Cir. 1995). In Heath, the employer considered eligibility for retirement benefits in making termination decisions. However, the fact that eligibility for retirement benefits was perfectly correlated with membership in the protected age class was insufficient to raise the issue of age proxy discrimination, because the plaintiff presented no evidence that eligibility for retirement was being used as a proxy for age. Id. Similarly, in Sperling, the court held that the decision to terminate certain employees because they had "ample retirement benefits" did not violate the ADEA. 924 F. Supp. 1396 at 1405. Despite perfect correlation between age and retirement benefits (the employees falling into the "ample retirement benefits" category were all at least 50 years old), the company's decisions did not involve "the problem of inaccurate and stigmatizing stereotypes" about older workers. Therefore, consideration of retirement benefits did not violate the ADEA. Id. at 1406, quoting Hazen Paper, 507 U.S. at 611. The Court of Appeals for the Fifth Circuit has reached a similar conclusion, holding that an employer's consideration of "fast-approaching eligibility for retirement benefits" in making a termination decision is not age discrimination. Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir. 1995).
An opinion from the Ninth Circuit seems to disagree with the rulings of Heath, Sperling, and Armendariz. In EEOC v. Local 350, Plumbers and Pipefitters, 998 F.2d 641, 646 (9th Cir. 1992), as amended on denial of reh'g (9th Cir. 1993), the Ninth Circuit Court of Appeals held that a union hiring hall's policy of refusing to allow retired union members to seek work while receiving pensions violated the ADEA. This court finds Local 350 's reasoning unpersuasive in light of Hazen Paper. Local 350 held that the union's policy violated the ADEA because it was based on "a factor very closely related to age." Id., at 646. After Hazen Paper, reliance on a factor closely correlated with age, without evidence that the employer "supposed a correlation between the two factors and acted accordingly," Hazen Paper at 613, is not age discrimination.
This court agrees with Heath, Sperling and Armendariz that an employer's consideration of retirement status is insufficient to defeat summary judgment on an ADEA claim. The plaintiff must demonstrate the existence of a factual issue regarding whether an employer has attempted to use retirement as a shield or proxy for age discrimination.
Geiger has presented no evidence that any decision to exclude AT&T retirees was actually a proxy for excluding older employees. In fact, as discussed above, he has admitted his belief that AT&T continues to employ retirees from other companies as outsource contractors. Geiger Dep., at 176-178. In the absence of such proof, the court can make no inference that AT&T used retirement status as a proxy for age. This court finds that even if the AT&T policy was based on retirement, rather than former employee status, AT&T's consideration of retirement status was analytically distinct from age and not a proxy for age discrimination.
Plaintiff therefore has presented no direct evidence of age discrimination against AT&T. The documentation establishes that the policy was actually targeted at all former employees. Moreover, without some evidence of age proxy discrimination, both retirement status and former employee status are analytically distinct from age according to the Hazen Paper analysis.
2. Devon Consulting
Geiger has presented no evidence of direct discrimination by Devon. His theory of a direct case against Devon is that Devon knew about the discriminatory AT&T policy and did nothing to change it or to protect Geiger from its ramifications. Therefore, Geiger contends, Devon "aided and abetted the intentional discriminatory treatment" by AT&T, and is subject to ADEA liability pursuant to the Pennsylvania Human Relations Act, 43 Pa. C.S.A. § 951 et seq. ("PHRA"). Pltf. Mem. in Opp. Devon Mot. Summ. Judg., at 10. The court presumes that Geiger is referring to section 955(e) of the PHRA, which prohibits the aiding or abetting of discrimination. However, Geiger's complaint does not allege a violation of the PHRA or assert rights pursuant to the PHRA; his discrimination complaints are based solely on federal law. The ADEA does not mention liability for aiding and abetting discrimination, and the courts have recognized that the PHRA "contemplates liability that extends beyond" federal prohibitions. Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996) (noting that § 955(e) of the PHRA prohibits the aiding and abetting of discrimination, whereas Title VII does not). This court will not sustain a cause of action under the ADEA based on a alleged violation of the PHRA. Therefore, Geiger has no direct evidence of age discrimination against Devon.
B. Circumstantial Evidence of Age Discrimination
Even without direct evidence of discrimination, a plaintiff may prevail by presenting circumstantial evidence under the burden shifting analysis of McDonnell Douglas-Burdine. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Under this framework, a plaintiff must first present a prima facie case by establishing that (1) he is over 40 years of age; (2) he is qualified for the position in question; (3) he suffered from an adverse employment decision; and (4) his replacement was sufficiently younger to permit an inference of age discrimination. Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995). If the plaintiff establishes this prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. Id. If the defendant can present evidence of such a nondiscriminatory reason for the decision, the burden shifts to the plaintiff to present evidence that "the employer's stated reasons were not its true reasons but a pretext for discrimination." Id. (citation omitted).
Geiger contends that he has presented a prima facie case of age discrimination, and argues that the reason AT&T puts forth for the termination (the policy) is pretextual. The first policy letter excluding former employees arrived in March 1992, and Geiger's outsource contract was not terminated until March 1993. Geiger relies on this lapse of time to contend that the policy was merely a pretext for firing him; the real reason was age.
There are two major flaws in Geiger's argument. First, he has not presented evidence sufficient to make out a prima facie case; second, he has not presented evidence that would allow a reasonable jury to disbelieve AT&T's proffered explanation for terminating his outsource contract.
First, Geiger has not met the fourth prong of his prima facie case. The Third Circuit Court of Appeals has noted that this prima facie case framework "is not intended to be onerous." Sempier, 45 F.3d at 728 (citation omitted). However, plaintiffs may not ignore an element of the prima facie case. Geiger has presented no evidence that AT&T replaced him with or delegated his job responsibilities to younger employees, sought new applicants for his job, or treated younger employees differently than he was treated; therefore, no reasonable jury could conclude that Geiger was treated less favorably than or replaced by younger employees. For this reason, he has not met the elements of a prima facie case of age discrimination against either AT&T or Devon. See, MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1442-43 (10th Cir. 1996) (affirming a grant of summary judgment when plaintiff presented no evidence to show he was replaced by a younger employee).
Furthermore, even if Geiger had established a prima facie case, his only evidence to support a finding of pretext is that the AT&T policy was written in 1992 but his contract with AT&T was not terminated until March of 1993. Thus, he contends that the policy was not the real reason he was fired. The Court of Appeals for the Third Circuit has addressed the issue of what evidence a plaintiff must produce in order to defeat summary judgment on a pretext question:
To avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons
. . . was either a post-hoc fabrication or otherwise did not actually motivate the employment action . . . . The non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence . . . .