2. Unlawful Discrimination
The ADEA proscribes employers from failing to hire, discharging, or "otherwise discriminating against any individual . . . because of such individual's age," 29 U.S.C. § 623(1), so long as he or she is within the statutorily protected class of individuals who are at least 40 years of age. 29 U.S.C. § 631(a). To prevail in a disparate treatment action, an ADEA plaintiff must prove "by a preponderance of the evidence that age was a determinative factor in the employer's decision." Billet v. Cigna Corp., 940 F.2d 812, 816 (3d Cir. 1991) (citation omitted). This ultimate burden of proving intentional age discrimination remains with the plaintiff at all times. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir. 1984).
Under the familiar burden-shifting rules of proof established by courts "to ease the evidentiary burdens on employment discrimination plaintiffs," Thornbrough v. Columbus and Greenville R. Co., 760 F.2d 633, 638 (5th Cir. 1985), plaintiff must make out a "prima facie case" by showing that he (1) is a member of the protected class, (2) was discharged from a job (3) for which he was qualified, and (4) was replaced by or treated less favorably than another employee "sufficiently younger to permit an inference of age discrimination." Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). Once established, the plaintiff's prima facie case raises an inference of intentional discrimination by the defendant. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978). However, if the plaintiff fails "to limn a prima facie case, the inference of discrimination never arises, and the employer's motion for summary judgment will be granted." Dodge v. Susquehanna Univ., 785 F. Supp. 502, 505 (M.D. Pa. 1992) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991)).
If the plaintiff establishes a prima facie case of age discrimination, the defendant then has the burden of producing evidence tending to prove that its action was motivated by some "legitimate, nondiscriminatory reason." Burdine, 450 U.S. at 253. If the defendant can articulate a nondiscriminatory reason, the presumption raised by the prima facie case drops out, and the plaintiff must prove, "by competent evidence," Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1992), that the employer's proffered reason was a pretext for unlawful discrimination. St. Mary's Honor Center v. Hicks, U.S. ; 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2751-52 (1993). Instantly, plaintiff has failed to limn a prima facie case, for the record contains no evidence that he was "discharged" from his position in the Altoona video studio, and if he was not discharged, then he could not possibly have been illegally "replaced" by a younger worker.
Because plaintiff voluntarily retired from Conrail, the only sense in which he could possibly have been "discharged" by defendant was constructively. The objective test used by courts in this circuit for determining whether employees have been constructively discharged is whether "the conduct complained of would have the foreseeable result that working conditions would be so unpleasant or difficult that a reasonable person in the employee's shoes would resign." Goss v. Exxon Office Systems Co., 747 F.2d 885, 887-88 (3d Cir. 1984). Thus, courts considering constructive discharge allegations search the record for indicia of subtle coercion, such as threats of discharge, suggestions to the employee that he resign or retire, demotions or reductions in pay or benefits, alterations in job responsibilities, unfavorable performance evaluations, and false accusations of stealing or misconduct. See Clowes v. Allegheny Valley Hospital, 991 F.2d 1159, 1161 (3d Cir. 1993); Gray v. York Newspapers, Inc., 957 F.2d at 1082-83; Levendos v. Stern Entertainment, Inc., 860 F.2d 1227, 1231 (3d Cir. 1988). As the court in Henn v. National Geographic Society, 819 F.2d 824, 828 (7th Cir. 1987) stressed, voluntariness is what distinguishes discharge from early retirement. In order to be made voluntarily, a decision must be informed, free from fraud or other misconduct, and made after due consideration. Id. at 828-29.
Instantly, plaintiff cannot rely on any of the aforementioned factors to support his contention that he was constructively discharged. Instead, plaintiff alleges that he relied on materially false information regarding the Altoona video studio's future communicated to him by defendant during the critical decision-making period, and argues that by making such misrepresentations to Baker, Conrail violated the ADEA. It is worth noting that plaintiff cites no case holding that employers who mistakenly or even intentionally misrepresent material facts to employees considering early retirement are liable under the ADEA when an employee relies on the misrepresentation and retires. That is not to say that ADEA liability would not obtain in such a situation, for the United States Court of Appeals for the Third Circuit has said that it "might." However, such conduct on the part of the employer would clearly not prove that the employee was involuntarily forced into early retirement, i.e., discharged. E.E.O.C. v. Westinghouse Elec. Corp., 907 F.2d 1354, 1363 (3d Cir. 1990).
To the extent that a material misrepresentation "might" constitute an ADEA violation, plaintiff's claim begins to look more like an action for common law fraud, see Gore v. Pee Dee Farm Credit Service, 1992 WL 373129 at *6 (D.S.C. 1992), and he would presumably have to adduce facts showing that defendant's misrepresentation was intentional, and that he, the plaintiff, relied on it to his detriment. See Sowell v. Butcher & Singer, Inc., 926 F.2d 289, 296 (3d Cir. 1991) (elements of fraud under Pennsylvania law). The discharge element of Baker's prima facie case claim fails at this point because he has not raised any factual issue regarding fraudulent intent in connection with Conrail's alleged January 1990 misrepresentations about the Altoona video studio's future.
It is undisputed that plaintiff was first informed in mid-January of 1990, probably January 16, 1990, that the audiovisual studio had been budgeted for only the first three months of 1990. Baker Deposition at 23, 25; Sweetland Deposition at 19. At no time did any Conrail employee suggest that plaintiff take early retirement or even point out the uncertainty surrounding his employment with Conrail in light of the forthcoming budget cuts. Baker Deposition at 31. The record further shows that as of January 26, 1990, Conrail was still undecided about the future of the Altoona video studio. On that date, F. H. Nichols sent a memorandum to Richard Sullivan proposing three alternatives to the earlier-discussed idea that the studio be closed, one of which was to operate the studio under the "proposed new corporate graphics group now being formed." Exhibit B to Brief in Opposition to Defendant's Motion for Summary Judgment. Ten days later, and over two weeks after Baker submitted his application for early retirement, the studio's fate had still not been resolved, for on February 5, 1990, David Sweetland informed plaintiff that the "future of the studio looked very grim, and that the only bright spot might be some other department wanting to take over the studio." Sweetland Deposition at 23-26. In fact, Conrail did close the Altoona video studio, only to reopen it approximately one month later under the oversight of another department. Pretrial Stipulation at PP 13, 14.
In light of these uncontested facts viewed in a light most favorable to the plaintiff, it is simply impossible that a factfinder could conclude that Conrail misrepresented, let alone intentionally and fraudulently misrepresented to Baker its future plans for the video studio at or prior to the time he opted for early retirement. Plaintiff insists that Conrail did know, but neglected to inform him, that the video studio would continue to be operated under another department beyond March of 1990. However, plaintiff has adduced no facts supporting this suspicion, and the record suggests otherwise.
The testimony of Richard Sullivan shows that as of January 26, 1990, six days after plaintiff applied for early retirement, the proposed new corporate graphics group was an idea that would probably (not certainly) be pursued, and that his suggestion that the video studio be operated under the new group would have to be approved by others before being implemented. Sullivan Deposition at 33-34. Even assuming that the decision to place the video studio under the control of the new graphics department had been finalized by January 20, 1990, plaintiff has adduced no evidence showing that David Sweetland or Horace Bothum, the two supervisors with whom he spoke during January 1990, knew of that decision. Therefore, plaintiff cannot prove that the Conrail employees who communicated to him the information on which he based his decision to retire made their statements knowing they were false. See Berda v. CBS, Inc., 800 F. Supp. 1272, 1277 (W.D.Pa. 1992), aff'd, 975 F.2d 1548 (3d Cir. 1992).
Everything that Conrail told Baker during January 1990 was true: funding for the Altoona video studio was drastically cut; the studio was closed in late-March 1990 after its three month budget was exhausted; when it reopened, the studio was operated under the oversight of a different department, consistent with discussions held between Conrail decisionmakers in late-January and sometime in February 1990.
Plaintiff's allegation that these events were orchestrated by defendant as a subterfuge for discriminating against him on the basis of his age is simply speculation unsupported by a shred of evidence. But an employee's subjective "perceptions cannot govern a claim of constructive discharge." See Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 1993 WL 313651 (1st Cir. 1993); Lasley v. Veterans Administration, 789 F. Supp. 1468, 1475-76 (E.D.Mo. 1992). More importantly, to avoid summary judgment, the non-movant must create a genuine issue of material fact by adducing more than a "scintilla" of evidence, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), not merely spin an interesting theory of liability.
For the foregoing reasons, defendant's motion for summary judgment will be granted and plaintiff's complaint dismissed with prejudice. An appropriate order follows.
AND NOW, this 20th day of October, 1993, for the reasons explained in the foregoing opinion, defendant Consolidated Rail Corporation's Motion for Summary Judgment (Docket No. 10) is hereby granted and plaintiff Charles Baker's Complaint is accordingly dismissed with prejudice. The Clerk shall mark this case closed.
BY THE COURT,
D. Brooks Smith
United States District Judge
© 1992-2004 VersusLaw Inc.