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
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
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