Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-28-2008
Williams v. Dover Downs Gaming
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2386
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"Williams v. Dover Downs Gaming" (2008). 2008 Decisions. Paper 785.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 07-2386
RICHARD L. WILLIAMS and MICHAEL E. PETERS,
Plaintiffs/Appellants,
v.
DOVER DOWNS, INC., a Delaware Corporation
Defendants/Appellees.
On Appeal from the United States District Court for the District of Delaware
(No. 05-0435 (GMS))
Submitted pursuant to Third Circuit LAR 34.1(a)
March 28, 2008
Before: McKEE, RENDELL and TASHIMA,* Circuit Judges
(Opinion Filed: July 28, 2008)
OPINION
TASHIMA, Circuit Judge.
Richard L. Williams (“Williams”) and Michael E. Peters (“Peters”) (together,
“Plaintiffs”) appeal the district court’s grant of summary judgment in favor of Defendant
*
Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Dover Downs, Inc. (“Defendant” or “Dover Downs”)1 on Plaintiffs’ claim that Defendant
terminated them in violation of the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 621 et seq. In granting Defendant’s summary judgment motion, the district
court concluded that Plaintiffs failed to carry their evidentiary burdens under either the
“direct evidence” framework of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) or the
“indirect evidence” framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Williams v. Dover Downs Inc., No. 05-CV-435, 2007 WL 1297022, at **4-7
(D. Del. May 2, 2007). We agree and will affirm.
I.
Because we write for the benefit of the parties, we discuss only the facts necessary
to the disposition of this case. On December 23, 2003, Plaintiffs were among six Dover
Downs employees who observed an unauthorized drag race between two other
employees, Ernie Carlisle and Brian Williams (who is Williams’ son), at the Dover
International Speedway. The Speedway is owned by Defendant and world famous for its
NASCAR races. The race ended when Brian Williams crashed his vehicle and was taken
away in an ambulance. After investigating the incident, Dover Downs fired Carlisle,
Brian Williams, and both Plaintiffs. At the time of the firing, Williams was fifty-five
years old and had worked for Dover Downs since 1978; Peters was fifty-two years old
and had been employed there since 1985. The other four employees, whose ages ranged
1
Dover Downs Gaming & Entertainment, Inc. was dismissed from the action
by the district court on October 21, 2005.
from twenty-four to sixty-eight years, were briefly suspended but were not terminated.
In Plaintiffs’ written termination notices, Dover Downs explained that Plaintiffs
were being fired “[i]n view of the fact that [they] had very recently been issued a written
warning for insubordination, and the fact that [they] did not report this very serious
incident.” The letters noted that both Plaintiffs situated their work vehicles at the gate to
the race track so as to “prevent anyone from coming in during the race,” and indicated
that their positions as Mechanic I’s gave them the “responsibility to report any suspicious,
unsafe or reckless behavior.”
Edward Sutor, Dover Downs’ Chief Operating Officer, made the final decision to
fire Plaintiffs, testifying that he held Plaintiffs more culpable than the other four
observers “because of their age and experience.” When asked whether he held older
employees to a higher standard, Sutor said “No,” stating instead that his expectations of
Plaintiffs were based on their many years of experience, not their ages. Sutor also
testified that Plaintiffs’ insubordination citations were not relevant to the termination
decision; instead, according to Sutor, the termination decision was based on the
“egregious nature of the incident” and the “breach of responsibility” they committed by
parking their vehicles across the gate to the track.
We review a district court’s grant of summary judgment de novo and apply the
same tests as the district court. Tomasso v. Boeing Co., 445 F.3d 702 (3d Cir. 2006).
II.
To succeed in an age discrimination case under the ADEA, “a plaintiff must show
that his or her age ‘actually motivated’ and ‘had a determinative influence’ on the
employer’s decision to fire him or her.” Fakete v. Atena, Inc., 308 F.3d 335, 337 (3d Cir.
2002) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)).
“A plaintiff can meet this burden (1) by presenting direct evidence of discrimination, see
Price Waterhouse . . . , or (2) by presenting indirect evidence of discrimination that
satisfies the familiar three-step framework of McDonnell Douglas Corp. . . .” Fasold v.
Justice, 409 F.3d 178, 184 (3d Cir. 2005) (citing Fakete, 308 F.3d at 337-38); Keller v.
Orix Credit Alliance, Inc., 130 F.3d 1101 (3d Cir.1997) (en banc)).
Direct evidence of age discrimination under the Price Waterhouse scheme requires
that Plaintiffs’ evidence of age discrimination be sufficient to allow the factfinder to find
that the employer placed a substantial negative reliance on the plaintiff’s age in reaching
its decision. Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 512 (3d Cir. 2004) (citing
Fakete, 308 F.3d at 338). This means that Plaintiffs must produce evidence that “the
employer’s discriminatory motivation ‘caused’ the employment decision.” Price
Waterhouse, 490 U.S. at 265 (O’Connor, J., concurring). Once the plaintiff has done so,
the burden shifts to the employer, who must then prove that it would have taken the same
action regardless of Plaintiffs’ ages. See Fakete, 308 F.3d at 338 (citing Price
Waterhouse, 490 U.S. at 265-66 (O’Connor, J., concurring)).
Here, Plaintiffs argue that Sutor’s statement that Plaintiffs “had a greater degree of
responsibility . . . because of their age and experience” is direct evidence of age
discrimination sufficient to meet the Price Waterhouse test. Sutor’s statement is not
direct evidence that an age-discriminatory motive caused the terminations. As the district
court rightly noted, the context of Sutor’s statement indicates that he fired Plaintiffs
mainly because of their longevity of service and familiarity with the operations at Dover
Downs, see Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993) (“[A]ge and years of
service are analytically distinct”); cf. Ky. Ret. Sys. v. EEOC, 128 S. Ct. 2361, ____ (2008)
(concluding that differential treatment based upon a pension status that turns in part on
age does not necessarily mean that the differential treatment is “motivated” by age or that
there was discrimination “because of” age), and because he perceived that they were more
involved in the racing activity than the other participants. Moreover, even if we assume
that Sutor’s statement constitutes evidence that a discriminatory motive caused Plaintiffs’
terminations, Defendant has demonstrated that it would have terminated Plaintiffs
regardless of their ages. See Price Waterhouse, 490 U.S. at 266, 277 (O’Connor, J.,
concurring).
Alternatively, ADEA plaintiffs may proceed under the indirect evidence theory, if
they present circumstantial evidence sufficient to satisfy their burden under our “slightly
modified version” of the three-step McDonnell Douglas burden-shifting scheme. Under
that scheme, Plaintiffs must first establish a prima facie case using indirect evidence by
showing that they (1) were members of the protected class, i.e., they were 40 years of age
or older, see 29 U.S.C. § 631(a), (2) were discharged, (3) were qualified for the position
from which they were terminated, and (4) were replaced by a sufficiently younger person
to create an inference of age discrimination. See Keller, 130 F.3d at 1108; accord
Atkinson v. Lafayette Coll., 460 F.3d 447, 454 (3d Cir. 2006). Once Plaintiffs establish a
prima facie case of discrimination, the burden of production (but not the burden of
persuasion) shifts to Defendant, “who must then offer evidence that is sufficient, if
believed, to support a finding that it had a legitimate reason for the discharge.” Keller,
130 F.3d at 1108 (citing St. Mary’s Honor Ctr. v. Hicks, 509U.S. 502, 506–07 (1993)). If
the employer fails to satisfy its burden, judgment must be entered for the plaintiffs. Id.
If, on the other hand, the employer satisfies this burden, Plaintiffs may survive summary
judgment by pointing “ to some evidence, direct or circumstantial, from which a
factfinder 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.” Id. (quoting Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994)); see also Atkinson, 460 F.3d at 454 (“If the
[employer advances a legitimate, non-discriminatory reason for its action,] the burden
shifts back to [Plaintiffs] to prove that the nondiscriminatory explanation is merely a
pretext for discrimination.”).
Here, Plaintiffs have established a prima facie case. Defendant, however, has
offered sufficient evidence to support a finding that it had a legitimate reason for the
discharge, namely, that Plaintiffs (1) held positions of some responsibility, which
included the responsibility for reporting unsafe or reckless behavior of other employees,
(2) blocked the gate in order to prevent interference with the race, and (3) failed to report
the drag race to management or security, or to take any efforts to stop the race
Because Defendant has satisfied its burden of production, Plaintiffs must point to
some evidence from which we could reasonably conclude that Defendant’s articulated
legitimate reasons are not believable or that an invidious discriminatory reason was more
likely than not a motivating or determinative cause of the employer’s action. This they
have failed to do. Plaintiffs point only to Sutor’s “age” reference and Dover Downs’
inconsistent explanations for the terminations. These inconsistencies do not constitute
“such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions . . .
that a reasonable factfinder could rationally find them unworthy of credence.” Fuentes,
32 F.3d at 765 (emphasis in original) (internal quotation marks and citations omitted).
“[D]efendant in this case provided evidence that it had a particularly powerful reason for
discharging” Plaintiffs, i.e., their participation in and failure to stop the drag race on pit
row, which resulted in an extremely serious crash, a crash which Williams described as
the “most horrible thing I have ever seen in my life.” See Keller, 130 F.3d at 1109.
Nothing put forth by Plaintiffs meets their burden of showing, “not merely that the
employer’s proffered reason[s were] wrong, but that [they] were so plainly wrong that it
cannot have been the employer’s real reason.” Id.
III.
Plaintiffs failed to provide direct or circumstantial evidence of age discrimination
sufficient to survive summary judgment. The judgment of the district court will be
AFFIRMED.