The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.
Plaintiffs, Robert G. Schmidt and John J. Kelly ("Plaintiff
Schmidt," "Plaintiff Kelly," or "Plaintiffs") brought this
employment discrimination action against the defendant,
Montgomery Kone, Inc. ("Defendant" or "MK"). Specifically,
Plaintiffs allege that Defendant discriminated against them based
upon their age in terminating their employment in the fall of
1996. Plaintiffs also allege that Defendant unlawfully retaliated
against them as a result of their filing age discrimination
charges with the Equal Employment Opportunity Commission ("EEOC")
and the Pennsylvania Human Relations Commission ("PHRC").
Finally, and in connection with Plaintiffs' discrimination
claims, Plaintiff Schmidt brought a claim for intentional
infliction of emotional distress against Defendant. At the
completion of discovery, Defendant filed a motion for summary
judgment as to Plaintiffs' age discrimination and retaliation
claims and Plaintiff Schmidt's intentional infliction of
emotional distress claim. For the following
reasons, Defendant's motion will be denied.
Viewed in a light most favorable to Plaintiffs, the facts are
as follows. Defendant is an elevator repair, installation,
maintenance and service company with a branch in the Philadelphia
area. Mr. Robert Masterson was Defendant's Modernization and
Repair Supervisor. Mr. Masterson recommended to his supervisor,
Mr. Lippman, the hiring of Plaintiffs, and Plaintiffs were hired
on September 29, 1995. Plaintiff Schmidt was hired as a certified
elevator mechanic. Plaintiff Kelly was hired as a mechanic's
helper. From the time they were hired, Plaintiffs performed
"billable repair" work, meaning that customers were charged on an
hourly rate rather than on a fixed rate pursuant to an existing
contract, for the work performed by Plaintiffs.
In September of 1996, MK laid off Plaintiffs, citing a lack of
sufficient available work, Plaintiffs' lack of specialized
skills, and Plaintiffs' brief tenure with the company. At the
time of the lay off, Plaintiff Schmidt was 59 years old and
Plaintiff Kelly was 45 years old. No other employees, including
employees younger than Plaintiffs, were laid off with Plaintiffs.
After the layoff, MK assigned work formerly assigned to Plaintiff
Schmidt to Kevin O'Keefe, an employee in his thirties. On October
25, 1996, Plaintiff Kelly filed an age discrimination complaint
against MK with the EEOC and asked that the same complaint be
cross-filed with the PHRC. Plaintiff Schmidt followed the same
procedure on November 26, 1996.
MK subsequently called Plaintiffs back to work in February of
1997. Plaintiff Schmidt claims he was assigned to a number of
more difficult outdoor construction jobs; the type of assignments
he had generally not received prior to his layoff and the filing
of the EEOC and PHRC complaints. Additionally, on two occasions,
Plaintiff Schmidt was sent to job sites where the equipment
necessary to perform the work was not available. Plaintiff
Schmidt claims that this had not happened prior to his layoff and
subsequent filing of EEOC and PHRC charges. As a result of this
lack of equipment, Plaintiff Schmidt contends he was unable to
complete his assigned tasks or was placed in physical danger. For
example, Plaintiff Schmidt was instructed to transport barrels of
contaminated waste during an assignment at the 30th Street Post
Office in Philadelphia. Plaintiff Schmidt alleges that because he
did not have the proper equipment to perform this task, one
barrel fell and caused him to injure his shoulder and accidently
swallow some of the contaminated waste. Additionally, Plaintiff
Schmidt was not given the proper equipment at the "G.C. Murphy
job," which involved repairing a "flooded elevator." (Pl.'s
Resp., p. 7-8). Plaintiff Schmidt alleges that because he was not
provided with the proper equipment to safely perform this
assignment, he received an electrical shock. (Pl.'s Resp., p.
Plaintiff Kelly also contends that he was the subject of
retaliation after he was recalled. Plaintiff Kelly received a
reprimand letter for failing to call in sick on a day he did not
report for work. By contrast, other employees who failed to call
in sick just one time were not issued formal reprimand letters.
Further, an MK supervisor indicated that but for the EEOC
charges, he would not have issued the reprimand letter. MK then
laid off Plaintiff Kelly again on May 28, 1997, citing a lack of
Defendant contends that Plaintiffs were laid off because there
was not sufficient work, Plaintiffs did not have any specialized
skill and because they had been with MK only a relatively short
time. These reasons, Defendant contends, form the legitimate,
non-discriminatory basis for its decision to lay off Plaintiffs.
Defendant also argues that Plaintiffs have not made out a prima
facie case of unlawful retaliation. Finally, Defendant asserts
that its conduct cannot be said to be sufficiently outrageous to
support an intentional infliction of emotional distress claim, or
in the alternative, that Plaintiff Schmidt's intentional
infliction of emotional distress claim is barred by the
Pennsylvania worker's compensation statute.
Summary judgment is appropriate if the moving party can "show
that there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment,
the Court must view the evidence in the light most favorable to
the non-movant. See Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). The Court must accept the non-movant's version of the
facts as true, and resolve conflicts in the non-movant's favor.
See Big Apple BMW, Inc. v. BMW of N. Amer., Inc.,
974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912, 113
S.Ct. 1262, 122 L.Ed.2d 659 (1993).
The moving party bears the initial burden of demonstrating the
absence of genuine issues of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). Once the movant has done so, however, the non-moving
party cannot rest on its pleadings. See Fed.R.Civ.P. 56(e).
Rather, the non-movant must then "make a showing sufficient to
establish the existence of every element essential to his case,
based on the affidavits or by depositions and admissions on
file." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992);
see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A. ADEA and PHRA Age Discrimination Claims*fn1
Defendant asserts that it is entitled to judgment on
Plaintiffs' age discrimination claims under the ADEA for two
alternative reasons. First, Defendant argues that Plaintiffs have
not established a prima facie case of unlawful discrimination
under the ADEA. Second, assuming the existence of a prima facie
case, Defendant contends that Plaintiffs do not raise a genuine
issue of material fact as to ...