United States District Court, D. Nevada
JOHN F. KOCIENSKI, Plaintiff(s),
NRT TECHNOLOGIES, INC., Defendant(s).
before the court is defendant NRT Technologies, Inc.'s
motion for summary judgment. (ECF No. 25). Plaintiff Jack
Kocienski filed a response (ECF No. 28), to which defendant
replied (ECF No. 31).
of 2013, plaintiff, with the recommendation of Steven
Johnson, defendant's vice president of gaming North
America and general manager of defendant's office in Las
Vegas, submitted a resume and application to work as an
account executive for defendant. (ECF No. 25). In August
2013, Rosa Laricchia, defendant's senior vice president
of sales, conducted a phone interview with plaintiff for the
position. Id. Defendant alleges that plaintiff's
application specified that he was 63 years-old when he
applied, Johnson's recommendation informed defendant that
plaintiff would be coming out of retirement for the position,
and the interview included discussion of plaintiff's work
experience. Id. Plaintiff alleges that during this
initial interview, Laricchiaasked plaintiff if he could close
deals at his age. (ECF No. 28).
approved defendant's hiring of plaintiff. On August 20,
2013, plaintiff signed defendant's employment agreement.
(ECF No. 25). The week of September 23, 2013, Laricchia met
plaintiff in person for the first time at the
“G2E” trade show in Las Vegas. Id.
Laricchia next saw plaintiff in November 2013, when he flew
to Toronto for sales training. Id.
November training, plaintiff alleges that Laricchia told
plaintiff that defendant does not like to hire older people
because they could retire in two to three years. (ECF No.
28). Plaintiff also asserts that when leaving that training,
he and Laricchia ran into John Dominelli, defendant's
president. Id. Plaintiff claims that Laricchia told
Dominelli that plaintiff planned on retiring at the
end of 2017, to which Dominelli responded, “[l]ook at
me. I'm older than you, and I'm going to continue to
work until I drop.” Id.
alleges that in November or December of 2013, Dominelli
called Johnson and told him, “I think [plaintiff] is
too old. We ought to fire him because he's too
claims that beginning in late 2013 or early 2014 and
continuing throughout his employment, Laricchia began calling
plaintiff “old man.” (ECF No. 28). Plaintiff
claims that he told Laricchia not to call him that, but that
she continued anyway. Id. Plaintiff asserts that
Laricchia called him “old man” approximately 50
times. Id. Plaintiff claims he informed
Johnson about Laricchia calling him “old man.”
Id. Plaintiff also claims that Johnson called him
“old man” and “grumpy old man”
approximately 100 times. Id.
alleges that in the spring of 2014, Laricchia made comments
about three other employees being too old for their
employment with defendant. (ECF No. 28).
assert that in early December of 2014, Johnson talked with
the sales people in defendant's Las Vegas office about a
new employment plan (“new plan”) that increased
the annual base salary for its account executives and would
change several job titles, including plaintiff's, from
account executive to vice president. (ECF No. 25). At the
time, the new plan still needed to be approved and Laricchia
still needed to conduct due diligence. Id.
than one week later, Johnson took time off for personal
reasons, and Laricchia took over his duties, increasing her
workload and requiring her to fly between Toronto and Las
Vegas regularly. Id. Defendant alleges that, at this
time, plaintiff began calling and emailing Laricchia several
times per week to see when the new plan would be implemented.
Id. Laricchia informed plaintiff that she was busy
to her increased workload, but reassured him that the new
plan “would ultimately be approved, and that even if it
was not finalized before the end of the year, it would still
be made retroactive to January 1, 2015.” Id.
Defendant alleges that the frequency of emails increased, and
plaintiff became “increasingly angry, aggressive, and
confrontational” whenever he spoke with Laricchia about
why the new plan had not been instituted yet. Id.
claims that around later that month, Laricchia was made aware
that plaintiff was being disruptive at work by trying to
create dissent among defendant's sales people because he
believed the new plan was being delayed without
justification. (ECF No. 25). Defendant alleges that on
December 31, 2014, plaintiff sent an email to Johnson and all
of the other sales people that “voiced his
dissatisfaction with [defendant's] sales commission
payment structure as well as his job title.”
asserts that every other sales person in the Las Vegas
office, except one, called him because they were upset over
the new plan being delayed. (ECF No. 28). Plaintiff also
claims that employees “were encouraged to voice any and
all complaints” based on the defendant's open door
January 5, 2015, Brenda Hopcroft, defendant's cash
management and compliance coordinator, sent plaintiff an
e-mail asking him to provide his financial information on a
gaming application to the Santa Rosa Rancheria Gaming
Commission, the regulatory authority that had jurisdiction
over one of plaintiff's clients. (ECF No. 25). Plaintiff
responded that he was not going to disclose his financial
information. Id. Defendant asserts that Laricchia
was forced to step in on Hopcroft's behalf, but that
plaintiff “tersely” refused again. Id.
alleges that by mid-January, plaintiff was calling and
e-mailing Laricchia so often that she felt harassed.
Id. On January 19, 2015, Laricchia informed
plaintiff that she would discuss his concerns with
defendant's human resources director, Renee Chang, and
have her call him to talk about the new plan. Id.
Defendant claims that plaintiff sent Laricchia an e-mail
response not to have Cheng call him because it would only
“fuel the fire more.” Id.
claims that on January 22, 2015, plaintiff called Laricchia
again regarding the new plan. Id. Plaintiff stated
again that he was upset that it was not yet instituted.
Id. Laricchia told him it would be implemented soon
and that it would be retroactive, but plaintiff allegedly
responded that he no longer trusted Dominelli or Laricchia.
January 23, 2015, Laricchia called Dominelli, informed him
about plaintiff's conduct, and recommend to Dominelli
that defendant terminate plaintiff's employment.
Id. Dominelli agreed with Laricchia's
recommendation and that defendant had no choice but to
immediately terminate plaintiff's employment.
January 23, 2015, after speaking with Dominelli, Laricchia
called plaintiff on the telephone and informed him that his
employment with defendant was terminated and to contact
defendant's human resources if he had questions.
Id. Plaintiff claims that when he asked why his
employment was being terminated, Laricchia told him that
defendant did not need to give him a reason. (ECF No. 28).
Plaintiff claims that after his termination, defendant hired
Rosario Gonzalez, who was 32 and did not have any experience
in the type of sales that defendant handled. Id.
claims that Laricchia called him “old man” one
day prior to his termination. (ECF No. 28). Plaintiff also
claims that Dominelli had no issues with plaintiff's
sales performance during his employment. Id.
claims that after he was terminated, defendant failed to pay
him all the wages he was due. (ECF No. 28). On July 13, 2015,
and August 7, 2015, plaintiff filed wage claims with the
labor commissioner. Id. Both claims resolved with
defendant paying plaintiff in accordance with an order from
the labor commissioner. Id.
August 13, 2015, plaintiff filed his charge of age
discrimination with the Equal Employment Opportunity
Commission (“EEOC”). (ECF No. 1). The EEOC issued
a notice of suit rights on March 17, 2016. Id.