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September 13, 1996


The opinion of the court was delivered by: MCLAUGHLIN


 Plaintiff, Angeline M. Pellegrino, brings the instant action alleging various infringements of her civil rights and interference with her employee benefit rights in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., the Pennsylvania Human Relations Act ("PHRA"), Pa. Stat. Ann. tit. 43, §§ 951 et seq. (1991 & 1996 Supp.), and the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq.

 Presently pending before this Court are Defendants' motion for summary judgment, motions to strike certain portions of two affidavits submitted by Plaintiff in opposition to the motion for summary judgment, and a motion to strike Plaintiff's request for a jury trial. This Court has jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. §§ 1331. We have jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367.


 Defendants McMillen Lumber Products Corporation and Irwin Wood Products, Inc. are Pennsylvania corporations with their principle places of business in Sheffield, Pennsylvania. They are engaged in the business of manufacturing furniture dimension stock. Defendant McMillen Lumber Company of Sheffield, Inc. is a Pennsylvania corporation, also with its principal place of business in Sheffield, Pennsylvania. It is engaged in logging and sawmill operations, including manufacturing lumber and selling lumber products to the other two Defendants. (These entities will be collectively referred to hereafter as the "McMillen Companies" or the "Companies" or "Defendants.")

 During the 1940s Wendell W. McMillen founded a family lumber business which subsequently evolved into the present day McMillen Companies. Wendell was the father of James McMillen, Joyce Olson, and Robert McMillen, all current majority shareholders and officers of the McMillen Companies. In 1945, Pellegrino became employed by Wendell McMillen. At the time, Wendell was thirty-one years old and Pellegrino was seventeen. Up until 1992, when Wendell retired from the business, Pellegrino's responsibilities encompassed a variety of duties including receipt and distribution of the mail, bookkeeping, typing correspondence, answering the telephone, preparing salary payroll and tax statements, and serving as Wendell McMillen's personal secretary.

 During the course of Pellegrino's employment, she and Wendell McMillen became involved in a romantic affair which lasted many years. Defendants contend that Wendell became romantically involved with Pellegrino relatively early on in her tenure. Plaintiff maintains that her relationship with Wendell was sexually coercive before it became romantic. Throughout most of his romantic involvement with Pellegrino, Wendell McMillen remained married to the mother of the McMillen children. Pellegrino and Wendell eventually became engaged to be married after Mrs. McMillen died in 1988.

 Not surprisingly, the relationship between Wendell and Pellegrino resulted in great strain and tension in the McMillen family over many years and became the source of considerable resentment by the McMillen children, all of whom had been involved with the business and had known of their father's affair since their high school years. Pellegrino contends, however, that she herself never harbored or acted on any animosity toward the McMillen children and that their animosity was one-sided.

 In or around January of 1990, Wendell McMillen began to exhibit symptoms of Alzheimers Disease and his condition deteriorated rapidly thereafter. In March 1992 he ceased regular employment with the Companies and, in December 1992, he was adjudicated an incapacitated person. Wendell's sons James and Robert were appointed plenary guardians of his estate. With the onset of Wendell McMillen's illness, James McMillen took over his father's principal management role in the Companies. James is President of McMillen Lumber Products Corporation and McMillen Lumber Company of Sheffield, Inc. and Vice President of Irwin Wood Products, Inc. Robert McMillen is the President of Irwin Wood Products, Inc. and Vice President of McMillen Lumber Products Corporation and McMillen Lumber Company of Sheffield, Inc. Joyce Olson is the Secretary of all three Companies.

 Following Wendell McMillen's retirement, the personal animosity stemming from Pellegrino's affair with him came to a head. Defendants claim that numerous manifestations of tension, animosity, and power struggles occurred at the Companies. Pellegrino maintains that the animosity was one-sided, emanating only from the McMillen children and not from her. She denies that there was any legitimate perception of a power struggle inasmuch as she was a minority shareholder and was removed from her positions as an officer and director of the McMillen Companies in January 1993. In any event, however, Pellegrino suffered what she considered to be acts of harassment by the McMillen family members -- and particularly Joyce Olson -- with whom she worked in the Companies' offices. These acts included the "silent treatment," numerous incidents of Joyce Olson allegedly screaming at Pellegrino, and an incident in which Pellegrino was allegedly hit in the chest with some books. Finally, on March 10, 1993, Pellegrino was terminated from her employment. James, Robert, and Joyce were the primary persons involved in the decision to terminate Pellegrino's employment, although Pellegrino alleges that John Jarzab, the financial director, was also involved in the decision to terminate her employment.

 Pellegrino is, and for many years has been, a shareholder of all three McMillen Companies. The parties are currently engaged in a separate dispute concerning Pellegrino's request that the Defendants repurchase her shares and her allegations of mismanagement of the businesses. Defendants maintain that this separate dispute commenced prior to Pellegrino's termination from employment and led to her retention of counsel and threats that she would sue the Companies as well as their officers and shareholders. Pellegrino admits that there was a meeting between her counsel and representatives of the Defendant Companies on August 7, 1992, but denies that she ever threatened to sue the Companies prior to her discharge. Nevertheless, a lawsuit concerning these matters is currently pending in the Warren County, Pennsylvania Court of Common Pleas.

 Following her termination from the Companies, Pellegrino filed a timely charge with the EEOC and received a notice of her right to sue. Plaintiff alleges that she also filed a timely charge with the Pennsylvania Human Relations Commission. She subsequently filed the instant action alleging four causes of action for violations of Title VII, ADEA, ERISA, and the PHRA, respectively. Defendants have moved for summary judgment on all counts.


 Summary judgment is appropriate 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 judgment as a matter of law. Fed. R. Civ. P. 56(c). On a motion for summary judgment, all facts must be construed in the light most favorable to the non-movant. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990).

 Once the moving party has satisfied its burden of identifying evidence which demonstrates the absence of a genuine issue of material fact, the non-moving party must demonstrate by affidavits and other materials the existence of specific material facts which give rise to a genuine issue. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987); Shultz v. Barko Hydraulics, Inc., 832 F. Supp. 142 (W.D. Pa. 1993). In so doing, the non-movant may not rest upon bear assertions, conclusory allegations or mere suspicion, but must set forth specific facts showing that there is a genuine issue for trial. Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981); Barcelona v. Fox Grocery Co. Employees' Pension Plan, 483 F. Supp. 1128, 1134 (W.D. Pa. 1980). An issue of material fact is considered "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).


 A. Defendants' Motion for Summary Judgment

 1. Plaintiff's Title VII, ADEA, and PHRA Claims

 Plaintiff claims that she was unlawfully terminated because of her age and sex in violation of Title VII of the Civil Rights Act, ADEA, and the PHRA.

 Disparate treatment cases are typically considered under one of two analyses: (1) the "mixed motive" analysis set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), and its progeny; or (2) the "pretext" analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and further refined in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), and St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). *fn2" In a pretext case, the plaintiff argues that the employer's facially legitimate reasons for an adverse employment action are false and that the true reason for its decision was an unlawful discriminatory animus. Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir. 1993), cert. denied, 510 U.S. 865, 126 L. Ed. 2d 145, 114 S. Ct. 186 (1993), overruled in non-relevant part, Miller v. CIGNA Corp., 47 F.3d 586, 596 n.8 (3d Cir. 1995)(en banc). In a mixed motives case, the plaintiff seeks to prove that the adverse employment decision resulted from a mixture of legitimate and prohibited discriminatory motives. 988 F.2d at 469. As an initial matter, the Court must determine whether one or both of the foregoing paradigms is applicable in this case. *fn3"

 Whether a pretext or a mixed-motives case has been presented depends on the type of circumstantial evidence the employee produces in support of her claim. Hook v. Ernst & Young, 28 F.3d 366, 373 (3d Cir. 1994). A plaintiff has an easier burden in making out a prima facie pretext case because she may rely on either direct evidence of discrimination or on circumstantial evidence. Griffith, 988 F.2d at 470. While circumstantial evidence may be relied upon in a mixed-motives case, "at a bare minimum, a plaintiff seeking to advance a mixed motive case will have to adduce circumstantial evidence 'of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude.'" Id. (following Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992)). Thus, the circumstantial evidence presented in a mixed motives case "must be tied directly to the alleged discriminatory animus." Ostrowski, 968 F.2d at 182. See also Armbruster, 32 F.3d at 778 (evidence in a mixed-motives case must directly reflect a discriminatory or retaliatory animus on the part of a person involved in the decision-making process).

 In contrast to a mixed-motives case, "the type of evidence required in a pretext case is not overt or 'explicit evidence of discrimination -- i.e. the 'smoking gun"." Armbruster, 32 F.3d at 782. Rather, a plaintiff may rely on circumstantial or other competent evidence that the presumptively valid reason for the adverse employment action was actually a coverup for discriminatory action. Id.

 Whether a case is properly classified as a pretext or mixed-motives case has significant bearing on the parties' respective burdens of proof. If a plaintiff in a mixed-motives case makes a prima facie showing that the alleged discriminatory animus was a "motivating" or "significant" factor in the employment decision, the defendant may avoid liability by successfully asserting that it would have made the same decision even if the forbidden consideration had played no role. Griffiths, 988 F.2d at 469. The defendant, however, bears the ultimate burden of persuasion on this issue at trial. Armbruster, 32 F.3d at 778. In a pretext case, the plaintiff has the burden of establishing her prima facie case by demonstrating that she: (1) is a member of a protected group; (2) was qualified to perform the job at issue; (3) was dismissed or otherwise suffered adverse employment action despite being qualified for the position; and (4) was replaced by another employee sufficiently younger, or otherwise outside the protected group, so as to permit an inference of discrimination. Armbruster, 32 F.3d at 777; Maxfield v. Sinclair Int'l, 766 F.2d 788, 791-92 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986). Once a plaintiff establishes a prima facie case of discrimination, the defendant has the burden of producing some legitimate, non-discriminatory explanation for its action. Burdine, 450 U.S. at 252-55; Griffiths, 988 F.2d at 469. If the defendant satisfies this burden of production, the plaintiff must offer evidence tending to show that the defendant's explanation is merely a pretext for discrimination by showing that the proffered explanation is unworthy of credence. Burdine, 450 U.S. at 254-56; Armbruster, 32 F.3d at 778; Griffiths, 988 F.2d at 469.

 The plaintiff's ultimate burden at trial in a pretext case will be to demonstrate by a fair preponderance of the evidence (1) that the employer's proffered explanation is pretextual, and (2) that the discriminatory motive was the true reason for the adverse action. St. Mary's Honor Ctr., 509 U.S. at 511 n.4, 515. If the fact finder does not believe the defendant's explanation, such disbelief, together with the elements of the prima facie case, may permit an inference that a discriminatory animus was a motivating factor in the adverse employment decision. Id. See also Armbruster, 32 F.3d at 783; Seman v. Coplay Cement Co., 26 F.3d 428, 433 (3d Cir. 1994).

 a) Plaintiff's Sex Discrimination Claim

 Defendants contend that Plaintiff cannot establish a prima facie case of sex discrimination under a mixed-motives analysis because she can neither point to overt or direct evidence of discrimination, nor adduce circumstantial evidence tied directly to a discriminatory animus. They argue that Plaintiff cannot establish a prima facie case of sex discrimination under a pretext analysis because Plaintiff was not replaced by persons outside her protected class.

 In her brief opposing summary judgment, Plaintiff does not attempt to demonstrate either a pretext or mixed-motives sex discrimination case. Rather, she premises her Title VII claim on alleged quid pro quo sexual discrimination. Plaintiff alleges that her sexual relationship with Wendell McMillen, at least at its inception, was coercive and a condition of her continued employment. Although she concedes that she cannot now recover damages for these prior coercive acts, Pellegrino claims that they are relevant to this action. She alleges that the McMillen children adopted their father's longstanding policy of quid pro quo sexual harassment by discharging her because of the sexual relationship she had with him:

[Plaintiff's] working conditions required her both to perform office work and personal services linked to her sex as a woman. Once the latter services were no longer possible, she could not be judged purely on traditional job performance, in which she excelled, and was discharged.

 (Pl.'s Br. in Opp. in Summ. Judgmt. at 19.)

 The primary support for Plaintiff's allegations of quid pro quo harassment comes from her affidavit submitted in opposition to summary judgment. Because of its potential relevance to our disposition of Defendants' motion for summary judgment, we will briefly address Defendants' motion to strike certain portions of the affidavit.

 (i) Defendants' Motion to Strike Portions of Plaintiff's Affidavit

 Defendants object to Paragraphs 11-16 and 18-34 of Pellegrino's affidavit. *fn4" These paragraphs concern Plaintiff's relationship with Wendell McMillen and outline various acts of oppressive harassment and coercion on his part. Among other things, these paragraphs allege that Wendell:

- persisted in making sexual advances toward Plaintiff on numerous occasions despite her resistance (PP 11-15, 18);
- raped Plaintiff in his car on one occasion (P 19);
- grabbed and kissed Plaintiff in the office and wrestled her down to the couch in an attempt to have intercourse with her (P 22);
- discouraged Plaintiff from accepting other employment and interfered with her relationships with ...

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