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Henry v. Acme #7871

United States District Court, E.D. Pennsylvania

February 25, 2014

JOHN HENRY, Plaintiff,
ACME #7871 and SUPERVALU Defendants.


JAN E. DuBOIS, District Judge.


Plaintiff, John Henry, filed suit against his former employer, Acme Markets, Inc. ("Acme"), and Acme's parent corporation, Supervalu Inc., under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. [1] Plaintiff alleges that defendants unlawfully terminated him based upon his age. Presently before the Court is defendants' Motion for Summary Judgment. For the reasons that follow, the Court denies defendants' Motion.


Plaintiff was born in September 1956 and began working for Acme in 1972. Defs. Facts ¶¶ 4, 6. In 1990, at approximately age thirty-four, plaintiff took a position as Store Director at one of Acme's retail grocery stores. Id. ¶ 8. From 1990 until 1999, plaintiff's job performance met or exceeded expectations. Id. ¶ 17. District Manager Kornelius Vaartjes rated plaintiff's job performance below expectations on his 2000 year-end review. Id. ¶ 19. Plaintiff asserts that the rating reflected the way store remodeling was incorporated into his sales and profits targets. Pl. Facts ¶ 19. Plaintiff received his normal salary and bonus for the year. Id.

In 2003, plaintiff was transferred to the Acme store in Ogletown, Delaware. Defs. Facts ¶ 9. Plaintiff was rated below expectations on his 2004 mid-year review. Id. ¶ 23. The significance of the 2004 mid-year review is disputed; plaintiff claims that Acme's policy is to ignore such evaluations when an employee receives meets or exceeds expectations on a year-end review. Pl. Facts ¶ 23. From 2000-2006, plaintiff met expectations on all his year-end reviews, including his 2004 year-end review. Id. ¶¶ 23-24.

In April 2006, Kent England became plaintiff's District Manager and supervisor. Defs. Facts ¶ 14. Plaintiff claims that England noted, on an early walkthrough of plaintiff's store, that he was five years younger than plaintiff and already a District Manager. Pl. Facts ¶ 46. Upon finding a problem with a store display, England allegedly said "with all your years of experience, I would expect that to be much better looking." Id. Four months after becoming plaintiff's supervisor, England rated plaintiff's performance below expectations in plaintiff's 2006 mid-year review. Defs. Facts ¶ 25. The basis and fairness of the 2006 mid-year review is disputed by plaintiff, Pl. Facts ¶ 26, and England ultimately stated plaintiff met expectations in plaintiff's 2006 year-end review. Id. ¶ 28.

On January 15, 2008, England wrote a Letter of Concern to plaintiff, enumerating several allegedly continuing violations of store policy. Defs. Facts ¶ 29. England then rated plaintiff below expectation on both his 2008 year-end review and 2009 mid-year review. Defs. Facts ¶¶ 30-31. Plaintiff was placed on a Performance Improvement Plan ("PIP") after both such reviews. Id. ¶¶ 32-33. In early 2009, England and other supervisory employees engaged in a series of inspections - escalating in frequency - during which they documented alleged instances of poor performance and violations of company policy. Defs. Facts ¶¶ 33-39. Plaintiff disputes the factual basis and fairness of the Letter of Concern, the evaluations, the PIPs, and the reports. Pl. Facts ¶¶ 29, 30-32, 33-39. On April 30, 2009, England rated plaintiff below expectation in his 2009 year-end review. Defs. Facts ¶ 40. Plaintiff was terminated on May 2, 2009. Id. ¶ 41.

At the time of plaintiff's termination, England supervised nine store directors older than plaintiff. Defs. Acme Markets' and Supervalu's Mot. for Summ. J. Ex. A ¶ 10 [hereinafter Defs. Mot.]. In 2008-2009, when England rated plaintiff below expectations, all nine of the older store directors managed by England received meets or exceeds expectations on their year-end reviews. Id. Ex. A ¶ 11. By 2011, five of those employees had retired and one had been placed on disability leave. Pl.'s Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. Ex. 63, 64 [hereinafter Pl. Mem.].


A court should grant summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is material when it "might affect the outcome of the suit under the governing law...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In considering a motion for summary judgment, "the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). The party opposing the motion, however, cannot "rely merely upon bare assertions, conclusory allegations or suspicions" to support a claim. Fireman's Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982) (citations omitted). The party asserting a fact "must support the assertion by... citing to particular parts of material in the record...." Fed.R.Civ.P. 56(c)(1)(A).


The ADEA prohibits age discrimination in employment against any employee over the age of forty. 29 U.S.C. §§ 623(a)(1), 631(a). ADEA claims are subject to the three-prong burden-shifting analysis originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997). Plaintiff bears the burden of establishing a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. If plaintiff establishes a prima facie case, the burden shifts to the defendant employer to produce evidence of a legitimate, nondiscriminatory reason for the adverse employment action. See id. This burden is one of production, not persuasion. Smith v. City of Allentown, 589 F.3d 684, 690 (3d Cir. 2009). If defendant offers a legitimate nondiscriminatory reason, in order to survive summary judgment, plaintiff must submit evidence "to demonstrate that the employer's proffered rationale was a ...

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