Plaintiff next claims he was confronted on May 6, 1990, about the possibility of being an alcoholic. As a result of this confrontation, Plaintiff was placed in the Marworth Rehabilitation Facility and remained there until June 11, 1990. The cost of Plaintiff's stay at Marworth was furnished by the Defendant, either directly or through its insurance. (Plaintiff's Deposition, Doc.No. 19, pp. 135-136).
Plaintiff continues that during April of 1991, Greg Herlan's replacement, Solomon Cohen, called Plaintiff into his office and indicated Plaintiff was not reliable since his return from Marworth eventhough Plaintiff was only late three (3) times in that ten (10) month period. (Doc.No. 1, p. 4).
As a result of Plaintiff's absences, the Defendant made an appointment for the Plaintiff with a sleep specialist, who recommended that Plaintiff be placed on steady day shift work due to abnormal circadian rhythms. Plaintiff was also placed on permanent partial disability. Plaintiff asserts that after being placed on permanent partial disability the harassment by Cohen increased in that Plaintiff was approached every day by Cohen and constantly under observation. (Doc.No. 1, pp. 4-5).
Plaintiff goes on to contend that in early June of 1991 he requested to see his personnel file, at which time Plaintiff allegedly found entries made by both Greg Herlan and Bill Lacoe without Plaintiff's knowledge. As a result, on June 24, 1991, Plaintiff notified David Taylor, the Plant Manager's secretary, about these entries, as well as the alleged harassment. Plaintiff claims, however, Taylor never got back to him on the file entries or the alleged harassment.
The next incident complained of by the Plaintiff occurred on Friday, July 19, 1991, when Department Manager, Tom Lang, came to the E & I shop and told the Plaintiff, as Plaintiff was preparing to leave, that he needed him to stay. Plaintiff advised Lang that "he had an appointment and that company policy requires that the persons required to stay after normal working hours for overtime must be so notified at least one hour in advance of the end of the shift." (Doc.No. 1, p. 6). Plaintiff refused to stay. After this incident, Plaintiff went on vacation and subsequently returned to work on July 29, 1991. Upon his return, Plaintiff claims he was read his termination papers, accused of foul language and insubordination and escorted out the door.
Based on these facts, Plaintiff claims he was improperly discharged on the basis of his age and his alleged handicap and, further that the Defendant "has a history of terminating individuals who have been injured on the job but are still capable of performing their assigned responsibilities, as well as "a history of age discrimination." (Doc.No. 1, p. 6).
The Defendant responds by noting Plaintiff was discharged due to Plaintiff's history of performance problems, in particular reliability, sleeping at work, failure to follow procedures, as well as insubordination and belligerence.
Federal Rule of Civil Procedure 56(c) requires that we render summary judgment " . . . forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "This standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-8, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). (emphasis in original).
In determining whether an issue of material fact does exist, all inferences must be drawn against the moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988); 6 J. Moore, Moore's Federal Practice P56.04. In order to stave off a summary judgment motion, however, the non-moving party may not rest on the bare allegations contained in his or her pleadings. Once the moving party has satisfied its burden of identifying evidence which demonstrates an absence of a genuine issue of material fact, see Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988), the nonmoving party is required by Federal Rule of Civil Procedure 56(e) to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corporation v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Defendant Procter & Gamble bases its pending Motion for Summary Judgment on several grounds, the most noteworthy of which are: (1) Plaintiff cannot establish that Defendant's reasons for discharging him were pretextual and in violation of the ADEA; (2) it is questionable whether Plaintiff's alleged handicap, a sleep disorder, is a covered disability and, in the alternative, Plaintiff cannot establish his sleep disorder was a determinative factor of his discharge; (3) Plaintiff has not shown that he engaged it any protected activity before his discharge so as to constitute a retaliatory discharge; (4) there is no evidence of a contract between Plaintiff and Procter & Gamble limiting the Defendant's right to discharge the Plaintiff at will; and, (5) Plaintiff has not established that his discharge violated any public policy, thus, Plaintiff has not demonstrated that he was wrongfully discharged. (Doc.No. 18).
A. The Age Discrimination In Employment Act
There is a well settled framework of evidentiary burdens under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (hereinafter ADEA). First, the Plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. In order to make out a prima facie case, Plaintiff must show that (1) he is a member of a protected class, i.e. is at least 40 years of age; (2) he was qualified for the position; (3) was dismissed despite being qualified; and (4) ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination. Gray v. York, 957 F.2d 1070, 1078 (3d Cir. 1992). Once the Plaintiff has established a prima facie case an inference of unlawful discrimination is created. Id.
If the Plaintiff succeeds in proving the prima facie case, the burden shifts to the Defendant to articulate some legitimate nondiscriminatory reason for the employee's discharge. Once a legitimate reason for the discharge is provided, the burden shifts back to the Plaintiff to prove by a preponderance of the evidence that the reasons offered by the Defendant were not its true reasons, but were merely a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) (citations omitted); See also Turner v. Schering-Plough Corp., 901 F.2d 335, 342 (3d Cir. 1990); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir. 1987). "At all times, the Plaintiff-employee has the burden of persuading the trier of fact that age was a determinative, though not necessarily the sole, factor in the Defendant-employer's decision to [discharge] the employee." Gray, supra. at 17 (citing Turner v. Schering-Plough Corp., 901 F.2d 335, 342 (3d Cir. 1990)).
As noted, the Defendant claims Plaintiff was dismissed due to a history of performance problems. To support this contention the Defendant has provided the Court with the affidavit of Joseph Dussinger, Employee Relations Manager for the Diaper Plant at Mehoopany and one of the individuals responsible for Plaintiff's discharge, as well as various supporting documentation, all of which identify specific weaknesses in Plaintiff Vilchock's work performance. (Doc.No. 28). For example, on December 10, 1987 (almost two years before Plaintiff's head injury), Plaintiff was placed on Step III of the discipline procedure,
for sleeping on the job. The entry in Plaintiff's file reads as follows:
Today at 8:17 a.m I (V. Uporsky) went up to the pampers E & I shop to put information on the bulletin board and into the information book. After I had done the above I observed Bernie sitting in a chair with his feet prepped up on the work bench asleep. I waited three minutes or so at which time I woke him up. I had just talked to Bernie about his tone and approach and negative interface with his peers and others the last time he was on day shift approximately three weeks ago. This behavior is not expected from anyone let alone someone in a leadership role. . . . I am placing Bernie at Step III of the disciplinary procedure for failure to meet the compairer [sic] week standard. Any further violation of this policy or any other  policy may lead to further disciplinary action up to and including termination.