Brothers did not pay social security taxes for Stouch. Stouch did not accumulate retirement benefits or any other employee benefits, other than vacation pay as described above. McGuire Dep. at 38; Stouch Dep. at 85. The position of head chef is a skilled one.
Other factors are disputed or are ambiguous. Stouch's corporation received regular bi-weekly payments for his services. McGuire Dep. at 38. However, because the same number of meals was prepared each week, it is not clear that this regular payment makes his pay analogous to a salary or to payment by the job. There is a dispute about whether or not Stouch received vacation pay. Stouch deposed that he did receive vacation pay. Stouch Dep. at 85. When deposed, McGuire stated that Stouch did not receive vacation pay. McGuire Dep. at 38. He did acknowledge that Stouch was paid every week of the year and that he took vacations. He also acknowledged that "towards the end" of Stouch's association with the Monastery, the Monastery paid overtime to other employees for extra work necessitated by Stouch's absence on vacation. Id.
Differing conclusions could reasonably be drawn about whether Stouch's work was "part of the regular business" of the Monastery. If one focusses upon the religious aspects of the Monastery, Stouch's services may not seem to be an integral part of its "business." However, if one focusses upon the Monastery's status as a residence for approximately 65 men, the provision of meals may appear integral to the mission.
Stouch had some autonomy in setting his own work schedule. He could work "flexible" shifts. Sometimes he worked the morning, breakfast and lunch shift. At others periods, he worked the evening, dinner, shifts. He decided when he would do each. However, he did have to work five or six days of the week, and so was not completely free to complete the work on his own schedule. Stouch Dep. at 52.
Usually, Stouch was not directly supervised in meal preparation or in the day-to-day performance of his work by anyone from the Monastery, except in a few instances. Stouch Dep. at 43. No one ever came into the kitchen and directed him how to prepare meals. Stouch Dep. at 43. However, on several occasions McGuire requested that Stouch use more fresh vegetables and increase the variety of the meals served. McGuire Dep. at 66-68. McGuire did order Stouch not to put wrapped toothpicks in the dining room, and did order him to purchase cereal in smaller boxes. Stouch Dep. at 54. He also told Stouch to be less "aggressive" with the staff. Stouch Dep. at 54. Stouch ordered the food and prepared the menus.
McGuire Dep. at 43. However, McGuire had final approval authority for what vendors would be used. McGuire Dep. at 55; Stouch Dep. at 43. McGuire negotiated payment arrangements with the vendors. Stouch Dep. at 43.
From this evidence the court concludes that there is a genuine issue whether Stouch was an employee of the Brothers. See Martin, 829 F.2d at 451-52;
Mallare v. St. Luke's Hospital, 699 F. Supp. 1127 (E.D. Pa. 1988). In particular, from the lack of involvement by defendants in Stouch's day-to-day work, a jury could reasonably infer that defendants did not have the "right to control the means and manner of the worker's performance," or it could infer that while defendants had that right, as evidenced by the above-described examples, they rarely exercised it. As the fifth circuit court of appeals has explained,
The determination of employment status is a mixed question of law and fact. Normally, a judge will be able to make this determination as a matter of law. However, where there is a genuine issue of fact or conflicting inferences can be drawn from the undisputed facts, as here, the question is to be resolved by the finder of fact in accordance with the appropriate rules of law.
Lilley v. BTM Corp., 958 F.2d 746, 750 n.1 (6th Cir. 1991) (citing Martin, 829 F.2d at 451)), cert. denied, 121 L. Ed. 2d 287, 113 S. Ct. 376 (1992). Here, whether Stouch was an employee of the Brothers for purposes of ADEA, at least at this stage of development of the evidence, is a question for the jury.
2. There exists a genuine issue of material fact as to whether Stouch can carry his burden of proof
Under both ADEA and PHRA, Stouch has the burden of proving by a preponderance of the evidence that his "employment" at the Brothers was terminated because of his age. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988); Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 202 (3d Cir. 1987), cert. denied, 484 U.S. 1019, 98 L. Ed. 2d 679, 108 S. Ct. 730 (1988); Caterpillar Tractor Co. v. Commonwealth, Pennsylvania Human Relations Com., 78 Pa. Commw. 86, 466 A.2d 1129 (1983).
The burden of proof in ADEA cases is governed by the framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
Stouch has the initial burden of establishing a prima facie case of discrimination. If a plaintiff succeeds in establishing a prima facie case, a presumption of unlawful discrimination is created and the burden of production shifts to the defendant to articulate some legitimate non-discriminatory reason for the discharge. If the defendant articulates reasons for the termination which would support a finding that unlawful discrimination was not the cause of the termination, the presumption raised by the prima facie case is rebutted and drops from the case. The plaintiff then must demonstrate that the proffered reasons were not the employer's true reasons; that is, they were a mere pretext for intentional age discrimination. St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2746-48, 125 L. Ed. 2d 407 (1993); Sorba, 821 F.2d at 202.
Because Stouch bears the burden of persuasion to show that he was the victim of intentional age discrimination, defendants are entitled to summary judgment if they can demonstrate that Stouch could not possibly carry his burden of proof at trial. A defendant may demonstrate this in two ways: by showing that the plaintiff is unable to establish a prima facie case of discrimination; or, if the plaintiff has successfully established a prima facie case, by showing that the plaintiff could not produce sufficient evidence of pretext to rebut the defendant's articulated nondiscriminatory reasons for the discharge. Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 107 L. Ed. 2d 745, 110 S. Ct. 725 (1990).
Defendants do not contest Stouch's ability to establish a prima facie case of age discrimination.
Instead they argue that he cannot produce sufficient evidence to rebut the articulated non-discriminatory reason for his discharge. Defendants claim that the reason for Stouch's discharge was that they were dissatisfied with the quality and variety of the food served under his direction. McGuire Aff.; McGuire Dep. at 88. The court finds that there is sufficient evidence to create a genuine issue of material fact as to whether this proffered reason is pretextual.
Stouch presents a letter, dated March 10, 1992, from Reverend John J. McKenzie which states, among other things:
I am writing to commend the talents and services of Warren William Stouch. I have known Mr. Stouch for about eleven years, since he first came to St. Thomas Monastery as an assistant chef. His performance quickly earned him appointment as Head Chef, a position he has held for about ten years.
. . .