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DUGAN v. PENNSYLVANIA MILLERS MUT. INS. CO.

December 15, 1994

WILLIAM A. DUGAN, ARLENE H. JONES, JANE J. ROBERTS, ROSEANN MAINOLFI, AND ETHEL COSLETT, Plaintiffs,
v.
PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY, Defendant.


Edwin M. Kosik, United States District Judge


The opinion of the court was delivered by: EDWIN M. KOSIK

Presently before the court is defendant's motion for summary judgment. The parties have submitted the proper briefing so that the motion is ready for disposition. For the reasons presented below, the court grants the motion for summary judgment.

 I. BACKGROUND

 On June 30, 1993 plaintiffs filed a nine count complaint against defendant Pennsylvania Millers Mutual Insurance Company ("Pennsylvania Millers" or the "Company"), alleging sex and age discrimination, breach of contract, wrongful discharge, intentional infliction of emotional distress, violations of the Equal Pay Act and ERISA. *fn1" Plaintiffs have withdrawn all counts except the first four, sex and age discrimination under Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act. Plaintiffs have also withdrawn their request to proceed as a class action.

 The five plaintiffs worked for the defendant Pennsylvania Millers Insurance Company in various positions and for varying periods of time. All five were terminated on or about July 10, 1991. Plaintiffs contend that they were terminated because of their age and/or sex, depending on the particular plaintiff. *fn2"

 Defendant filed a motion for summary judgment and supporting brief on April 11, 1994. The company asserts that the plaintiffs' (and nine other employees') positions were eliminated due to a "structural reorganization", and that their termination was not reflective of the age or sex of the employee. Plaintiffs filed an opposition brief on June 27, 1994.

 II. STANDARD OF REVIEW

 Rule 56(c) of the Federal Rules of Civil Procedure states that:

 
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with any affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 The Supreme Court has held that Rule 56(c), "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2551, 91 L. Ed. 2d 265 (1986). Summary judgment will not lie, "if the dispute about a material fact is 'genuine' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).

 The Court has analyzed and set forth the respective burdens on the moving and non-moving parties to support or overcome a motion for summary judgment. Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex, 477 U.S. at 329, 106 S. Ct. at 2554. Where as in the instant case, the moving party does not have the burden of proof on the relevant issues (e.g., as defendant), the district court must determine if the deficiencies in the opponent's (i.e., plaintiff's) evidence designated in the motion entitle the moving party to judgment as a matter of law. Anchorage Associates v. V. I. Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990) (citations omitted).

 Once the moving party has satisfied its burden, the nonmoving party must present affirmative evidence to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 256-57. "Such affirmative evidence, regardless of whether it is direct or circumstantial - must amount to more than a scintilla, but may amount to less. . . than a preponderance." Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989). The affirmative evidence must consist of verified or documented materials. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has set forth a documentary case. See Schoch v. First Fidelity, 912 F.2d 654, 657 (3d Cir. 1990).

 In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-250.

 III. DISCUSSION

 The Supreme Court and our appellate court have outlined four methods of establishing employment discrimination: (1) pure discrimination; (2) pretext; (3) mixed-motives; and (4) disparate impact. See Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1224 (3d Cir. 1994). The plaintiffs have not specified under which theory or theories they are proceeding. They combine and confuse the doctrines, such that it is nearly impossible to determine the proper legal analysis to utilize to examine the claims. We therefore will divide the claims accordingly and provide a brief analysis under each applicable theory.

 "Pure Discrimination""Mixed Motive"

 A "pure discrimination" case arises in the rare instance when actual "direct" or "smoking gun" evidence of discrimination is available, i.e., "word, action, or deed of defendant demonstrating discriminatory motive". See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir. 1987), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26 ...


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