MEMORANDUM RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff brings claims under Title VII of the Civil Rights Act and the Age Employment Discrimination Act related to his termination of employment as a services coordinator at Defendant, the Philadelphia Corporation for the Aging. Defendant has moved for summary judgment on all claims.
I. Factual Background
The following is a recitation of the facts in the light most favorable to Plaintiff.
Defendant provides social and health care services to senior citizens and employs 200 service coordinators who facilitate the provision of long term care services. Plaintiff was hired on June 4, 2012 as a service coordinator for Defendant to provide social and health care benefits to senior citizens. Plaintiff is a black male from West Africa who is fluent in four languages including Russian, and was fifty-two years old at the time of his termination. Plaintiff was assigned to a team of six services coordinators who worked under Elise Mendelsohn, a 45-year-old white woman. The other members of Plaintiffs team were a 36-year-old Caucasian, a 39-year-old Asian, a 57-year-old Hispanic, a 39-year-old Caucasian, and 59-year-old Caucasian. Undisputed Fact ¶ 49. Plaintiff was the only African American on Mendelsohn’s team. Undisputed Fact ¶ 49.
As a new hire, Plaintiff began work as a probationary employee, and completed approximately five weeks of training before working under Mendelsohn full time. Plaintiff testified that during a staff meeting in mid-July Mendelsohn said to him, “I don’t believe you are the right man for this job. You are 52 years old. This job is normally for young college graduates.” Kargbo Dep. at 144:2-5. Plaintiff testified that Mendelsohn made a similar comment to him in a private meeting after he sent an email to the wrong supervisor in August. Kargbo Dep. at 197:3-15. Plaintiff testified that he met with Mendelsohn’s supervisor, Pearl Graub, twice to complain about these comments. Kargbo Dep. at 127:15-33; 128:2-7.
Plaintiff testified that Mendelsohn commented to clients on three occasions that “she does not believe a black man from West Africa, Thomas Kargbo, can speak Russian so fluently.” Kargbo Dep. 135:7-9.
Plaintiff testified that after he made these complaints, Mendelsohn started treating him poorly by “not giv[ing] me the attention that I need from a supervisor,” and “[i]f I walk up to her to request maybe for clarification, she will slam her door before I get to her office” “[a]nd she will yell at me from across the office ... instead of shooting me an email like she did
On September 19, 2012, Mendelsohn completed Plaintiffs three-month evaluation. Pi’s Ex. I. Plaintiff received an overall satisfactory report, but was listed as unsatisfactory in the categories of effective communication and learning orientation. Pi’s Ex. I. Mendelsohn wrote in the comments section that Plaintiff struggled with “fundamental computer knowledge” and was not learning new concepts, repeating the same questions at each tutorial. Pi’s Ex. I. Plaintiff testified that he believed Mendelsohn wrote negative comments on his three-month evaluation because he complained about her. Kargbo Dep. at 142:17-22. Mendelsohn recommended Plaintiffs employment be continued, and the comments outlined six improvement goals for the following month. Pi’s Ex. I.
Mendelsohn subsequently documented a number of performance problems related to Plaintiffs ability to use the computer systems and to input client information correctly. Pi’s Ex. K; Def s Ex. HH (documenting Plaintiffs failure to submit required paperwork for a month after it was due). On October 17 Mendelsohn wrote an interoffice memorandum discussing several complaints about Plaintiffs performance that she received from clients, one from a service provider, and Plaintiffs continued computer skills problems. Def s Ex. L. Mendelsohn concluded that Plaintiff had not met the improvement goals established in the three-month evaluation, but did not recommend discipline or termination. Def s Ex. L.
On October 24 Mendelsohn submitted a discipline form recommending termination. That day she received a call from a client’s son saying Plaintiff had threatened the client after the son had called Mendelsohn with concerns about Plaintiffs performance on October 17. Pi’s Exhibit K; Def s Exhibit LL. The form recounted the prior complaints and performance problems as well as this call from the client’s son. Pi’s Ex. K. The termination recommendation was approved by Graub, Polak, Ann Danish (Graub’s supervisor), and Steve Tou-zell, the Director of Long Term Care. Pi’s Exhibit K. Plaintiff was terminated on October 31, 2012.
A. Disputed Material Facts
1. Plaintiff’s Discrimination Complaints
Plaintiff testified that he complained five times about Mendelsohn’s comments and about his three-month evaluation. Plaintiff testified he complained in mid-July 2012 to Pearl Graub about Mendelsohn’s remark about his age at the staff meeting. Kargbo Dep. at 127:15-22; 143:5-10. Plaintiff testified that he complained to Graub in July or August about race discrimination after Mendelsohn’s comment about Plaintiffs ability to speak Russian. Kargbo Dep. at 128:2-7; 129:11-19. Plaintiff complained a third time to the Director of Human Resources, Raymond Polak, in late July or August about the racial comments because he did not get a response from Graub. Kargbo Dep. at 131:10-24. Plaintiff testified he complained a fourth time to Polak after he
Plaintiff also met with Lobo-Gallagher after he was terminated in November, 2012. This meeting was documented by Defendant, and Logo-Gallagher testified it was the first time she met with Plaintiff. Def.’s Ex. I. Graub and Pollack also denied that Plaintiff made any complaints before he was terminated. Graub Dep. at 54:17-55:15.
2. Termination Decision
There is a dispute over who was involved in the decision to terminate Plaintiff. Defendant contends Mendelsohn made no recommendation about termination, but instead Graub and Polak alone decided to recommend Plaintiff be terminated. According to Defendant, Mendel-sohn brought her concerns about Plaintiffs performance to her supervisor, Graub. Then Mendelsohn and Graub met with Po-lak in HR, and during this meeting Graub and Polak alone decided to recommend termination. Graub reported this recommendation to her supervisor, Ann Danish, who brought it to her supervisor, Touzell, who approved the termination. Then Graub directed Mendelsohn to prepare a PCA Discipline Form terminating Plaintiff.
Plaintiff contends the evidence shows this decision was initiated by Mendelsohn, who by all accounts was in the meeting with Graub and Polak when the termination decision was made. In response to Plaintiffs interrogatories Defendant identified Mendelsohn, along with Graub, Danish, Touzell and Polak as those who participated in the termination decision. Pi’s Ex. A. Plaintiff also points Polak’s deposition in which he testified Mendelsohn approached him seeking to terminate Plaintiff. Finally, the PCA Discipline Form Mendelsohn completed recommended termination, suggesting that Mendelsohn did initiate the termination process.
3. Replacement
Defendant contends it did not hire anyone to replace Plaintiff, but instead distributed his cases among sixteen service coordinators. Defendant submitted a post-deposition affidavit signed by Pearl Graub stating that no one person replaced Plaintiff, and that his assignments were given to sixteen different people. Def.’s Ex. K. Plaintiff points to Mendelsohn’s deposition testimony that Defendant hired Patricia Kirby (age 28) to join Mendelsohn’s team two months after Plaintiff was terminated. Mendelsohn Dep. at 11:2-11. Considering the evidence in the light most favorable to Plaintiff will allow a jury to find Kirby replaced Plaintiff.
II. Procedural History
Plaintiff brings claims for age discrimination under the ADEA alleging he was terminated because of his age and/or in retaliation for his complaints about discrimination on the basis of his age. Plaintiff also brings claims under Title VII of the Civil Rights Act alleging he was terminated because of his race, he was subject to a hostile work environment because of his race, and/or he was terminated because of the complaints he made about discrimination on the basis of race. Defendant moves for summary judgment on all of Plaintiffs claims. Oral argument on the summary judgment motion was held on
III. Analysis
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party. Anderson v. Liberty Lobby, Inc.,
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322,
A. ADEA Claim
The ADEA prohibits age discrimination in employment against any person over age forty. 29 U.S.C. § 623(a)(1). “Because the prohibition against age discrimination contained in the ADEA is similar in text, tone, and purpose to that contained in Title VII, courts routinely look to law developed under Title VII to guide an inquiry under ADEA.” Brewer v. Quaker State Oil Ref. Corp.,
The burden-shifting analysis established in McDonnell Douglas Corp. v. Green,
If the plaintiff establishes a pri-ma facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse employment action. Texas Dept. of Community Affairs v. Burdine,
If the defendant is able to come forward with a legitimate, non-discriminatory reason for its action, the plaintiff can defeat a motion for summary judgment by providing evidence from which a factfinder could reasonably either (1) disbelieve the defendant’s articulated legitimate reasons or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the defendant’s action. Id. at 764. “If the plaintiff produces sufficient evidence of pretext, he need not produce additional evidence of discrimination beyond his pri-ma facie case to proceed to trial.” Sempier,
1. Prima Facie Case
Plaintiff produced evidence that he is older than forty, and that he applied and was qualified for the job because he was in fact hired for the job and received a satisfactory job performance review. Pi’s Exhibit I; see Sempier,
The remaining question is whether Plaintiff was replaced by a person sufficiently younger to raise the inference of age discrimination. The Third Circuit has held replacement by a person more than twenty years younger than the plaintiff supported the inference of age discrimination. Maxfield v. Sinclair Int'l,
Defendant contends Plaintiff cannot make this showing because his cases were reassigned to people who were not younger than him. But Plaintiff produced evidence that Defendant hired a 28-year-old woman for his position on Mendelsohn’s team two months after Plaintiff was terminated. See supra Section I.A.3. Plaintiff also introduced evidence that of the thirty people Defendant hired as service coordinators in the eighteen months after he was terminated, twenty-five were in their twenties and the remaining five were in their thirties at the time of hire. Pi’s Ex. B.
Defendant contends it did not hire a replacement, and instead asserts the correct comparison is to the sixteen service coordinators who were assigned Plaintiffs cases after he was terminated. Although
2. Legitimate nondiscriminatory reason
“The employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision.” Fuentes,
Defendant asserts Plaintiff was terminated for his poor performance, specifically for his inability to learn and use computer software essential to performing the functions of his job, problems making services requests and complaints from clients and a service provider. Def. Br. at 11. Since Defendant has pointed to several legitimate reasons it terminated Plaintiff, it has met its burden. See, e.g., Brewer,
3. Pretext
The burden shifts back to Plaintiff to show these reasons were mere pretext, and his age is the real reason for the termination. Jalil v. Avdel Corp.,
Plaintiff points to Mendelsohn’s repeated comments regarding Plaintiffs age to show a discriminatory reason for his termination. Defendant characterizes these statements as “stray remarks” that cannot support a showing of pretext. To determine whether a statement can “constitute overt evidence sufficient to show
The Third Circuit found a statement of age-related animus by the plaintiffs direct supervisor was “evidence sufficient to allow the jury to find that the decision makers placed substantial negative reliance on the plaintiffs age in reaching their decision to fire him.” Fakete v. Aetna, Inc.,
Statements unconnected to the employment decision are not direct evidence of discriminatory intent. Armbruster v. Unisys Corp.,
Finally, the content of the statement is central to finding whether it shows animus in the decision-making process. In Fuentes the Third Circuit found a supervisor’s comment he had trouble pronouncing the plaintiffs Spanish name might show “insensitivity and unprofessionalism” but a reasonable factfinder could not find these statements alone “evidene[ed] Dodd’s bias against Puerto Ricans or Latinos, or to mean that Dodd invidiously discriminated against Fuentes because of his national origin.” Fuentes,
The Third Circuit reversed a grant of summary judgment because it found a supervisor’s statement that he wanted the plaintiff to lose weight because “it’ll make you feel better [and fit’ll make you look younger” was evidence of age-related bias. Waldron v. SL Indus., Inc.,
Viewing the evidence in the light most favorable to Plaintiff, Mendelsohn’s statements are not stray remarks. Plaintiff has introduced evidence showing Mendelsohn was a decisionmaker, and the statements were made a few months before Plaintiff was terminated. The statements were not merely offensive comments, as in Fuentes, but directly commented on Plaintiffs ability to do his job. As in Fakete, the statements were made by a decisionmaker in a serious context, at a staff meeting and in a one-on-one meeting with Plaintiff discussing his job performance. Accordingly, a jury could find these statements were not merely stray remarks, but are direct evidence of age-related animus, supporting Plaintiffs showing of pretext.
In conclusion, Plaintiff has produced sufficient evidence to show a prima facie case of age discrimination, and has introduced evidence supporting a showing of bias in the decision making process to show pretext. Defendant’s motion for summary judgment on Plaintiffs ADEA claim is denied.
B. Title VII claims
To support a claim for employment discrimination under Title VII a plaintiff must establish a prima facie case showing he is a member of a protected class, applied for the position and was qualified, and suffered an adverse employment action, “under circumstances that give rise to an inference of unlawful discrimination such as might occur when the position is filled by a person not of the protected class.” Jones v. Sch. Dist. of Philadelphia,
1. Wrongful Termination
a. Prima Facie Case
Plaintiff has produced evidence supporting a prima facie case of race discrimination: he is a member of a protected class as an African American, he was qualified for the position because he was rated “satisfactory,” he suffered an adverse employment action when he was terminated, and that he was replaced by Kirby, a white woman. Thus, Plaintiff presents a presumption of discrimination Defendant can rebut by articulating a legitimate nondiscriminatory reason for Plaintiffs termination.
b. Legitimate Nondiscriminatory Reason
As discussed above, Defendant articulated a legitimate nondiscriminatory reason for terminating Plaintiff: his poor computer skills, failure to improve those skills, and complaints by customers and a service provider. Pi’s Exhibit K.
c. Pretext
This Court must determine if Plaintiff has introduced sufficient evidence to cast doubt that the proffered reason was the motivation for the employment decision, regardless of whether it was the correct decision. Reeves v. Sanderson Plumbing Products, Inc.,
“Pretext is not demonstrated by showing simply that the employer was mistaken.” Sempier,
A plaintiff must show “not merely that the employer’s proffered reason was wrong, but that it was so plainly wrong that it cannot have been the employer’s real reason.” Keller v. Orix Credit Alliance,
The defendant in Jalil asserted that the plaintiff was fired for refusing to remove his headphones during work and for insubordination. Jalil,
The plaintiff in Brewer showed the numerous performance problems the defendant cited as its reason for termination were documented throughout the plaintiffs 23-year employment history.
Although the plaintiff in Brewer also had documented performance problems, they were accepted for twenty-three years, so it created an inference of pretext that the same problems suddenly resulted in the plaintiff’s termination. Moreover, the Third Circuit noted that the plaintiff in Brewer had outstanding sales performance three months before he was fired, raising the inference of pretext. Plaintiff has not presented any evidence showing his performance criticisms were unusual or fabricated, and Defendant has provided documentation of a large number of errors and client complaints.
Plaintiff disputes the validity of a number of the performance problems cited by Defendant as the reason for Plaintiffs termination. Plaintiff produced evidence that due to Defendant’s change in billing practices, many service coordinators had problems using the computer system and had errors. Pi’s Exhibits E, G, F, & J. This is similar to the vague comparator testimony in Jalil: Plaintiff has not pointed to any individual who had the volume or nature of similar performance problems. As in Jalil Plaintiff has also not presented any evidence showing these comparators were similarly situated to Plaintiff as a probationary hire with both computer problems and client complaints.
Plaintiff contends that clients often complain about services coordinators, but the other employees were not terminated as a result. Plaintiff cites to Mendelsohn’s testimony that she gets complaints from clients or their family members “from time to time.” Mendelsohn Dep. at 39:11-23 (but “[i]t doesn’t happen that often”). Touzell testified that “[t]here have been other complains from consumers” but he did not recall whether any employees were terminated as a result. Touzell Dep. at 23:20-24:6.
This evidence is even weaker than the evidence that was “too general” to show others were not terminated for wearing headphones in Jalil because there is no evidence about the content of the complaints, and there is no evidence that these complaints did not lead to discipline or termination. As in Jalil, Plaintiff has not produced any evidence showing similar complaints were made about other service coordinators, and there is no evidence
To support a showing of racial animus, Plaintiff points to Mendelsohn’s comments that she was surprised a black man from West Africa could speak such good Russian, and questioning whether Plaintiff was dyslexic. As discussed in Plaintiffs ADEA claim, statements evidencing animus by a decision maker can support a showing for pretext, but such comments must be related to the employment decision. Statements divorced from the employment decision are properly characterized as “stray remarks.” See Hook v. Ernst & Young,
Although stray remarks alone are insufficient, they can support a finding of pretext when there is additional evidence to disbelieve the employer’s proffered reason. In Waldron the Third Circuit rejected a district court’s finding a stray remark was irrelevant because the comment was made by a person involved in the termination decision. Waldron,
Here, Plaintiff has failed to produce any evidence that could cause a reasonable fact finder to disbelieve Defendant’s proffered reason for termination. Although Plaintiff has produced evidence of race-related remarks by a decision-maker, there is no evidence connecting these statements to the employment decision, so a jury could not find pretext based on these statements alone. Unlike Waldron there is no additional evidence questioning the veracity of Defendant’s articulated reasons for termination. Accordingly, Defendant’s motion for summary judgment will be granted on Plaintiffs Title VII claim for wrongful termination.
2. Hostile Work Environment
To establish a hostile work environment claim, a plaintiff must show “(1)
The conduct must be “severe or pervasive enough to create an objectively hostile or abusive work environment— an environment that a reasonable person would find hostile or abusive.” Harris v. Forklift Systems, Inc.,
In determining the existence of a hostile work environment, the totality of the circumstances must be examined. Cardenas v. Massey,
In Shramban v. Aetna, the plaintiff’s supervisor “asked her if she ‘knew what people said about blondes’ ” and said “ ‘there is only one way to tell a natural blonde’ ” in addition to making inappropriate contact with her while exchanging paperwork, and “made comments about her personal life, clothes, jewelry and appearance.”
There was sufficient evidence of severe and pervasive harassment to survive summary judgment in Aman v. Cort Furniture Rental Corp.,
Plaintiff testified that Mendelsohn said “she don’t believe a [black] man from West Africa, Thomas Kargbo, can speak Russian so fluently” to clients on three separate occasions. Kargo Dep. at 123:4-24. Plaintiff also testified that Mendelsohn “told me I’m dyslexic, if I have learning disabilities.” Kargbo Dep. at 170:24-171:1. Plaintiff understood this as a reference to his race. Kargbo Dep. at 171:5.
As the Third Circuit explained in Aman, coded comments can be found to refer to race in a manner that supports a hostile work environment claim. Aman,
Although the evidence does not show how pervasive this conduct was, the potential impact of the harassment on Plaintiffs training and supervision could allow a jury to find this conduct was sufficiently severe to alter the terms and conditions of his employment. Plaintiff has also produced evidence connecting this harassment to his race, through Mendelsohn’s comments and his testimony that none of his white colleagues were subject to this conduct. Finally, the alleged conduct was by a supervisor, demonstrating respondeat superior
C. Retaliation
Plaintiff brings claims for retaliation under the ADEA and Title VII, alleging he was terminated because he complained about discriminatory conduct.
Title VII prohibits retaliation against an employee because he or she engaged in a protected activity. 42 U.S.C. § 2000e-3(a). The analysis to show a retaliation claim is identical for ADEA and Title VII claims. Fogleman v. Mercy Hosp., Inc.,
1. Prima facie case
a. Protected Activity
“A protected activity can be either participation in certain Title VII proceedings (the ‘participation clause’) and those who oppose discrimination made unlawful by Title VII (the ‘opposition clause’).” Moore,
The plaintiff in Breeden did not have such a reasonable belief when she complained about a meeting reviewing job applicants. Breeden,
A single incident of sexual harassment was sufficient to support a claim for retaliation in Jensen v. Potter,
Plaintiff testified that he complained to Mendelsohn’s supervisor and the director of human resources five times. Kargbo Dep. at 127:15-33; 128:2-17; 129:20-19; 134:14-14; 139:3-6; & 173:1-23. These informal verbal complaints can be protected opposition if Plaintiff had a reasonable, good faith belief the conduct complained of violated Title VII or the ADEA. Zelinski v. Pennsylvania State Police,
i. Age Complaints
Mendelsohn’s comments about Plaintiffs age are more serious than the single off-color remark in Breeden because they were explicitly directed at Plaintiff and referred to his ability to do his job. Although not quite as severe as the unwanted sexual advances in Jensen, a reasonable trier of fact could find it was reasonable to believe these two statements violated the ADEA because they specifically mentioned Plaintiffs age, that he was too old, and that he could not do the job because of his age. Accordingly, Plaintiffs complaints about his age were a protected activity.
ii. Race Complaints
Mendelsohn’s comments about Plaintiffs race were also more significant than the isolated incident Breeden because they were about Plaintiffs race, and were repeated several times. As the Third Circuit made clear in Jensen, a protected activity can be a complaint about a hostile work environment, and the underlying conduct itself does not need to be actionable. Although the comments alone cannot support a showing of discriminatory intent to terminate Plaintiff, it was not unreasonable to believe that a supervisor should not be commenting on an employee’s race to clients in the workplace. Accordingly, there is sufficient evidence to show Plaintiff had a reasonable, good faith belief that Mendelsohn’s comments amounted to a hostile work environment, and these complaints were also a protected activity.
b. Adverse Action
An adverse action is any conduct that is “materially adverse” and would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,
Plaintiff testified to abusive conduct following his complaints, and was terminated. Although Defendant disputes the facts regarding Mendelsohn’s conduct toward Plaintiff, it is undisputed that Plaintiff was terminated, which is an adverse action.
c. Causal Connection
Defendant contends Plaintiff has not produced any evidence of causa
“The cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close’ ” Breeden,
Unusual temporal proximity was not found in Woodson v. Scott Paper,
Where there was no temporal proximity, ongoing antagonism supported a showing of causation in an unpublished Third Circuit opinion where the court vacated a grant of summary judgment for the defendant. Zelinski,
Similar evidence was sufficient to survive summary judgment in Zelinski where the plaintiff testified that a number of her performance criticisms were fabricated or overblown in retaliation for her complaints of sexual harassment.
2. Legitimate Nondiscriminatory Reason and Pretext
Defendant points to Plaintiff’s performance problems as the legitimate nondiscriminatory reason for his termination. Plaintiff contends the performance problems were pretext for retaliation for his complaints, and points to several pieces of evidence suggesting pretext. First, Mendelsohn testified that she did not note any of Plaintiffs’ computer performance problems until early August, shortly after Plaintiff filed several complaints in mid-July and early August. Mendelsohn Dep. at 22:12017. Second, Plaintiff testified Mendelsohn gave him a poor evaluation because he complained about her comments. Third, Plaintiff testified that many of Mendelsohn’s emails to Plaintiff with instructions on using the various computer programs were not to help him but were to make him look incompetent. A reasonable trier of fact could find that these emails were sent to create a paper trail of nonexistent performance problems.
There are several facts suggesting the performance issues Mendelsohn documented were not fabricated,
IV. Conclusion
This Court will deny Defendant’s motion for summary judgment on Plaintiff’s ADEA claims and Title VII claims of hos
ORDER RE: MOTION FOR SUMMARY JUDGMENT
AND NOW, this 22nd day of April, 2014, after oral argument on April 15, 2014 and review of the briefs and voluminous exhibits, it is hereby ORDERED, that defendants’ Motion for Summary Judgment (ECF 24) is GRANTED in part and DENIED in part for the reasons stated on the accompanying memorandum.
It is ORDERED that:
1. Defendant’s motion for summary judgment on Plaintiffs Title VII claim for wrongful termination is GRANTED.
2. Defendant’s motion for summary judgment on Plaintiffs remaining claims is DENIED.
Notes
. Mendelsohn denied making these statements to clients, but said she did compliment Plaintiff on his ability to speak Russian during the review of his three-month evaluation. Mendelsohn Dep. at 20:9-21:20.
. As a preliminary matter, it is undisputed Plaintiff has met exhaustion requirements by dual-filing his complaints with the EEOC and PCHR, and receiving a right to sue letter before filing his complaints in this Court.
. Moreover, even if we considered the comparators Defendant suggests, twelve of the sixteen were younger than Plaintiff at the time of his termination, and two thirds of the cases Plaintiff handled were transferred to younger employees. Finally, the question of whether or not Kirby replaced Plaintiff is a question of fact for the jury.
. Defendant contends that Plaintiff failed to show similarly situated employees were treated more favorably. But this conflates the Title VII and ADEA analysis. While both use the McDonnell Douglas framework, the elements of the prima facie case in ADEA cases are slightly different. ”[A]n ADEA plaintiff may establish the fourth element of the McDonnell Douglas test for a prima facie case by showing that s/he was replaced by a person sufficiently younger to permit an inference of age discrimination.” Maxfield v. Sinclair Int'l,
. Although these cases are based on a mixed-motive theory that has since been rejected in ADEA claims, see Gross,
. Graub testified that "[m]ost complaints have to do with service approval, participant or family wants more care, and it is possible the service coordinator doesn’t feel it is justified.” Graub Dep. at 49:12-16. Mendelsohn testified that provider coordinators might call to correct a service order, but ‘Tve never received a call like that from a provider coordinator before.” Mendelsohn Dep. at 45:11-13.
Plaintiff has not produced any evidence that customers complained that a service coordinator did not understand what was needed, failed to respond to phone calls, or was repeatedly unable to answer client and service provider questions without speaking to a supervisor. There is no evidence a client complained that another service coordinator threatened him. Although Plaintiff disputes that this threat occurred, the question is not whether Plaintiff did in fact threaten the client, but rather, whether Plaintiff has introduced evidence to cast doubt that the complaints and performance problems were the reasons for Plaintiff's termination.
. When asked, "Why do you believe that comment was made because of your race?” Plaintiff responded, "Because I do speak English like everybody else, maybe with an accent, but she will not tell me that she don’t understand what I’m saying.” Kargbo Dep. at 171:5.
. For example, in both the three-month evaluations and the inter-office memorandum documenting customer and provider complaints and continued computer problems, Mendel-sohn laid out a six-month plan for improvement, indicating Mendelsohn did not intend to recommend termination at the end of October. PL's Ex. K. In addition, Mendelsohn did not recommend termination until after the client’s son reported Plaintiff made a threatening call to him. Plaintiff also testified that when Mendelsohn gave him the evaluation she told him “it’s just an evaluation that she has to do ... she knows I will improve and then everything will be okay.” This testimony that Mendelsohn reassured Plaintiff that she had confidence in him also undermines Plaintiff's theory that the negative comments in the evaluation were attributable to retaliation. But this analysis requires a balancing of the evidence that is inappropriate at the summary judgment stage.