The opinion of the court was delivered by: Savage, J.
Plaintiff Nicholas DiFlorio alleges that he was twice fired by defendant Aramark Sports, LLC ("Aramark") in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 ("ADEA"), once because of his age, and again, after he had been rehired, because he had threatened to file an EEOC charge for age discrimination. Aramark asserts that he was terminated for violating company policy and displaying a flippant attitude when confronted about the violation. After he was reinstated, Aramark claims that DiFlorio's employment ended not because he was fired, but because he stopped reporting for work.
Moving for summary judgment, Aramark argues that on his age discrimination claim, DiFlorio cannot establish a discriminatory pretext to rebut its legitimate, non-discriminatory reason of firing him for violating company policy.*fn1 Aramark argues that the retaliation claim fails because DiFlorio, having quit, did not suffer an adverse employment action. Aramark also claims that he cannot demonstrate causation or establish pretext. Alternatively, Aramark claims that DiFlorio has failed to mitigate his damages.
Contesting the motion for summary judgment, DiFlorio argues that he did not violate company policy, rebutting Aramark's reason for his first termination. As to his retaliation claim, he maintains that he did not quit, but was fired or constructively discharged soon after he notified his Aramark supervisors that he was going to file an Equal Employment Opportunity Commission (EEOC) age discrimination charge. He maintains that he mitigated his damages.
After considering the record presented to us, we shall grant Aramark's motion to dismiss the age discrimination claim and deny the motion as to the retaliation claim. DiFlorio has offered insufficient evidence, direct or indirect, from which a jury could conclude that Aramark's reason for terminating him from the Wachovia Center was a pretext for age discrimination. With respect to the retaliation claim, there is a genuine issue of material fact regarding whether DiFlorio quit or was fired. Thus, it is for the jury to determine if he suffered an adverse employment action. Disputed issues of material fact preclude us from determining, at this time, that DiFlorio failed to mitigate his damages by withdrawing from the employment market.
On February 3, 2009, while working as the Lead Concessions Supervisor at the Wachovia Center, DiFlorio "comp'ed"*fn2 sandwiches and beverages to three acquaintances. Aramark contends DiFlorio violated company policies and procedures because he did not have permission from a supervisor to comp the items, did not use a comp coupon, and failed to properly document the comp. DiFlorio argues that he followed Aramark's comp policy. He claims that one of his supervisors, Bob Barr, gave him the authority to comp food and drinks on nightly events so long as he properly recorded the comps. However, he concedes that he did not properly record the comps.
The following day, DiFlorio met with two of his supervisors, Barr and Scott Kleckner, and a Human Resources Manager, Kelli Joseph, to discuss the incident. DiFlorio admitted to comp'ing the sandwiches and drinks, but claimed he had the authority to do so on nightly events. Kleckner then suspended DiFlorio pending further investigation of the incident.
On February 7, 2009, after reviewing DiFlorio's personnel file and speaking with Elin Salinger, the Senior Human Resources Manager, Kleckner, Barr, and Joseph met with DiFlorio and terminated his employment. They had decided to fire DiFlorio because "he understood the policy, chose not to follow it, and didn't comprehend what a major issue and a big deal it was" and "he displayed a flippant attitude showing that he didn't understand the gravity of the offense nor did he feel he had done anything wrong[,] which . . . was alarming."*fn3
At DiFlorio's request, Salinger and Aramark District Manager Brian Hastings met with him on February 20, 2009 to discuss the comp'ing incident. After considering DiFlorio's retelling of the incident and reviewing his employment record, Salinger and Hastings offered DiFlorio a position as a Concessions Supervisor at the Susquehanna Bank Center ("SBC") and Lincoln Financial Field. DiFlorio accepted the offer after some deliberation.
DiFlorio missed his first day of work at SBC on May 26, 2009 because he sprained his ankle. He missed five subsequent events.
On July 6, 2009, DiFlorio sent an email to Salinger; Hastings; Barr; Keith Gibbons, his supervisor at SBC; and Beth Genther, the Aramark Human Resources Manager for SBC at the time, stating that he had "decided to file an age discrimination law suit [sic] with the EEOC against Aramark over [his] dismissal from the Wachovia [C]enter."*fn4 Aramark claims that the following day, DiFlorio's rate of pay was increased retroactively from $11.50/hour to $15.25/hour, the same rate he had been paid while working at the Wachovia Center. DiFlorio claims he was offered the same rate of pay at the time he was reinstated. The parties agree that he continued to work for Aramark after sending the email, including an event five days later on July 11, 2009.
Beginning July 17, 2009, DiFlorio was unable to work at several SBC events because of foot and ankle problems. DiFlorio consistently emailed Gibbons before an event to notify him that he was unable to work. Despite these timely notifications, Aramark managers discussed the absences, stating in emails that they planned to terminate DiFlorio. However, no one contacted DiFlorio telling him he was terminated.
By August 11, 2009, DiFlorio had missed half of the events for the SBC season.*fn5
At Gibbons's request, DiFlorio faxed Salinger a doctor's note, which verified that he was not to work and was to stay off his feet from July 19, 2009 to August 18, 2009.*fn6
Salinger called DiFlorio on August 20, 2009. Although the parties
dispute the substance of the conversation, they agree that Salinger
did not tell DiFlorio that she was
terminating his employment. DiFlorio alleges she told him that "things
aren't working out," so "why don't you just resign."*fn7
DiFlorio did not work any of the five remaining events at
According to Aramark, DiFlorio's employment ended "[a]s a result of [his] failure to return to work or contact anyone at Aramark."*fn9 Aramark claims that after his conversation with Salinger on August 20, 2009, DiFlorio did not contact anyone from Aramark to discuss returning to work. Gibbons denied that he spoke with DiFlorio at any time after August 20, 2009.
Contradicting Gibbons, DiFlorio testified that he called Gibbons on four occasions in August and September of 2009 to tell him he was cleared by his doctor to return to work.*fn10 DiFlorio avers that he spoke with Gibbons who told him that DiFlorio's schedule was out of his hands. DiFlorio alleges that despite his efforts, he was never contacted or scheduled to work. Hence, DiFlorio contends that he was fired or constructively discharged.
Aramark's Motion for Summary Judgment and DiFlorio's Response
Age Discrimination According to Aramark, DiFlorio's age discrimination claim fails at step three of the McDonnell Douglas test because he cannot demonstrate that its reason for firing him from the Wachovia Center was a pretext for age discrimination. Aramark contends that it terminated DiFlorio because he violated its "comp" policies and procedures. Aramark's Employee Handbook for Wachovia Center states that "the unauthorized sale or giveaway of any product or merchandise at any time by any employee" and "giving away free food without manager or supervisor approval" are grounds for termination.*fn11 According to Aramark, he did not ask for permission from a supervisor and did not properly document the comps. Even if he had permission, he did not record the transactions as required by company policy.*fn12 When confronted about the violation, Aramark contends that DiFlorio was flippant and did not take the violation seriously.
Aramark also argues that DiFlorio has no evidence of age animus. It points out that although Kleckner appeared to take the lead in the decision to fire him, DiFlorio has no evidence that he knew his age or that his decision was motivated by age discrimination.
DiFlorio contends that there is a genuine issue of material fact as to whether he violated the Wachovia Center comp policy. He claims that, consistent with Aramark's practice at the Wachovia Center, he was given the authority to comp food and drinks during nightly events if the comps were properly documented. To rebut Aramark's reliance on the Employee Handbook for Wachovia Center, DiFlorio notes that Kleckner testified that the policy for comps for friends and family is a "known policy that evolves over time."*fn13
DiFlorio relies on three comments made by two supervisors to demonstrate age animus. During a meeting with Salinger and Hastings following his termination, he claims that Hastings told him they "were looking to change the culture" at the Wachovia Center, so they could not reinstate him there.*fn14 In an email chain between Hastings and Gibbons, Gibbons wrote that "if there are any other people that should no longer be working, just let me know . . ." and Hastings replied that DiFlorio "is not a bad guy. He was just at Wachovia to [sic] long."*fn15
DiFlorio claims that nine other Aramark concession employees over the age of forty were terminated from 2007 to the present. He maintains that this evidence, taken together, creates a genuine issue of ...