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Marsden v. Shirakawa

United States District Court, E.D. Pennsylvania

June 23, 2015




An employee admittedly failing to meet his employer's defined mandate but nevertheless claiming his employer terminated him in retaliation for complaining of age discrimination must show his employer’s insubordination reason is a pretext. Here, an employee repeatedly admitting the employer's several discipline steps were not based on his age and only raising the specter of age-based discipline after refusing to prepare his employer’s required personal improvement plan may still defeat the employer's summary judgment motion on his retaliation claim if he shows direct or circumstantial evidence from which the jury could reasonably disbelieve his employer’s stated business reason for terminating him. Here, the employee adduces sufficient evidence of genuine issues of material fact regarding whether his February 15, 2013 termination is based on a legitimate business reason of insubordination or is retaliatory for his admittedly belated claims of age discrimination as referenced in Defendants' records since 2009 particularly in a workplace where at least three employees initially concealed age discrimination concerns in response to the employer's investigation.

Upon the employee's showing of several age-based concerns in his workplace, the question becomes: whom do we believe? Given issues of credibility regarding genuine disputes of material fact and the deference we now give the non-moving employee, we deny the Defendants’ Motion for Summary Judgment on the retaliation claim in the accompanying Order but, finding no genuine issues on disparate treatment in the termination due to age, grant Defendants' Motion on the age discrimination and hostile work environment claims.

I. Undisputed Factual Background[1]

Defendant R.R. Donnelly & Sons Co. ("RRD") is “a global provider of integrated communications, including premedia, printing, logistics, and business outsourcing.” (DSUF ¶1.) In 2001, RRD hired forty-one[2] year old Plaintiff Dennis Marsden ("Marsden") as a senior operator in the bindery department of RRD’s Philadelphia facility, referred to as the “Baum Plant.” (DSUF ¶¶2-3.) Defendant Michael Shirakawa ("Shirakawa") is President of the Baum Plant. (DSUF ¶4.)

A. Marsden’s 2007 promotion to manager and 2008 and 2009 performance reviews

In July 2007, Shirakawa promoted Marsden to bindery department manager. (DSUF ¶4.) Marsden reported directly to Shirakawa. (DSUF ¶7.) In February 2008, Shirakawa provided Marsden’s first performance review after promoting him to manager. (DSUF ¶9.) Shirakawa gave Marsden an overall performance rating of “developing;” the middle range of six rating categories on RRD’s “Salary Performance Appraisal” form. (DSUF ¶¶10-11.)[3] Marsden disagreed with the rating because previous performance reviews rated him a “key contributor” and, for that reason, refused to sign the 2008 performance review. (DSUF ¶¶12-13). Although he disagreed with the “developing” rating, Marsden testified he did not believe his age was the reason for it. (DSUF at ¶14.)

In September 2008, Shirakawa and Marsden met again to discuss performance. (DSUF ¶15.) Shirakawa discussed various issues including staffing, weekly operations reports, and location of equipment. (DSUF ¶¶15-22.) Marsden disagreed with Shirakawa, but does not claim Shirakawa’s concerns were motivated by Marsden’s age. (DSUF ¶22.)

In February 2009, Shirakawa rated Marsden “proficient” – one level higher than “developing” – on his annual performance review. (DSUF ¶23).

B. RRD’s 2009 investigation into allegations of Shirakawa’s age-based comments

In June 2009, George Platia, Senior Vice President of RRD’s Commercial Print Group, visited the Baum Plant. (DSUF ¶¶24-28.) Following his visit, Platia sent Shirakawa a memorandum noting, inter alia, “There is a feeling in the plant that management may view tenured employees as a liability and many of your decisions regarding employees are based on age.” (Id.; MSJ000092.) Platia warned Shirakawa: “We discussed that any actions resembling this type of behavior must stop or serious repercussions will take place. Hiring, promoting, rewarding, disciplining, and termination must be done according to company policy.” (Id.)

Five months later, in November 2009, RRD received an anonymous complaint reporting Shirakawa for “making negative comments about employees based on their age.” (DSUF ¶29.) Platia and Robin Gaskill, Regional Human Resources Manager at that time, conducted an investigation. (DSUF ¶30.) During the course of the investigation, Platia and Gaskill interviewed Marsden who reported age-based comments made by Shirakawa. (DSUF ¶¶31-35). Platia and Gaskill asked Marsden to describe the employment process. (MSJ000108.) Marsden explained his concerns about Shirakawa’s hiring practices, including statements from “a long time ago” “that he is looking for younger talent.” (DSUF ¶32). Marsden stated Shirakawa “never said what type of candidate he wanted to see, but off the record has made comments” such as “’Aren’t you retired yet?’ and comments about age limitations to people working in the trade.” (DSUF ¶34; MSJ000108.)

Shirakawa denied making “negative comments about older workers.” (DSUF ¶35.) However, Shirakawa expressed concern about “bringing people in near the top of the [compensation] range” because “there is not a lot of opportunity to move up.” (DSUF ¶36; MSJ000108.)

RRD’s Platia and Gaskill found they could not prove allegations of “age bias in a number of [Shirakawa’s] comments and decisions, ” but found “[t]here is a definite perception that age bias exists at the Baum facility.” (DSUF ¶39.) Platia and Gaskill warned Shirakawa of his responsibility “for the outcome of these perceptions.” (DSUF ¶40.)

C. Marsden’s 2010 and 2011 performance evaluations

In 2010, Shirakawa again rated Marsden “proficient” on his 2010 performance review. (DSUF ¶41). “Proficient” is the highest performance rating received by Marsden in a management position. (DSUF ¶43.) Marsden does not claim that his 2010 performance review had anything to do with his age. (DSUF ¶46.)

Around 2011, RRD increased its performance expectations for all employees in response to changes in the print industry resulting from electronic-based print platforms. (DSUF ¶47.) Shirakawa rated Marsden “developing” in his 2011 performance review. (DSUF ¶48.) Shirakawa noted Marsden’s strengths, weaknesses, and failures to perform, and concluded the review with the statement: “There is an expectation of immediate improvement moving forward.” (DSUF ¶¶49-56.) Marsden testified his age did not play a role in his 2011 performance review. (DSUF ¶57.)

D. Marsden’s 2012 evaluations and discipline and Marsden’s June 2012 complaints to RRD’s Human Resources Director

In January 2012, Shirakawa completed a “Leadership Assessment Detail Report” rating Marsden “developing” in all competency areas. (DSUF ¶58.) Marsden testified his age did not play a role in his 2012 “Leadership Assessment Detail Report.” (DSUF ¶59.)

1. Marsden’s June 2012 complaint to RRD’s Director of Human Resources On June 12, 2012, Marsden emailed Christine Hertneky, RRD's Director of Human Resources:

“I am growing more concerned over my job. As an operator I was always a key to top performer. Since becoming a manager I have allways [sic] been proficient or developing. In the past I’ve heard comments of age, weight discrimination.”

(DSUF ¶¶60-61; MSJ000139).

Marsden also detailed complaints with Shirakawa’s management style. (DSUF ¶62.) Hertneky then contacted Marsden. (Id.) Marsden complained to Hertneky about Shirakawa’s management style and reported dissatisfaction working with Shirakawa. (DSUF ¶64.) Marsden did not provide Hertneky with recent examples of “things that had happened around age.” (DSUF ¶65.) Marsden “was afraid to” tell Hertneky because he feared Shirakawa would terminate him because of age. (Id.)

After Hertneky’s call with Marsden, she traveled to the Baum Plant in mid-July 2012 to interview the management team, including Marsden. (DSUF ¶66.) Although she received some positive information about Shirakawa, Hertneky found the facility’s management team to be “generally unhappy . . . for different reasons.” (DSUF ¶¶67-68.) No one on the management team interviewed by Hertneky made any complaints of discrimination or “anything related to . . . age.” (DSUF ¶69.) Hertneky did not find a perception of age bias and no one brought it to her attention. (DSUF ¶¶69-70.)

Based on Hertneky's findings, RRD decided Hertneky would coach Shirakawa regarding his working relationship with the facility’s supervisors. (DSUF ¶71.) In coaching Shirakawa, Hertneky learned of Shirakawa’s continued concerns regarding Marsden’s performance. (DSUF ¶72.) Hertneky coached Shirakawa to hold Marsden accountable ...

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