November 7, 1995
Plaintiff Francis J. Kelly ("Kelly" or "Plaintiff") brought this action against his former employer Drexel University ("Drexel"), alleging that Drexel terminated his employment and subsequently failed to rehire him on the basis of age and disability in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634; the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213; and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. §§ 951-963. In addition, plaintiff alleges that Drexel discriminated against him with respect to his compensation, terms, conditions, and privileges of employment because of his age. See plaintiff's complaint P 26.
Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") and a complaint with the Pennsylvania Human Relations Commission on July 1, 1993. On May 31, 1994 the EEOC issued a no-cause determination. Plaintiff filed this action on August 29, 1994.
Pending before this Court is the motion of Drexel for summary judgment pursuant to Fed. R. Civ. P. 56(c) (Document No. 6). This Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1367. Upon consideration of the motion of defendant and the response of plaintiff thereto, and for the following reasons, the motion of defendant will be granted.
I. FACTUAL BACKGROUND1
In April, 1981 Drexel hired plaintiff, a 56-year-old college graduate, as a buyer in the purchasing department. Approximately twelve years later, when plaintiff was 68 years old, Drexel terminated plaintiff's employment as part of its university-wide reduction in force ("RIF"). At the time of plaintiff's termination, plaintiff was one of three buyers in the purchasing department. Each buyer had a specific area of responsibility: plaintiff supervised general purchases and held the title Senior Buyer; Thomas Tucker ("Tucker"), the Scientific Buyer (age 54), handled the science departments; and 46-year-old John Dick ("Dick") dealt with the university's physical plant department and held the title Physical Plant Buyer. James Graham, age 50, acted as the director of the department, overseeing the three buyers and the Buyer Assistant, whose job involved administrative and clerical tasks.
In September, 1987 plaintiff suffered an injury to his hip, which causes him to limp. Plaintiff's orthopaedic specialist diagnosed plaintiff's condition as severe post-traumatic degenerative joint disease of the right hip and protrusio acetabulum of the right hip joint (Plaintiff's Exhibit No. 37).
Because of financial difficulties in 1993, Freddie Gallot ("Gallot") instructed Graham to reduce the purchasing department's budget in the amount of $ 30,000. In order to comply, Graham eliminated plaintiff's position, which paid an annual salary of $ 32,340. Plaintiff received notice on January 26, 1993 that effective January 31, 1993 he no longer had a position in the department.
II. LEGAL STANDARD
The standard for a summary judgment motion in federal court is set forth in Fed. R. Civ. P. 56. Rule 56(c) states that:
the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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.
Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In addition, a dispute over a material fact must be "genuine," i.e., the evidence must be such "that a reasonable jury could return a verdict in favor of the non-moving party." Id.
The moving party has the initial burden to identify evidence that it believes shows an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing'--that is, pointing out to the District Court--that there is an absence of evidence to support the non-moving party's case." Id. at 325. If the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the non-moving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The non-moving party may not rely merely upon bare assertions, conclusory allegations, or suspicions. Fireman's Ins. Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). The court must consider the evidence of the non-moving party as true, drawing all justifiable inferences arising from the evidence in favor of the non-moving party. Anderson, 477 U.S. at 255. To defeat the motion for summary judgment, the non-moving party must offer specific facts contradicting those set forth by the movant, thereby showing that there is a genuine issue for trial. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990).
A plaintiff alleging discrimination in employment may present either direct or circumstantial evidence that would allow a reasonable factfinder to infer discrimination. Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095 n.4 (3d Cir. 1995); see Price Waterhouse v. Hopkins, 490 U.S. 228, 244-46, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (establishing the framework for mixed-motives cases that involve direct evidence); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) (establishing the framework for pretext cases that involve circumstantial evidence); Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1225-26 & n.6 (3d Cir. 1994). Although the two frameworks for analyzing direct and circumstantial evidence developed originally in the context of Title VII cases, courts utilize them in the context of ADEA and ADA claims as well. See Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994) (using the mixed-motives framework to examine employer liability under the ADEA); Turner V. Schering-Plough Corp., 901 F.2d 335, 342 (3d Cir. 1990) (noting that the Court of Appeals for the Third Circuit has adopted the pretext framework for ADEA cases); Zambelli v. Historic Landmarks, Inc., 1995 U.S. Dist. LEXIS 3335, No. CIV.A.94-3691, 1995 WL 116669, at * 8 (E.D. Pa. March 20, 1995) (employing the same burden shifting standards for an ADA case as used with other employment discrimination statutes).
Because plaintiff asserts in various portions of his memorandum that he has direct as well as circumstantial evidence, I will examine plaintiff's claims under both the mixed-motives framework and the pretext framework. The federal and state claims will be discussed together because the PHRA utilizes the same analytical framework as that established in the Title VII cases and, hence, the cases brought under the ADA and the ADEA. See Doe v. Kohn Nast & Graf, 862 F. Supp. 1310, 1323 (E.D. Pa. 1994) (PHRA "was modelled after Title VII [and] is analyzed the same as Title VII cases. That analysis achieves the same result as the ADA claim."); see also Chmill v. City of Pittsburgh, 488 Pa. 470, 412 A.2d 860, 871 (Pa. 1980) (PHRA, although an independent state statute, should be construed in light of principles of fair employment law which have emerged from federal anti-discrimination statutes).
A. Plaintiff's Termination
1. Mixed-Motives Framework
A mixed-motives case arises when the plaintiff alleges that the employer based the employment decision upon both legitimate and illegitimate factors. Miller v. Cigna Corp., 47 F.3d 586, 594 (3d Cir. 1995). To proceed under the mixed-motives framework, the plaintiff initially must produce evidence "so revealing of discriminatory animus that it is not necessary to rely on any presumption from the prima facie case to shift the burden of production." Armbruster, 32 F.3d at 778. In order to shift the burden to the employer, the plaintiff must present direct evidence that is more persuasive than that sufficient to satisfy the prima facie case in a pretext framework. Mardell, 31 F.3d at 1225 n.6. To rebut a plaintiff's case-in-chief the defendant must prove that it would have made the same decision even if it had not allowed the illegitimate factor to play such a role. In essence, the employer must put forth an affirmative defense. Id.
Plaintiff contends that the record "contains abundant direct evidence of bias." Plaintiff's memorandum at 18. The Court of Appeals for the Third Circuit recognizes as direct evidence "policy documents or statements of a person involved in the decisionmaking process that reflect a discriminatory or retaliatory animus." Hook v. Ernst & Young, 28 F.3d 366, 374 (3d Cir. 1994). The plaintiff's evidence must directly link the decisionmaker's discriminatory animus to the adverse employment decision. Most often, such evidence involves the decisionmaker's conduct or statements; however, stray remarks and isolated comments are not enough. Id. at 374-75.
Plaintiff's review of the evidence set forth in his memorandum of law in response to Drexel's motion for summary judgment does not reveal any instance where Graham, or any other Drexel employee, made statements or engaged in conduct that manifested a bias regarding plaintiff's hip injury or limp. Having a noticeable and apparent limp, plaintiff implies that Graham's mere awareness of the limp constitutes direct evidence of discriminatory animus. Plaintiff, however, does not set forth any evidence that Graham considered plaintiff's limp as a reason to eliminate plaintiff's position. See id.
Plaintiff also relies on the report of Dr. Richard S. Andrulis, Ph.D., who examined plaintiff's case file in the light of the principles of industrial and organizational psychology. Dr. Andrulis observed that the department in which plaintiff was employed did not delineate job descriptions and did not have an objective methodology to determine the tasks associated with plaintiff's position. In addition, Dr. Andrulis noted that there was no structured system for performance evaluations, giving rise to the development of stereotypes in the workplace and the possibility that such stereotypes may play a role in employment decisions. Even assuming that Dr. Andrulis is a competent expert witness permitted to testify under Fed. R. Evid. 702,
I find that the substance of the doctor's report, in and of itself, does not constitute direct evidence. See Price Waterhouse, 490 U.S. at 277 (O'Connor, J., concurring) (expert testimony about stereotyping in the workplace, standing alone, does not shift the burden to the employer in a mixed-motives case). Lacking sufficient direct evidence, plaintiff cannot proceed with a mixed-motives framework for his claims of discrimination based on disability.
In support of his age discrimination claim, plaintiff offers as direct evidence Graham's comment referring to plaintiff's retirement and a letter from Drexel's personnel department. In 1992, when plaintiff's son graduated from college, Graham asked plaintiff when he planned to retire. Plaintiff's memorandum at 13. Although Graham made the decision to eliminate plaintiff's position in early 1993, there is no evidence to link Graham's question to Graham's decisionmaking process, which resulted in the elimination of plaintiff's position. Comments regarding retirement often arise contemporaneously with a child's graduation from college, considering that most parents rejoice when tuition bills cease to arrive each semester. I find that Graham's inquiry about plaintiff's expected retirement was a stray remark that reflected a common and casual reference to the often-anticipated completion of a parent's financial obligations to his children and not age bias. See Price Waterhouse, 490 U.S. at 277 (O'Connor, J., concurring) (statements by decisionmakers unrelated to the decisional process do not constitute direct evidence sufficient to shift the burden to the employer).
The letter plaintiff received from Drexel after his employment terminated, which referred to plaintiff as a retiree because he had worked more than 10 years and was presently over age 55, does not and cannot reflect age bias. This letter merely defines plaintiff's status as a retiree and explains the benefits to which he is entitled. Given that plaintiff's employment with Drexel began at age 56, there is no rational basis to interpret this corporate policy, which classified individuals over age 55 as retirees, as evidence of discriminatory animus. Therefore, neither Graham's casual comment nor the corporate letter constitute direct evidence sufficient to shift the burden to Drexel under a mixed-motives framework.
2. Pretext Framework
Pursuant to the Supreme Court's three step, burden-shifting analysis established in McDonnell Douglas Corp. v. Green, plaintiff must first set forth a prima facie case of discrimination by showing (1) plaintiff belongs to a protected class, (2) plaintiff performed his job satisfactorily, (3) plaintiff suffered an adverse employment action, and (4) defendant employer has treated similarly-situated employees more favorably.
See McDonnell Douglas, 411 U.S. at 802.
Once plaintiff establishes a prima facie case, the defendant must articulate a legitimate nondiscriminatory reason for its action. This burden is minimal. See Mardell, 31 F.3d at 1225 n.6. After defendant's showing, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons produced by the defendant are a pretext for discrimination. Id. The ultimate burden of proving intentional discrimination remains with the plaintiff, i.e., the plaintiff bears responsibility to persuade the factfinder that the employer's proffered reason was not the true reason for the employment decision and that the plaintiff has been the victim of intentional discrimination. St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2752, 125 L. Ed. 2d 407 (1993).
a. Prima Facie Case. A prima facie case of disability discrimination
requires plaintiff to prove that (1) he is a member of a protected class, i.e., has a disability as defined by the statute; (2) his work performance met the employer's legitimate job expectations; (3) he was terminated; and (4) employees not in the protected class were treated more favorably. See Zambelli, 1995 U.S. Dist. LEXIS 3335, 1995 WL 116669, at * 7.
Plaintiff claims that he is disabled due to his hip injury and limp. The ADA defines disability as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or