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KELLY v. DREXEL UNIV.

November 7, 1995

FRANCIS J. KELLY, Plaintiff,
v.
DREXEL UNIVERSITY, Defendant.



The opinion of the court was delivered by: REED

 Reed, J.

 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).

 III. DISCUSSION

 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). *fn2" 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 ...


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