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GOSNELL v. RUNYON

December 21, 1995

STEPHEN E. GOSNELL, Plaintiff
v.
MARVIN RUNYON, POSTMASTER GENERAL, Defendant



The opinion of the court was delivered by: RAMBO

 I. Introduction

 Stephen E. Gosnell ("Plaintiff") filed this suit against Marvin Runyon, Postmaster General ("Defendant"), under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1988) ("ADEA"). Now before the court is Defendant's motion for summary judgment. The motion has been briefed by both parties and is ripe for disposition.

 II. Background

 Plaintiff was employed by the United States Postal Service ("USPS") from 1967 until his early retirement in November of 1992. In January 1992, the USPS posted a vacancy announcement inviting applications for the position of Safety and Health Services Manager in Harrisburg, Pennsylvania. The position was classified as an "E.A.S.-21," E.A.S. being the matrix according to which postal service jobs correspond to a particular pay rate. Plaintiff applied for the position and was interviewed on April 8, 1992, at which time he was forty-nine years of age. Plaintiff was I classified as an E.A.S.-17 at the time he applied and accordingly the position represented a promotion to him.

 Peter Bazylewicz, the Manager of Human Resources in Harrisburg, and two other USPS employees conducted interviews of five applicants for the position. Peter Krah, then thirty-four years old, was among the individuals interviewed. Bazylewicz was responsible for the ultimate hiring decision and he selected Krah to fill the position.

 Upon learning several weeks later that he had not received the promotion, Plaintiff contacted the interviewers to inquire into the grounds for the decision. Plaintiff claims that in response to this inquiry, Bazylewicz gave the following account I of the selection process. The decision was easily reduced to one between Plaintiff and Krah because of deficiencies in the other interviewees. Bazylewicz stated that one "tried to bullshit his way through the interview," while another, James Gafney, was an E.A.S. "level 21 for the Management Academy who wants to come to Harrisburg and vegetate in the safety position until he retires." (Gosnell Dep. at 49.) Gafney was thirty-nine years old at the time of the interview. As for the choice between Plaintiff and Krah, Bazylewicz stated that although Plaintiff had a "good interview . . . and a good background in safety . . ., he's entitled to select anybody he wants." (Id.)

 Plaintiff, believing that Bazylewicz declined to select him due to age discrimination, filed a formal complaint under the ADEA with the Equal Employment Opportunity Commission ("EEOC") on September 4, 1992. For various reasons, the EEOC was unable to arrange a hearing during the ensuing eighteen months and, on March 7, 1994, it remanded the matter to the USPS for a Final Agency Decision in accordance with the ADEA. On July 19, 1994, the USPS rendered a decision against Plaintiff and he initiated this action in September of 1994.

 III. Discussion

 A. Summary Judgment Standard

 The standards for the award of summary judgment under Federal Rule of Civil Procedure 56 are well known. As the Third Circuit Court of Appeals has capsulized:

 
Summary judgment may be entered if "the pleadings, deposition[s], 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). An issue is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Equimark Comm. Finance Co. v. C.I.T. Financial Serv. Corp., 812 F.2d 141, 144 (3d Cir. 1987). If evidence is "merely colorable" or "not significantly probative" summary judgment may be granted. Anderson, 106 S. Ct. at 2511; Equimark, 812 F.2d at 144. Where the record, taken as a whole, could not "lead a rational trier of fact to find for the nonmoving party, summary judgment is proper." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).

 Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987). Once the moving party has shown that there is an absence of evidence to support the claims of the nonmoving party, the nonmoving party may not simply sit back and rest on the allegations in her complaint, but instead must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quotations omitted). The court will consider Defendant's motion under these standards.

 B. General Standards Governing ADEA Claims

 The ADEA bans age discrimination in employment against persons over age 40. 29 U.S.C. § 623(a)(1) and § 631(a). The purpose of the statute is "to promote employment of older persons based on their ability rather than age . . . [and] to prohibit arbitrary age discrimination in employment." 29 U.S.C. § 621(b).

 Because the ADEA parallels Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e et seq. (1988) ("Title VII"), in both text and purpose, courts adjudicating ADEA claims have adopted the analytic framework developed under Title VII. See, e.g., Barber v. CSX Distribution Services, 68 F.3d 694, 1995 WL 608519, *4 (3d Cir. 1995). Consequently, courts decide ADEA claims under the standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and further developed in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), and Saint Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993).

 The long-established process of alternating burdens of production set forth in McDonnell Douglas, Burdine and Hicks requires a three step analysis. First, the plaintiff must establish a prima facie case of impermissible discrimination by a preponderance of the evidence. Burdine, 450 U.S. at 252. In a failure to promote claim under the ADEA, this requires that a plaintiff show:

 
1) that he belongs to the protected class, 2) that he applied for and was qualified for the job, 3) that despite his qualifications he was rejected, and 4) that the employer either ultimately filled the position with someone sufficiently younger to permit an inference of age discrimination or continued to seek applicants from among those having plaintiff's qualifications.

 Fowle v. C & C Cola, 868 F.2d 59, 61 (3d Cir. 1989) (citations omitted). If the plaintiff succeeds in making out a prima facie case, a presumption arises that the defendant unlawfully discriminated against her and the burden of production shifts to the defendant to produce evidence indicating that its adverse employment actions were taken for a legitimate, nondiscriminatory reason. Burdine, 450 U.S. at 254. In order to meet this burden, "'the defendant must clearly set forth, through the introduction of admissible evidence,' reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Hicks, 113 S. Ct. at 2747 (quoting Burdine, 450 U.S. at 254. If the defendant carries this rather slight burden the presumption created by the plaintiff's prima facie showing "drops out of the case" entirely and the burden of production returns to the plaintiff to show that the tendered reason is pretextual. Id. at 2749. To establish pretext, a plaintiff must persuade the factfinder "both that the reason is false, and that discrimination was the real reason." Hicks, 113 S. Ct. at 2752 (emphasis in original).

 It is important to understand that the plaintiff's burden to demonstrate pretext does not require more than discrediting the reason offered by the employer for its adverse decision. That is the factfinder's rejection of the defendant's assertedly legitimate reason, coupled with the plaintiff's prima facie case, permits an inference of intentional discrimination. Id. at 2749; Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Further, the Third Circuit has admonished that ADEA plaintiffs need not "present[] evidence specifically relating to age." Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir. 1987).

 Equally important is the fact that the Third Circuit interprets Hicks such that when an ADEA plaintiff establishes a prima facie case and the employer rebuts it, the plaintiff may survive a motion for summary judgment in one of two ways. She must present direct or indirect evidence which either: (1) indicates "that discrimination was more likely than not a motivating or determining cause of the adverse employment action," or (2) discredits the employer's proffered reason. Fuentes, 32 F.3d at 764. In assessing the quantum of evidence required of a plaintiff to make the latter showing, she must produce "some" evidence from which a reasonable factfinder "could" conclude that each of the defendant's proffered reasons are "unworthy of credence." Fuentes, 32 F.3d at 764-65 (citations omitted). This may be accomplished by demonstrating "weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons. . . ." Id. at 765.

 Finally, it is significant that if the issue of pretext turns on the credibility of the employer or its agents, summary judgment is inappropriate. Barber, 1995 WL at *5; Chipollini, 814 F.2d at 901. This will generally be the case "where the only evidence of [an employer's] intent is oral testimony . . . [since] a jury could always chose to discredit it." Barber, 1995 WL at *5.

 C. Application

 The parties agree, and the court concurs, that Plaintiff has established a prima facie case. Consequently, Defendant now bears the burden of showing that its employment decision was based upon a legitimate, nondiscriminatory reason.

 Defendant attempts to meet its burden by relying almost entirely upon the affidavit of Peter Bazylewicz. In the affidavit, Bazylewicz asserts three reasons for promoting Krah over Plaintiff. First, he avers that he doubted Plaintiff's management skills and integrity due to certain improper conduct by an employee allegedly trained and supervised by Plaintiff. Second, Bazylewicz claims that he received a negative evaluation of Plaintiff from a former manager which caused him to further question Plaintiff's managerial abilities. Third, he asserts that the employment decision was significantly influenced by his favorable view of Krah, whom he had personally supervised in the past.

 As with the prima facie case, it is undisputed that Defendant has introduced sufficient evidence in support of his proffered legitimate reasons to shift the burden back to Plaintiff. Thus, the instant motion turns upon whether Plaintiff has submitted "some" evidence from which a reasonable factfinder "could" conclude; that each of Defendant's three tendered reasons are pretextual.

 1. Conduct Of Plaintiff's Subordinate

 The court finds this proffered reason unpersuasive on a number of grounds. First, there is a credibility issue with respect to whether Plaintiff trained the employee in question, which is not appropriate for summary judgment. Second, Defendant nowhere asserts that Plaintiff was in a position to prevent or even be aware of the alleged misconduct of his subordinate, or that the I misconduct resulted from inadequate or improper training. Third, there is no indication in the record as to whether the subordinate's nonfeasance was a single episode, a few incidents over a brief period, or a chronic problem spanning a lengthy stretch of time. In light of the void in the record on these points, the court must assume, construing factual ambiguities in favor of Plaintiff, that Bazylewicz claims to have ...


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