2008 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Williams v. Dover Downs Gaming" (2008). 2008 Decisions. Paper 785.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/785
Honorable A. Wallace Tashima, Senior Judge of the United States Court of *

Appeals for the Ninth Circuit, sitting by designation. 

NOT PRECEDENTIAL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
Dover Downs Gaming & Entertainment, Inc. was dismissed from the action 1

by the district court on October 21, 2005.

Dover Downs, Inc. (“Defendant” or “Dover Downs”) on Plaintiffs’ claim that Defendant 1

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
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.