to lay him off, defendant's motion for summary judgment on count 2 must be granted.
III. THE RETALIATION COUNT
The ADEA prohibits an employer from discriminating against an individual because the individual "opposed any practice made unlawful" by the law. 29 U.S.C. § 623(d). Title VII's analysis is applicable in the context of age discrimination. To establish a prima facie case of retaliation, Martin must establish that (1) he was engaged in a protected activity, (2) his offer of employment was rescinded subsequent to or contemporaneous with such activity, and (3) a causal link exists between the protected activity and rescission of the offer. See Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 107 L. Ed. 2d 745, 110 S. Ct. 725 (1990). If plaintiff can establish a prima facie case, the burden then shifts to GE to advance a legitimate, nondiscriminatory reason for rescinding the job offer. If GE succeeds in doing so, plaintiff survives the motion for summary judgment by introducing sufficient evidence from which a factfinder could conclude that GE's reason was pretextual.
After Martin was laid off for the second time, he sought other employment within GE. In April 1992 he went to California to interview with Arthur Caldwell for a position with GE Government Services, Inc. ("GEGS"). On May 8, 1992, Caldwell faxed an offer of employment to plaintiff. Within a few days, plaintiff told Caldwell on the telephone that he was going to accept the job. On June 12, 1992, Caldwell asked Martin to indicate in writing that he was accepting the job offer. When Martin did so is in dispute. In the meantime, Martin's attorney, Ellis Saull, sent a letter dated June 15, 1992, to Michael Smith, a GE Vice President. The letter stated that "my review of several aspects of this layoff and its implementation leads me to believe that there is at least a prima facie indication that Mr. Martin is the victim of age discrimination. We intend to utilize all appropriate avenues of redress regarding this matter." (Def. Mot. for Summ. J., ex. 16). The letter also stated that the attorney was willing to discuss the matter with GE. On June 19, 1992, Caldwell telephoned Martin and told him that the job offer had been rescinded. Plaintiff asserts that GEGS withdrew the job offer in retaliation for his assertion of rights under the ADEA.
The first prong of a prima facie case of retaliation under the ADEA is that plaintiff was engaged in a protected activity. I find that Martin engaged in a protected activity of opposing GE's alleged unlawful practice of age discrimination when he sought legal advice and had his attorney notify GE that he intended to seek redress for a possible age discrimination claim.
See Robinson v. SEPTA, 982 F.2d 892, 896 (3d Cir. 1993) (plaintiff's letter to his congressman sufficiently articulated his opposition to racial discrimination); Porta v. Rollins Environ. Servs., Inc., 654 F. Supp. 1275, 1284 (D.N.J. 1987) (facts of particular case determine what statutorily protected opposition consists of), aff'd without op., 845 F.2d 1014 (1988).
The second prong of Martin's prima facie case is that GE rescinded the GEGS job offer subsequent to or contemporaneous with the protected opposition. Plaintiff has established this prong as well. Mr. Saull's letter was dated June 15; GEGS withdrew the offer on June 19. Finally, plaintiff must show a causal link between the protected activity and rescission of the offer. The timing of the two events may demonstrate a causal link, although timing alone does not create an inference of causation. Quiroga v. Hasbro, Inc., 934 F.2d 497, 501 (3d Cir. 1991) (timing of action could suggest discriminatory motives, but facts of case failed to establish causation); Jalil, 873 F.2d 701, 708 (3d Cir. 1989). I find that the temporal proximity and intra-corporate communication about Martin in this case are sufficient to show prima facie causation.
As GE itself recounts in its response to Martin's EEOC charge, the GE personnel involved in Martin's layoff were in contact with the GEGS personnel involved with the job offer to Martin. GE Vice President Michael Smith met with Martin on June 10, 1992, and discussed the meeting with Lynn Mazur-Cowart, the human resources representative handling Martin's layoff. (Ex. to Pl. Resp., p. 68). That same day, Mazur-Cowart spoke by telephone with Sally Zamora, also a human resources representative, who was working with Caldwell on the GEGS offer to Martin. (Id.). Martin's attorney sent the letter to Smith five days later. The timing of the letter and withdrawal of the GEGS offer, coupled with the existence of a channel of communication between the GE personnel involved with the layoffs and potential age discrimination claim and the GEGS personnel involved with the job offer, is sufficient to establish the third (causation) prong of plaintiff's prima facie case.
GE can rebut the presumption established by the prima facie case by articulating a legitimate, nonretaliatory reason for withdrawal of the job offer.
GE has not done so in its brief. There is, nonetheless, an explanation that can be culled from the evidence. Caldwell stated in his deposition that Martin postponed his intended starting date at GEGS and that he, Caldwell, had heard around June 10 that Martin had decided to decline the offer. (Def. Mot. for Summ. J., ex. 13, p. 18). Martin had talked with GE Vice President Michael Smith, who told Mazur-Cowart of the meeting. Mazur-Cowart told Zamora, who worked with Caldwell, that Martin was declining the GEGS offer. According to Caldwell, after he talked with Martin on June 12, he "did not have a warm fuzzy feeling that this was ever going to come to fruition" despite Martin's assurance that he would sign the letter. Accordingly, Caldwell told himself that if Martin did not send his written response within seven days, Caldwell would withdraw the offer. (Id. at 18-19). In the meantime, Smith received the letter from Martin's attorney dated June 15. Caldwell says that he did not receive Martin's signed acceptance within a week, so he called Martin on June 19 to withdraw the offer. (Id. at 20).
In order to survive summary judgment on this count, plaintiff must introduce sufficient evidence from which a factfinder could conclude that GE's reason was pretextual. I find that he has done so. Plaintiff offers evidence that he signed GEGS' May 8 offer letter on June 10, 1992; he also asked two witnesses to sign the acceptance to verify the date. They did so while playing pool. (Def. Mot. for Summ. J., ex. 14). One of the witnesses, James Granese, claims that he mailed the letter the next day. (Ex. to Pl. Resp., p. 41). On the other hand, GE maintains that the letter was not mailed until June 19, 1992, after the offer was withdrawn, and offers evidence of the postmarked envelope. (Def. Mot. for Summ. J., ex. 15). Mere recounting of these factual issues and Maltese-falcon-like intrigue makes clear that genuine issues of material fact abound. A credulous factfinder could believe that plaintiff on June 10 entrusted to Granese his written, witnessed acceptance of Caldwell's offer, find that Granese mailed the acceptance on June 11 despite the June 19 postmark, and conclude that Caldwell's proffered reason that he withdrew the offer because Martin never accepted in writing is therefore false, while accepting that the communication between Caldwell's office and Smith's office supports a finding of retaliation. On the other hand, the factfinder could credit Caldwell's testimony that he did not know of the letter from plaintiff's attorney, while discrediting, on the basis of the envelope, Granese's testimony that he mailed Martin's acceptance before June 19. The question for the factfinder will be whether Martin accepted the offer before June 19 and whether Caldwell's withdrawal of the offer on that date was an act of retaliation or the result of the deadline Caldwell had previously imposed on himself. As that is a genuine issue of material fact, defendant's motion for summary judgment on count 3 must therefore be denied.
I find that plaintiff has established a prima facie case of age discrimination with regard to the layoff in September 1991. While GE has offered a legitimate, nondiscriminatory explanation for its action, plaintiff has offered sufficient evidence from which a factfinder could conclude that age was more likely than not a reason plaintiff was laid off. Defendant's motion for summary judgment on count 1 must therefore be denied. With regard to count 2, I find that plaintiff has again established his prima facie case and GE has again articulated a legitimate reason for the layoff. Because Martin has not, however, offered sufficient evidence that either discredits GE's proffered reason or shows that discrimination was more likely than not a motivating factor for GE's decision, defendant's motion for summary judgment on count 2 must be granted. Finally, I find that plaintiff has established a prima facie case of retaliation and that there is evidence of a nonretaliatory reason for the withdrawal of the GEGS job offer. Because there is, however, sufficient evidence from which a credulous factfinder could conclude that defendant's reason was pretextual and that retaliation was more likely than not the cause of the withdrawal, GE's motion for summary judgment on count 3 must be denied.
An appropriate order follows.
AND NOW, this 28th day of June, 1995, defendant's motion for summary judgment on counts 1 and 3 is hereby DENIED; and defendant's motion for summary judgment on count 2 is hereby GRANTED. Judgment is hereby entered for defendant on count 2.
BY THE COURT:
J. William Ditter, Jr., J.