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GASPAR v. MERCK AND COMPANY

October 26, 2000

RUBEN C. GASPAR, PLAINTIFF,
V.
MERCK AND COMPANY, INCORPORATED, A/K/A MERCK, DEFENDANT.



The opinion of the court was delivered by: Reed, Senior Judge.

MEMORANDUM

Defendant Merck and Company, Inc., has filed a motion for summary judgment in this age and race discrimination action pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Document No. 15). Plaintiff did not file a response or otherwise oppose defendant's motion. Upon consideration of defendant's motion, and the pleadings and affidavits submitted therewith, defendant's motion will be granted.

I. BACKGROUND

Plaintiff Ruben C. Gaspar ("Gaspar") is a Pennsylvania resident who worked at Defendant Merck and Company, Inc. ("Merck") as a packaging design engineer from December 20, 1987 until his termination on October 20, 1994. Beginning with his first evaluation in 1988 and continuing until his termination, Gaspar received poor evaluations from his supervisors. He eventually was placed on a performance improvement plan ("PIP") on May 16, 1994. According to his evaluations, he failed to improve his work performance and was finally terminated.

Gaspar is an Asian/Pacific Islander and at the time of his termination was 59 years of age. He alleges he was discriminated against on the basis of his age and race when Merck terminated his employment. Gaspar asserts claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000 (e), et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 (a); the Civil Rights Act of 1866 ("Section 1981"), 42 U.S.C. § 1981; and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S. § 951, et seq.

Merck moves for summary judgment on the ground that the evidence is so one-sided that Gaspar's claims fail as a matter of law. Merck argues that Gaspar's age discrimination claim under the ADEA fails because (1) he did not exhaust his administrative remedies; (2) he failed to file the age discrimination claim within 90 days of receiving his Notice of Dismissal from the Equal Employment Opportunity Commission ("EEOC"); and (3) even if the claim is not procedurally barred, Gaspar has failed to establish a prima facie case of age discrimination. Furthermore, Merck asserts that Gaspar's Title VII claim fails because (1) he filed his claim after the applicable statute of limitations expired; (2) he failed to exhaust his administrative remedies with regard to being placed on the PIP; and (3) Gaspar failed to establish a prima facie case of race discrimination, and even if he could establish this, he has not proven that Merck's reason for his termination was pretextual. Additionally, Merck contends that Gaspar's PHRA claim is barred because he failed to exhaust administrative remedies. Finally, Merck claims that Gaspar's 1981 race discrimination claim is barred by the applicable statute of limitations.

II. ANALYSIS

In deciding a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, "the test is whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999) (citing Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)). On a motion for summary judgment, the facts should be reviewed in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993 (1962)). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, and must produce more than a "mere scintilla" of evidence to demonstrate a genuine issue of material fact in order to avoid summary judgment. See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

A court may grant an unopposed motion for summary judgment where it is "appropriate." Fed.R.Civ.P. 56(e). The Court of Appeals for the Third Circuit has observed that upon consideration of an unopposed motion for summary judgment,

Anchorage Assoc. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990).

ADEA Claim

Gaspar first claims he was discriminated against based on his age pursuant to the ADEA. Under the ADEA, a civil action may be brought within ninety days from the receipt of the Notice of Right to Sue from the EEOC. See 29 U.S.C. § 626 (e); McCray v. Corry Mfg. Co., 872 F. Supp. 209, 214, aff'd, 61 F.3d 224 (3rd Cir. 1995) ("We believe that the plain language of Section 626(e) makes clear that the failure to file suit within ninety days after the receipt of a notice from the Commission renders a plaintiff's action untimely"). Gaspar received the Notice of Right to Sue letter from the EEOC on or about March 5, 1998. He did not file this complaint until June 24, 1998, 107 days after he received the ...


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