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MELENDEZ v. HORIZON CELLULAR TEL. CO.

January 13, 1994

RAMON A. MELENDEZ
v.
HORIZON CELLULAR TELEPHONE COMPANY


Dalzell, J.


The opinion of the court was delivered by: STEWART DALZELL

Dalzell, J.

 Plaintiff Ramon A. Melendez filed this action against his former employer, Horizon Cellular Telephone Company ("Horizon"), alleging that Horizon discriminated against him in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. § 951 et seq. He also asserts state law claims for wrongful discharge and breach of contract.

 Horizon has filed a motion to dismiss or, in the alternative, for partial summary judgment. After careful consideration of the parties' extensive briefing, *fn1" we will grant Horizon's motion in part and deny it in part for the following reasons.

 Background

 Melendez states in his complaint that he is a sixty-one year old Puerto Rican-born male who Horizon Cellular Telephone Company hired as a Certified Public Accountant on May 29, 1989. *fn2" According to Melendez, Horizon promised that when it hired a new Chief Financial Officer, it would then promote Melendez to Controller of the company. In September of 1991, however, Horizon hired a new CFO, yet recruited a native-born white male who was thirty years younger than Melendez to be the company's Controller. It then demoted Melendez to the position of Administration Manager and reduced his salary from $ 36,000 to $ 30,000 per year. In contrast, the new Controller was hired at a salary of $ 42,000 per year.

 In early March of 1992, after over two months of negotiations, Melendez and Horizon, each with the assistance of counsel, executed a "Negotiated Settlement Agreement" of the claims addressed in the administrative charge of discrimination. Pursuant to that agreement, Horizon promised:

 
a. To place [Melendez] into the position of Assistant Controller beginning in February 1992 with the understanding that [Melendez] will first be given 28 days to become familiarized with the Cellular Business.
 
b. To provide [Melendez] the salary of $ 36,000 effective February 1, 1992.
 
c. Allow [Melendez] two (2) months to become proficient in the basic duties and responsibilities of the Assistant Controller with the progress to be reported and reviewed at the completion of the two (2) month period.
 
d. To provide any and all assistance available to ensure that assets are available and utilized by [Melendez] in the performance of his duties.
 
e. To agree not to retaliate against [Melendez] with respect to the filing of this instant charge.
 
f. Consideration will be given to the assignment and amount of salary increase at the completion of the period of observation.
 
g. To maintain strict confidentiality of the facts of this case and the terms of this settlement.

 Negotiated Settlement Agreement P 3. In return for Horizon's "satisfactory fulfillment" of the above promises, Melendez agreed to refrain from filing a lawsuit based on the claims in the EEOC charge. Id. P 2.

 Apparently in anticipation of the agreement's consummation, Melendez ascended to his new position in February of 1992. Melendez contends, however, that Horizon not only failed to provide him with the agreed upon twenty-eight day familiarization period and two month proficiency period, but also denied him any authority in his new position. In any case, on April 8, 1992, Horizon gave Melendez a negative evaluation of his job performance, and on May 13, 1992, it fired him. In response, Melendez filed a second charge of discrimination with the EEOC and the PHRC in which he alleged that his discharge was in retaliation for his filing of the first charge of discrimination.

 On August 20, 1993, Melendez filed the ten count complaint in the instant action.

 Counts I and III of the complaint allege that Horizon discriminated against Melendez on account of his national origin, in violation of Title VII and the PHRA, when it (a) failed to promote him, (b) replaced him with a native born white male, (c) demoted him, and (d) terminated his employment. Counts II and IV allege that Horizon also violated Title VII and the PHRA when it breached the Negotiated Settlement Agreement and fired Melendez in retaliation for his filing the first charge of discrimination. In Counts V and VII, Melendez alleges that Horizon violated the ADEA and the PHRA when it discriminated against him on account of his age by (a) hiring a younger person to fill the position of Controller, (b) demoting Melendez, and then (c) firing him. Counts VI and VIII assert that Horizon also violated the ADEA and the PHRA when it harassed and terminated Melendez in retaliation for his filing a charge of age discrimination with the EEOC. Count IX alleges that Horizon wrongfully discharged Melendez with the ...


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