United States District Court, E.D. Pennsylvania
should similarly evaluate performance of their salespersons
trained and expected to perform at identical levels
regardless of their age. When an employer holds its sales
team to the same performance standards but then fires an
older salesperson outperforming a younger and less
experienced salesperson and replaces the older salesperson
with a much younger salesperson, the employer should explain
its legitimate business reasons for firing the older
salesperson to the jury. While we do not find partial
statistics on the "age of hires" or anonymous
complaints about the supervisor's age bias does not show
pretext, the fired salesperson adduces sufficient evidence of
disputed facts as to whether the employer's business
reasons to fire her are pretext for age discrimination when
it fires older salespersons outperforming younger
salespersons based on identical standards and replaces the
older employee with a younger one. In the accompanying Order,
we deny the employer's motion for summary judgment on the
employee's age discrimination claim and will allow the
jury to resolve these genuine issues of material fact
surrounding the firing of an older salesperson who
outperformed a younger salesperson who remained employed.
Facts in the light most favorable to Ms. Larison.
Larison began working for Fedex Corporate Services, Inc. in
1994. After holding many positions, she began
working as a Sales Account Executive in March
2007. In September 2012, District Sales Manager
Stephanie Nardiello, eleven years younger than Ms. Larison,
began supervising her. In both 2014 and 2015, Ms. Nardiello
requested permission to end Ms. Larison's
employment. Although human resources denied Ms.
Nardiello's first request, it granted her second request,
resulting in Ms. Larison's discharge in July 2015 at the
age of 45. Ms. Larison alleges her former employer
discriminated against her based on Ms. Nardiello's 2015
request to discharge her resulting in her discharge.
Ms. Larison's job duties.
Sales Account Executive, Ms. Larison's job duties
included bringing in new business. Account Executives like Ms.
Larison needed to close about 10 to 12 accounts per year to
be "at plan." Account Executives were also expected
to close large accounts, which are referred to as
"Field-sized" accounts, but FedEx did not require
sales employees to close a specific number of such
Ms. Larison's performance reviews consistently note
deficiencies in closing new business.
Ms. Larison began working under Ms. Nardiello, Ms. Larison
enjoyed positive or neutral performance reviews overall from
her supervisors James Davis and John Reardon, but they found
deficiencies in the area of closing new
business. In fiscal year 2010, Mr. Davis rated Ms.
Larison's overall performance as "Generally
Acceptable, " but he rated her as "Below
Expectations" in the area of "Activation and
Implementation, " which is an assessment category
related to an employee's ability to close new
business. In 2011 and 2012, respectively, Mr.
Reardon rated her overall performance as "Generally
Acceptable" and "Good Solid, " but rated her
as "Met Some Expectations" in the area of
"Activation and Implementation."
Ms. Nardiello began supervising Ms. Larison, she noted
deficiencies in Ms. Larison's ability to close new
accounts, but otherwise rated her positively or neutrally. In
2013 and June 2014, Ms. Nardiello rated Ms. Larison's
overall performance as "Generally Acceptable, " but
rated her as "Met Some Expectations" in the area of
"New Business Development and
Implementation." Ms. Larison closed only one
"field-sized" account in fiscal year 2013, and
again only one in fiscal year 2014.
2013 through 2015, Ms. Nardiello consistently told Ms.
Larison she needed to focus on closing new business
accounts. For example, in March 2014, Ms.
Nardiello counseled Ms. Larison about her "lack of new
business activation, " describing only three accounts
with verified new revenue since June 2012. Ms. Nardiello
told Ms. Larison her activity "is unacceptable and needs
to improve, " advised Ms. Larison her progress would be
reviewed after 60 days, requested a detailed course of action
on acquiring new business, and scheduled weekly meetings to
discuss progress and assistance.
Ms. Nardiello asks permission to end Ms. Larison's
employment in August 2014.
August 1, 2014, less than two months after Ms. Nardiello
rated Ms. Larison's overall performance as
"Generally Acceptable, " Ms. Nardiello asked human
resources if she could discharge Ms. Larison. Three days
later, Human Resources Advisor James Wallace denied Ms.
Nardiello's request because of her recent "Generally
Acceptable" rating. Mr. Wallace instead recommended
providing Ms. Larison with a warning letter.
Nardiello then issued Ms. Larison a warning letter regarding
her deficiency in closing new business, stating Ms. Larison
had only closed one "Field-sized" account in fiscal
year 2014. Ms. Nardiello warned Ms. Larison her
employment could be terminated if her performance did not
improve. Ms. Nardiello again informed Ms. Larison
her progress would be reviewed in 60 days and they would have
weekly meetings to review her activity. Ms. Larison
testified the warning letter contained inaccuracies, but she
does not identify what the inaccuracies
days after issuing the warning letter, Ms. Nardiello asked
Mr. Wallace in an email if she could cancel the weekly
meetings because Ms. Larison had been complaining about
them. At the end of the email, Ms. Nardiello
added, "I plan on pursuing this at the end of her second
warning letter on Sept 29 ." Mr. Wallace understood
Ms. Nardiello's reference to "this" as her
request to terminate Ms. Larison. In other words, Mr.
Wallace believed Ms. Nardiello planned on pursuing a request
for termination at the end of the sixty-day period, which
fell on September 29, 2014. Despite Ms. Nardiello's
stated intent to pursue her request to terminate Ms.
Nardiello at the end of the 60-day period, she did not do so.
Ms. Nardiello issues another warning letter to Ms.
Larison based on her sales performance.
December 22, 2014, Ms. Nardiello issued Ms. Larison another
warning letter, noting Ms. Larison had only closed two
"Field sized" accounts for the first two quarters
of fiscal year 2015. Ms. Nardiello informed Ms. Larison her
progress would be reviewed in 60 days and they would have
weekly meetings to review her activity. Ms. Nardiello
again informed Ms. Larison her employment would be terminated
if her performance did not improve. Ms. Larison believed Ms.
Nardiello issued all of the warning letters because of her
age or gender.
end of fiscal year 2015, Ms. Larison had closed five
"field-sized" accounts-more than she had in any
other fiscal year. She lost one of these accounts in the
fourth quarter of fiscal year 2015. Despite Ms. Larison's
improved performance, Ms. Nardiello rated Ms. Larison's
overall performance in fiscal year 2015 as
"poor." Ms. Nardiello also found Ms. Larison
"Met Some Expectations" in the area of "New
Business Development and Implementation."
Ms. Nardiello discharges Ms. Larison for poor
performance, and replaces her with a younger
13, 2015, Ms. Nardiello requested permission from human
resources to discharge Ms. Larison. Ms. Nardiello explained
Ms. Larison "has not brought on enough new, significant
business" including "Field sized"
sales. Ms. Nardiello noted she made multiple
attempts to improve Ms. Larison's performance, but she
"has not activated enough significant revenue throughout
the performance improvement plan process."
fired Ms. Larison shortly after Ms. Nardiello's request.
Ms. Nardiello hired thirty-eight-year-old Anthony Dell-Aquila
to replace Ms. Larison.
Ms. Nardiello's hiring practices.
hiring employees, FedEx uses a recruiting company to vet the
top three candidates for a position. The relevant management
employees then review the candidates' resumes and
interview the candidates. After management interviews
the three candidates, it makes a hiring
decision. FedEx interviews candidates of all
ages. Ms. Nardiello followed this procedure
when hiring employees.
Ms. Nardiello became Sales Manager, the average age of the
nine sales professionals who reported to her was
47. Seven of these original employees no
longer report to her, six of which were over the age of
forty. Ms. Nardiello hired nine employees while
a Sales Manager, and all of these employees were under the
age of forty at the time of hire.After she discharged Ms.
Larison, the average age of the sales employees reporting to
Ms. Nardiello was 34.5.
not know the ages of the candidates Ms. Nardiello interviewed
but did not hire. Although we have the resumes of three
unhired individuals whom Ms. Nardiello interviewed, we lack
facts as to the ages of these individuals and which of the
nine positions Ms. Nardiello considered them
Anonymous complaints of age discrimination made against Ms.
FedEx fired Ms. Larison, FedEx received three internal
complaints of age discrimination against Ms. Nardiello from
anonymous complainants. These complainants contend Ms.
Nardiello has an age bias because she harasses older workers
until they leave FedEx, replaces older workers with younger
workers, and "exhibit[s] age discrimination among her
workers in the workplace." As examples of
harassment, one complainant states Ms. Nardiello puts older
employees "on planners, " gives them "bad
sales territories, " and does not give "guidance
for how to turn things around.
FedEx did not discharge younger, less experienced sales
employees with fewer closings.
time Ms. Nardiello discharged Ms. Larison, two younger, less
experienced FedEx employees retained their employment despite
closing fewer accounts. During his second year with FedEx,
34-year-old Account Executive Matthew Erb closed three
accounts in fiscal year 2015. Mr. Erb worked in a
"Business Sales-Field" role, which Ms. Nardiello
characterized as "one step lower" and
"designed to be an entry into field
sales." Mr. Erb only recently moved into the
territory. Ms. Nardiello rated Mr. Erb more
favorably than Ms. Larison in new business development even
though he had fewer closings than her in fiscal year
Klein, a thirty-one-year-old Account Executive, closed three
accounts in fiscal year 2015. Mr. Klein's role is in
market development, which is the same role Ms. Larison
holds. Mr. Klein started working for FedEx in
July 2014, and at the time of Ms. Larison's discharge, he
had worked at FedEx for only one year. Ms. Nardiello
rated Mr. Klein more favorably than Ms. Larison in new
business development even though he had fewer closings than
her in fiscal year 2015.
Nardiello attributes her disparate treatment of Mr. Erb and
Mr. Klein to their lack of experience and their limited time
in the new territory they worked in. She explains if
"you're fairly newer, you have a different set of
what's success versus someone who has been doing this for
years and years and knows what the expectations are and have
been in the territory for a long time." Ms. Larison
"was doing it for a lot longer [than Mr. Erb or Mr.
Klein], so the expectations are more advanced for someone who
has been doing it for a long time."
Ms. Nardiello's explanation as to her disparate
treatment, she unequivocally admits all sales employees are
held to the same standards, including the same standard for
Q. Was your entire sales team held to the same standard?
Q. In regards to closing business?
Q. So account executives and sales executives were held to
the same standard for closing business?
A. Yes. Sales executives and account executives,
Larison sued FedEx for age discrimination and retaliation
under the Age Discrimination in Employment Act of 1967
("ADEA") and the Pennsylvania Human Relations Act
("PHRA"). Fedex moves for summary judgment,
arguing Ms. Larison's age discrimination and retaliation
claims fail as a matter of law. FedEx contends Ms.
Larison cannot establish a prima facie case of age
discrimination and cannot demonstrate FedEx's reasons for
discharging her are pretextual. Ms. Larison abandons her
retaliation claim but argues genuine disputes of material
fact preclude our entry of summary judgment on her age
discrimination claims. We agree with Ms. Larison and deny
summary judgment as to her ADEA and PHRA age discrimination
claims, but we grant summary judgment as to her ADEA and PHRA
the familiar McDonnell Douglas framework, Ms.
Larison must establish a prima facie case of age
discrimination. If she does so, the burden shifts to FedEx to
proffer evidence of legitimate non-discriminatory reasons for
its adverse employment actions. '"The defendant
satisfies its burden at this step 'by introducing
evidence which, taken as true, would permit the conclusion
that there was a nondiscriminatory reason for the unfavorable
action.'" Once satisfied, Ms. Larison must then
show, by a preponderance of the evidence, FedEx's
explanation is "pretextual." In other
words, Ms. Larison must adduce evidence allowing a factfinder
to disbelieve FedEx's reasons, or point to evidence
allowing a factfinder to believe an invidious discriminatory
reason more likely than not constituted a "motivating or
determinative cause" of FedEx's
Ms. Larison addresses prima facie evidence of age
Larison demonstrates a. prima facie case of age
discrimination. To establish a. prima facie case of
age discrimination, Ms. Larison must prove: (1) she is at
least forty years old; (2) she suffered an adverse employment
action; (3) she was qualified for the position in question;
and (4) FedEx ultimately replaced her with a sufficiently
younger employee, or the existence of facts allowing the
inference FedEx relied on "impermissible
factors." FedEx argues Ms. Larison fails under the
third and fourth elements because she cannot demonstrate she
was qualified and cannot provide facts allowing the inference
of age discrimination.
Ms. Larison demonstrates she is qualified.
Larison provides sufficient evidence she was qualified to
perform the work of an Account Executive. Whether Ms. Larison
is qualified "will turn on whether plaintiff is able to
perform or has satisfactorily performed the job, an issue
that entails a subjective evaluation to be evaluated by the
factfinder." We focus our inquiry on whether Ms.
Larison satisfies the "bare minimum requirement
necessary" to perform her job. Our court of appeals
instructs "the issue of basic qualification . . . will
ordinarily be a question of fact." Upon
reviewing the record, we find a genuine issue of material
fact as to whether Ms. Larison was qualified for the position
she held, as she held the Account Executive position for over
eight years and received overall performance ratings of
"Generally Acceptable" in the four years leading up
to her final, albeit negative, performance evaluation.
Ms. Larison satisfies the fourth element of her prima
Larison also demonstrates facts raising the inference of
discrimination under the fourth element. Ms. Larison can
satisfy this element by showing a "sufficiently
younger" employee replaced her. Our court of appeals
instructs a five-year age difference between a plaintiff and
her replacement can be sufficient to satisfy this requirement
of a plaintiffs prima facie
case. Ms. Larrison's replacement-Mr.
Dell-Aquila-is seven years younger than Ms. Larison. Ms.
Larison satisfies the fourth element of her prima
There is a genuine issue of material fact as to whether
FedEx's decision to discharge her is pretextual.
Larison argues three bases for finding Ms. Nardiello's
decision to discharge Ms. Larison: (1) a jury could
disbelieve Ms. Nardiello's reasoning based on her
demeanor at trial; (2) a jury could conclude Ms. Nardiello
has an age bias based on her hiring decisions, her treatment
of similarly-situated employees, and employee complaints of
age discrimination; and (3) a jury could disbelieve Ms.
Nardiello's explanation based on the inconsistent
explanations FedEx provided for discharging Ms. Larison.
After reviewing the first two bases, we find a genuine issue
of material fact as to pretext because there is sufficient
evidence Ms. Nardiello treated a younger similarly-situated
employee more favorably than Ms. Larison.
Ms. Nardiello's prospective demeanor at trial
does not create a genuine issue of material fact for
Larison argues we should deny summary judgment simply because
a jury, reviewing her demeanor on the stand, is entitled to
disbelieve Ms. Nardiello's testimony she did not
discriminate against Ms. Larison. In support, she cites Judge
Schmehl's post-verdict decision denying a defendant's
renewed motion for judgment as a matter of law. Judge Schmehl
found sufficient evidence for the jury to disbelieve a
defense witness's contention she did not constitute the
relevant decision maker. Judge Schmehl recalled the
witness's trial testimony as "extremely evasive and,
at times, disingenuous, " and explained, ...