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April 22, 1999


The opinion of the court was delivered by: Ludwig, District Judge.


Defendant Triangle Pacific Corporation moves for summary judgment in this age discrimination and retaliation action. Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.; Pennsylvania Human Relations Act (PHRA), 43 Pa.C.S.A. §§ 951 et seq.*fn1 Jurisdiction is federal question. 28 U.S.C. § 1331.

Plaintiff's decedent, Michael Tumolo, died on November 2, 1997. From 1984 to August 13, 1996, he had been employed as a sales representative in defendant's kitchen cabinet division, assigned to its King of Prussia office. As part of a reduction in force in defendant's Northeast region, two of the five sales representatives in the King of Prussia office were terminated — one of them, plaintiff's decedent, was age 59; the other, age 32. The three salespeople retained were ages 38, 43, and 48. Moynihan decl., ¶ 5. In October, 1996, Mr. Tumolo filed an age discrimination claim with the Equal Employment Opportunity Commission and the Pennsylvania Human Rights Commission. After his death, this lawsuit was filed on behalf of his estate.

The allegations underlying the discrimination claims are as follows: (1) plaintiff's decedent was harassed by his district manager, who was younger; (2) he was paid a lower commission rate than younger sales representatives; (3) he was discharged as a result of his age while younger employees were retained; and (4) he was retaliated against for his prior complaint of age discrimination.

Hostile Work Environment Claim. — Although the complaint alleges age-based harassment, compl. ¶¶ 25(a), 26(a), it is unclear whether it asserts a hostile work environment claim.*fn2 The elements of such a claim are as follows: (1) intentional discrimination because of age, which is (2) pervasive and regular, and which (3) has detrimental effects that (4) would be suffered by reasonable person of the same age in the same position; and (5) respondeat superior liability exists. See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1304 n. 19 (3d Cir. 1997) (discussing hostile work environment claim in context of sex discrimination). The only matters proffered here are that Mr. Tumolo was subjected to "constant questions" about his expense reports, pl. resp. at 2, and was denied reimbursement for the cost of a fax machine while a younger employee was not. Pl. resp. at 2-3. These facts fall far short of making out a hostile work environment based on age.

Unequal Pay. — To succeed on a disparate pay claim, a plaintiff must show that younger employees were compensated at higher rates for substantially equivalent work. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1087 (3d Cir. 1996). Here, the sole evidence of unequal pay is that one younger sales representative received a higher commission rate than Mr. Tumolo.*fn3 Cf. Simpson v. Kay Jewelers, 142 F.3d 639, 646 (3d Cir. 1998) (inference of discrimination based on a single member of a non-protected group not permitted). Mr. Tumolo received the highest base salary in his office, and his commission rate was increased to between 1.5% and 2.0% beginning in 1996.*fn4 Moreover, plaintiff has not shown that Mr. Tumolo's work assignment or performance was comparable to that of those receiving a higher commission rate or that his lower commission rate resulted in lower total compensation.

Defendant insists that Michael Moynihan, its primary employment decision-maker in this case, had no knowledge of the letter. Moynihan decl., ¶ 7; Engle dep., at 31-32. Even assuming that he did, or that Bruce Yudis, a manager who admits he knew of the letter, played a role in the termination decision, adequate proof of causality is still lacking. That the termination occurred subsequent to Mr. Tumolo's complaint is not itself enough. See Robinson, 120 F.3d at 1302 ("[T]he mere fact that adverse employment action occurs after a complaint will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two events."). The timing here is unduly long and, therefore, irreparably weak on the issue of causation, inasmuch as decedent was discharged sixteen months after he wrote his letter complaint. See Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997) (affirming summary judgment for defendant on retaliation claim where evidence was that plaintiff was placed on worker's compensation leave nineteen months after filing an EEOC charge).

Plaintiff's also offers as evidence of alleged retaliation a second letter from Mr. Tumolo to the defendant's president, dated May 10, 1995, in which Mr. Tumolo complained that one of his customers had not received products because of a problem with the credit department. Pl. resp., ex. J. Plaintiff says that this "maltreatment of Michael Tumolo's loyal customer" occurred three months after he wrote the February 1995 letter complaining of discrimination — and is, therefore, evidence of retaliatory state of mind. Pl. resp., at 26.

However, assuming the letter of May 10, 1995 is admissible,*fn6 it is hardly evidence of retaliation. All one may reasonably infer is that the credit department had difficulties handling an account. Plaintiff has not demonstrated that the situation was unique to Mr. Tumolo or his customers. There is no evidence as to the basis of the credit problem or whether it resulted in harm to Mr. Tumolo through a loss of business or reputation. Accordingly, this letter has not been shown to have any more than speculative connection to the first letter or any realistic relation to a theory of retaliation. No triable issue of retaliation has been presented.*fn7

Age-Based Discharge. — At the heart of this case is the claim of discriminatory discharge. As the parties agree, because of the circumstantial nature of the evidence, the burden-shifting mechanism of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is applicable. See also Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (applying McDonnell Douglas framework to ADEA cases). Consequently, plaintiff must establish a prima facie case of intentional discrimination by showing Mr. Tumolo (1) was over 40; (2) was qualified for the position in question; (3) was the subject of an adverse employment decision; and (4) since the termination was part of a reduction in force, other similarly-situated younger employees were retained. See Torre v. Casio, Inc., 42 F.3d 825, 830, 831 (3d Cir. 1994).*fn8

Defendant argues that plaintiff has not shown a prima facie case as to Mr. Tumolo's qualifications for his sales position in that he was not generating new business. Def. mem. at 16. However, our Court of Appeals has held that plaintiff's evidentiary burden at this stage is modest: "[I]t is to demonstrate to the court that plaintiff's factual scenario is compatible with discriminatory intent." Marzano v. Computer Science Corp., Inc., 91 F.3d 497, 508 (3d Cir. 1996). See also Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995) ("[T]o deny the plaintiff an opportunity to move beyond the initial stage of establishing a prima facie case because he has failed to introduce evidence showing he possesses certain subjective qualities would improperly prevent the court from examining the criteria to determine whether their use was mere pretext.").

Here, the missing qualification — lack of new business — is more appropriately considered at the legitimate nondiscriminatory reason stage. Cf. Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989) (plaintiff need not disprove the asserted qualification, insubordination, to succeed in a prima facie case; it is more logically a defense raised at second stage of proof). Moreover, defendant has not presented evidence on which to find that Mr. Tumolo's alleged inaptitude was objectively or readily assessable. See Waldron v. SL Industries, Inc., 56 F.3d 491, 499-500 (3d Cir. 1995) (citing Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509 (3d Cir. 1992)). He had been employed in his position for twelve years, since 1984, and, at the time of his termination, was the top-grossing salesperson in his King of Prussia office. To this extent, it is hard to say he was not prima facie qualified.

Once a prima facie case is made out, the burden shifts to defendant to produce evidence of a legitimate, nondiscriminatory reason for termination. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993); Simpson, 142 F.3d at 644 n. 5. Here, defendant has advanced inadequate job performance as the justification for discharging Mr. Tumolo during a company-wide reduction in workforce. He is alleged to have (1) mishandled several accounts, and (2) failed to ...

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