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Sandusky v. HDH Group, Inc.

United States District Court, W.D. Pennsylvania

October 8, 2019

THE HDH GROUP, INC., Defendant.

          Cathy Bissoon, Judge.



         Currently pending before the Court is Defendant's Motion for Summary Judgment (ECF No. 36) in this lawsuit brought under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. (“PHRA”).[1] For the reasons set forth below, the Court respectfully recommends that Defendant's Motion be granted. More particularly, this Report concludes that the record evidence, viewed in the light most favorable to Plaintiff, cannot support a claim for age discrimination. Rather, there is significant evidentiary support indicating that the decision to terminate Plaintiff's employment was a legitimate business decision based on the company's need to cut costs under directives issued by its holding corporation. And conversely, Plaintiff has failed to present evidence from which a reasonable fact-finder could conclude, particularly under the applicable preponderance of the evidence standard, that Defendant's stated reason was a pretext for discrimination. Nor, moreover, could a reasonable fact-finder conclude that Plaintiff's age was the “but-for” cause of Defendant's decision to terminate his employment. As Plaintiff's evidence is insufficiently probative, it is respectfully recommended that Defendant, The HDH Group, Inc. (“HDH”), is entitled to summary judgment on the claims presented by Plaintiff, Glen Sandusky (“Sandusky”).

         I. FACTS

         Plaintiff was employed by Defendant in an executive vice-president position as its Chief Marketing Officer (“CMO”), and Property and Casualty Manager (“PCM”) for approximately 18 years. Complaint, ECF No. 1, at 2. He was terminated in November 2017 by HDH President, Anthony Kocis (“Kocis”). Plaintiff was then 59 years of age. Defendant's stated business basis for terminating Plaintiff was mandated cost cutting owing to its low performance as one of HUB International U.S. Holdings, Inc.'s (“HUB”) North American offices. Defendant further asserts - with record support - that its resultant successive business inquiries led to an assessment that (1) decreasing payroll would be the best way to reduce costs, and (2) termination of Plaintiff, who held a comparatively high-salaried[2] - and less essential - management position, would be, in its judgment, the preferred action.

         Defendant has also produced evidence that upon Plaintiff's termination it eliminated the position of CMO (in accordance with its determination that such position was non-essential in an office of its size and business line/area) and promoted the 46-year-old Assistant PCM to the PCM position. Plaintiff's other duties were also distributed among these remaining employees: Kathy Davies (age 59), Anthony Kocis (age 54), Greg Proud (age 53), Chet Rhoads (age 52), Joe Orlowski (age 52), Bill Gallagher (age 50), Shelly Dunn (age 50), and Erin Koscienski (age 30). Defendant's Concise Statement of Material Facts (“CSOF”), ECF No. 38, at ¶¶ 45-61 (and record citations therein).[3]

         Plaintiff has satisfied the procedural and administrative requirements, including his December 2017 filing of a Charge of Discrimination with the Equal Employment Opportunity Commission(“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”) alleging that Defendant terminated him because of his age. Complaint, ECF No. 1.


         Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, the “materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, ” show “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) & (c)(1)(A). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact; that is, the movant must show that the evidence of record is insufficient to carry the non- movant's burden of proof. Id. Once that burden has been met, the nonmoving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis added by Matsushita Court). An issue is genuine only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986). In Anderson, the United States Supreme Court noted the following:

[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. . . . [T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

Id. at 249-50 (internal citations omitted).


         Plaintiff claims that Defendant discriminated against him based on his age when it terminated him, in violation of the ADEA and PHRA.[4] The ADEA provides that “[i]t shall be unlawful for an employer-(1) to . . . discharge any individual . . . because of such individual's age[.]” To prevail on his claim, Plaintiff must satisfy the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015) (citing Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3dCir. 1997) (en banc)); Britton v. Oil City Area Sch. Dist., 744 Fed.Appx. 53, 55-56 (3d Cir. Aug. 6, 2018). The Court notes that the parties agree upon the applicable age discrimination law and the relevant burden shifting analysis, which may be summarized as follows:

         Under this framework, Plaintiff initially bears the burden of establishing a prima facie case of age discrimination by demonstrating that he (1) was 40 years of age or older, (2) suffered an adverse employment action, (3) was qualified for the job, and (4) was ultimately replaced by a sufficiently younger person to create an inference of a discriminatory motive. Willis, 808 F.3d at 644 (citing Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013)). The question of whether a plaintiff has established his prima facie case is a question of law to be determined by the court. Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007) (citing Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003)). If the plaintiff successfully establishes a prima facie case, the burden then shifts to the employer to articulate some legitimate non-discriminatory reason for the adverse employment action. Willis, 808 F.3d at 644 (citing McDonnell Douglas, 411 U.S. at 802). Once the employer carries its burden, the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons proffered by the employer were not the true reasons, but were merely a pretext for discrimination. Id. (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). At all times, the ultimate burden of proving intentional discrimination remains with the plaintiff. Fuentes, 32 F.3d at 763.

         Ultimately, “[t]o succeed on an ADEA claim, a plaintiff must establish, by a preponderance of the evidence, that age was the ‘but-for' cause of the adverse employment action.” Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015)(citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009)); see also Britton, 744 Fed.Appx. at 56 (“A plaintiff must proffer evidence ‘that age was the “but-for” cause of the employer's adverse decision.'”); Hussein v. UPMC Mercy Hosp., Civ. No. 2:09-cv-547, 2011 WL 13751, *13 (W.D. Pa. Jan. 4, 2011) (plaintiffs pursuing claims of age discrimination under the ADEA will be held to a more stringent “but for” standard). “It is not sufficient to simply show that age was ‘a motivating factor.'” Murphy v. Ctr. For Emergency Med. of W. Pa., 944 F.Supp.2d 406, 428 (W.D. Pa. 2013).

         In support of its Motion for Summary Judgment, ECF No. 36, Defendant elects to not challenge Plaintiff's establishment of a prima facie case. Rather, Defendant directly proceeds to assert that it has articulated legitimate non-discriminatory reasons for terminating Plaintiff, and that Plaintiff has failed to demonstrate its reasons are pretextual. ECF No. 37 at 4-6. Defendant's burden to articulate a legitimate, non-discriminatory reason for termination is “relatively light” and is satisfied where the employer “provides evidence, which, if true, would permit a conclusion that it took the adverse employment action for a non-discriminatory reason.” Burton, 707 F.3d at 426 (internal citations and quotation marks omitted). After reviewing the record, the Court concludes that Defendant has well met its burden of satisfactorily identifying a legitimate, non-discriminatory reason for terminating Plaintiff.

         In particular, Defendant has asserted that: Its President, Anthony Kocis (“Kocis”), was required by HUB - which had purchased Defendant in 2015 - to create a plan and to balance/adjust HDH's budget to meet designated profit goals and performance expectations for North American holdings in Plaintiff's business line. Defendant's CSOF, ECF No. 38, at ¶¶ 11, 14-19, 21-22 (and record citations therein). Kocis looked to payroll as it was Defendant's largest overall expense. He learned that HDH's payroll was a higher percentage of costs than most other HUB office's payroll and that some similarly-sized HUB offices did not include/had eliminated a CMO position; Kocis made further inquiry with other HUB offices. ECF No. 37 at 7; Defendant's CSOF at ¶¶ 23-25 (and record citations therein). Kocis also consulted financial reports and concluded Plaintiff's business line (Property and Casualty Management/Commercial Lines) was losing business and “struggling.” Id.; Defendant's CSOF, ECF No. 38, at ¶¶ 12-13, 18-22 (and record citations therein). Kocis considered Plaintiff's continued employment as CMO and PCM and concluded that, given the necessity that Defendant cut costs, HDH could make do without him. Additional considerations weighed by Kocis included that Plaintiff (1) then handled only one account (i.e., was making less contribution than other upper-level/salary employees to the business sustainment/development important to Defendant's ability to meet budget and performance goals), (2) was not using, and required other personnel's assistance with, HDH's account management computer system, and (3) ...

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