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PENCHISHEN v. STROH BREWERY CO.

July 24, 1996

MADELINE A. PENCHISHEN, Plaintiff,
v.
THE STROH BREWERY CO., Defendant.



The opinion of the court was delivered by: JOYNER

 Joyner, J.

 July 24, 1996

 This is an employment discrimination action brought by Plaintiff Madeline A. Penchishen, a former employee of Defendant The Stroh Brewery Company. In her Complaint, Plaintiff alleges that Defendant unlawfully terminated her employment on account of: (1) her alleged disability, in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-13 (1995) ("the ADA") and (2) her age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (1985 & Supp. 1996) ("the ADEA"). *fn1" Defendant seeks summary judgment on the entire Complaint.

 STANDARD OF REVIEW

 This Court is authorized to award summary judgment "if the pleadings, depositions 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 judgment as a matter of law." Fed. R. Civ. P. 56(c). In order to survive a summary judgment motion, the non-moving party must raise "more than a mere scintilla of evidence in its favor" and may not merely rely on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Boiled to its essence, the summary judgment standard requires the non-moving party to create a "sufficient disagreement to require submission [of the evidence] to a jury." Liberty Lobby, 477 U.S. at 251-52.

 FACTUAL BACKGROUND

 Taken in the light most favorable to Plaintiff, the facts are as follows. *fn2" In 1994, when she was discharged, Plaintiff was a 51 year old long-time employee of Defendant, working as a key punch operator in Defendant's data processing unit. In 1993, Plaintiff had been seriously injured in an automobile accident. As a result of the accident, she missed six months of work, but then returned in July, 1994 to her old position as a key punch operator.

 A lasting result of Plaintiff's injury is the existence of a metal plate in her left ankle. Because of the plate, Plaintiff does not have full flex in her ankle and cannot walk at a normal gait or pace; rather, her pace is 1/2 as fast as it was before the accident. In addition, Plaintiff must use stairs by placing both feet on each step before moving to the next step.

 Two months after Plaintiff returned to work, her key-punch job was eliminated in a cost-cutting measure along with several other jobs. Pursuant to her labor agreement with Defendant, Plaintiff was given the opportunity to "bid into" other open positions at Defendant. At a meeting with the Human Resources Director, Dave Lichtle, Plaintiff was told that there were two open positions; one in Packaging, one in Quality Assurance. Also at this meeting, Plaintiff and Lichtle discussed which job was best suited for Plaintiff based on her impairment. Lichtle allegedly told Plaintiff that the best job was in Quality Assurance and that he would assign her to that position. Plaintiff alleges that because of her seniority level, if she had elected the Packaging position, she would have been awarded that job over the two women who did move to that department.

 Far from being the best job for her, Quality Assurance turned out to be a very poor choice. The position involved walking between the plant laboratory and the plant floor several times a day to gather samples. These areas were divided by two sets of stairs totalling about 26 steps. The position also required Plaintiff to perform laboratory tests on the beer itself and the seals placed on the bottles.

 Once on the job, Plaintiff's weekly performance reviews were not favorable and reflected that Plaintiff had difficulty learning the technical aspects of her job. Plaintiff alleges that many of her problems arose from the difficulty she had moving from place to place in a timely fashion. Because of Plaintiff's poor performance, Defendant arranged a meeting with her to terminate her before her 30-day probation period ended.

 At that meeting, Plaintiff insisted that she could learn the Quality Assurance position if she had more time. In the alternative, she requested a transfer to Packaging, to a position she believed did not involve much walking. This request was subsequently denied and Plaintiff was terminated.

 Plaintiff alleges that her Quality Assurance position was filled by a man in his twenties named Ronald Mihalko who had previously worked for Defendant as Summer Temporary Help. Mihalko started in Quality Assurance at the same time as ...


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