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Sharp v. Penske Buick GMC

February 18, 2010


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



Plaintiff Michael Sharp (hereinafter "Plaintiff") commenced this action on March 13, 2009, alleging in his Complaint that Defendant Penske Buick GMC, Inc. (hereinafter "Defendant") unlawfully discriminated against him when it terminated him because of his age. (Pl. Compl., Doc. No. 1, at 3, ¶13 (hereinafter "Doc. No. 1")). In Count I of the Complaint, Plaintiff alleges that Defendant's conduct constitutes unlawful discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et al. (Doc. No. 1, at 4, ¶19). In Count II, Plaintiff alleges that Defendant violated the Pennsylvania Human Relations Act, 43 Pa. Stat. § 955(a). (Doc. No. 1, at 4, ¶21).

On January 4, 2010, Defendant filed a Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56 and an accompanying Memorandum of Law (Doc. No. 15), a Statement of Material Undisputed Fact (sic) in Support of Motion for Summary Judgment (Doc. No. 14), and Exhibits (Doc. No. 16). On January 18, 2010, Plaintiff filed a Response (Doc. No. 18), a Memorandum in Opposition (Doc. No. 19), and a Counterstatement (sic) of Material Disputed Facts (Doc. No. 17). On February 2, 2010, Defendant filed a response to Plaintiff's "Additional Facts" (Doc. No. 31). A hearing on the Motion was held on February 4, 2010.

In the Motion for Summary Judgment, Defendant asserts that Plaintiff has failed to satisfy his burden under the recent Supreme Court decision in Gross v. FBL Financial Services, Inc., __ US __, 129 S.Ct. 2343 (2009), which requires that age be the determinative factor of the discrimination, that Plaintiff has failed to establish a prima facie case of age discrimination, and that Defendant has advanced legitimate, nondiscriminatory reasons for terminating Plaintiff which satisfies its burden of production and justifies the granting of summary judgment. (Mem. Law Supp. Def. Mot., Doc. No. 15, at 7-14 (hereinafter "Doc. No. 15")). The Court is persuaded that Plaintiff has met his burdens on the Motion and will deny the Motion in its entirety.


Plaintiff began working for Phelps Buick GMC in February 1998, and became a manager in early 2001. (Def. Statement Mat. Undisp. Fact, Doc. No. 14, at 2, ¶5 (hereinafter "Doc. No. 14"); Pl. Counter-statement of Mat. Disp. Facts, Doc. No. 17, at 1, ¶6 (hereinafter "Doc. No. 17")). In April 2005, Phelps Buick was bought by Geoffrey Penske and became Penske Buick GMC, Inc. (Doc. No. 14, at 2, ¶5). Plaintiff remained as "used car manager" until he was terminated in October 2007. (Id. at 2, ¶5-7). When he was terminated, Plaintiff was 62 years old. (Doc. No. 1, at 2, ¶7).

When Geoffrey Penske purchased the dealership, it was one of the most profitable GM dealerships in the region. (Mem. Opp. Def. Mot., Doc. No. 19, at 2 (hereinafter "Doc. No. 19")). Shortly after the purchase, however, sales of both new and used cars began to diminish. (Doc. No. 14, at 3, ¶13). Reasons for the decline in business were given by Todd Louviaux, the former general manager at Penske Buick and Plaintiff's former supervisor. Louviaux testified that Geoffrey Penske instituted a number of changes when he purchased the dealership: he substantially increased advertising expenditures; he increased the inventory of new cars; and he changed the bank that the dealership used for financing, all resulting in the dealership having greater expenses and less profit. (Doc. No. 19, at 2; Doc. No. 17, Ex. B, at 47:17- 49:20 (hereinafter "Louv. Dep.")). Moreover, Louviaux also attributed the decrease in profit to the drop in sales across new and used cars, which Louviaux testified should be blamed on "all" the salespeople and managers, as well as the economy. (Louv. Dep., at 51:3 - 53:4, 69:16-20).

Louviaux noted that in the months following Penske's acquisition of the dealership, Penske began to voice complaints about Plaintiff. (Id., at 53:5-15). According to Louviaux, Penske "didn't like [Plaintiff's] energy level. He didn't like the fact that [Plaintiff] was a little bit of a clock watcher. And he always told me that he wished he had somebody that was younger, more energetic, more of a go-getter, and had the same passion that I had." (Id., at 53:15-21). When asked whether Penske "actually use[d] the words, 'I want someone younger,'" Louviaux replied: "Absolutely, he used 'I want somebody younger.' He said, 'I am tired of seeing the guy stand like that. He looks like an old statue (indicating).' He wants somebody younger and more energetic.'" (Id., at 54:23 - 55:5).

In January 2006, Penske changed Plaintiff's pay plan so that his pay was cut by one third in an effort to "get him to go away," because "[h]e wanted somebody younger." (Id., at 66:2-6).

In October 2006, Penske told Louviaux that he wanted to terminate Plaintiff and another manager. (Id. at 69:4-10). Regarding Plaintiff, Penske wanted to terminate him because of his "age and energy level." (Id.). In response, Louviaux, who was loyal to Plaintiff, threatened to quit. (Louv. Dep., at 69:13-15). Each time Penske raised with Louviaux the issue of terminating Plaintiff, Penske reiterated his "ageist" reasoning: "Penske made specific reference to [Plaintiff's] age and linked it to his intention to terminate [Plaintiff's] employment on multiple occasions." (Doc. No. 19, at 3, n.1).

Penske again raised the issue of Plaintiff's termination with Louviaux at the company Christmas party in December 2006, suggesting that Plaintiff be demoted to a sales position. (Id. at 71:3-20). In response to Penske's suggestion, Louviaux again threatened to resign. (Id.) When Penske returned from his Christmas vacation, he informed Louviaux that he was firing Plaintiff and demoting another employee. (Id. at 72:2-73:14). Louviaux then resigned, but agreed to stay on for another month until Penske could find a replacement. (Id.)

Penske kept Plaintiff on as a manager for nine months after he told Louviaux about his intention to terminate Plaintiff, which resulted in Louviaux's resignation. (Id. at 3-4). As Louviaux explained, "part of the reason I resigned, was because I knew it would buy them time. He couldn't fire [Plaintiff], have me resign, and turn [the demoted employee] into the title clerk. He wouldn't have any managers." (Louv. Dep., at 73:18-22). Victor Popescu, a 41-year-old salesman who Louviaux had been grooming for management, was promoted to sales manager after Louviaux resigned. (Louv. Dep., at 73:12-74:23). On October 19, 2007, Penske finally terminated Plaintiff and offered as his reason for the discharge that the dealership was not doing well, that Plaintiff was one of the more expensive employees and that Penske could not afford to retain him. (Doc. No. 19, at 4). Penske offered to rehire Plaintiff as a salesperson if ...

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