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VILCHOCK v. P&G PAPER PRODS. CO.

August 3, 1993

BERNARD J. VILCHOCK, Plaintiff
v.
THE PROCTER & GAMBLE PAPER PRODUCTS COMPANY, Defendant



The opinion of the court was delivered by: RICHARD P. CONABOY

 Plaintiff, Bernard Vilchock, commenced this action on September 9, 1992, after his discharge from the Defendant company, Procter & Gamble Paper Products, claiming Procter & Gamble discriminated against him on the basis of his age and alleged handicap, and further that the Defendant retaliated against him for engaging in activity protected under the Age Discrimination in Employment Act 29 U.S.C. §§ 621, et seq. and the Pennsylvania Human Relations Act, 43 P.S. §§ 951, et seq. Plaintiff also asserts claims for wrongful discharge, breach of contract, and intentional infliction of emotional distress. *fn1"

 The Defendant has recently filed a Motion for Summary Judgment, attacking all aspects of Plaintiff's complaint. *fn2" After carefully reviewing the Defendant's motion, the Plaintiff's response, and the various supporting documents, we find that summary judgment in favor of the Defendant is appropriate.

 BACKGROUND

 Plaintiff Vilchock began working for Procter & Gamble on May 23, 1966, and at all relevant times was an Electrical/Electronic Technician IV in the Pampers E & I section. (Doc.No. 1, p. 3). Plaintiff was discharged from his employment with Procter & Gamble on July 29, 1991, at age fifty-two (52).

 The events giving rise to this case appear to date back to April 30, 1989, when Plaintiff injured his head on a falling chair lift assembly from a case packer, receiving a laceration of the scalp and post concussional syndrome secondary to head trauma. Plaintiff claims because of this injury he began suffering from headaches and sleep disorders which caused him to be either absent from or late for work. Plaintiff admits he was absent or tardy at least a total of 33.25 hours, 13 of which Plaintiff claims he was sent home for discipline, 8 hours for illness, and 7.5 for rehabilitation. (Doc.No. 1, p. 3). Plaintiff contends that despite his injury, Plaintiff's manager, Greg Herlan, began harassing him concerning his alleged absences and tardiness. (Doc.No. 1, p. 3).

 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.

 I

 SUMMARY JUDGMENT

 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[2]. 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).

 II

 DISCUSSION

 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, *fn3" for sleeping on the job. The entry in Plaintiff's file reads as follows:

 Another incident Defendant cites to support its claim of Plaintiff's poor work performance occurred on February 2, 1989, again prior to Plaintiff's injury, when Plaintiff incorrectly calibrated a scale on one of the production lines, causing the line to run for a week putting out an unusable product. (Doc.No. 18, p. 3). As a result of this incident, Plaintiff was placed at Step IV of the disciplinary process. Plaintiff attempts to explain this event in his deposition by noting:

 
. . . This particular incident here, I was called away from this job, to my recollection. And in the process, by the time I got back to it, neglected to make the final calculation.
 
But I was working with somebody else that needed help and that wasn't taken into consideration. . . .

 (Plaintiff's Deposition, Doc.No. 19, p. 87).

 Another factor which the Defendant refers to as affecting Plaintiff's job performance is his continued absences. Specifically, on March 8, 1990, Plaintiff was returned to Step III of the procedure, but told that his absences were still a problem. (Doc.No. 28, Exh. C). In commenting on Plaintiff's absences, Greg Herlan, Plaintiff's manager, noted in Plaintiff's personnel file:

 
In the first three months Bernie's performance was excellent, however, Bernie's attendance has risen back to 4 incidents of a total of 48 hours (this does not include his head injury or carpal tunnel). I am keeping him at Step III because of this. Bernie's work level and interface skills have diminished a little since those first three months. I hope this is not a ...

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