more expensive mailing lists for testing. By its evidence defendant has articulated a legitimate, non-discriminatory reason for the termination of the plaintiff. The burden is then on plaintiff to show by a preponderance of the evidence that this reason is mere pretext or that defendant acted with actual discriminatory intent. Burdine, 450 U.S. at 256.
Plaintiff first argues that defendant's reason is pretextual because prior to the discharge no one in the company expressed dissatisfaction with plaintiff's job performance or complained about the failure to obtain the new lists. However, the company is under no obligation to warn plaintiff of complaints regarding his performance and, if anything, the effect of such evidence is equivocal, perhaps indicating that plaintiff was receiving the benefit of the doubt. Moreover, there is undisputed evidence that defendant's officers privately discussed plaintiff's failure to obtain the requested lists and also communicated to plaintiff their desire for these lists. In any event, it is undisputed that plaintiff's superior John Smith expressly told plaintiff that he was dissatisfied with the failure of the list department to produce or investigate new, more expensive lists, a full week prior to plaintiff's discharge.
Plaintiff also argues that he was never actually directed to procure the higher-priced lists, until the conversation with John Smith on August 24, 1981. Whether plaintiff had previously been ordered to obtain the new lists or not, he was admittedly aware that the company had been seriously considering such an option over a long period of time. Thus Smith's order of August 24, 1981 should have come as no surprise, but plaintiff was not prepared to act.
It is undisputed that on August 24 Smith directed plaintiff to prepare orders for new higher-priced lists for preliminary testing and have them on Smith's desk within the week. Plaintiff failed to carry out this direct order, despite his familiarity with such lists, and his receipt of a list of suggested sources prepared by his assistant soon after the August 24 meeting.
It is clear that plaintiff did not share the hopes of other company officials on the performance of the more expensive lists. Plaintiff consistently stated his belief that more expensive lists would not perform any better than the ones traditionally employed by the company. However, plaintiff's view of the potential effectiveness of the subject lists is irrelevant. It is undisputed that the other officers considered this a viable alternative, and plaintiff was under direct orders to procure such lists for testing.
Illustrative is the account by plaintiff's assistant, Ed Okruch, of a conversation between plaintiff and Okruch following plaintiff's meeting with Smith. Okruch's account is contained in his affidavit and is not countered by plaintiff in any material respect. Okruch proposed a number of lists which could be ordered for testing to satisfy Smith. Despite Smith's unequivocal instructions and the opinions of the other company officials distilled over eighteen months of discussion and declining response from the traditional lists, plaintiff rejected each source for a variety of reasons, refusing to even obtain them for testing.
Also pertinent is an exchange during the August 24 meeting between plaintiff and Smith. After again expressing his negative opinion on the lists which Smith wanted, plaintiff was warned that he would be replaced if he did not produce the orders for the lists within the week. Plaintiff told Smith that "if you feel that there is somebody else who knows more about names than I do", he should hire him. (Pierce, Depo., pp. 36-37). Again plaintiff undisputedly placed his judgment above that of his superiors and co-workers, even in the face of a direct order.
Essentially then, the undisputed facts reveal: 1) plaintiff was given a direct order on August 24, 1981 to prepare letters ordering new lists for testing within one week; 2) plaintiff was familiar with such lists and was given others by his assistant; 3) plaintiff failed to prepare the letters within the time allotted; 4) On August 31, 1981, plaintiff was discharged. Nowhere in this sequence is plaintiff able to present any facts to indicate pretext or discriminatory intent. He presents no evidence of disparate impact or company policy. The absence of complaints about performance, the absence of earlier commands, and plaintiff's own opinion on high-priced lists are all irrelevant in light of the direct order of August 24 which plaintiff undeniably failed to carry out.
Plaintiff relies on our recent decision in Rubis v. McGraw-Edison Co., 570 F. Supp. 27 (W.D. Pa. 1983), in which we denied defendant's motion for summary judgment. We recognized there the difficulties inherent in proving discriminatory intent and the need for reliance on circumstantial evidence. We do not depart from those views, but we conclude that the Rubis case is distinguishable on its facts, there being some evidence presented in response to defendant's motion for summary judgment in that case of a pattern and past policy of age discrimination. Those facts are not present here.
There is no material issue of fact which would preclude summary judgment. Plaintiff is unable to produce any evidence that he complied with Smith's order within the time allotted or that he was prevented from doing so. Although plaintiff asserts that he had made progress on the request, he had not made the deadline. Plaintiff is unable to produce any other evidence of pretext or discriminatory intent. Defendant will therefore be granted summary judgment on plaintiff's claim under the ADEA. For the same reasons summary judgment in favor of defendant is appropriate on plaintiff's claim under the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. § 951.
Plaintiff also seeks to maintain a common law claim for wrongful discharge in violation of public policy. Plaintiff identifies the root of such a claim in Art. I, Section I of the Pennsylvania Constitution. It is well decided however that the courts will not entertain a separate common law action for wrongful discharge where specific statutory remedies are available. Bruffett v. Warner Communications, Inc., 692 F.2d 910, 920 (3d Cir. 1982); Bonham v. Dresser Industries, Inc., 569 F.2d 187, 195 (3d Cir. 1978); see also, Wolk v. Saks Fifth Avenue, Inc., 728 F.2d 221, slip op. at 6 (3d Cir. 1984). For this reason summary judgment will be granted in favor of the defendant on plaintiff's common law claim for wrongful discharge.
Plaintiff also states a common law claim for intentional infliction of emotional distress. While it appears that such a claim may be brought in conjunction with statutory actions for discrimination, Shaffer v. National Can Corp., 565 F. Supp. 909 (E.D.Pa. 1983), we conclude that plaintiff here is unable to produce evidence sufficient to withstand summary judgment on this claim. Our review of the evidentiary material submitted does not reveal any evidence of extreme and outrageous conduct which would support recovery under this claim. To the contrary, the undisputed facts reviewed above reveal a legitimate reason for the discharge, negating any allegation of extreme and outrageous conduct.
For the reasons stated above, summary judgment will be granted in favor of the defendant on all claims. An appropriate order will issue.
© 1992-2004 VersusLaw Inc.