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ALTOPIEDI v. MEMOREX TELEX CORP.

September 27, 1993

RICHARD P. ALTOPIEDI, Plaintiff,
v.
MEMOREX TELEX CORPORATION, Defendant.



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 Joyner, J.

 September 27, 1993

 Presently before the Court are the motions of defendant Memorex Telex Corporation for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. Plaintiff, Richard P. Altopiedi, has filed a three count complaint with this Court alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), the Pennsylvania Human Relations Act, 43 P.S. § 551 et seq. ("PHRA") and a state common law claim for wrongful discharge with a specific intent to harm. Defendant now asks this Court to grant summary judgment with respect to Counts II and III (the claims under PHRA and for wrongful discharge respectively). With respect to Count II, defendant alleges that plaintiff failed to timely file a verified complaint with the Pennsylvania Human Relations Commission ("PHRC") within 180 days after the alleged discrimination occurred as required by section 959(h) of the PHRA, and therefore this Court does not have jurisdiction

 over this matter. Regarding Count III, defendant argues that the tort of wrongful discharge with a specific intent to harm is not recognized in Pennsylvania. In addition, defendant argues that plaintiff has not adequately alleged any violation of public policy should this Court actually construe plaintiff's claim as alleging the tort of wrongful discharge in violation of public policy.

 Standard

 In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The court is required to determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). In making this determination, all reasonable inferences must be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 256, 106 S. Ct. at 2512. While the movant bears the initial burden of demonstrating an absence of genuine issues of material fact, the nonmovant must then establish the existence of each element of its case. J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir. 1990), cert. denied, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986)).

 Facts

 Plaintiff was discharged from his job as a sales representative with defendant on October 10, 1990 allegedly due to his poor performance and demonstrated cynical attitude towards his supervisor and the performance improvement plan which plaintiff was on for the last five months of his employment. He had previously been hired as an at-will employee on November 16, 1983, at the age of 41. *fn1"

 Plaintiff claims his performance during the first five years of his employment was exemplary. He states that several times during this period, defendant included plaintiff in the Millionaire's Club, where he received an award which was given to sales representatives who exceeded their objectives. He was also named chairman of the Millionaire's Club in 1986. In addition, plaintiff states he consistently received excellent performance evaluations, including a rating of "superior" in 1986 and "above average" in 1988.

 Defendant claims that plaintiff's performance was problematic almost from the beginning of his employment. Shortly after he was hired, plaintiff began reporting to a new district sales manager, John Steckbeck, who placed plaintiff on a performance improvement plan when he began experiencing performance problems. *fn2" Under this plan, plaintiff had to generate a certain number of new accounts and dollars within a specified period of time.

 After Steckbeck was transferred in April, 1987, Richard Zywotko became plaintiff's district sales manager and direct supervisor. Zywotko also placed plaintiff on a performance improvement plan.

 Following the merger and reorganization of defendant in 1988, Joseph Tordone (age 49) replaced Richard Zywotko (age 34) as plaintiff's district sales manager and direct supervisor. Once again, plaintiff was placed on another performance improvement plan. Defendant alleges that plaintiff failed to satisfy the requirements of this plan or be receptive to Tordone's suggestions and comments. Tordone became very concerned about plaintiff's performance, especially about his alleged poor relationship with people from his major accounts. Defendant also alleges that at this time, Tordone received customer complaints about plaintiff. It was Tordone who eventually terminated plaintiff allegedly because of his unabated performance problems.

 Plaintiff claims that following the merger and reorganization of defendant, defendant suffered an overall drop in sales. He further alleges that in June and August 1990, he received written warnings about his performance and criticism about the level of his sales. In July 1990, plaintiff was told that he should "consider resigning." *fn3" Other younger employees whose sales had also dropped during this time period were not criticized as plaintiff was. Plaintiff states that despite the criticism and warnings, his sales that year were almost sufficient to merit entry into the Millionaire's Club.


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