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Andersen v. Mack Trucks, Inc.

United States District Court, E.D. Pennsylvania

July 30, 2015


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Presently before the Court is Defendants Mack Trucks, Inc. and Volvo Group North America, LLC's Motion for Summary Judgment. (ECF No. 20.) For the following reasons, the Motion will be granted.


A. The Parties

1. Plaintiff Bruce Andersen

Plaintiff Bruce Andersen was born in 1947. (Andersen Dep. 15, Pl.'s Resp. Ex. A, ECF No. 22-1.) He graduated from The Pennsylvania State University (" Penn State" ) in 1970 with a Bachelor of Science in Accounting. (Andersen Dep. 33.) After graduation, Plaintiff worked as an Auditor for Johnson Atwater & Company, a public accounting firm located in New York City, for nine months. ( Id. at 58-59.) In 1971, Defendant Mack Trucks, Inc. (" Mack Trucks" ) hired Plaintiff as a Junior Tax Accountant. ( Id. at 64-65.) In 1976, Plaintiff was promoted to the position of Tax Accountant. ( Id. at 67.) In 1985, he was promoted to the position of Manager of Corporate Payroll. ( Id. at 68-69.) In this position, Plaintiff managed the payroll for all salaried employees and supervised a staff of five employees. ( Id. at 69-70.) In 1991, he was promoted to the position of Manager of Payroll. ( Id. at 71.)

As Manager of Payroll, Plaintiff supervised an additional five employees. ( Id. at 71-72.) Plaintiff effectively assumed all payroll duties of Mack Trucks, including supervising the payroll for the bargaining unit, which was comprised of 12,000 employees. ( Id. at 71.) In this capacity, Plaintiff gained experience using collective bargaining agreements. ( Id. at 243.) Specifically, Plaintiff received copies of each new collective bargaining agreement and reviewed the agreements to ensure that the payroll programs " were changed as required to accurately pay people." ( Id. at 243-44.) In addition, Plaintiff was able to use those collective bargaining agreements to respond to issues raised by the bargaining unit employees who worked for him. ( Id. at 244.)

As Manager of Payroll, Plaintiff sought out and assumed additional responsibilities, including managing building services, office services, food services and travel. ( Id. at 73.) In 1996, Plaintiff attended a twelve-week course at Muhlenberg College and, as a result, became certified as a Professional in Human Resources. ( Id. at 35-36.)[1] In August 1998, Plaintiff took a

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course called " Effective Interviewing" at the Mack Institute. (2001 Performance Results 4, Pl.'s Resp. Ex. D, ECF No. 23.) In 1999, Plaintiff " was personally involved in the renegotiation of the Jackson Cross facilities contract," " attended Labor Relations training for supervisors to improve his skills," and attended a course called " Action Plan Development" at the Mack Institute. ( Id. ; 2000 Performance Expectation Process 4, Pl.'s Resp. Ex. E.) In 2000, his job title became Manager of Payroll/Administrative Services. (2000 Performance Expectation Process 1.)

In 2003, Plaintiff was promoted to a human resources management role, Human Resources Business Partner (" HRBP" ). (Andersen Dep. 74, 83.)[2] At the time that he was promoted, Plaintiff had already performed many of the core responsibilities, and possessed many of the core competencies, of that position. (Andersen Dep. 84.) The core responsibilities included providing employment-related advice and counseling to employees and managers, ensuring compliance with employment-related company policy and practice, and adhering to federal and local regulatory guidance. ( Id. at 84-86.)[3] The core competencies included understanding basic business and accounting principles, coaching payroll supervisors in handling department issues, facilitating change, delegation, directing, inspiring leadership, mentoring, fostering diversity, and people development. (Andersen Dep. 87-89.)

As a HRBP, Plaintiff worked with bargaining unit employees and " the bargaining unit committee people." ( Id. at 262-63.) Specifically, Plaintiff worked as a " mentor" to the employee activities committee and ensured that " they included their people in [the employee committee]

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because it was supposed to be . . . a cross-section of business, and it was activities that benefited[sic] all employees." ( Id. at 263-64.) While Plaintiff never worked in labor relations, " sporadically," " there were times when the bargaining unit committee people would come to [him] and ask [him] a question" when other personnel in the labor relations department were not available. ( Id. at 265.)[4] From December 2006 to his termination date in 2009, Plaintiff reported to Lesley Billow. (Andersen Dep. 189.)[5]

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2. Defendants Mack Trucks, Inc. and Volvo Group North America, LLC

Mack Trucks is a manufacturer and distributor of heavy-duty trucks. (Apr. 7, 2010 Ltr. 2.) AB Volvo Group is a Swedish corporation. ( Id. ) It is a holding company that has corporate headquarters in Sweden (Volvo Trucks) and in North America (Volvo Trucks North America). (Heflin 30(b)(6) Dep. 9.)[6] In 2001, AB Volvo acquired Mack Trucks. (Apr. 7, 2010 Ltr. 2.) In 2008, Mack Trucks and Volvo Trucks North America merged into a single entity called Volvo Trucks North America (" Volvo" ). (Heflin 30(b)(6) Dep. 15.)

B. STEP, the Economic Downturn and Plaintiff's Termination


In 2008, Defendants announced an organizational restructuring of the truck operations in North America. This restructuring was referred to as the STEP Initiative (" STEP" ). ( See Billow Dep. 78; STEP E-mails, Pl.'s Resp. Ex. X, ECF No. 28.) In August 2008, Defendants announced plans to shut down Mack Trucks' headquarters in Allentown, Pennsylvania. (Apr. 7, 2010 Ltr 2.) Pursuant to STEP, the headquarters, and most of Mack Trucks's work force, would be relocated to Greensboro, North Carolina, the location of Volvo's North American headquarters. ( Id. ) At the time that STEP was announced, there were 980 Mack Trucks employees in Allentown. ( Id. )

Defendants initially anticipated that positions would be available for any employee who was willing to relocate to the Greensboro headquarters. ( See Billow Dep. 223 (" [T]he STEP program itself carried with it the promise for people who were interested in moving to Greensboro to apply for jobs in Greensboro and be hired there." ).)[7] Because most of Plaintiff's and Palopoli's Client Groups were remaining in Allentown as a result of STEP, Billow chose to leave both of their positions in Allentown. (Billow Dep. 110-11, 223.)[8]

Conversely, because most of the Client Groups that Miller was assigned to were moving to Greensboro as a result of STEP, Billow decided to move Miller's position to Greensboro. (Billow Dep. 117-21.) Employees who were asked to relocate because of STEP were given until the end of 2008 to accept relocation or be terminated. ( Id. at 112.) Miller did not want to move to Greensboro because of a personal situation--she was the sole caretaker for her mother, who was ill and could not move.

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( Id. at 120; Miller Dep. 26; Byrd Dep. 101-02.)[9] However, Miller told Billow that if her mother's condition changed, she would reconsider relocating to Greensboro. (Miller Dep. 26.) Defendants did not immediately terminate Miller. (Billow Dep. 121.) She was permitted to continue working from Allentown because she had a " special assignment to support the STEP program to its end." ( Id. )[10] Billow agreed to keep the Greensboro opportunity available to Miller until her end date in late 2010. (Billow Dep. 122.) In addition, Miller was permitted to continue providing human resources services to her Client Groups that had relocated to Greensboro from Allentown. (Sholl Dep. 33; Miller Dep. 31-32.) Miller did not encounter any difficulties in servicing these Greensboro-based Client Groups from Allentown. (Miller Dep. 33.)[11] By June 2010, Miller's personal situation had not changed. (Billow Dep. 130.) Billow determined that it was time to allow Miller to " close . . . out" STEP and to train a new person to fill that position. ( Id. ) Miller was terminated from Defendants' employment on September 30, 2010.[12]

Janet Russell ultimately took Miller's position. (Billow Dep. 127.) Russell was forty-seven years old at the time. ( See Pl.'s Resp. Ex. GG, ECF No. 33-1 (stating 1963 as Russell's year of birth).) Prior to taking Miller's position, Russell had worked in Defendants' service center and had interacted with Miller's Client Groups. (Miller Dep. 34-35.)

2. The Economic Downturn

As STEP was being implemented, the economy in 2009 continued to deteriorate, which adversely affected Defendants' business. (Andersen Dep. 212.) Sales revenue from Mack Trucks and Volvo North America operations " decreased drastically." (Apr. 7, 2010 Ltr. 3.) As a result, Defendants sought to reduce costs further, including the number of employees in its

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work force. (Billow Dep. 132, 245.) Defendant sought to have only 200 employees remain in Allentown. (Apr. 7, 2010 Ltr. 2.) In response to a directive to reduce costs further, Billow examined the needs of her Human Resources department and determined that she could reduce an additional position. (Billow Dep. 132-33, 292-93.)

Billow felt that she had the heaviest staffing, and greatest possibility for reduction, in Allentown because she had fewer employees per HRBP there than in any other location. ( Id. at 134-35.) In making her decision as to how to reduce her force, Billow " look[ed] first at what assignment that person had, and second at what skill sets [she] needed to retain." ( Id. at 310.) At the time that Billow decided to eliminate one position, half of the Allentown employees were represented by a union (bargaining unit employees), and half were not represented by a union (nonbargaining unit employees). (Billow Dep. 133.)[13] Billow differentiated Plaintiff's position from Palopoli's by noting that " [t]hey had totally different jobs." ( Id. at 161.)[14] Billow believed that Palopoli " could easily maintain that role and some of the day-to-day issues that would arise from the non-bargaining unit group" without additional training. ( Id. at 133, 178.)[15] Such day-to-day issues included general questions and requests from employees concerning vacation, trainings, career development, job postings, and applications. (Billow Dep. 257.) Billow believed that eliminating Plaintiff's position and transferring his minor day-to-day human resources duties to Palopoli only required a slight modification of Palopoli's job duties. ( Id. at 158-59.) Her primary responsibility would remain labor relations, and her job title would remain the

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same. ( Id. at 141.) Any remaining strategic human resources duties could be transferred to Sholl, " a much more seasoned" executive-level HRBP who was located in Greensboro. ( See id. at 133-34 (noting that " any necessary escalation of issues were to be escalated to an HR business partner with more seniority and experience who is already based in Greensboro" ), 138-39, 247-48, 256.)

By contrast, Billow believed that it " would have been a difficult task" for Plaintiff to " familiarize himself with the labor contract sufficiently to administer those contracts," in addition to the human resources duties he already had. (Billow Dep. 328-29.) Billow explained that " [l]abor relations is a highly specialized field and [Plaintiff] could have taught himself that, but . . . it would have taken longer than a six-month period to transfer those skills and have him be adequate as a stand-alone in a facility. . . ." ( Id. at 329.) She believed that Plaintiff " had limited to no experience in administering contracts in the past, so it would have been a stretch not only to learn the content of the protocol and how to administer those contracts." ( Id. ) Billow did not consider terminating anyone other than Plaintiff when she was asked to reduce headcount in early 2009. ( Id. at 108.)

3. Plaintiff's Termination and Aftermath

On April 29, 2009, Defendants notified Plaintiff that he would be terminated. (Apr. 29, 2009 Term. Ltr., Pl.'s Resp. Ex. V, ECF No. 32.) The stated reason for termination was a " workforce reduction caused by adverse economic conditions." ( Id. ; see also Andersen Dep. 80.) Although Billow criticized Plaintiff's job performance in that she believed that he " needed to become more organized in delivering [] diversity inclusiveness information," she was generally satisfied with Plaintiff's performance and his job performance did not factor into Billow's decision to eliminate his job. (Andersen Dep. 199; Billow Dep. 163.)

Defendants' Reduction in Force Policy (" RIF Policy" ) required that managers review their termination decisions with a human resources professional. (RIF Policy 2-3, Pl.'s Resp. Ex. RR, ECF No. 34) Billow believes that she ran her decision to eliminate Plaintiff's position by Defendants' legal department, which accepted Billow's decision. (Billow Dep. 286-87, 304-06.)[16] Billow did not consult with any HRBP in deciding to terminate Plaintiff. (Billow Dep. 310.)[17] Billow did not document the reasons for her decision to select Plaintiff for termination. (Billow Dep. 265.)[18]

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Defendants terminated Plaintiff on October 1, 2009. (Andersen Dep. 80.) At that time, Plaintiff was sixty-two years old. ( Id. at 15-16.) He had worked for Mack Trucks for thirty-eight years. ( Id. at 64-65.)

Prior to his termination, Plaintiff was one of two males employed in Defendants' Human Resources department. After Plaintiff's termination, Defendants' Human Resources department consisted of nine females and one male. (Answer ¶ ¶ 34, 40, ECF No. 7.) By mid-2010, the remaining male was transferred out. ( See Billow Dep. 342-43 (testifying that by mid-2010, Rosko " had migrated out of [Billow's] organization and Miss Palopoli had also been transferred out of [Billow's] organization and Mr. Filipowicz was also transferred out of [Billow's organization]" and that by May or June 2010, Billow had no men in her department that directly reported to her).)

Since being terminated by Defendants, Plaintiff has not applied for any labor relations positions. (Andersen Dep. 125.) Plaintiff has not listed, and does not list, labor relations experience on his resume because he does not believe that he has " enough labor relations experience to put on a resume" and he had " not had a job, up to this point, that focused on labor relations." ( Id. at 125-26.) Plaintiff has testified that he " never worked in labor relations." ( Id. at 265.) He acknowledges that he did not work with the bargaining unit employees more than Palopoli, who worked with the unit " 100 percent" of the time. ( Id. )

On February 1, 2010, after Plaintiff had been terminated, Palopoli was promoted to Labor Relations Manager. (Palopoli Personnel Action Form, Pl.'s Resp. Ex. MM, ECF No. 33; Billow Dep. 188-89.)[19] This position was not posted. (Billow Dep. 155.)[20] Palopoli received a seven percent increase in salary as a result of this promotion. (Palopoli Personnel Action Form.) On June 1, 2010, Palopoli became a HRBP. (Palopoli Personnel Action Form.)[21] The HRBP position was not

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posted. (Defs.' Resp. To Pl.'s First RFAs No. 21.) Once Palopoli moved into the HRBP role, she no longer had labor relations responsibilities. (Rosko Dep. 43, Pl.'s Resp. Ex. I, ECF No. 24.)

Also in June 2010, while Miller remained employed with Defendants in the Allentown location, Defendants posted for Miller's replacement. (Billow Dep. 128-29.) Billow hired Janet Russell, one of the candidates who applied for the position internally,[22] to take Miller's position as a HRBP. (Billow Dep. 127-28.) Russell was forty-six at the time of her hire.[23]

C. Defendants' Diversity Initiative

From 2006 to 2010, Defendants had a diversity initiative to increase diversity opportunity by twenty-five percent and to increase the number of female managers in Defendants' work force by twenty-five percent. ( See 2006-08 HR Strategy, Pl.'s Resp. Ex. J, ECF No. 25 (" Main Activities and common VTC HR Key Objectives for 2006 " including " Active improvement of diversity: 25 % female managers rate by end 2006 (versus baseline 2003) " ) (original emphasis); Sholl Dep. 53-63, 73-76; 2007-09 Business Plan, Pl.'s Resp. Ex. L, ECF No. 26; HR Business Plan 2010-12, Pl.'s Resp. Ex. M, ECF No. 26; 2009 Strategic HR Dialogue, Pl.'s Resp. Ex. N, ECF No. 27; Miller Dep. 91-108.)[24] Billow was aware of the strategic objective from 2007 to 2009 to increase diversity opportunity by twenty-five percent, which included increasing female representation. This was measured by examining the percentage of women in the work force at a

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given point and comparing that number to a subsequent point in time to see if there was an increase. (Billow Dep. 42-46; Sholl Dep. 62-63.) This measurement was referred to as the Women in Management (" WIM" ) statistics and was submitted annually to Volvo in Sweden though a WIM Report. (Defs.' Resp. To Pl.'s First RFAs No. 36; Miller Dep. 111-14; Sholl Dep. 88; Billow Dep. 31-35.)[25] Individuals at the top of their business areas, such as Billow, were encouraged to improve their diversity metrics from year to year. (Sholl Dep. 90.)[26] Plaintiff asserts that Billow personally sought to achieve successful diversity figures. (Pl.'s Resp. 40.) Defendants also had a Professional Women's Network (" PWN" ), " a network to aid in recruiting, retention and promotion of female managers," in Greensboro. (PWN Webpage, Pl.'s Resp. Ex. U, ECF No. 32.) Billow was the founding member, and one of the executive sponsors, of the Steering Committee of that Network. (Billow Dep. 361-62.)

D. Procedural History

On October 21, 2009, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (" EEOC" ) and Pennsylvania Human Relations Commission (" PHRC" ) complaining of acts of discrimination. ( See Compl. ¶ 17 & Ex. 1, ECF No. 1.) On March 29, 2011, Plaintiff filed the instant Complaint. (Compl.) Plaintiff alleges age discrimination under the Age Discrimination in Employment Act (" ADEA" ) and the Pennsylvania Human Relations Act (" PHRA" ), and age and sex discrimination under Title VII and the PHRA. ( Id. at ¶ ¶ 50-67.)

After discovery, Defendants filed the instant Motion for Summary Judgment. (Defs.' Mot., ECF No. 20.) Defendants contend that neither Plaintiff's gender nor his age was a factor in Defendants' decision to select him for layoff. (Defs.' Mem. 28, ECF No. 20-1.) Plaintiff filed a Response opposing Defendants' Motion. (Pl.'s Resp, ECF No. 21.) Plaintiff contends that Defendants' Motion should be denied because he has established a prima facie case of gender discrimination and age discrimination, there is sufficient evidence that Defendants' proffered reason for terminating Plaintiff is pretext for age and gender discrimination, and there are genuine issues of material fact that must be resolved by a jury. ( Id. at 1.)


Summary judgment is appropriate " 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). An issue is " genuine" if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is " material" if it might affect the outcome of the case under governing law. Id.

" [A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for

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its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the nonmovant bears the burden of proof on a particular issue at trial, the movant's initial burden can be met simply by " pointing out to the district court" that " there is an absence of evidence to support the nonmoving party's case." Id. at 325. After the moving party has met its initial burden, the adverse party's response " must support the assertion [that a fact is genuinely disputed] by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the materials [that the moving party has cited] do not establish the absence . . . of a genuine dispute . . . ." Fed.R.Civ.P. 56(c)(1). Summary judgment is appropriate if the nonmovant fails to respond with a factual showing " sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.


A. Age Discrimination Claims

The ADEA provides that " [i]t shall be 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).[27] " Age discrimination may be established by direct or indirect evidence." Duffy v. Paper Magic Grp., 265 F.3d 163, 167 (3d Cir. 2001); Connors v. Chrysler Fin. Corp., 160 F.3d 971, 972 (3d Cir. 1998). To succeed on an age discrimination claim based on disparate impact, a plaintiff must demonstrate that his age " was the 'but-for' cause of the employer's adverse decision." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009); Felix v. Albert Einstein Healthcare Network, No. 09-3750, 2012 WL 525893, at *5 (E.D. Pa. Feb. 17, 2012). The plaintiff's age must have " 'actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). Since Plaintiff has adduced no direct evidence of age discrimination, we will apply the familiar burden-shifting framework of McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009); Simpson v. Kay Jewelers, 142 F.3d 639, 643-44 (3d Cir. 1998).

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1. Step One of the McDonnell Douglas Analysis: Plaintiff Has Not Established a Prima Facie Case of Age Discrimination

At the first stage of the McDonnell Douglas framework, plaintiff has the burden of proving a prima facie case of age discrimination by a preponderance of the evidence. Ezold v. Wolf, Block, Shorr, and Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992). The requirement that a plaintiff establish a prima facie case of discrimination " 'is not intended to be onerous.'" Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). In order to establish a prima facie case, Plaintiff must show that he: (1) was over forty years old; (2) was qualified for the position in question; (3) suffered an adverse employment decision; and (4) was replaced by a sufficiently younger person to permit an inference of age discrimination. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995). Where an employee is terminated during a reduction in force (" RIF" ), the plaintiff must show " that the employer retained a sufficiently younger similarly situated employee." Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 301 (3d Cir. 2004); Anderson v. Consol. Rail Corp., 297 F.3d 242, 250 (3d Cir. 2002).[28] Otherwise, the ADEA would operate to guarantee " a protected employee a job at the expense of a sufficiently younger employee." Anderson, 297 F.3d at 250.

To qualify as " similarly situated," there must be evidence that the retained employees had duties that were comparable to those of the plaintiff. Id. Courts analyzing the fourth prong must " look to the job function, level of supervisory responsibility and salary, as well as other factors relevant to the particular workplace. This determination requires a court to undertake a fact-intensive inquiry on a case-by-case basis rather than in a mechanistic and inflexible manner." Monaco, 359 F.3d at 305; see also Opsatnik v. Norfolk S. Corp., 335 Fed.Appx. 220, 222-23 (3d Cir. 2009) (" While 'similarly situated' does not mean identically situated, the plaintiff must nevertheless be similar in 'all relevant respects.'" ) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)); Lepore v. Lanvision Sys., Inc., 113 Fed.Appx. 449, 452 (3d Cir. 2004) (opining that similarly situated employees " work in the same area in approximately the same position" ) (citing Anderson, 297 F.3d at 249-50); Johnson v. Kroger Co., 319 F.3d 858, 867 (6th Cir. 2003) (" In the context of personnel actions, the relevant factors for determining whether employees are similarly situated often include the employees' supervisors, the standards that the employees had to meet, and the employees' conduct." ) (citation omitted); Milliron v. Pilot Travel Cntrs, LLC, No. 06-0262, 2009 WL 2579200, at *10 (W.D. Pa. Aug. 20, 2009) (citing Monaco and collecting other Circuit

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cases); Armstead, 2006 WL 544403, at *5 (holding that a supervisor was not similarly situated to another supervisor with the same title where the former could not perform the latter's duties).

" In order for a plaintiff to satisfy the 'sufficiently younger' standard, . . . there is no 'particular age difference that must be shown,' but while '[d]ifferent courts have held . . . that a five year difference can be sufficient, . . . a one year difference cannot.'" Showalter v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231, 236 (3d Cir. 1999) (quoting Sempier, 45 F.3d at 729 (citations omitted)).

Plaintiff asserts that he has made a prima facie case of age discrimination. (Pl.'s Resp. 36.) He notes, first, that the HRBPs " held precisely the same position as Plaintiff." ( Id. ) He then argues that Plaintiff and Miller were " substantially older" than the other two HRBPs reporting directly to Billow; and " [a]fter Plaintiff was terminated, but before Miller retired, Billow promoted Russell, a significantly younger female employee, to take Miller's HRBP position." ( Id. ) He points out that Palopoli was also " substantially younger than Plaintiff." ( Id. at 37.) Defendant contends that Plaintiff cannot demonstrate that he was qualified for the labor relations position, or that the labor relations position was similar to the HRBP position that Plaintiff had occupied and which was subsequently eliminated. (Def.'s Mem. 19.)

Plaintiff was sixty-two years old when he was terminated from Defendants' employment on October 1, 2009. Therefore, elements (1) and (3) have been met. At the time that Plaintiff was terminated, three other HRBPs reported directly to Billow: Miller, Byrd, and Sholl. Plaintiff and Miller were located in Allentown, and Byrd and Sholl were located in Greensboro. Therefore, of the four HRBPs reporting directly to Billow, only Miller was similarly situated to Plaintiff. In 2009, the year when Plaintiff was laid off, Miller was sixty-five years old. She was three years older than Plaintiff. Therefore, with respect to Miller, Plaintiff cannot meet element (4).

To the extent that Plaintiff argues that he and Palopoli were similarly situated, that argument fails. On the one hand, Palopoli and Plaintiff both were located in Allentown. Palopoli is sixteen years younger than Plaintiff. See Steward v. Sears Roebuck & Co., 231 Fed.Appx. 201, 209 (3d Cir. 2007) (" We decline to adopt a brightline rule that a 6.75 year average age difference between a plaintiff and those who assume his job duties is, as a matter of law, insufficient to give rise to an inference of age discrimination." ); Barber v. CSX Distrib. Servs., 68 F.3d 694, 699 (3d Cir. 1995) (" It is clear that here, the eight year difference between [the plaintiff] and the successful candidate . . . could support a finding that [the successful candidate] was sufficiently younger than [the plaintiff] to permit an inference of age discrimination." ) (citation and internal quotation marks omitted); Sempier, 45 F.3d at 729-30 (concluding four and ten year age differences were sufficient to support a prima facie case of age discrimination). On the other hand, Plaintiff reported directly to Billow and Palopoli reported directly to Rosko.[29] In addition, their job functions

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were different. Plaintiff concedes that Palopoli worked with the bargaining unit more frequently than he did since it was " 100 percent" of her job. (Andersen Dep. 265-66.) Palopoli was part of the labor relations negotiations team, and Plaintiff was not. ( Id. at 266-67.) Plaintiff admits that he didn't have " a job, up to [the point when he was laid off by Defendants], that focused on labor relations." ( Id. at 125-26.) He stated that he " never worked in labor relations." ( Id. at 265.) Because he does not believe that he has " enough labor relations experience," he has not listed such experience on his resume. Thus, with respect to Palopoli, Plaintiff cannot meet element (4). See Armstead, 2006 WL 544403, at *5 (holding that a supervisor was not similarly situated to another supervisor with the same title where the former could not perform the latter's duties). Plaintiff has not made a prima facie case of age discrimination.

2. Step Two of the McDonnell Douglas Analysis: Defendants Have Established a Legitimate, Nondiscriminatory Reason for Terminating Plaintiff

Even if Plaintiff had made a prima facie case of age discrimination, Defendants have established a legitimate, nondiscriminatory reason for terminating him. Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to show that there was a legitimate, nondiscriminatory reason for the adverse employment decision. Showalter, 190 F.3d at 235. At this stage, " the burden of production (but not the burden of persuasion) shifts to the defendant . . . ." Mascioli v. Arby's Rest. Grp., 610 F.Supp.2d 419, 433 (W.D. Pa. 2009). The burden on the defendant is " relatively light" and the defendant can satisfy this burden by " introducing evidence which, taken as true, would permit the conclusion that there was a non-discriminatory reason for the unfavorable employment decision." Id. (quoting Fuentes, 32 F.3d at 763).

Defendants contend that their reason for terminating Plaintiff was legitimate and nondiscriminatory. They explain that Defendants " were faced with a very challenging and difficult business environment, which resulted in drastic, cost-cutting measures," and that " Plaintiff's position was eliminated in connection with a necessary RIF." (Defs.' Mem. 19.) The termination of an employee in connection with a financially necessary RIF constitutes a legitimate, nondiscriminatory reason for the termination. See, e.g., Atchison v. Sears, 666 F.Supp.2d 477, 494 (E.D. Pa. 2009); Laukagalis v. Unisys Corp., No. 07-4754, 2008 WL 4601935, at *4-5 (E.D. Pa. Oct. 15, 2008); Smith v. Thomas Jefferson Univ., No. 05-2834, 2006 WL 1887984, at *4 (E.D. Pa. June 29, 2006).

3. Step Three of the McDonnell Douglas Analysis: Defendants' Proffered Reason For Plaintiff's Termination Is Not Pretext for Age Discrimination

If a defendant succeeds at this second step, the third step of the McDonnell Douglas framework requires the plaintiff to show that the employer's proffered legitimate, non-discriminatory reason for the adverse employment action is pretext for discrimination. Burdine, 450 U.S. at 252. To show pretext, the plaintiff must present " some evidence . . . from which a fact finder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes, 32 F.3d at 764.

With respect to prong (1), to discredit the employer's proffered reason, a plaintiff

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cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the nonmoving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.

Fuentes, 32 F.3d at 765. " As another court of appeals has put it, 'federal courts are not arbitral boards ruling on the strength of 'cause' for discharge. The question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason is [discrimination].'" Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (quoting Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996)); see also Coulton v. Univ. of Pa., 237 Fed.Appx. 741, 747 (3d Cir. 2007) (holding that " it is not enough to show that the employer made a wrong or mistaken decision" ). With respect to prong (2) of the pretext analysis, a plaintiff must provide evidence that allows the fact finder to infer that discrimination was " the 'but-for' cause of the employer's adverse decision." Gross, 557 U.S. at 176; City of Allentown, 589 F.3d at 690-91; Boyd v. Federated Investors, Inc., No. 10-1460, 2012 WL 94484, at *5 (W.D. Pa. Jan. 11, 2012); Homel v. Centennial Sch. Dist.,836 F.Supp.2d 304, 317 (E.D. Pa. 2011).

Plaintiff argues that Defendants' proffered reason for terminating Plaintiff is pretextual, as evidenced by several facts. First, he points out that " [o]ther than Miller, Plaintiff was the oldest member of the Department and the only one terminated." (Pl.'s Resp. 46.) This does not demonstrate pretext. In D'Amico v. Pulte Homes, Inc., No. 08-1099, 2009 WL 792344 (E.D. Pa. Mar. 23, 2009), the plaintiff argued that the supervisor's discriminatory animus against older employees was demonstrated by " his exclusive selection of individuals over 40 years of age for the RIF." Id. at *4. In that case, the supervisor chose to retain two individuals over the age of 40. The Court held that " [w]ithout more, [the supervisor's] selection of individuals for the RIF is insufficient to create a question of fact regarding whether an 'invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.'" Id. (citation omitted). In this case, Billow chose to retain several individuals who were over the age of forty. Indeed, Byrd, one of the HRBPs who was retained, was only two years younger than Plaintiff. Sholl, the youngest of the four HRBPs, was fifty-four years old at the time Plaintiff was laid off. Accordingly, the fact that Plaintiff was the second-oldest member of Billow's department to be laid off does not support pretext.

As evidence of pretext, Plaintiff points to a " woefully deficient method of assessing Defendants' success regarding age diversity" (Pl.'s Resp. 46 at n.53) and Defendants' failure to " perform any adverse impact of the RIF with respect to age" ( id. at 47-78 at n.55). While such evidence may be used to establish a prima facie case of age discrimination, it does not rebut Defendants' articulated reason for terminating Plaintiff. Plaintiff " cannot simply rely on the facts that support [his] prima facie case to rebut [Defendants'] articulated reason, and assert that [Defendants'] intent is a question of fact that must be determined by a jury." Fieni v. Franciscan Care Cntr., No. 09-5587, 2011 WL 4543996, at *9 (E.D. Pa. Sept. 30, 2011).

Plaintiff claims that pretext is evidenced by the fact that (1) Defendants failed to

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offer Plaintiff Miller's HRBP position after she refused relocation to Greensboro and subsequently filled that position with a " substantially younger female," Russell ( id. at 47), and that (2) Defendants failed to terminate Filopowicz, a contract employee in his twenties, before terminating Plaintiff, in violation of their RIF policy, and then subsequently made Filopowicz a full-time employee a few months after Plaintiff's termination ( id. at 47). These are mere challenges to Defendants' business decisions concerning the RIF and do not show that the decision to terminate Plaintiff was motivated by age discrimination. We are not permitted to involve ourselves in the subjective business decisions of the employer or set employment standards for the employer unless there is evidence of discrimination. Ezold, 983 F.2d at 531. Here, there is none.

The record shows that the economy deteriorated in 2009. Billow received a directive to reduce her department's headcount. She decided to eliminate one position in Allentown. Miller was not immediately eliminated at the time because she was still in the process of administering STEP. A substantial number of the Allentown employees who remained after STEP were represented by a union and required specialized labor relations support. Palopoli had more labor relations experience than Plaintiff. Accordingly, Billow decided to eliminate Plaintiff's position. The later hiring of Russell is separate and apart from Plaintiff's termination. With respect to Filopowicz, there is no evidence that Defendants' retention of that employee, and their decision not to replace Filopowicz with Plaintiff, were motivated by age. Filopowicz assisted Palopoli with administering labor contracts. In addition to performing administrative work concerning the bargaining units, he responded to employees and managers in the union. Filopowicz reported to Palopoli. Since Palopoli would continue her labor relations work, there is nothing invidious about a decision to retain Filopowicz to assist Palopoli. Moreoever, Filopowicz and Plaintiff had different job functions. There is nothing indicating that Filopowicz's younger age is why he was retained and Plaintiff was terminated. While we do not believe that Defendants violated their RIF Policy, a mere violation of policy alone cannot constitute evidence of pretext. See Russell v. Vanguard Grp., No. 04-3269, 2006 WL 2077010, at *3 (E.D. Pa. July 24, 2006) (holding that while an employer's violation of its own policy " might afford evidence that improper purposes are playing a role," such a violation does not necessarily constitute evidence of pretext) (internal quotation marks and citation omitted). Filopowicz's later promotion to a full-time Labor Relations Coordinator position in 2009 to 2010 is separate and apart from Plaintiff's termination.[30]

Finally, Plaintiff claims that Defendants deliberately staggered the termination dates of its employees in connection with the RIF and failed to provide Plaintiff with an age demographic list, or a list of criteria used to select him for termination, at the time he was terminated, in violation

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of the Older Worker Benefits Protection Act (" OWBPA" ). (Pl.'s Resp. 47-48.) There is no evidence of such deliberate effort. While Plaintiff cites the Volvo Human Resources Policies and Procedures in the United States from the years 2008 and 2009, this document does not show any deliberate staggering of termination dates. It is not the Court's job to search through the record in an attempt to find evidence in support of a nonmoving party's argument. See United States v. 5443 Suffield Terrace, 607 F.3d 504, 510-11 (citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (" Judges are not like pigs, hunting for truffles buried in briefs." )); see also Perkins v. City of Elizabeth, No. 05-3786, 2009 WL 5178385, at *3 (D.N.J. Dec. 30, 2009) (" It is not the Court's responsibility to sift through Plaintiff's submission in an attempt to find evidence which supports or provides better context for each of Plaintiff's allegations." ); Hunter v. Stouffer Equip. Co., No. 08-1270, 2009 WL 2982668, at *4 n.10 (M.D. Pa. Sept. 14, 2009) (stating that courts will not " dredge through record evidence to find questions of material fact" ).

In sum, with respect to the age discrimination claims, Plaintiff has not demonstrated any " weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its actions [such] that a reasonable factfinder could rationally find them unworthy of credence." Keller, 130 F.3d at 1109. Moreover, Plaintiff has not adduced evidence that age was the but-for cause of the decision to terminate Plaintiff. Defendants retain discretion to terminate employees as part of a RIF so long as there is no discriminatory animus. Here, there is no showing that " age discrimination was the cause of the adverse employment action by showing that no other believable reason for the action exists." See Homel, 836 F.Supp.2d at 318 (emphasis added). The " essence of a [reduction-in-force] is that competent employees who in more prosperous times would continue and flourish at a company may nevertheless have to be fired." Healy v. New York Life Ins. Co., 860 F.2d 1209, 1220 (3d Cir. 1988); Laukagalis, 2008 WL 4601935, at *6. Unfortunately, Plaintiff was one of those employees. Accordingly, Defendants' Motion as to Plaintiff's age discrimination claims will be granted.

B. Gender Discrimination Claims

Title VII makes it is unlawful for an employer to " discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2. Unlike ADEA plaintiffs,

[a] Title VII plaintiff may state a claim for discrimination under either the pretext theory set forth in McDonnell Douglas. . . or the mixed-motive theory set forth in Price Waterhouse v. Hopkins. . . [,] under which a plaintiff may show that an employment decision was made based on both legitimate and illegitimate reasons.

Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir. 2008).

Under a mixed-motives inquiry, " a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ' . . . sex . . . was a motivating factor for any employment practice.'" Desert Palace, Inc. v. Costa, 539 U.S. 90, 101, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). If a plaintiff makes that showing, the employer can put forth an affirmative defense to " demonstrate that it would have taken the same action in the absence of the impermissible motivating factor." Id. at 95 (alterations omitted). " If proven,

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this defense limits the plaintiff's relief to injunctive relief, attorney's fees, and costs." Makky, 541 F.3d at 213. While a mixed-motives analysis does not require the plaintiff to put forward direct evidence, Desert Palace, 539 U.S. at 92, the plaintiff generally presents evidence of " 'conduct or statements by persons involved in the decision making process that may be viewed as directly reflecting the alleged discriminatory attitude.'" Stackhouse v. Pa. State Police, No. 01-2223, 2006 WL 680871, at *4 (M.D. Pa. Mar. 14, 2006) (quoting Griffiths v. CIGNA Corp., 988 F.2d 457, 470 (3d Cir. 1993), overruled on other grounds by Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir. 1995)). Since Plaintiff has adduced no direct evidence showing conduct or statements reflecting discriminatory attitude toward his gender, we will analyze Plaintiff's gender discrimination claims using the McDonnell Douglas burden-shifting framework. See, e.g., Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318-19 (3d Cir. 2000).[31]

1. Step One of the Iadimarco Analysis: Plaintiff Has Established a Prima Facie Case of Reverse Gender Discrimination

Gender discrimination against males is commonly referred to as reverse discrimination. In cases involving reverse discrimination, the Third Circuit has articulated a modified burden shifting analysis that differs from the usual test for gender discrimination enunciated by the Supreme Court in McDonnell Douglas .[32] See Iadimarco v. Runyon, 190 F.3d 151 (3d Cir. 1999). Under Iadimarco, the plaintiff must establish a prima facie case by presenting sufficient evidence to allow a fact finder to conclude that the defendant treated some people less favorably than others based on gender.[33] " There is a low bar for establishing a prima facie case of employment discrimination." Scheidemantle v. Slippery Rock Univ., 470 F.3d 535, 539 (3d. Cir. 2006) (citations omitted); see also Ezold, 983 F.2d at 523 (3d Cir. 1992) (stating " the prima facie case is easily made out" ). However, " 'a plaintiff whose employment position is eliminated in a corporate reorganization or work force

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reduction carries a heavier burden in supporting charges of discrimination than does an employee discharged for other reasons.'" Hook v. Ernst & Young, 28 F.3d 366, 375 (3d Cir. 1994) (quoting Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510, 517 (6th Cir. 1991)).

Plaintiff asserts that a prima facie case of reverse discrimination exists since " Defendants retained Miller, Sholl and Byrd, all of whom were female HRBPs who held precisely the same position as Plaintiff." (Pl.'s Resp. 36.) In addition, Plaintiff argues that Miller was treated more favorably than Plaintiff since she was permitted to remain with Defendants until 2010 after she notified them that she would not relocate to Greensboro. ( Id. ) Plaintiff also argues that gender discrimination is shown by the fact that Defendants chose Palopoli, a female employee, over him for the remaining Allentown-based position. ( Id. at 36-37.)

For the reasons set forth supra, Palopoli was not similarly situated to Plaintiff, and of the four HRBPs who reported to Billow, only Miller was similarly situated to Plaintiff. While there is evidence that Billow did not discriminate on the basis of gender,[34] there is also testimony that the HRBP roles were substantially interchangeable. Moreover, Billow chose Miller, and not Plaintiff, to administer STEP " [b]ecause of her demonstrated skill in keeping things organized and following up on issues, and in general handling an extra task when needed" and her " superior organizational skills." (Billow Dep. 353-55.) As a result, Miller remained employed by Defendants until 2010 while Plaintiff was terminated in 2009. This may give rise to an inference that Miller received more favorable treatment because of her gender. Furthermore, Billow's choice to have Miller administer STEP based on her superior organizational skills involved a subjective inquiry. The Third Circuit has stated that " 'while objective job qualifications should be considered in evaluating the plaintiff's prima facie case, the question of whether an employee possesses a subjective quality, such as leadership or management skill, is better left to' consideration of whether the employer's nondiscriminatory reason for discharge is pretext." Sempier, 45 F.3d at 729 (quoting Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990)). " Thus, to deny the plaintiff an opportunity to move beyond the initial stage of establishing a prima facie case because he has failed to introduce evidence showing he possesses certain subjective qualities would improperly prevent the court from examining the criteria to determine whether their use was mere pretext." Id. (internal quotation marks and citation omitted). Accordingly, we conclude that Plaintiff has established a prima facie case of reverse gender discrimination and will continue with the Iadimarco analysis.

2. Step Two of the Iadimarco Analysis: Defendants Have Established a Legitimate, Nondiscriminatory Reason for Terminating Plaintiff

Once the plaintiff has established a prima facie case of reverse discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment action. See Corbett v. Sealy, Inc., 135 Fed.Appx. 506, 509 (3d Cir. 2005) (explaining Iadimarco standard); Medcalf v. Trustees of Univ. of Pa., 71 Fed.Appx. 924, 927 (3d Cir. 2003) (same). For the reasons discussed supra, Defendants have set forth a legitimate, non-discriminatory reason for their decision to terminate Plaintiff.

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3. Step Three of the Iadimarco Analysis: Defendants' Proffered Reason For Plaintiff's Termination Is Not Pretext For Gender Discrimination

At the final step, the burden shifts back to plaintiff to show the defendant's reason for the action was pretextual. Corbett, 135 Fed.Appx. at 509; Medcalf, 71 Fed.Appx. at 927. Plaintiff asserts that Defendants' proffered reason for terminating Plaintiff " fails to explain why Plaintiff was selected for termination while all of Billow's female staff, including not only Palopoli, but also Miller, Sholl and Byrd, were retained." (Pl.'s Resp. 39.)

Plaintiff argues that Defendants' proffered reason for Plaintiff's termination is pretextual. He argues that gender discrimination is evidenced by the " unfair" promotion of Palopoli, followed by Russell's replacement of Miller, both of which show that Billow was " motivated by a desire to retain a female employee, and not because the position itself was indispensable." ( Id. at 42.)[35] He also notes that he was generally familiar with labor contracts and " could have gotten up to speed on the current contracts by reading them," or alternatively, " other labor relations personnel in the Lehigh Valley besides Palopoli could have provided labor relations support as needed." (Pl.'s Resp. 42.)[36] He claims that gender discrimination is demonstrated by Defendants' termination of Plaintiff in lieu of Miller.[37] Finally, Plaintiff argues that Billow's failure to investigate into Plaintiff's skill sets prior to terminating him, and the fact that Plaintiff " was by far a more experienced human resources professional than Palopoli," demonstrate gender discrimination. (Pl.'s Resp. 43.) However, these arguments attack Defendants'--or specifically, Billow's--business judgment. They do not link the decision to terminate Plaintiff to gender bias. See Thomas Jefferson Univ., 2006 WL 1887984, at *5 (finding that plaintiff's efforts to establish that she was qualified to hold a position did not undermine defendant's contention that a concern for quality and continuity of patient care was its motive in selecting plaintiff's position for termination). Defendants' failure to investigate further into his and Palopoli's skill sets does not create an issue of material fact. See Seiple, 2009 WL 2776609, at *9

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(holding that even if manager had based his decision to terminate plaintiff on inaccurate information, this does not prove pretext); Thomas Jefferson Univ., 2006 WL 1887984, at *6 (rejecting similar argument by plaintiff, explaining that plaintiff did not have experience working a certain area and she would have required a week's worth of training to obtain that familiarity, and holding that defendant's failure to include a more detailed explanation of why she chose to terminate plaintiff in her memo to the human resources department was not evidence that the decision did not comply with the defendant's RIF policy). While Plaintiff may have been able to gain the requisite labor relations experience by reading labor contracts and undergoing further training, Billow decided to retain Palopoli because she already had the necessary labor relations experience and did not need additional training. It is not the Court's role to second-guess business decisions where there is no evidence of discriminatory animus. Here, there is none.

Similarly, the fact that Defendants retained Miller until 2010 to administer STEP while eliminating Plaintiff's position in 2009 was a logical business decision. It does not reveal any inconsistencies or discriminatory animus that would compel us to second-guess Defendants' rationale for terminating Plaintiff; it does not suggest gender discrimination. See Shaw v. Pittsburgh Bd. of Public Educ., No. 07-1183, 2009 WL 86709,at *5 (W.D. Pa. Jan. 12, 2009) (" [T]he fact that a woman received a more desirable assignment instead of a man does not, alone, establish gender discrimination." ); see also Paich v. Nike, Inc., No. 06-1442, 2008 WL 696915, at *8 (W.D. Pa. Mar. 12, 2008) (noting that " [i]n a discrimination case, the issue before the court is not the fairness of an employer's decision to terminate the plaintiff, but whether the record raises an issue of fact as to whether the decision was motivated by discriminatory animus" ) (citing Brokenbaugh v. Exel Logistics N.A., Inc., 174 Fed.Appx. 39, 45 (3d Cir. 2006)).

To show pretext, Plaintiff points to inconsistencies in Billow's explanation for her decision to terminate Plaintiff. (Pl.'s Resp. 41-42.) These inconsistencies are: (1) Billow's testimony that she considered client assignments, geographic location, and job function when determining which position to eliminate, in contrast with testimony that client group assignments and geographic location were interchangeable; and (2) Billow's testimony that the " vast majority" of employees remaining in Allentown after STEP were bargaining unit employees, in contrast with a prior statement that fifty percent of the remaining Allentown employees were bargaining unit employees. ( Id. at 42.) However, the fact that Client Group and geographic assignments may be interchangeable does not contradict Billow's testimony that she considered those factors, as well as job function, when deciding how to reduce headcount in her department. Moreover, Billow's testimony with regard to the composition of employees remaining in Allentown after STEP appears to be more of a minor miscalculation rather than a material equivocation:

Q. Could you turn to Page 3 and look at the second full paragraph for me, please. The second sentence of that, the sentence the beginning of the paragraph reads, " Billow considered Andersen and labor relations manager Sherri Palopoli for the remaining Allentown position. Approximately half of the 200 employees remaining in Allentown were members of the United Auto Workers, UAW, office and engineering bargaining units. Is that accurate?
A. It could be, but I don't know that. Approximately half versus the 60 percent, we're talking about a ten percent difference, which might be 10 or 20 people.

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Q. Well, if I recall, your testimony was that, quote, the vast majority, closed quote, [are] bargaining unit people. Now which is accurate? Because half is not vast majority.
A. I'd say it's better than half, but I don't know those numbers without looking at a document to show you. This was probably an estimation, but I'd say it's better than half.

(Billow Dep. 251-52.) This does not discredit Defendants' proffered reason for terminating Plaintiff. See Seiple, 2009 WL 2776609, at *8.

Plaintiff points to circumstantial evidence of gender discrimination, including Defendants' diversity initiative, something of which Billow was a " champion" (Pl.'s Resp. 40); [38] and the fact that prior to Plaintiff's termination, Billow's department was all female except for Plaintiff and Rosko ( id. at 41).) The diversity initiative from 2006 to 2010 sought to increase diversity opportunity by twenty-five percent and to increase the number of female managers in Defendants' workforce by twenty-five percent. This was measured by examining the percentage of women in the work force at a given point and comparing that number to a subsequent point in time to see if there was an increase. Although Billow was aware of this diversity initiative, such awareness does not prove that Billow eliminated Plaintiff's position because of his gender. See Mlynczak v. Bodman, 442 F.3d 1050, 1058 (7th Cir. 2006) (holding that while decision maker was " philosophically favorable to the hiring of minorities," that did not prove that his particular decision was made for discriminatory reasons); Cerrato v. San Francisco Cmty. College Dist., 26 F.3d 968, 976 (9th Cir. 1994) (" [T]he mere fact of an affirmative action plan's existence is not relevant to proving discrimination unless the employer acted pursuant to the plan." ). There is no evidence of any directive, or any conduct, wherein Defendants took less qualified candidates over more qualified candidates because of their gender. Moreover, since there is nothing in the record indicating that Defendants' proffered reason for eliminating Plaintiff's position was pretextual, the mere fact that the ratio of males to females was low in Billow's small human resources department cannot demonstrate pretext.

Plaintiff asserts that Raftas' declaration is evidence of gender discrimination. In the declaration, Raftas states that based upon his interactions with Billow and others in the work place, " Billow had a negative attitude toward older males." (Raftas Decl. 4.)[39] " [T]he testimony of other

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employees about their treatment by the defendant is relevant to the issue of the employer's discriminatory intent." Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990); see also Atchley v. Nordam Group, Inc., 180 F.3d 1143, 1149 (10th Cir. 1999). Nevertheless, Raftas' declaration does not support Plaintiff's pretext because Raftas had no direct knowledge of Defendants' decision to terminate Plaintiff. Raftas' statements and beliefs do not link Plaintiff's termination to gender discrimination. See Foxworth v. Am. Bible Soc., No. 03-3005, 2005 WL 1837504, at *9 (S.D.N.Y. July 28, 2005) (finding no pretext where plaintiff submitted affidavits of two former employees since the employees had no direct knowledge of reclassification of plaintiff's position and there was no plausible link between plaintiff's race or sex and the alleged negative action toward plaintiff).

Plaintiff asserts that Billow violated Defendants' RIF Policy in various respects. He claims that Billow was required to use a reduction review team and consult with another human resources professional, pursuant to Defendants' RIF Policy, but Billow did not do so. (Pl.'s Resp. 40.) She also failed to consider Plaintiff's longevity with the company in considering which employee to terminate. ( Id. at 44.) However, any such failure does not necessarily undermine Defendants' justification for eliminating Plaintiff's position. A violation of an employment policy itself is not evidence of pretext. See Russell, 2006 WL 2077010, at *3.

The facts of this case are similar to the facts of Bernstein v. St. Paul Companies, Inc., 134 F.Supp.2d 730 (D. Md. 2001). In Bernstein, the plaintiff was a white male former employee. His employer was acquired by another company, which resulted in the elimination of redundant jobs in an effort to save overhead costs. Id. at 731. Before the acquisition, the plaintiff worked in the legal department of the acquired company and spent half of his time on insurance coverage issues, and half of his time on governmental affairs. In his reviews, he received high marks for his intellect and ability to analyze legal questions, but there were concerns over his interpersonal skills. Id. The plaintiff's position with the acquired company was eliminated. Id. at 732. Pursuant to reduction-in-staff procedures, he was given the opportunity to " compete" for a Federal Affairs Representative position, which was also being applied for by another applicant, from the acquiring company. This applicant was female and African-American. Id. She had become a Federal Affairs Representative for the acquiring company several months before the acquisition and received positive reviews from that company's CEO.

After the merger, the person to whom the open Federal Affairs Representative would report (" supervisor" ) compared the two candidates. She interviewed the plaintiff and spoke with his supervisors at his old employer (the acquired company). Their views confirmed the supervisor's own view: that he had excellent research skills but weaker interpersonal skills. Id. The female applicant had reported to the supervisor for several months before the competition for the Federal Affairs Representative position. The supervisor believed the female applicant performed well and had the CEO's approval. She decided to retain the female candidate and terminate the plaintiff. She explained that the female applicant was offered the position because of her superior interpersonal skills and her satisfactory performance as the incumbent. She was the " stronger candidate." Id. at 733.

The plaintiff exhausted his administrative remedies, and then filed a lawsuit alleging, among other claims, reverse gender

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discrimination. He contended that his objective qualifications (legal ability, knowledge of insurance law, and lobbying experience) were superior to the female applicant's. He argued that the employer preferred the female applicant because she was a younger (under age forty), African-American female, and he was an older (mid-50's), white male with a disability. He pointed out a speech given by the CEO that (1) he did not want the company to consist exclusively of white men, and (2) he would base part of his managers' bonuses on their success in supporting " diversity." Id. at 732.

While the court held that the plaintiff could not make out a prima facie case, it held that even if he could make out such a case, the employer proffered a legitimate, nondiscriminatory reason for preferring the female candidate. Id. at 733. The court held that the plaintiff failed to come forward with sufficient evidence from which a reasonably minded jury could conclude that the employer's stated reason for preferring the female candidate was " just a pretext for discrimination." Id. (citation omitted). It explained that it was " uncontroverted" that the position demanded someone with considerable interpersonal skills, and the plaintiff had consistently been marked down in that area. Id. It explained that the employer's commitment to diversity did not itself raise an inference that the company had a policy of illegal discrimination.

In the instant case, Billow needed to eliminate a position in Allentown. She chose to eliminate Plaintiff's position and have Palopoli assume his minor day-to-day human resources duties, and any remaining strategic human resources duties would go to another more experienced HRBP, Sholl. While Plaintiff argues that he had a stronger background in human resources, he does not deny that Palopoli had superior labor relations skills. While Plaintiff's human resources duties could easily be picked up by Palopoli and Sholl without additional training and time to learn, Plaintiff would have needed additional time and training to learn labor relations skills. Companies are permitted to make business decisions which result in the retention of one employee and the termination of another employee for any reason that is not predicated upon an impermissible factor. That is what happened here. This Court may not now " sit as a kind of super-personnel department that reexamines [Defendant's] business decisions." Thomas Jefferson Univ., 2006 WL 1887984, at *5 (quoting McCoy v. WGN Cont'l Broad Co., 957 F.2d 368, 373 (7th Cir. 1992)). Accordingly, we will grant Defendants' Motion on Plaintiff's gender discrimination claims.


For the foregoing reasons, Defendant's Motion for Summary Judgment will be granted.

An appropriate Order follows.


AND NOW, this 30th day of July, 2015, upon consideration of Defendants Mack Trucks, Inc. and Volvo Group North America, LLC's Motion for Summary Judgment (ECF No. 20), and all papers submitted in support thereof and in opposition thereto, it is ORDERED that Defendants' Motion is GRANTED. Judgment is entered in favor of Defendants Mack Trucks, Inc. and Volvo Group North America, LLC and against Bruce Anderson.


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