that "pretty much everybody on [her] staff at one time or another. . . was not happy dealing with Mr. Argue." Id. at 59. She stated that she did not have a personal conflict with him, however. Id. at 97. In late 2000, Ms. Levin made a list of complaints she had about Mr. Argue, including his failure to close out repair orders, playing solitaire on the computer, not answering phones, leaving the repair counter un-manned for long periods of time, and lack of knowledge of warranty claims. Id. at 74-78. Ms. Levin testified that she provided Mr. Argue with the answers to an Acura service manager test regarding financial statements. Id. at 117.

I. Joseph Daino

The defense also called current employee Joseph Daino. Mr. Daino started as general sales manager at Davis Acura in October 1998 and became general manager in November 2000. Id. at 126. Mr. Daino testified that he did not have any personal problems with Mr. Argue, but that he sometimes asked Mr. Argue to do something and Mr. Argue failed to follow through on the request. Id. at 128. He also testified that Mr. Argue had the skills and knowledge to be service manager, id. at 164, that the main reason he fired Mr. Argue was not performance-related, and that performance issues were a very small part of the decision. Id. at 171.

Mr. Daino testified that he received a variety of complaints about Mr. Argue from other Davis Acura employees through Ms. Randi Levin. Id. at 129-32. The complaints related to both attitude and job performance. Id. at 128-133.

Mr. Daino recounted that in October or November of 2000, Mr. Davis called James Mann and that both he and Mr. Davis actively recruited Mr. Mann. Id. at 133-34. He testified that it was his decision to replace Mr. Argue. Id. at 134-35.

Mr. Daino told the jury that he did not know about the customer service survey issues until after Mr. Argue was terminated. Id. at 138. He testified that he did not discipline Ms. Mattis or anyone else involved in the practice; rather he simply told them to stop and not do it again. Id. at 157-58.

J. John Maciejewski

John Maciejewski testified in Mr. Argue's rebuttal case. He worked at Davis Acura the whole time Mr. Argue did. Id. at 191. Mr. Maciejewski observed Mr. Argue interacting with cashiers and other office staff, and he never saw a problem. He testified that Mr. Argue was not rude or condescending, but, rather, was friendly. Id. at 192. After Mr. Argue was terminated, he occasionally spoke with Ms. Levin, Ms. Mattis, Mr. Daino, and Mr. Davis about problems with Mr. Argue's performance, including about Mr. Argue playing computer games. Id. at 199-201. During these discussions, Mr. Argue's attitude was not mentioned. Id. at 199.

K. Robert Argue - Rebuttal

Mr. Argue returned with rebuttal testimony. He stated that Ms. Mattis did not come to him with questions or problems very often, but if she did, he would help her or refer her to someone who could help her. Id. at 203. Mr. Argue testified that he helped close repair orders as much as he could and did not ignore Ms. Levin's requests for help. Id. at 207.

II. Legal Standards and Discussion

A. Defendant's Motion for Judgment as a Matter of Law

A motion for judgment as a matter of law "should be granted only if, viewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability." Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). "In determining whether the evidence is sufficient to sustain liability, the court may not weigh the evidence, determine the credibility of witnesses, or substitute its version of the facts for the jury's version." Id. (citing Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 190) (3d Cir. 1992), cert. denied, 507 U.S. 921 (1993)). The Court may only enter judgment as a matter of law following return of a jury verdict "'if, as a matter of law, the record is critically deficient of that minimum quantity of evidence from which a jury might reasonably afford relief.'" Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001) (quoting Powell v. J.T. Posey Co., 766 F.2d 131, 133-4 (3d Cir. 1985)).

Under the ADEA, it is "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 privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). In the Third Circuit, courts apply the McDonnell Douglas framework in analyzing ADEA claims like this one, based principally on circumstantial evidence. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997). Under that framework, a plaintiff must first establish by a preponderance of the evidence a prima facie case of discrimination by showing that he or she: 1) is over the age of 40; 2) is qualified for the position; 3) suffered an adverse employment decision; and 4) was replaced by a sufficiently younger person to create an inference of age discrimination. Simpson v. Kay Jewelers, 142 F.3d 639, 644 n.5 (3d Cir. 1998).

Once the plaintiff sets out a prima facie case, the defendant has the burden to produce evidence of a legitimate, non-discriminatory reason for the adverse employment decision. Id. Should the defendant do so, the plaintiff then must prove by a preponderance of the evidence that the employer's reason was not the actual reason, but rather was a pretext for discrimination. Id.

"[A]n employment discrimination plaintiff may survive judgment as a matter of law by submitting two categories of evidence: first, evidence establishing a 'prima facie case,'. . .and second, evidence from which a rational factfinder could conclude that the employer's proffered explanation for its actions was false." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 154 (2000) (Ginsburg, J., concurring).

Davis Acura first argues that Mr. Argue failed to prove even a prima facie case of discrimination because he failed to prove that he was qualified for the position from which he was discharged.*fn5 Defendant's Motion for Judgment as a Matter of Law or, in the Alternative for a New Trial and Motion to Alter or Amend the Verdict ("Def.'s Mot. for Judgment") at 56-59. Davis Acura points out that Mr. Argue himself testified that he had never held a management position prior to his job as service manager and that he lacked knowledge of factory warranties, financials and computers.

Mr. Argue counters that Davis Acura stipulated in its pre-trial memorandum and trial brief that he had set forth a prima facie case of age discrimination. Pl.'s Opp. at 2-3. He goes on to contend that even without such a stipulation, the record shows that Mr. Argue had substantial automotive and customer service experience, including 4 1/2 years of serving as a service advisor for another Acura dealership. Id. at 4. Mr. Argue adds, again, that while he was service manager at Davis Acura, the service department received from the national Acura office for the first time several number 1 rankings for service, as well as Acura's Precision Team Award. Id. at 4-5. He also points to Mr. Davis's deposition testimony, which he argues was confirmed at trial, that Mr. Argue was fired for attitude problems, not for any other reason, as evidence that Mr. Argue must then have been qualified objectively for his job. See id. at 5.

Mr. Argue also cites to a Third Circuit Court of Appeals case that Davis Acura also cites, see n.5 supra, Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir. 1995), to support his position. In Sempier, the court of appeals overturned the district court's holding that the plaintiff failed to raise a genuine issue of material fact as to whether he was qualified for the position from which he was terminated. Id. at 729. The court cautioned that "the prima facie case under the McDonnell Douglas-Burdine pretext framework is not intended to be onerous," and that a district court should not rely on subjective criticisms in determining whether a plaintiff has met the burden of setting forth a prima facie case. Id. at 728-29. As Davis Acura was quick to point out in its rebuttal, however, the plaintiff in Sempier had been employed at the defendant-company as an executive for 20 years, had served as comptroller and treasurer of the company, had been elected to the board of directors on two occasions, and had served as chief financial officer and chief administrative officer. Id. at 729; see Def.'s Rep. at 4.

Whether or not a stipulation on this issue existed at the time of this trial (a fact which Davis Acura vigorously disputes, citing its Amended Pre-Trial Memorandum purporting to withdraw its initial stipulation as to the prima facie case), there was no genuine issue of material fact as to whether Mr. Argue proved that he was qualified for his job. This Court implicitly held as much by instructing the jury that Mr. Argue had carried his burden as to the prima facie case. See 2/28/08 Tr. at 125. While Davis Acura may decry the jury's verdict, it can not credibly argue that the jury had insufficient evidence to find that Mr. Argue was qualified for the job from which he was discharged. Indeed, the evidence included Mr. Davis's knowledge of Mr. Argue's credentials at the time he solicited Mr. Argue to accept the service manager position and was dismissive of Mr. Argue's concern about looking for additional on-the-job training.

Moreover, issues regarding whether Mr. Argue failed to complete or even learn tasks assigned to him are better suited for analysis of the employer's alleged legitimate, nondiscriminatory reason for firing instead of consideration in the context of the hiring qualifications. Courts in this circuit have often rejected qualification arguments altogether in cases involving job termination, as opposed to cases involving failure to hire or failure to promote claims. See, e.g., Sempier, 74 F.3d at 729; Weldon v. Kraft, Inc., 896 F.2d 793, 798-99 (3d Cir. 1990); Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989); Harding v. CareerBuilder, LLC, No. Civ. A. 04-0188, 2005 WL 396576, at *5 (E.D. Pa. Feb. 18, 2005). This Court has previously rejected arguments that poor performance, even coupled with evidence that the plaintiff had never performed the specific tasks required in previous jobs, is enough to demonstrate a lack of qualifications in a termination case. See, e.g., Brisker v. Potter, Civil Action No. 06-4473, 2007 WL 4225571, at *5 (E.D. Pa. Nov. 29, 2007) (holding that plaintiff who had 10 years of U.S. Postal Service experience was qualified for another position within the postal service, despite the fact that the plaintiff had no prior experience doing some of the specific tasks required in the new position). One court in this circuit has even equated being hired for a position with being qualified for it. See Massaro v. The Chester Hous. Auth., No. Civ. A. 98-245, 1999 WL 624485, at *2 (E.D. Pa. Aug. 5, 1999) ("Having been hired for the position at issue. . ., [plaintiff] has shown that he was qualified for the position thereby meeting the second prong.").

Here, it is undisputed that Mr. Argue had many years of experience in the automotive industry, as well as four years of experience as a service advisor in a car dealership. Likewise, the parties do not dispute that Mr. Argue ultimately had a 2-1/2-year tenure with Davis Acura or that, having solicited Mr. Argue for the specific position, Mr. Davis knew about Mr. Argue's prior experience, and lack thereof, when he hired Mr. Argue. Obviously, Davis Acura could not dispute that Mr. Davis hired Mr. Argue in the first place. Thus, lack of qualification for the job in the first instance is simply not a viable issue, and Davis Acura's contentions regarding Mr. Argue's failure or refusal to learn (and other performance issues) logically fit in the discussions of legitimate, nondiscriminatory reasons and pretext, rather than in the discussion of the prima facie case.

Next, Davis Acura contends that Mr. Argue failed to prove that its proffered reason for termination was merely a pretext for discrimination.*fn6 Davis Acura asserts that the only evidence offered by Mr. Argue to support age discrimination was his own testimony. Def.'s Mot. for Judgment at 61. Davis Acura claims that no reasonable jury could have concluded that Davis Acura's proffered reasons for termination, namely, poor performance and poor attitude, were false, given that Mr. Argue himself testified that he did not always close repair orders by the end of the month and relied on Randi Levin's help, that he relied on the warranty clerk because he lacked familiarity with factory warranties, that he played computer games during working hours, that he may have spoken "loudly" to cashiers, and that he needed help from others to take service manager tests. Def.'s Mot. for Judgment at 64.

Davis Acura disputes that there was any evidence presented of past discriminatory treatment of Mr. Argue or anyone similarly situated. Id. at 66. It also notes that even if the jury did not believe that Mr. Argue performed poorly or had a bad attitude, Mr. Argue failed to show that the decision-makers at Davis Acura did not nonetheless believe that he performed poorly and had a bad attitude and fired him for those reasons. See id. at 70, citing Watson v. Southeastern Pennsylvania Transp. Auth., 207 F.3d 207 (3d Cir. 2000). Davis Acura also points to the fact that Mr. Argue was in the protected age group both at the time of his hiring and his firing and argues that it thus was unreasonable to ascribe to Davis Acura a discriminatory motive. Davis Acura's argument here is tantamount ...


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