Plaintiff to the crew headed by Brahm, a supervisor in her mid-twenties. Brahm monitored Plaintiff's arrival time each morning while letting Oswald and Stewart arrive late on a regular basis. A third younger employee not supervised by Brahm also was frequently late, and she was promoted before she resigned. Such evidence would permit a reasonable factfinder to conclude "that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Sheridan, 100 F.3d at 1067 (quoting Fuentes, 32 F.3d at 764).
Penn-Del emphasizes that (1) none of Plaintiff's managers made age related comments to her and (2) there is no proof that Kaiser, the "final decision maker" was motivated by Plaintiff's age. As the Third Circuit noted in Sheridan, however, "the distinct method of proof in employment discrimination cases ... arose out of the recognition that direct evidence of an employer's motivation will often be unavailable or difficult to acquire." 100 F.3d at 1071. Defendant also points to the evidence that Penn-Del has discharged numerous employees of all ages for excessive tardiness and that Fischer, Plaintiff's supervisor for over a year, was older than Plaintiff. While such evidence may support Defendant's claim, it does not warrant an award of summary judgment in its favor.
IV. Count II: the Title VII Claim
In Count II, Plaintiff alleges that Defendant violated Title VII by terminating her for chronic tardiness while not discharging two male employees who also arrived late on an excessive basis. The first step in the analysis is whether Plaintiff has made out a prima facie case of sex discrimination. In Sheridan, the court held that to establish a prima facie Title VII claim of discriminatory discharge a plaintiff must show (1) that she is a member of the protected class, (2) she was qualified for that position, (3) she was discharged, and (4) the position was ultimately filled by a person not of the protected class. Sheridan, 100 F.3d at 1066 n. 5 (citing Waldron v. SL Industries, 56 F.3d 491, 494 (3d Cir. 1995)). In this case, Plaintiff was replaced by Deborah Guth, thus the fourth element would not be present under this test.
Our Court of Appeals has held, however, that "the prima facie case is not rigid and should be adjusted to comport to the claims advanced and facts presented." Moore v. Grove North America, Inc., 927 F. Supp. 824, 831 (M.D.Pa. 1996)(citing Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990)). Because the essence of Plaintiff's claim here is that she was discharged by Brahm while Oswald and Stewart were not, it is more appropriate to require Plaintiff to demonstrate that (1) she is a member of a protected class; (2) she was qualified for the position; (3) she was discharged; and (4) other employees not in the protected class were treated more favorably. Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993). Indeed, Defendant appears to concede that Plaintiff has made out a prima facie case--or that there are at least material issues of fact with respect to each element--as Penn-Del's arguments bear on the third step of the McDonnell Douglas analysis.
Defendant argues that Plaintiff has submitted insufficient direct or circumstantial evidence of gender discrimination because the supervisor who discharged Plaintiff was a woman; her prior supervisor was a woman; Penn-Del has discharged both men and women for excessive tardiness; Penn-Del hired a woman to replace her; Penn-Del employed twice as many women as men in the summer of 1994; and Penn-Del promoted Vlattas to the position of sales coach. Under Sheridan, however, the admittedly weak evidence of gender discrimination in this case does not prevent Plaintiff's Title VII claim from reaching the jury because Plaintiff has offered sufficient evidence that Defendant's proffered justification is pretextual.
To repeat, a plaintiff may defeat summary judgment by offering sufficient evidence "from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Sheridan, 100 F.3d at 1067 (quoting Fuentes, 32 F.3d at 764) (emphasis added). As we concluded in our discussion of Plaintiff's ADEA claim, Plaintiff has offered sufficient evidence to cast doubt on Defendant's claim that Plaintiff was discharged for excessive tardiness. The clear holding of Sheridan is that a jury is permitted, though not compelled, to find a Title VII violation based only on the plaintiff's prima facie case and disbelief of the defendant's proffered justification. 100 F.3d at 1066-69. There need not also be additional evidence that "gender was the motive of those in the decision-making process." Id. at 1071; see also id. at 1086-87 (Alioto, J., concurring in part and dissenting in part); Moore, 927 F. Supp. at 832 (denying summary judgment on Title VII claim despite finding "nothing in the record" to support finding of gender based discharge). Accordingly, Defendant's Motion is also denied with respect to Count II.
V. Count III: the ADA Claim
In Count III, Plaintiff claims that her discharge violated the ADA. To establish a prima facie claim of unlawful discrimination in violation of the ADA, a plaintiff must demonstrate that (1) she has a disability within the meaning of the ADA; (2) she is qualified, with or without reasonable accommodation, to perform the job; and (3) she has suffered an adverse employment decision as a result of discrimination. Horth v. General Dynamics Land Systems, Inc., 960 F. Supp. 873, 877 (M.D.Pa. 1997); see also Olson, 101 F.3d at 951. Defendant moves for summary judgment on the grounds that Plaintiff does not have a "disability" within the meaning of the ADA. Under the ADA, a person has a "disability" if she "(1) has 'a physical or mental impairment that substantially limits one or more of the major life activities of such individual'; (2) has 'a record of such an impairment'; or (3) is 'regarded as having such an impairment.'" Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)(quoting 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g)). Plaintiff alleges that she falls within the first and third categories. We address each claim in turn.
A. Does Plaintiff have a substantially limiting impairment?
Under the regulations, a person "is substantially limited in a major life activity if he is 'unable to perform a major life activity that the average person in the general population can perform' or is 'significantly restricted as to the condition, manner or duration under which [he] can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity.'" Id. (quoting 29 C.F.R. § 1630.2(j)). As we have noted before, in deciding whether an impairment is a disability, courts take a pragmatic, fact-intensive look at each plaintiff and determine:
(1) the nature and severity of the impairment,
(2) the duration or expected duration of the impairment, and