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KELLER v. BLUEMLE

September 12, 1983

JOSEPH J. KELLER
v.
LEWIS W. BLUEMLE, et al.



The opinion of the court was delivered by: GILES

 GILES, J.

 Joseph Keller, a former employee of Thomas Jefferson University ("TJU") alleges that he was discharged in violation of the Age Discrimination in Employment Act of 1967 (ADEA) 29 U.S.C. ยง 621 et seq. (1976 & Supp. V 1981). Defendants now move for summary judgment asserting that plaintiff has failed to, and cannot, adduce evidence sufficient either to establish a prima facie case of age discrimination or to rebut defendants' proffered legitimate reasons for his dismissal. For the reasons which follow, defendants' motion will be granted.

 I. BACKGROUND

 Keller, presently age 59, was a Training Supervisor in the Department of Custodial Services at the time of his dismissal on May 7, 1980. He had been appointed to that position in 1972 following four years as a personnel assistant. It is agreed that Keller was doing a good job through 1978, as documented by a written appraisal prepared on May 24, 1978, by Keller's superior, Custodial Services Director George Curran. The appraisal rated Keller "outstanding" in three performance categories and "good" overall.

 Critical to a determination of the age discrimination claim are the events during the seven week period beginning March 20, 1980. On that date, Curran met with Keller to announce changes he was making in the training program, including a deemphasis in the audio-visual component and a provision for employees' evaluation of the training provided by their foremen. According to plaintiff, Curran became upset during the meeting when Keller expressed opposition to some of the announced changes. A follow-up meeting was held March 27, 1980 during which Keller first requested Curran to provide him with a written description of his job duties as Training Supervisor. According to Keller, he requested the job description two or three times during the meeting but was told by Curran that he had all the information he needed. Plaintiff's repeated requests for the job description in the ensuing weeks became a major point of contention between Keller and Curran.

 About two weeks later, on April 9, 1980, Keller sent a memorandum to Curran in which he reviewed the evolution of the training program from his perspective and stated that his superior did not have previous direct involvement in the training program because of other matters which Curran must have considered much more important. Keller also repeated his opposition to Curran's plan for employee evaluation of the training, cited prior memos dating from 1973 as to which he accused Curran of giving no response, and requested a copy of his 1972 job description. Curran met with Keller on or about April 11, 1980 to discuss the memorandum. According to plaintiff, Curran reacted angrily, asserting that the memorandum was a criticism of him which bordered on insubordination.

 Thereafter, on April 15th, Curran sent Keller a letter expressing displeasure over the "unsolicited memorandum" which, in his opinion, contained "many inappropriate and inaccurate comments" and included some items beyond Keller's area of responsibility. The letter warned him to follow the new training procedures and to perform all job assignments even if he objected. Citing an admission by Keller that he was not working a full eight hour day, Curran also warned Keller that any further infraction would result in disciplinary action. Finally, Curran enclosed copies of Keller's most recent job description dated August, 1978 and a daily work schedule, both of which had been given to Keller on April 25, 1979. Curran reminded Keller that the job description, which included a provision for "related duties as assigned," adequately described his position.

 A few days later, on April 18, 1980, Keller reiterated his written request for a copy of the 1972 job description. Keller indicated that a carbon copy of the request was being sent to a private attorney. On April 23, 1980, Curran did send Keller a copy of a job description dated April, 1972. However, five days later, on April 28, 1980, Keller advised Curran by letter that the April, 1972 job description was not "official" and demanded an "original official Thomas Jefferson University Position Description (Form BBB-1)." Keller also advised Curran that this was the "third and final request through these channels." Again, Keller indicated that a copy of the letter was being sent to an attorney.

 On May 1, 1980, Keller sent another memorandum to Curran. He requested a private meeting to discuss Curran's angry conduct during their meeting on April 11. According to plaintiff, he had made at least five verbal requests for such a meeting, all of which Curran declined. In the memorandum, Keller stated that unless Curran agreed to meet with him, it would be necessary to address the matter in an open letter to the president of the university.

 Plaintiff alleges that the incidents in question were contrived to create an untenable work situation in order to force his resignation. He asserts that he had an impeccable work record, his termination was not "for cause," and his discharge violated TJU personnel policies. He questions defendants' agents' credibility in view of an official TJU termination document of May 7, 1980, showing that Keller "voluntarily terminated." He also claims TJU lacks credibility because it did not oppose his application for unemployment compensation. On the other side, defendants allege that plaintiff's discharge was made necessary by his "rude and insubordinate" behavior. According to them, Keller's behavior during the critical period from March 20, 1980 to May 7, 1980 destroyed communication between Keller and Curran, and led to Curran's lack of confidence in Keller's ability to function as a member of his management team. In support of this allegation, defendants cite Keller's: (1) failure to observe the one-half hour lunch set forth in the work schedule first distributed to him on April 25, 1979; (2) refusal to accept new training procedures; (3) "obsessive" persistence in seeking an outdated job description; (4) refusal to continue an assigned duty (taking training pictures); (5) "sarcastic and inappropriate" letters to his superior; and (6) threats to take his disputes with Curran directly to the university president or to an attorney without following established internal grievance procedures.

 II. DISCUSSION

 In deciding TJU's motion for summary judgment, the court must resolve any doubts as to the existence of genuine issues of fact against the moving party and must view all reasonable inferences in the light most favorable to the party opposing the motion. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981); Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). Although the Third Circuit has emphasized that summary judgment is considered a drastic remedy, Hollinger at 405, courts must grant the motion where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A ...


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