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November 5, 1998

SANDRA NARIN, Plaintiff,

The opinion of the court was delivered by: JOYNER



 November 5, 1998

 Presently before the Court is Defendant, Lower Merion School District's (the "District" or "Defendant"), Motion for Summary Judgment on all counts of Plaintiff's complaint. Also before the Court is Defendant's Motion for Partial Summary Judgment based on the Statute of Limitations for counts I through V of Plaintiff's complaint. Plaintiff, Sandra Narin ("Narin" or "Plaintiff"), filed a twelve count complaint alleging that Defendant's failure to hire her for various teaching positions constituted age discrimination under the Age Discrimination in Employment Act ("ADEA"). See 29 U.S.C. §§ 621, et. seq. For the following reasons, Defendant's Motion for Summary Judgment on all counts of Plaintiff's complaint is granted as to counts II, III, IV, VII, VIII, IX, X, XI, and XII and denied as to counts I, V, and VI. Defendant's Motion for Partial Summary Judgment based on the Statute of Limitations is granted as to count V and denied as to the remainder of the counts.


 Plaintiff, Narin, became certified to teach French and Russian in May of 1994 and English in September of 1996. Narin student taught in the District at Harriton High School ("Harriton") in the Spring of 1994. Subsequently, the District hired Narin for the 1994-95 school year as a part-time long term substitute *fn1" to teach French at Harriton. On April 11, 1995, Narin was notified that this temporary position was eliminated for the following year. Narin continued working with the District as a per diem substitute from September 1995 through June 1997.

 While Narin was substitute teaching, she continued to apply for any relevant teaching position that became available in the District. Plaintiff applied for a variety of positions ranging from French positions at the elementary and middle school levels to English positions at the high school level. In all, Narin applied for approximately ten (10) teaching positions. Narin was interviewed for some of the positions she applied for, but she was not hired for any of them. Narin alleges that the District did not hire her for these positions due to age discrimination. Narin was 54 when she first began working at the District and was 56 when she filed the present suit. *fn2"

 Narin filed a complaint alleging age discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC") on June 10, 1997 and filed this action on October 14, 1997.


 I. Summary Judgment Standard

 Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, reveal no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Our responsibility is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The presence of "a mere scintilla of evidence" in the nonmovant's favor will not avoid summary judgment. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)(citing Anderson, 477 U.S. at 249). Rather, we will grant summary judgment unless "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 II. Method of Proof in Employment Discrimination Cases

 Plaintiff's employment discrimination claim is governed by the burden shifting framework first established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1972), refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), and clarified in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). This framework has three steps: (1) plaintiff must first establish a prima facie case of discrimination; (2) the burden then shifts to defendant, who must offer a legitimate, non-discriminatory reason for the action; and (3) plaintiff may then "demonstrate that the employer's stated reason was not its true reason, but merely a pretext for discrimination." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir. 1995).

 To establish a prima facie case of age discrimination under the ADEA for failure to hire, a plaintiff must establish: (1) that she is over the age of forty (40); (2) that she applied for and was qualified for the job; (3) that despite her qualifications she was rejected; and (4) that the employer either ultimately filled the position with someone sufficiently younger to permit an inference of discrimination or continued to seek applicants from among those having plaintiff's qualifications. See Brewer, 72 F.3d at 330 (internal citations omitted); see also E.E.O.C. v. Metal Service Co., 892 F.2d 341, 348 (3d Cir. 1990)(to establish prima facie case plaintiff must show that he "made every reasonable attempt to convey his interest in the job"); see generally In Re: Carnegie Center Associates, 129 F.3d 290, 298 (3d Cir. 1997)(plaintiff must express interest in position to make out prima facie case of discrimination).

 In Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (1996), the Third Circuit, sitting en banc, clarified the evidence required to submit pretext claims to a jury. The court reaffirmed its prior holdings that when the defendant answers the plaintiff's prima facie case with legitimate, non-discriminatory reasons for its action, the plaintiff may defeat summary judgment by "pointing to some evidence, direct or circumstantial, from which a fact finder 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." Id. at 1067 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)); see also Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997)(en banc); Lawrence v. National Westminster Bank of New Jersey, 98 F.3d 61, 66 (3d Cir. 1996); Brewer, 72 F.3d at 331. A plaintiff must present evidence that demonstrates "weaknesses, implausibilities, inconsistencies, incoherences, or contradictions" in defendant's proffered legitimate, non-discriminatory reason such that a reasonable jury could conclude that the proffered reason is not "worthy of credence." Keller, 130 F.3d at 1108 (en banc)(quoting Fuentes, 32 F.3d at 764).

 The district court's role is to "determine whether the plaintiff has cast sufficient doubt upon the employer's proffered reasons to permit a reasonable fact finder to conclude that the reasons are incredible." Sheridan, 100 F.3d at 1072. In doing so, we must not usurp the jury's "traditional function of assessing the weight of the evidence, the credibility of the witnesses through observation of both direct testimony and cross-examination at trial, and the strength of the inferences that can be drawn from the elements of the prima facie case and the evidence that undermines the employer's proffered reasons for its actions." Id.

 III. Application of Standard to Plaintiff's Claims

 In each count of Plaintiff's complaint she alleges a different, specific position for which she was not hired due to age discrimination. Thus, we will analyze Plaintiff's claims count by count, combining them where appropriate.

 A. Counts II and IV

 In count II Plaintiff claims that the District failed to hire her for a teaching position in a gifted program due to age discrimination, and in count IV Plaintiff claims that the District failed to hire her as a teacher in an alternative setting due to age discrimination. Plaintiff does not allege who was hired to fill these positions. *fn3" The District maintains that there were no available positions that correspond to these alleged positions.

 Regarding count II, Plaintiff was unsure in deposition about what position she had actually applied for and admits that "there may have been a mix-up." See (Narin Dep. at 152-53). Regarding count IV, Plaintiff alleges that she applied for these positions in response to a newspaper advertisement. *fn4"

 However, Plaintiff has not presented any evidence to demonstrate that these positions were available and/or were filled by someone sufficiently younger to permit an inference of age discrimination. Consequently, Plaintiff cannot establish a prima facie case of age discrimination for counts II and IV. Therefore, ...

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