Kocienski v. NRT Technologies, Inc.

          ORDER

         Presently 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).

         I. Facts

         In July 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, Laricchia^[1]asked plaintiff if he could close deals at his age. (ECF No. 28).

         Laricchia 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.

         At the 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^[2] 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.

         Plaintiff 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 old.” Id.

         Plaintiff 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.^[3] 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.

         Plaintiff 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).

         Defendants 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.

         Less 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.

         Defendant 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.” Id.

         Plaintiff 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 policy. Id.

         On 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.

         Defendant 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.

         Defendant 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. Id.

         On 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. Id.

         On 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.

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         II. ...