Opinion
2:18-CV-01279-MJH
05-03-2021
CHARLES O. ZEBLEY, JR., TRUSTEE, Plaintiff, v. HCL AMERICA, INC, LEGO SYSTEMS, INC, Defendants,
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, Chief United States Magistrate Judge.
I. RECOMMENDATION
Plaintiff Charles O. Zebley, Jr., in his capacity as Chapter 7 Trustee, brings this age discrimination claim against Defendants, HCL America (“HCLA”) and Lego Systems, Inc. (“LSI”) (collectively, “Defendants”), for their failing to hire Kimberly Robben as a Business Analyst in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.C.S. § 951 et seq. See First Amended Complaint (“FAC”) (ECF No. 16). This Court has subject matter jurisdiction over the controversy pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the PHRA claim pursuant to 28 U.S.C. § 1367.
This action was initially brought by Kimberly Robben. Pursuant to the Bankruptcy Code and Federal Rule of Civil Procedure 17(a), this Court permitted bankruptcy trustee Charles O. Zebley, Jr., to be substituted as the real party in interest as Plaintiff in this matter. (ECF No. 105).
Presently before the court is a motion by Defendants for summary judgment filed pursuant to Federal Rule of Civil Procedure 56(a). (ECF No. 74). For the reasons that follow, it is respectfully recommended that Defendants' motion for summary judgment be denied.
II. REPORT
A. Factual and Procedural Background
“HCLA provides consulting and information technology (‘IT') services in North America to clients in a wide variety of industries….” Defendants' Concise Statement of Material Facts (“Defs.' CSF”) (ECF No. 76) at ¶ 1. “LSI operates worldwide and designs and manufactures an array of toys and materials, including games, puzzles, toy trains, robots, dolls, stuffed toys, and racers.” Id. at ¶ 2.
HCLA began the recruiting process for a Business Analyst position in January of 2016 and struggled to find an appropriate candidate. Between January 2016 and June 2016, Nisha Verma, HCLA's Senior Program Manager, interviewed “dozens of candidates.” Id. at ¶ 12. On May 9, 2016, Verma received a candidate profile for Miguel Armendariz, and she conducted a telephone interview with him on May 16, 2016. “At the conclusion of the interview, [] Verma asked [] Armendariz to prepare a presentation.” Id. at ¶ 15. Armendariz submitted his presentation to Verma on May 17, 2016, and on May 19, 2016, Verma recommended him to Smollen.
Prior to a candidate being interviewed by Verma, applicants were screened for basic qualifications by third-party recruiter IDC Technologies. “IDC forwarded the materials for those it deemed qualified to Payal Chauhan, Designation Associate Manager, who then scheduled times for applicants to interview with [] Verma.” Defs.' CSF (ECF No. 76) at ¶ 7. Verma “conducted a two-part interview process.” Id. at ¶ 8. First, Verma conducted a phone interview, and then, “if the candidate demonstrated sufficient skills and related competencies in the telephone interview, [] Verma invited him or her to submit a presentation.” Id. If a candidate was successful in both steps, Verma recommended the candidate to Kerin Smollen, Senior Manager with LSI, for hire. Then, Smollen would interview the candidate, and if Smollen approved, Verma could extend a formal offer of employment on behalf of HCLA.
At this time, Armendariz was 46 years old.
Meanwhile, on May 9, 2016, a recruiter from IDC contacted Robben about applying for the Business Analyst position. Plaintiff's Counter Statement of Facts (“Pl.'s CSF”) (ECF No. 80) at ¶ 40. Robben responded to the request the same day with her updated resume. Id. at ¶ 46. On May 16, 2016, “Verma received a copy of [] Robben's resume and the resume of another candidate for the Business Analyst position.” Defs.' CSF (ECF No. 76) at ¶ 21. “Upon reviewing [] Robben's resume, [] Verma determined that [] Robben may be a good fit for the Business Analyst position, given her skills and experience.” Id. at ¶ 22. On May 17, 2016, Robben learned from IDC that she would be interviewing for the position on May 18, 2016. Pl.'s CSF (ECF No. 80) at ¶ 50. On May 18, 2016, Verma interviewed Robben by telephone, and Robben performed well. Defs.' CSF (ECF No. 76) at ¶ 24. Verma asked Robben to submit a presentation. On the morning of May 19, 2016, Verma emailed Robben saying that she was looking forward to receiving her presentation. Eight minutes later, Verma emailed three HCLA employees the following message:
Robben was 57 years old at this time.
At that time, “Robben had her resume placed on several different online job boards and was actively looking for full-time employment.” Pl.'s CSF (ECF No. 80) at ¶ 41.
Kim Robben: Good candidate from experience, knowledge perspective. However I am not sure about her team fit from [Smollen's] perspective as she is an elderly lady with lot of experience but not sure how well she will it [sic] into the team. I will talk to [Smollen] about it.Pl.'s CSF (ECF No. 80) at ¶ 65.
Minutes after sending this email, Verma recommended Armendariz to Smollen. Id. at ¶ 79; Defs.' CSF (ECF No. 76) at ¶ 19. Shortly thereafter, Robben submitted her presentation to Verma. Pl.'s CSF (ECF No. 80) at ¶ 81. On May 20, 2016, Verma confirmed the receipt of the presentation. Id. at ¶ 87. On May 27, 2016, Robben followed up with Verma via email, and she did not receive a response. Id. at ¶ 89. On June 2, 2016, Robben followed up with IDC regarding potential feedback from the interview process. IDC provided Robben with the aforementioned email. Id. at ¶¶ 90-91. On June 2, 2016, Smollen interviewed Armendariz by telephone, and Smollen agreed with Verma's recommendation to hire him. Armendariz began working for Defendants on June 14, 2016.
Robben subsequently filed this age-discrimination action against Defendants on September 25, 2018. (ECF No. 1). After pleadings were closed and discovery was completed, on December 1, 2020, Defendants moved for summary judgment and filed a motion, supporting brief, concise statement of material facts, and an appendix. (ECF Nos. 74-77). Plaintiff filed responses thereto on January 14, 2021. (ECF Nos. 80-83). Defendants filed replies on January 28, 2021. (ECF Nos. 88-90). This matter is now ripe for disposition.
B. Standard of Review
Summary judgment is appropriate when the moving party establishes “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. Pro. 56(a). A genuine issue of material fact is one that could affect the outcome of litigation. Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” N.A.A.C.P. v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The initial burden is on the moving party to adduce evidence illustrating a lack of genuine, triable issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Once the moving party satisfies its burden, the non-moving party must present sufficient evidence of a genuine issue, in rebuttal. Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). When considering the parties' arguments, the court is required to view all facts and draw all inferences in the light most favorable to the non-moving party. Id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The benefit of the doubt will be given to allegations of the non-moving party when in conflict with the moving party's claims. Bialko v. Quaker Oats Co., 434 Fed.Appx. 139, 141 n.4 (3d Cir. 2011) (citing Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d Cir. 1995)).
Nonetheless, a well-supported motion for summary judgment will not be defeated where the non-moving party merely reasserts factual allegations contained in the pleadings. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)). The non-moving party must resort to affidavits, depositions, admissions, and/or interrogatories to demonstrate the existence of a genuine issue. Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir. 2013) (citing Celotex Corp., 477 U.S. at 324).
C. Discussion
i. Legal Framework for Age Discrimination Claims
The ADEA provides that it is unlawful to “discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). The PHRA provides that “[i]t shall be an unlawful discriminatory practice ... (a) For any employer because of the [...] age [...] of any individual [] to refuse to hire or employ [] or to otherwise discriminate against such individual [] with respect to compensation, hire, tenure, terms, conditions or privileges of employment or contract, if the individual or independent contractor is the best able and most competent to perform the services required.” 43 Pa.C.S. § 955(a). “To prevail on a claim of intentional discrimination under the ADEA or the PHRA, ‘a plaintiff must show that his or her age ‘actually motivated' or ‘had a determinative influence on' the employer's adverse employment decision.'” Cridland v. Kmart Corp., 929 F.Supp.2d 377, 384 (E.D. Pa. 2013) (quoting Fasold v. Justice, 409 F.3d 178, 183 (3d Cir. 2005) (citations omitted)).
“ADEA and PHRA claims are analyzed under the same standard.” Loving v. FedEx Freight, Inc., 2020 WL 2306901, at *13 (M.D. Pa. 2020).
This Court analyzes age “discrimination claims according to the familiar burdenshifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Johnson v. Delaware Cty. Juvenile Det. Ctr., 545 Fed.Appx. 135, 138 (3d Cir. 2013). “Under this framework, the plaintiff must first establish a prima facie case. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the discharge.” Id. “If the defendant does so, the presumption of intentional discrimination disappears, but the plaintiff can still prevail by showing that the employer's proffered reason is merely a pretext for discrimination.” Id. “[T]he plaintiff's evidence must allow a reasonable jury to find, by a preponderance of the evidence, that age discrimination was a ‘but for' cause for the adverse employment action.” Abels v. DISH Network Serv., LLC, 507 F. App.x 179, 183 (3d Cir. 2012).
“A plaintiff may demonstrate age discrimination under this portion of the ADEA by either direct or indirect evidence.” Torre v. Casio, Inc., 42 F.3d 825, 829 (3d Cir. 1994). “Direct evidence of discrimination would be evidence which, if believed, would prove the existence of the fact [in issue] without inference or presumption.” Id. (internal quotation marks omitted). Here, Plaintiff first argues that the email stating that Robben is an “elderly lady” permits Plaintiff to prove the claim through direct evidence. Pl.'s Br. (ECF No. 83) at 7-15. “However, evidence is not direct where the trier of fact must infer the discrimination on the basis of age from an employer's remarks.” Torre, 42 F.3d at 829; see also Palmer v. Britton Indus., Inc., 662 Fed.Appx. 147, 150 (3d Cir. 2016) (affirming the district court's conclusion that a remark by employer “that Palmer might be ‘too old to change industries' was not legally sufficient direct evidence of discrimination”). Similarly, the remark by Defendants referring to Robben as an “elderly lady” requires an inference or presumption, which precludes Plaintiff from being able to proceed on the direct-evidence basis. Accordingly, this Court turns to whether Plaintiff has established age discrimination with indirect evidence and analyzes the claim under the McDonnell Douglas standard.
ii. Prima Facie Case
Defendants contend they are entitled to summary judgment because Plaintiff has failed to establish a prima facie case of age discrimination. See Defs.' Br. (ECF No. 75) at 11-15. “To establish a prima facie case of age discrimination based on a failure to hire, a plaintiff must show that: (1) she is forty years of age or older; (2) the defendant failed to hire [her]; (3) [she] was qualified for the position in question; and (4) conditions giving rise to an inference of discrimination accompanied the failure to hire [her].” Marconi v. Moon Area Sch. Dist., 104 F.Supp.3d 686, 699 (W.D. Pa. 2015) (internal quotation marks omitted).
Here, Defendants concede that Robben was over forty years old at all relevant times and that they did not hire her. At this point, Defendants do not contest the fact that Robben was qualified for the position. The dispute in this matter involves the fourth element of the prima facie case, regarding whether there are conditions giving rise to an inference of age discrimination.
“Defendants do not concede [] Robben was qualified for this position” due to her claim seeking disability benefits she had previously filed. Defs.' Br. (ECF No. 75) at 12 n.7.
“Generally speaking, an inference of age discrimination can arise where an employer opts to hire someone other than the plaintiff who is both similarly situated to, and sufficiently younger than, the plaintiff.” Burrows v. Twp. of Logan, 2008 WL 4274369, at *6 (W.D. Pa. 2008). An inference of age discrimination is not established by only showing an employee was replaced by someone younger, but if it is a substantial difference in age, that can demonstrate an inference of discriminatory motive. Maxfield v. Sinclair Int'l, 766 F.2d 788, 792 (3d Cir. 1985). The Third Circuit Court of Appeals has stated that “there is no particular age difference that must be shown, but while different 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) (citations omitted).
Here, Plaintiff points to the fact that Armendariz, who was 46 years old at the time, was sufficiently younger than 57-year-old Robben, which satisfies this element. Pl.'s Br. (ECF No. 83) at 23. As further evidence, Plaintiff points to Verma's email referring to Robben as an “elderly lady.” Id. However, Defendants respond the fourth element fails because “the record is devoid of any evidence to support a finding that [] Verma knew, or should have known, that [] Armendariz was significantly younger than [] Robben.” Defs.' Br. (ECF No. 30-4) at 5.
The evidence is undisputed that Armendariz was eleven years younger than Robben. An age difference of eleven years, in and of itself, is adequate to give rise to an inference of age discrimination. See Barber v. CSX Distribution Servs., 68 F.3d 694, 699 (3d Cir. 1995) (“It is clear that here, the eight year difference between [plaintiff] and the successful candidate … could support a finding that [the successful candidate] was ‘sufficiently younger' than [plaintiff] to permit an inference of age discrimination. That difference, together with the undisputed existence of the remaining elements of [plaintiff's] prima facie case, were clearly sufficient to shift the burden of production to the defendants[.]”). The question of whether Verma knew or should have known Armendariz's age is a question of fact for a factfinder. Furthermore, despite Defendants' protestations to the contrary, a trier of fact could certainly conclude that Verma's reference that Robben was “elderly” supports an inference of age discrimination. Thus, viewing the evidence in the light most favorable to Plaintiff as the nonmoving party, this Court recommends denying summary judgment on Defendants' claim that Plaintiff has failed to establish a prima facie case of age discrimination.
Relying on Harris v. Dow Chemicals Co., 586 Fed.Appx. 843 (3d Cir. 2014), it is Defendants' position that Plaintiff has not demonstrated that Defendants actually knew Robben's age when they hired Armendariz, and therefore Plaintiff cannot establish the fourth element of the prima facie case. See Defs.' Br. (ECF No. 75) at 13-14. In Harris, the Third Circuit held that “an adverse employment action does not in isolation raise [] an inference [of discriminatory action]; rather, the inference may be raised only if the relevant decision-maker has knowledge of the plaintiff's status as a protected class member.” Harris, 586 Fed.Appx. at 846. The Third Circuit concluded that the inference could not be established where “Harris failed to offer any evidence to rebut [the employer's] testimony that she was entirely unaware of Harris's race and age when she declined to offer her an interview.” Id. (emphasis in original). In the instant matter, Plaintiff has an email sent by Verma which referred specifically to Robben as an “elderly lady.” As such, Plaintiff has evidence from which a factfinder could conclude that “the relevant decision-maker ha[d] knowledge of the plaintiff's status as a protected class member.” Id.
iii. Legitimate Non-Discriminatory Reason
The burden now shifts to Defendants to articulate a “legitimate, non-discriminatory reason” for failing to hire Robben. McDonnell Douglas Corp., 411 U.S. at 802. The burden is “relatively light, ” requiring evidence the employer made an adverse employment decision for a non-discriminatory reason. Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). The employer does not need to prove the proffered reason was the real motivation for its conduct. Id.
Here, Defendants proffer two reasons, articulated by Verma, for their choosing to hire Armendariz instead of Robben. First, Defendants posit that Verma “believed [Armendariz] was the superior candidate ‘based on the interview discussion [Verma] had with him, based on the creativity he showed in the presentation, [which led her to believe that] he looked like a better fit for the role[];”' and second “because he interviewed before [] Robben and she had already determined he was a strong applicant and decided to recommend him for hire as of the time she first spoke with [] Robben.” Defs.' Br. (ECF No. 74) at 15.
The record supports Defendants' articulated reasons. Armendariz interviewed with Verma on May 16, 2016. Defs.' CSF (ECF No. 77) at ¶ 15. After that interview, Verma wrote an email stating that he was a “[p]otential candidate” and that she “[w]ould recommend him to [Smollen] based on his” presentation. Exhibit G (ECF No. 77-7) at 2. Verma interviewed Robben two days later, on May 18, 2016. Defs.' CSF (ECF No. 77) at ¶ 24. Thus, Defendants' proffered reasons for hiring Armendariz, that he was the first-in-time best fit for the position, satisfy their relatively light burden. Accordingly, this Court recommends that Defendants have met their burden in establishing a legitimate, non-discriminatory reason for hiring Armendariz instead of Robben.
iv. Pretext
Now, Plaintiff has the burden to establish by a preponderance of the evidence that Defendants' proffered legitimate, non-discriminatory reasons for not hiring Robben were pretextual. Willis, 808 F.3d at 644-45. “At [this] stage of the [] analysis, a plaintiff may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a ... determinative cause of the adverse ... action.” Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 277 (3d Cir. 2010) (internal quotation marks omitted; emphasis added). “To successfully illustrate grounds that the employer's articulated reasons should be disbelieved under the first part of the pretext standard, a 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.” Landmesser v. Hazleton Area Sch. Dist., 982 F.Supp.2d 408, 420 (M.D. Pa. 2013) (internal quotation marks omitted).
Under the second part of the pretext standard, the plaintiff must demonstrate that discrimination was more likely than not the but-for cause of his failure to be hired. To do so, the plaintiff cannot simply attempt to show that the [e]mployer's decision was wrong or mistaken. To demonstrate that an employer was motivated by a discriminatory reason despite its articulated reasons, the plaintiff could show, for example, that the employer has previously discriminated against [him], that the employer has discriminated against other persons within the plaintiff's protected class or within another protected class, or that the employer has treated more favorably similarly situated persons not within the protected class.Id. (internal citations and quotation marks omitted). At the pretext stage, “the factual inquiry into the alleged discriminatory motives of the employer [rises] to a new level of specificity.” Willis, 808 F.3d at 650. The Court also bears in mind “that the prima facie case and pretext inquiries often overlap. As [Third Circuit] jurisprudence recognizes, evidence supporting the prima facie case is often helpful in the pretext stage, and nothing about the McDonnell Douglas formula requires [a court] to ration the evidence between one stage or the other.” Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008).
In support of their contention that Defendants' reasons should be disbelieved, Plaintiff points to the fact that “Defendants have offered different reasons for the failure-to-hire at various points through this litigation.” Pl.'s Br. (ECF No. 83) at 29. According to Plaintiff, Defendants claimed initially that Armendariz was the more qualified applicant, and it was only during the instant motion for summary judgment that Defendants asserted the temporal claim that Verma had decided to recommend Armendariz for hire before speaking to Robben. Id. It is Plaintiff's contention that this new reason is demonstrably false. In support of the argument that Defendants more likely than not were motivated by an invidious discriminatory reason, Plaintiff points to the email authored by Verma referring to Plaintiff as an “elderly lady.” See Pl.'s Br. (ECF No. 83) at 28. Furthermore, Plaintiff points to comments made by Verma about the ages of other applicants during the course of the interview process. See id. at 24. Specifically, Verma referred to a 53-year- old candidate as “[n]ot a good fit” and having a “[v]ery senior personality.” Id. Additionally, Smollen had offered the position to less experienced, but “high potential” younger candidates, although both rejected the position. Id. at 25-26.
“If a plaintiff demonstrates that the reasons given for her termination did not remain consistent, beginning at the time they were proffered and continuing throughout the proceedings, this may be viewed as evidence tending to show pretext, though of course it should be considered in light of the entire record.” Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265, 284 (3d Cir. 2001).
Defendants respond that the evidence demonstrates that Verma did intend to recommend Armendariz to Smollen prior to interviewing Robben, and further contend that Verma credibly testified that Armendariz was the superior candidate. Defs.' Reply (ECF No. 88) at 5. Moreover, Defendants points to Verma's testimony that the reference to the other candidate's “senior personality” was with respect to the roles he held at other companies, not his age. Id. at 2 n.2. Finally, Defendants argue that the reason for hiring Armendariz, that he was the superior candidate, has remained consistent throughout the litigation, and the timing issues arose during Verma's deposition, when she had an opportunity further explain her rationale. Id. at 5.
Here, with respect to the timing regarding the recommendations of Robben and Armendariz, the undisputed facts are as follows. On May 9, 2016, Verma received Armendariz's resume, and he was interviewed on May 16, 2016. Defs.' CSF (ECF No. 76) at ¶ 15. The same day, Verma sent an email stating that she planned to recommend Armendariz to Smollen. Id. at ¶ 17. Also that day, Verma received Robben's resume. Id. at ¶ 21. Verma received Armendariz's additional inputs on May 17, 2016. Id. at ¶ 19. Verma interviewed Robben on May 18, 2016. Id. at ¶ 24. On May 19, 2016, at 12:35 p.m., Verma sent the email where she referred to Robben as “an elderly lady.” Pl.'s CSF (ECF No. 80) at ¶ 65. Minutes later, at 12:40 p.m., Verma recommended Armendariz to Smollen. Def.'s CSF (ECF No. 76) at ¶ 19. At 12:54 p.m. that day, Verma received Robben's additional inputs. Pl.'s CSF (ECF No. 80) at ¶ 81. Verma did not communicate again with Robben, and it was her position that Robben would have been a backup candidate in the event that Armendariz did not work out. See Verma's Depo. (ECF No. 77) at Exhibit A.
Instantly, viewing these facts in the light most favorable to Plaintiff at this stage, on May 19, 2016, Verma had two qualified candidates for the position. Verma recommended one of those candidates to Smollen, and that recommendation was for Armendariz, the candidate whom she did not refer to as “elderly.” Based upon these undisputed facts, a factfinder could conclude that Verma did not recommend Robben based upon her age. In other words, there are genuine issues of material fact as to Defendants' legitimate, non-discriminatory reason for not recommending Robben. In addition to these facts, the circumstantial evidence supports Plaintiff's claim that Verma considered ages of other candidates during the course of this hiring process. Thus, there are genuine issues of material fact as to whether Defendants “discriminated against other persons within the plaintiff's protected class, ” or that Defendants “treated more favorably similarly situated persons not within the protected class.” Landmesser, 982 F.Supp.2d at 420. Accordingly, this court recommends that there are genuine issues of material fact which demonstrate Plaintiff may be able to satisfy the burden as to pretext.
D. Conclusion
Having concluded that at this stage of litigation, there are genuine issues of material fact for a factfinder to decide with respect to both Plaintiff's prima facie case and proof regarding pretext, this Court respectfully recommends that Defendants' motion for summary judgment be DENIED.
Accordingly, pursuant to 28 U.S.C. § 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until May 17, 2021, to file objections to this report and recommendation. Unless Ordered otherwise by the District Judge, responses to objections are due June 1, 2021. Failure to file timely objections may constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
Respectfully submitted.
Marilyn J. Horan United States District Judge