retaliation for his letter to the president of the cabinet
division, dated February 7, 1995, complaining that he was
discriminated against because of his "experience and . . . age."
This claim must fail because there is no evidence of a causal
link between the letter and Mr. Tumolo's termination in August
1996. See Delli Santi v. CNA Ins. Co., 88 F.3d 192, 198 (3d
Cir. 1996) (prima facie requires showing (1) that plaintiff
engaged in protected activity, (2) that he was subsequently
subjected to an adverse employment action, and (3) a causal
relationship between protected activity and the adverse action).
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
to develop new business. Engle dep., at 23, 29, 33-34; Mazzi
dep., at 11-12, 17; Yudis dep., at 18-19; Moynihan decl., ¶
In order to survive summary judgment after defendant has set
forth a nondiscriminatory reason, plaintiff need not invariably
put on additional evidence of discrimination beyond the prima
facie case. See Sempier, 45 F.3d at 731. Plaintiff must "point
to some evidence, direct or circumstantial, for which a
factfinder could reasonably either (1) disbelieve the employer's
articulated legitimate reason; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action." Simpson, 142
F.3d at 644 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d
When reviewing a motion for summary judgment, the court "(i)
resolve[s] conflicting evidence in favor of the nonmovant, (ii)
[does] not engage in credibility determinations, and (iii)
draw[s] all reasonable inferences in favor of the nonmovant."
Simpson, 142 F.3d at 643, n. 3 (quoting Fuentes, 32 F.3d at
762 n. 1). Summary judgment is appropriate where the nonmovant
has presented no evidence or inference that would give rise to a
genuine issue of material fact. See Schoonejongen v.
Curtiss-Wright Corp., 143 F.3d 120, 130 (3d Cir. 1998). It may
not be granted where "there is disagreement over what inferences
can be reasonably drawn from the facts even when the facts are
undisputed." Ideal Dairy Farms, Inc. v. John Labatt, Ltd.,
90 F.3d 737, 744 (3d Cir. 1996). See also Coolspring Stone Supply,
Inc. v. American States Life Ins. Co., 10 F.3d 144, 148 (3d Cir.
1993) (summary judgment is inappropriate when the case turns on
state of mind because "issues of knowledge and intent . . . must
often be resolved on the basis of inferences drawn from the
conduct of the parties.") (quoting Riehl v. Travelers Ins. Co.,
772 F.2d 19, 24 (3d Cir. 1985).
Given this formidable standard, one should not substitute one's
evaluation of the evidence for that of the factfinder even where,
as here, the showing of pretext is not strong and is, perhaps,
doubtful. There are some "weaknesses, implausibilities,
incoherences, or contradictions" in defendant's explanation that
at least permit a genuine argument that it may be pretextual.
Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 331 (3d
Cir. 1995) (quoting Fuentes, 32 F.3d at 765). It is not the
court's role to weigh the disputed evidence and decide which
party has the stronger case. See Brewer, 72 F.3d at 331. Here,
given Mr. Tumolo's outstanding sales record over a number of
years and the challenges, such as they are, to defendant's
justification of its decision, summary judgment on the age
discrimination claim must be denied. Cf. Torre, 42 F.3d at
831-32 ("The inference of age discrimination may not be
overpowering, but we cannot say that, as a matter of law, it is
Punitive Damages. — As a matter of law, plaintiff is not
entitled to recover punitive damages — as distinct from
liquidated damages — under the ADEA, see Smith v. Berry Co.,
165 F.3d 390, 395 (5th Cir. 1999), Williams v. Valentec Kisco,
Inc., 964 F.2d 723, 729 (8th Cir. 1992), Bruno v. Western Elec.
Co., 829 F.2d 957, 967 (10th Cir. 1987), Hatter v. New York
City Housing Auth., 1998 WL 743733, *2 (2d Cir. Oct. 22, 1998)
(unpublished opinion), Alston v. Atlantic Elec. Co.,
962 F. Supp. 616, 625 n. 11 (D.N.J. 1997), Burland v. Manor-Care
Health Serv., Inc., 1999 WL 58580, *4 (E.D.Pa. Jan. 26, 1999);
or under PHRA. See Burland, 1999 WL 58580, *4 (citing Hoy v.
Angelone, 554 Pa. 134, 720 A.2d 745, 749 (1998).
In conclusion, summary judgment is denied as to plaintiff's
claim of age-based discharge and is granted as to all other
AND NOW, this 21st day of April, 1999, defendant Triangle
Pacific Corporation's motion for summary judgment, Fed. R.Civ.P.
56, is ruled on as follows:
1) Hostile work environment — granted;
2) Disparate pay — granted;
3) Retaliation — granted;
4) Age-based termination — denied.
5) Punitive damages — granted.
A memorandum will be filed.