The opinion of the court was delivered by: WEBER
Plaintiff brings this action alleging that defendant discriminated against him based on his age when the defendant company discharged him in August, 1983. Defendant has filed motions for summary judgment and in limine asking this court to dismiss this action or, alternatively, to exclude certain evidence plaintiff relies on and intends to present at trial.
Defendant's motion in limine seeks to bar plaintiff from introducing and relying on the following witnesses and evidence:
1. The discharge of Charles Triplett by Pennsylvania Drilling in 1976;
2. The discharge of Mr. Earl Hoffman in 1978;
3. Plaintiff's job performance on jobs prior to the Little Blue Run job in 1981; and
4. Plaintiff's job performance on jobs for other employers subsequent to his termination by Pennsylvania Drilling Company, Inc. on August 8, 1983.
In support of this motion, defendant has submitted statistical evidence establishing that 65% of the drillers (plaintiff's job classification) in defendant's employ at the time of plaintiff's discharge were over the age of 40 and thus in the protected class. Moreover, defendant proffers evidence of a legitimate business reason which relates primarily to plaintiff's activities on three jobs since 1981: Little Blue Run, Emsworth Lock and Dam, and Hussey Metals.
Defendant argues that evidence regarding the discharge of Mr. Tripplett and Mr. Hoffman, which are remote in time and unrelated to plaintiff's discharge, do not establish a pattern of age discrimination under any statistical model and should be excluded under F.R.E. 403. We agree that the evidence should be excluded. Plaintiff has not shown that a statistical pattern exists. The incidents are unrelated in time, and defendant offers evidence that it had a legitimate business reason for these discharges to rebut plaintiff's age discrimination allegations. Allowing evidence of these incidents would require the trying of three discrimination cases. Plaintiff's case is the only one we have before us, and, in the absence of any pattern, the evidence regarding the termination of Mr. Tripplett and Mr. Hoffman will be excluded.
Defendant argues that evidence of plaintiff's job performance prior to 1981 and following August, 1983 should be excluded as pertaining to an irrelevant time period and therefore not probative as to the central issue of whether age was a determinative factor in his discharge. In response, plaintiff represents that since defendant has claimed that plaintiff's poor job performance on three jobs led to his discharge, he should be permitted to give evidence of his overall work performance to show "pretext." Plaintiff represents that his testimony would cover specific job assignments that he had over the last years of his employment with defendant, and that any testimony regarding subsequent job performance would relate solely to the issue of damages.
In this action, plaintiff has the ultimate burden of proof. Plaintiff "may carry this burden directly by adducing evidence such as age-biased statements by his superiors which might persuade the court . . . [or] he may carry this burden indirectly by showing that the employer's proffered explanation for his dismissal should not be believed." Keller v. Bluemle, 571 F. Supp. 364, 369 (E.D. Pa. 1983) affd. 735 F.2d 1349 (3d Cir. 1984); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Plaintiff's testimony regarding his overall job performance during his last years of his employment with defendant may provide some circumstantial evidence to rebut defendant's legitimate business reason for the termination. Therefore, we find it relevant and we will allow it. Regarding evidence of subsequent job performance, we note that the quality of such performance is not necessary to show mitigation of damages, but the fact of subsequent employment is relevant. Therefore, relevant facts pertaining to subsequent employment will be admitted for the limited purpose of proving damages and mitigation hereof.
Motion For Summary Judgment
Defendant has moved for summary judgment, supporting his motion with three depositions and answers to interrogatories. Plaintiff has opposed the motion with evidentiary material of his own. Summary judgment is a drastic remedy and should only be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Hollinger v. Wagner Mining Equipment Company, 667 F.2d 402, 405 (3d Cir. 1981). In deciding this motion, we must ...