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GEIGER v. AT&T CORP.

April 17, 1997

CARL A. GEIGER
v.
AT&T CORPORATION and DEVON CONSULTING COMPANY



The opinion of the court was delivered by: CAHN

 Cahn, C.J.

 April 17, 1997

 Plaintiff Carl A. Geiger has sued his former employers, AT&T Corporation and Devon Consulting Company, asserting claims of age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA") and promissory estoppel. Before the court are motions by both defendants for summary judgment. For the reasons stated below, the motions for summary judgment are granted.

 I. FACTS AND PROCEDURAL HISTORY

 In 1953, Carl Geiger began his employment with Bell Telephone Company, the predecessor of Defendant AT&T Corporation. *fn1" While employed for Bell Telephone, and later for AT&T, Geiger held a variety of positions related to the assembly and operation of hardware and computer equipment. In 1986, he was employed at the AT&T Microelectronics Building in Allentown, Pennsylvania as a systems technician. Complaint at PP 9-10.

 In 1986, AT&T offered Geiger an early retirement package. Geiger, interested in the package, asked his manager, John Blozinski, whether AT&T would hire him as a contracted outsourcing employee (hereinafter, "outsource contractor") if he were to accept the early retirement package. Deposition of Carl A. Geiger ("Geiger Dep.") at 22-24. Blozinski informed Geiger that AT&T would hire him as an outsource contractor. Geiger Dep. at 30-31. Geiger, aware of AT&T's practice of hiring contractors only through outside employee leasing and consulting companies, contacted Devon Consulting Company ("Devon") *fn2" about working through Devon for AT&T. Id. at 31-33. Devon agreed to represent Geiger as an outsource contractor to AT&T. Geiger accepted AT&T's retirement package, and retired from AT&T on or about September 30, 1986. Complaint at P 11. He was 54 years old at the time.

 Immediately following his retirement, Geiger returned to his job duties at AT&T as an outsource contractor through Devon. His job responsibilities were unchanged by his new contractor status. Complaint at P 13. He reported to the same building and to the same manager as he had before retirement, and AT&T continued to provide Geiger with both his assignments and any tools or support he needed for those assignments. Geiger's contact with Devon was limited. Certification of Carl Geiger, Exh. A in Support of Opposition to AT&T Mot. for Judgment on the Pleadings ("Geiger-AT&T Certif.") at P 10. He mailed his time sheets to and received his paychecks from Devon, but in his day-to-day job responsibilities, it was as if he had never left AT&T's employ.

 In March of 1993, John Herbine, Geiger's then-supervisor at AT&T, explained to Geiger that because of an AT&T policy, AT&T could no longer employ Geiger as an outsource contractor. Geiger Dep. at 82-83. The content of this policy is in dispute. Geiger claims that the policy was explained in a letter by Administrative Director William Collier which was shown to him by Herbine. According to Geiger, the "letter specifically stated language to the effect that AT&T retirees were not permitted in any AT&T Microelectronics building beyond on or about March 31, 1993." Pltf. Mem. Opp. to Judg. on Pleadings, at 5 (emphasis in original). According to AT&T, the policy was not limited to retirees because it prohibited all former employees from working as outsource contractors for AT&T. The content of this policy will be discussed in more detail below.

 John Herbine also informed Devon's Malcolm Hoffman that because of the new policy, AT&T would not renew its contract for Geiger's services, and that Geiger's assignment at AT&T would end on March 31, 1993. Declaration of Malcolm Hoffman, Exh. C to Devon Mot. Summ. Judg. ("Hoffman Decl."), at P 5. Geiger's employment with Devon ended on March 31, 1993. Following the termination, both Devon and Geiger made several unsuccessful attempts to find additional assignments for Geiger.

 Geiger pursued administrative remedies with the Pennsylvania Human Relations Commission and the Equal Employment Opportunity Commission. After requesting and receiving administrative dismissal of the complaint, he filed suit against AT&T and Devon on February 20, 1996. On September 9, 1996, this court granted AT&T's motion to dismiss Geiger's claim of tortious interference with contract based on Geiger's failure to comply with the applicable Pennsylvania statute of limitations. On October 1, 1996, AT&T moved for judgment on the pleadings. Because resolution of the motion would have required the court to look beyond the face of the pleadings, I converted the motion for judgment on the pleadings to one for summary judgment pursuant to Federal Rule of Civil Procedure 12(c). This court's Order of December 16, 1996 gave notice of the conversion and allowed the parties additional time to conduct discovery and supplement their briefs. On February 3, 1997, Devon moved for summary judgment. Both motions are now before the court.

 II. STANDARD FOR SUMMARY JUDGMENT

 Summary judgment is appropriate when the "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). The court's role is to determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party, with all reasonable inferences viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 249, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the burden of demonstrating that no genuine issue of material fact exists; however, if the nonmoving party fails to produce sufficient evidence in connection with an essential evidence of a claim for which it has the burden of proof, then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 III. THE AGE DISCRIMINATION CLAIMS

 A. Direct Evidence of Age Discrimination

 Direct evidence of age discrimination exists when the evidence "directly reflects a discriminatory . . . animus on the part of a person involved in the decisionmaking process." Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994) (citations omitted). In such a case, "what is required is . . . direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision." Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (O'Connor, J., concurring).

 1. AT&T

 Geiger's claim of age discrimination against AT&T is based on the company's policy which led to his termination. AT&T and Geiger disagree on the contents of that policy. AT&T claims that the policy prohibited engaging all former AT&T employees as outsource contractors; Geiger claims the policy prevented only AT&T retirees from being hired as outsource contractors. The policy is Geiger's only direct evidence of age discrimination.

 Geiger has presented no factual support for his position that the AT&T policy prohibited the engagement of only retirees. AT&T has presented significant evidence that the policy actually excluded all former employees from outsource contractor positions, and Geiger has presented no evidence that creates a genuine factual dispute about which groups were covered by the policy.

 AT&T has presented a memorandum dated March 2, 1992 by Administrative Director William Collier, explaining the new AT&T policy and entitled "Policy on Engaging Outside Consultants":

 
The following policy is effective immediately throughout NSG *fn4" . . .
 
1. Employees retiring or leaving the payroll through force reduction actions cannot be hired as individual or project consultants.
 
2. Employees who have formed an outside consulting firm cannot be contracted for consulting services.
 
3. Employees working for other established consulting firms cannot be hired for ...

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