EDUARDO C. ROBRENO, District Judge.
Plaintiff Darlene Cellucci brings this employment discrimination action against RBS Citizens Financial Group, Inc. and its subsidiary, Citizens Bank of Pennsylvania, (collectively, "Citizens Bank"). Cellucci claims that her employment with Citizens Bank was terminated because of her age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Citizens Bank has moved for summary judgment, and, for the reasons that follow, the Court will grant the motion in its entirety.
Cellucci began working for Citizens Bank in 1999, at the age of 51. Pl.'s Resp., Ex. C, Cellucci Dep. 81:13-15, 83:2-3, ECF No. 21-3. She was soon promoted to branch manager of Citizens Bank's Broad and McKean Street location in Philadelphia, and she remained in that position until her employment was terminated in April 2012. Id. at 76:3-9, 83:4-7.
From 2008 to 2011, Cellucci was supervised by Brian Williams, a Citizens Bank regional manager. Cellucci describes her relationship with Williams as "wonderful," and she has never accused him of age discrimination or unfairness of any kind. Id. at 83:22-24, 88:1-3; see also Pl.'s Resp. 6, ECF No. 21. In February 2009, she received an annual performance review from Williams that gave her an overall rating of 3 out of 5, indicating that her objectives were "fully achieved." Pl.'s Resp., Ex. E, 2009 Annual Performance Evaluation, ECF No. 21-5. A few months later, however, Williams gave her a verbal warning due to her branch's failure to meet minimum performance expectations for the previous six consecutive quarters. Def.'s Mot. Summ. J., Ex. 4, Verbal Counsel Memo, ECF No. 20-4. Cellucci's 2010 performance review indicated similar problems; Williams assigned her a "2" rating, suggesting that development was needed. Def.'s Mot. Summ. J., Ex. 6, 2010 Performance Review, ECF No. 20-6. In particular, Williams noted that, although Cellucci possessed "very strong leadership skills which her team responds to," she "had a challenging year" with regard to the quantitative sales benchmarks recorded on the branch's "scorecard." Id.
In March of 2011, Williams transferred to a different position, and Cellucci began reporting to Westton Geer, a new regional manager. Pl.'s Resp. 6; Def.'s Mot. Summ. J. 4, ECF No. 20. Soon after Geer took over, he called Citizens Bank's Employee Relations Service Center ("ERSC") to discuss three employees, including Cellucci, who had been rated a "2" on their 2010 performance reviews and had failed to achieve their performance goals for the first quarter of 2011. Pl.'s Resp. 32-33;
Geer gave Cellucci her PIP on or around April 20, 2011. Def.'s Mot. Summ. J., Ex. 10, Cellucci PIP, ECF No. 20-10; Cellucci Dep. 106:24-107:7. The PIP noted her performance deficiencies, explained that she had sixty days to "demonstrate immediate and sustained improvement," and advised that if her performance did not improve she "may be subject to further disciplinary action, up to and including termination." Cellucci PIP. Cellucci signed the PIP, but later called ERSC to clarify several aspects of it. In particular, Cellucci called to make sure that she had sixty days to improve her performance, as Geer told her she had only thirty days. ERSC Case No. 385907-0. Cellucci also claimed that some of her performance benchmarks were incorrect, and ERSC told her that her PIP would be amended if she provided the scorecards showing her actual results. Id. Cellucci did so, and it appears from ERSC records that her sales score was changed from 57% to 67%. Id.
One day after receiving her PIP, Cellucci went on a medical leave of absence to undergo knee surgery. Pl.'s Resp. 7; Cellucci Dep. 106:9-12. She returned from leave in July 2011, and shortly after her return she had an unpleasant conversation with Geer. According to Cellucci, Geer asked her when she was going to retire, and commented that she "probably had a fat 401(k) and a pension." Cellucci Dep. 94:1-3, 98:21-99:14. He also asked her about the retirement plans of two other employees, and told her that "the bank is changing and it needs new younger faces." Id. at 131:18-132:24; see also id. at 137:21-138:1. Cellucci responded that she did not appreciate those comments, that she was too young to retire, and that she could not afford to do so. Id. at 94:4-8, 133:1-10, 240:5-8. Nonetheless, Geer allegedly asked Cellucci about her retirement plans several more times during the year prior to her termination.
Several months later, in January 2012, Geer issued Cellucci her 2011 performance review, which again rated her performance a "2." Pl.'s Resp., Ex. G, 2011 Performance Review, ECF No. 21-7. Geer explained that Cellucci had "worked and lived in the South Philly community for many years and ha[d] built strong relationships with customers that visit her branch," but that her "challenge will be continuing to adapt to the recent and ongoing changes in the banking industry." Id. He further stated that Cellucci had "a well tenured team who could potentially be set in their ways and more challenging to coach." Id. He noted that, although Cellucci "works extremely hard at trying to achieve her goals," her efforts had "not shown up" in the scorecard benchmarks, and her branch still had "major" deficiencies in sales numbers. Id.
In addition to issuing Cellucci her performance review, Geer also gave her a "final written warning," which gave her until March 10, 2012 to correct her performance deficiencies. Pl.'s Resp. 8; see also Pl.'s Resp., Ex. J, Final Written Warning, ECF No. 21-10. The warning noted that Cellucci had received a "2" on both her 2010 and 2011 annual performance reviews (which categorized her as a "serial underperformer"), that she had been administered a PIP, and that since the issuance of the PIP she had failed to
In April 2012, Geer contacted ERSC to initiate termination of Cellucci's employment. Def.'s Mot. Summ. J., Ex. 18, ERSC Records, ECF No. 20-18. He explained that, although he had "seen improvement in [Cellucci's] performance in some areas, she didn't improve in the core areas" of focus for her region. Id. ERSC independently confirmed that Cellucci had not met her baseline goals for the first quarter of 2012, and then gave Geer approval to terminate her employment. Id. He did so on April 12, 2012. Pl.'s. Resp., Ex. I, Def.'s Resp. First Interrog., ECF No. 21-9. At that time, Cellucci was 63 years old — the oldest branch manager under Geer's supervision. Id. Geer replaced Cellucci with Virginia Fleishman, who is eleven years younger than Cellucci. Pl.'s Resp., Ex. K, Fleishman Dep., ECF No. 21-11.
Cellucci was not the only branch manager to face disciplinary action under Geer's supervision. As mentioned above, Geer identified two other branch managers — Cynthia Scott and Phillip Gerace — as "serial underperformers," placed them on Performance Improvement Plans, and eventually issued them final written warnings. Pl's. Resp., Ex. P, Def.'s Resp. Second Interrog., ECF No. 21-16. In August 2011, Geer fired Scott, who was 55 years old at the time. In her deposition, Scott said that Geer had once commented that her salary was large and that she "must have a big 401(k)," but she did not remember him ever asking her about retirement or making other age-related comments. Pl.'s Resp., Ex. M, Scott Dep. 18:17-20:23, ECF No. 21-13. Gerace, who is currently 33 years old, voluntarily stepped down from branch manager and into a banker position at a different bank branch in September 2011. Id., Ex. O, Gerace Dep. 13:1-14:15, ECF No. 21-15. As of July 15, 2013, he was still employed by Citizens Bank. Gerace Dep. 7:19-20.
Shortly after her employment was terminated, Cellucci filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"), alleging that she had been discriminated against because of her age, and that her termination was in retaliation for complaints of age discrimination. After waiting sixty days for the EEOC to act, she filed the complaint in the instant action, bringing one count of discrimination and one count of retaliation under the ADEA. Compl. ¶¶ 23-29, ECF No. 1. Citizens Bank answered (ECF No. 9), and the parties proceeded to discovery.
On May 28, 2013, Cellucci filed a motion for leave to file an amended complaint, which would add state law claims under the Pennsylvania Human Relations Act ("PHRA"). ECF No. 17. Before the Court ruled on that motion, Citizens Bank moved for summary judgment on all counts in the original complaint. Cellucci responded on September 6, 2013, and the motion is now ripe for disposition.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). "A motion for summary judgment will not be defeated by `the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is "material" if proof of its existence or nonexistence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
The Court will view the facts in the light most favorable to the nonmoving party. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth., 593 F.3d 265, 268 (3d Cir.2010). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the nonmoving party who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
Cellucci claims that her employment with Citizens Bank was terminated on the basis of her age, in violation of the ADEA, 29 U.S.C. § 621 et seq. Compl. ¶ 24. She also brings a claim of retaliation, contending that she was fired because of her complaints about age discrimination. Compl. ¶ 28. Citizens Bank disagrees, saying that Cellucci was fired because of her ongoing poor performance, and that no reasonable juror could find otherwise.
The ADEA makes it unlawful for an employer "to discharge any individual... because of such individual's age." 29 U.S.C. § 623(a)(1). That prohibition is designed to prevent older workers from "being deprived of employment on the basis of inaccurate and stigmatizing stereotypes," such as the belief that "productivity and competence decline with old age." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). The ADEA therefore commands employers not to use age as a proxy for an employee's actual characteristics, but rather "to evaluate older employees on their merits." Id. at 611, 113 S.Ct. 1701 (alteration and internal quotation marks omitted).
It is well settled that, to succeed on a claim of discrimination under the ADEA, a plaintiff must show that her age "actually played a role" in the employer's decision-making process "and had a determinative influence on the outcome." Id. at 610, 113 S.Ct. 1701. More recently, in Gross v. FBL Financial Services, Inc., the Supreme Court further held that a plaintiff bringing an age discrimination claim "must prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the `but-for' cause of the challenged employer decision." 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). That is so, the Court explained, because "[u]nlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor" in the employment action. Id. at 174, 129 S.Ct. 2343. Rather, under the plain language of the ADEA, the complained-of action must have been "because of" the
A plaintiff can satisfy that burden in one of two ways — either by demonstrating with direct evidence that age was the "but-for" cause of the employment action, or by using the McDonnell Douglas framework to establish that the employer's proffered reason for the employment action is a mere pretext for unlawful discrimination. Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir.2009) (concluding that "the but-for causation standard required by Gross does not conflict with our continued application of the McDonnell Douglas paradigm in age discrimination cases"). Cellucci argues that she can satisfy her burden under either method.
Even before the Gross decision, proving discrimination by direct evidence was a "high hurdle," as it required that the evidence "reveal a sufficient discriminatory animus" to render any shift in the burden of production "unnecessary." Anderson v. Consol. Rail Corp., 297 F.3d 242, 248 (3d Cir.2002). To satisfy that standard, a plaintiff had to present "evidence of discriminatory attitudes about age that were causally related to the decision to fire her." Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 512 (3d Cir.2004); see also Salkovitz v. Pioneer Elec. (USA) Inc., 188 Fed.Appx. 90, 93 (3d Cir.2006) (not precedential) (requiring a plaintiff to "show a direct causal connection between his termination and an alleged animus towards older employees") (internal quotation marks omitted). In other words, the evidence had to "`lead[] not only to a ready logical inference of bias, but also to a rational presumption that the person expressing bias acted on it' when he made the challenged employment decision." Fakete v. Aetna, Inc., 308 F.3d 335, 339 (3d Cir. 2002) (quoting Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1097 (3d Cir. 1995)).
Pre-Gross, a plaintiff could meet that burden without showing that discriminatory animus was the but-for cause of the adverse action — it was enough to show that the decision-makers "placed substantial negative reliance on [the plaintiff's age] in reaching their decision." Id. at 338 (alteration in original). If a plaintiff succeeded in showing such reliance, the burden of persuasion then shifted, and the employer had to "prove that it would have fired the plaintiff even if it had not considered his age." Id. In Gross, however, the Supreme Court made clear that such burden-shifting is inappropriate in age discrimination cases, and that the burden of persuasion remains with the plaintiff "even when a plaintiff has produced some evidence that age was one motivating factor in [the] decision." Gross, 557 U.S. at 180, 129 S.Ct. 2343; see also id. at 174, 129 S.Ct. 2343 (declining to apply the Price Waterhouse burden shifting to ADEA claims). The Gross holding has therefore altered the direct evidence standard in age discrimination cases in two ways: (1) the plaintiff's direct evidence must do more than "show that age played some minor role in the decision" — it must show that the decision would not have occurred without improper consideration of age; and (2) the defendant no longer bears the burden of proving that it would have taken the action regardless of age. Kelly v. Moser, Patterson, & Sheridan, LLP, 348 Fed. Appx. 746, 749 (3d Cir.2009) (not precedential);
Cellucci's limited evidence of discriminatory animus is insufficient to meet the post-Gross direct evidence standard.
When, as here, a plaintiff is unable to establish a claim of discrimination using direct evidence, she can do so using circumstantial evidence under the familiar
In an age discrimination case under the ADEA, a plaintiff can establish a prima facie case by demonstrating (1) that she is forty years of age or older; (2) that her employer took an adverse employment action against her; (3) that she was qualified for the position in question; and (4) that she was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. Id. at 689. Here, Citizens Bank does not dispute that Cellucci has established the first, second, and fourth of those elements, as it is uncontested that she was older than forty when her employment was terminated, that she experienced an adverse employment action, and that she was replaced by an employee eleven years her junior. Nonetheless, Citizens Bank argues that Cellucci has not established a prima facie case of discrimination because she cannot show that she was qualified for the position of branch manager. According to Citizens Bank, Cellucci's ongoing performance deficiencies prevent her from establishing that necessary element of her prima facie case. Def.'s Mot. Summ. J. 16.
The burden of establishing a prima facie case is not meant to be onerous, as that step in the McDonnell Douglas framework merely provides "a sensible, orderly way to evaluate the evidence" to determine whether it is adequate to create an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); see also Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 787 (3d Cir.2007) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). When evaluating the plaintiff's prima facie case, courts should consider a plaintiff's "objective job qualifications," but should leave "the question of whether an employee possesses a subjective quality, such as leadership or management skill, ... to the later stage of the McDonnell Douglas analysis." Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir.1990). Even when a plaintiff lacks the objective background qualifications ostensibly necessary for a position, such as a certain degree or a number of years of experience, the plaintiff's "satisfactory performance of duties, leading to promotion" generally will
Here, Citizens Bank's argument regarding Cellucci's qualifications is identical to its proffered reason for her termination: she received poor performance evaluations for multiple years. Although those evaluations were based in part on objective measures, such as sales figures, Citizens Bank has not produced evidence showing that the goals Cellucci was expected to meet "constituted a standard of performance expected of all" employees in her position, instead of "a subjective determination by [her supervisor] of the performance level [she] had to achieve to be deemed a satisfactory" manager of her branch. See Weldon, 896 F.2d at 799. Furthermore, it is undisputed that Cellucci performed her job successfully for many years, and during that period she received a promotion and several performance awards. Therefore, as it is clear that Cellucci was qualified for her job in the past, her more recent performance deficiencies are more appropriately addressed at the next stage in the McDonnell Douglas analysis. Accordingly, the Court concludes that, for purposes of the first step in the McDonnell Douglas analysis, Cellucci has shown that she is qualified for the position of branch manager, and thus has satisfied the relatively light burden of establishing a prima facie case of age discrimination.
The Court therefore turns to Step Two of the McDonnell Douglas framework, at which point the burden shifts to Citizens Bank to produce "sufficient evidence to support a nondiscriminatory explanation for its decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Citizens Bank has clearly met that burden here, providing evidence that Cellucci's employment was terminated due to her ongoing performance deficiencies.
Once Citizens Bank has stated a non-discriminatory reason for the adverse employment action — in this case, the termination — Cellucci must satisfy Step Three in the analysis, which requires that she "provide evidence from which a factfinder could reasonably infer that the employer's proffered justification is merely a pretext for discrimination." Burton, 707 F.3d at 426. To make such a showing, the plaintiff must provide evidence "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 ... determinative cause of the employer's action." Id. at 427 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994)). A plaintiff can discredit a proffered reason by "demonstrat[ing] such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in the employer's explanations for its action "that a reasonable factfinder could rationally find them `unworthy of credence.'" Id. (quoting Fuentes, 32 F.3d at 765). Put more simply, 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, Inc., 130 F.3d 1101, 1109 (3d Cir.1997).
Here, Cellucci makes little effort to rebut Citizens Bank's proffered reason for her termination as implausible or inconsistent.
Nonetheless, Cellucci does identify two potential weaknesses in Citizens Bank's stated reason for its action: (1) Phillip Gerace, a younger branch manager also labeled a "serial underperformer," was not fired, suggesting that Cellucci received disparate treatment; and (2) given Cellucci's "stellar tenure" with Citizens Bank, the "drastic change" in her evaluations calls into question Citizens Bank's proffered explanation. Pl.'s Resp. 32-33, 35. Neither alleged weakness stands up to scrutiny.
Cellucci's disparate treatment argument is simply unsupported by the evidence. It is true that, like Cellucci, Gerace was issued a 2 rating on his 2010 annual review, and then also failed to meet performance goals during the first quarter of 2011. Therefore, like Cellucci, he was placed on a Performance Improvement Plan. When he again received a "2" on his 2011 annual review, he was issued a final written warning — again, just as Cellucci was. At that point, Gerace — on his own accord — found a banker position at a different branch and stepped down from his position as branch manager.
In addition to those attempts to rebut Citizens Bank's proffered explanation for her termination, Cellucci contends that Geer's allegedly discriminatory comments are themselves evidence of pretext. Pl.'s Resp. 28-32. According to Cellucci, Geer's "numerous age-related comments ... reflect a discriminatory animus on the part of Defendants," which could support a finding that "Geer's decision to terminate Ms. Cellucci was based on invidious discrimination — and therefore that the alleged reason for her termination is pretextual." Pl.'s Resp. 31-32. In other words, Cellucci argues that, based upon Geer's comments alone, a reasonable jury could conclude that Citizens Bank's proffered reason is actually a disguise for a discrimination, and she "would not have been terminated but for [her] age." Connolly v. Pepsi Bottling Grp., LLC, 347 Fed.Appx. 757, 761 (3d Cir.2009) (not precedential) (citing Gross, 557 U.S. at 180, 129 S.Ct. 2343); see also Smith, 589 F.3d at 692 (deciding whether a "reasonable jury could agree that [employer] terminated [employee] on the basis of age discrimination").
Cellucci's evidence is insufficient to satisfy that standard. Most (if not all) of Geer's objectionable comments were made outside of the context of the decision-making process and almost a year before Cellucci's termination. See Ezold, 983 F.2d at 545 (explaining that "stray remarks" that are "unrelated to the decision process are rarely given great weight," particularly when they are "temporally remote from the date of decision"). Given the substantial undisputed evidence of record supporting Citizens Bank's proffered reason for its employment action, Geer's "handful of ... remarks about [Cellucci's] age and retirement plans" lack the probative force necessary for a reasonable jury to conclude that Cellucci was actually terminated on the basis of her age. See Salkovitz, 188 Fed. Appx. at 94; see also Smith, 589 F.3d at 691 (concluding that, given plaintiff's documented performance problems, employer's references to his age and retirement plans were insufficient to establish pretext); Connolly, 347 Fed.Appx. at 760-61 (holding that evidence of several disparaging comments about plaintiff's age "lack[s] probative force in light of the undisputed evidence of record relating to the stated basis for the termination") (alteration in original). Put another way, although Geer's comments may support an inference that he harbored some age-related biases, they do not suggest that Citizens Bank's proffered reason for Cellucci's termination — her undisputed poor performance for multiple years — is a mere pretext for unlawful discrimination. Accordingly, the Court will grant Defendants' motion for summary judgment as to Plaintiff's age discrimination claim under the ADEA.
In addition to her claim of age discrimination, Cellucci also brings a claim
To establish a prima facie case of retaliation under the ADEA, "a plaintiff must show: (1) that s/he engaged in a protected employee activity; (2) that s/he was subject to adverse action by the employer either subsequent to or contemporaneous with the protected activity; and (3) that there is a causal connection between the protected activity and the adverse action." Fasold v. Justice, 409 F.3d 178, 188 (3d Cir.2005). Although the causation analysis is highly fact-based, and depends on the particular context in which the events occurred, a plaintiff can generally establish a causal connection by showing that the temporal proximity between the protected activity and the adverse action is "unusually suggestive," or through a combination of timing and other evidence of ongoing antagonism or retaliatory animus. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.2000). Importantly, "[t]hese are not the exclusive ways to show causation, as the proffered evidence, looked at as a whole, may suffice to raise the inference." Id. (quoting Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir.1997)).
Cellucci has failed to produce any evidence suggesting a causal connection between her alleged complaints
For the foregoing reasons, the Court will grant Defendant's motion for summary judgment in its entirety and enter judgment in favor of Defendant on all of Plaintiff's claims. An appropriate order follows.
The deposition testimony does not support Cellucci's claim. Rather, according to Cellucci's deposition, the only allegedly discriminatory comments that Geer repeated after their July 2011 conversation were his questions about her retirement plans. See Cellucci Dep. 97:10-15, 100:16-18. She never claimed during her deposition, despite repeated inquiries, that Geer repeated his other comments about the size of her 401(k) and needing "younger faces" at the office. Her unambiguous testimony was that Geer made several offensive comments during their July 2011 conversation, and, after that conversation, he asked about her retirement plans on several occasions.
The late-arriving certification, on the other hand, states that Cellucci was "subjected to continuous derogatory comments by Geer about [her] age" during the last year of her employment, and that "Geer repeatedly said that since the banking industry is changing, he wants newer younger employees to work in the branch, that he was looking for `younger faces' to work at [her] branch, that due to [her] age, [she] was set in [her] ways, ... and that [she] must have a large 401(k)." Cellucci Cert. In other words, Cellucci now claims that the conversation she allegedly had with Geer when she returned from medical leave in July 2011 was a common, repeated occurrence during her last year of employment — something she never claimed during her deposition. The affidavit is therefore not a mere supplement identifying an additional incident that she failed to recall during her deposition, but instead constitutes a material change in her position.
In light of the discrepancies between Cellucci's certification and her earlier deposition testimony, the Court will not consider the certification for purposes of resolving the instant motion. Under a doctrine known as the "sham affidavit doctrine," trial judges may disregard affidavits that contradict earlier deposition testimony when deciding motions for summary judgment. Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir.2007). The doctrine is based upon the theory that an affidavit that contradicts an individual's earlier testimony "indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment." Id. Therefore, when confronted with a contradictory affidavit, "it is proper for the trial judge to conclude that no reasonable jury could accord that affidavit evidentiary weight." Id. Such a rule makes practical sense, as "prior depositions are more reliable than affidavits," which "are usually drafted by counsel, whose familiarity with summary judgment procedure may render an affidavit less credible." Id.
The Third Circuit uses a flexible version of the sham affidavit doctrine, pursuant to which courts generally should not disregard an affidavit when it is supported by independent evidence, but may do so "[w]hen a party does not explain the contradiction between a subsequent affidavit and a prior deposition." Id. at 254. The subsequent affidavit need not directly contradict the earlier deposition testimony if there are other reasons to doubt its veracity, such as its inclusion of "eleventh-hour revelations" that could have easily been discovered earlier. Id. at 254-55.
Under the circumstances of this case, the Court will disregard Cellucci's "certification," as its allegation of repeated age-related comments constitutes a material change in her testimony that she fails to explain (or even acknowledge).
