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October 22, 1999


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. 7-8).

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 available work.

Plaintiffs' theory of the case is that MK's decision to terminate their employment in the fall of 1996 was based upon their age, in violation of the Age Discrimination and Employment Act (ADEA) and the Pennsylvania Human Relations Act (PHRA). Plaintiffs also argue that after Plaintiffs were recalled, they were assigned to more difficult or dangerous jobs than previously assigned or issued an unwarranted reprimand letter. This conduct, Plaintiffs contend, constitutes retaliation for their filing discrimination charges with the EEOC and PHRC. Finally, Plaintiff Schmidt contends that by retaliating against him and forcing him to perform more arduous and dangerous tasks than he was previously assigned and to perform assigned tasks without the proper equipment, MK engaged in outrageous conduct that caused him extreme emotional distress and bodily injury.

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 ...

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