United States District Court, Eastern District of Pennsylvania
October 26, 2000
RUBEN C. GASPAR, PLAINTIFF,
MERCK AND COMPANY, INCORPORATED, A/K/A MERCK, DEFENDANT.
The opinion of the court was delivered by: Reed, Senior Judge.
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.
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.
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
[w]here the moving party has the burden of proof on
the relevant issues, this means that the district
court must determine that the facts specified in or in
connection with the motion entitle the
moving party to judgment as a matter of law. Where the
moving party does not have the burden of proof on the
relevant issues, this means that the district court
must determine that the deficiencies in the opponent's
evidence designated in or in connection with the
motion entitle the moving party to judgment as a
matter of law.
Anchorage Assoc. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175
(3d Cir. 1990).
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 dismissal notice from the EEOC. Because the complaint was
filed after the expiration of the statute of limitations, I conclude that
Gaspar's age discrimination claim is time barred.
Title VII Claim
In order to sustain a Title VII claim, Gaspar must establish a prima
facie case of race discrimination.*fn1 Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089 (1981);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817
(1973); Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). In order to
prove a prima facie case of race discrimination, the plaintiff must show
he is in a protected class, is qualified for the position, suffered an
adverse employment action, and that nonmembers of the protected class
were treated more favorably. See McDonnell, 411 U.S. at 802; Ezold v.
Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 521-522 (3d Cir.
1993). After the plaintiff has proven a prima facie case, the burden of
going forward shifts to the defendant to produce a legitimate,
nondiscriminatory reason for the termination. See Ezold, 983 F.2d at 522
(citing Burdine, 450 U.S. at 252). After a legitimate, nondiscriminatory
reason is provided, the burden shifts back to the plaintiff to prove that
the proffered reason is a pretext for
discrimination. See Burdine, 450 U.S. at 252; McDonnell 411 U.S. at 802;
Ezold 983 F.2d at 522. In order to prove pretext the plaintiff must
provide either direct or circumstantial evidence from which a factfinder
could reasonably either (1) disbelieve the employer's articulated
legitimate reasons or (2) believe that a discriminatory reason was more
likely than not a motivating or determinative cause of the employer's
action. See Fuentes, 32 F.3d at 764 (citing St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742 (1993); Ezold, 983 F.2d 509,
521-522 (3d Cir. 1993)). In order to prove this the plaintiff "must
demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered legitimate
reasons for its action that a reasonable factfinder could rationally find
them `unworthy of credence'." Fuentes, 32 F.3d at 765 (quoting Ezold, 983
F.2d at 531).
While it is undisputed that Gaspar is a member of a protected class,
there is no evidence on the record from which a reasonable jury could
find that he was qualified for the job or that nonmembers of the
protected class were treated more favorably. Gaspar's evaluations exhibit
a wide range of problems with his performance. (Gaspar Dep. at 12-15;
Defendant's Exhibit C, Gaspar Performance Appraisal for Year 1988;
Defendant's Exhibit D, Memo from Art Jaeger to Ron Corbin, Dated May 12,
1994). Furthermore, Gaspar admitted he possessed no knowledge of who
replaced him after he left (Gaspar Dep. at 85) and in fact, no one
replaced Gaspar in his position. (Jaeger Aff. At ¶ 18).
Even if Gaspar could have established a prima facie case, there is no
evidence from which a reasonable jury could infer that Merck's
legitimate, nondiscriminatory reason for termination was merely pretext
for discrimination. In his deposition testimony, Gaspar disagreed with
Merck's evaluations of him. Merck documented a history of consistently
poor performance by Gaspar. (Gaspar Dep. at 12-15; Defendant's Exhibit C,
Gaspar Performance Appraisal for Year 1988; Defendant's Exhibit D, Memo
from Art Jaeger to Ron Corbin, Dated May 12, 1994). He offers no evidence
that these repeated and consistent evaluations were pretextual, other
than his own disagreement with his evaluations.
A defendant is entitled to summary judgment in a Title VII claim if the
plaintiff cannot produce sufficient evidence of pretext to rebut the
asserted nondiscriminatory reasons for the employment decision. See Jalil
v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989), cert. denied,
493 U.S. 1023, 10 S.Ct. 725 (1990). Because Gaspar fails to produce
sufficient evidence of pretext, I conclude that defendant is entitled to
summary judgment on Gaspar's Title VII claim.
Merck also asserts that Gaspar's PHRA claim is barred because it failed
to exhaust all administrative remedies. A complainant must exhaust all
administrative remedies provided by statute before commencing a civil
action in a federal district court. See Brown, 425 U.S. at 832. Gaspar
failed to file a complaint with the PHRC (Defendant's Exhibit M, Charge
of Discrimination filed with the EEOC on April 17, 1995), therefore I
conclude that his PHRA claim is barred.
Section 1981 Claim
Finally, Merck argues that Gaspar's Section 1981 race discrimination
claim is barred by the applicable statute of limitations. The statute of
limitations for section 1981 claims is determined by state law. See
Williams v. Home Depot, U.S.A., Inc., No. 98-3712, 1999 U.S. Dist. LEXIS
15250, at *7 (E.D.Pa. Oct. 5, 1999). In Pennsylvania, the applicable
statute of limitations is that which governs personal injury actions,
barring suit commenced more than two years following the date of the
alleged injury. See id. at *7, (citing Goodman v. Lukens Steel Co.
482 U.S. 656, 662, 107 S.Ct. 2617 (1987)). The statute of limitations in
a Section 1981 claim is not tolled by the timely filing of an EEOC
charge. See Johnson v. Railway Exp. Ag. Inc., 421 U.S. 454, 466, 95
S.Ct. 1716 (1975). Gaspar's termination occurred on October 20, 1994 and
he did not file this complaint until June 24, 1998, far after the
expiration of the statute of limitations. Accordingly, I conclude that
Gaspar's Section 1981 race discrimination claim is barred.
Gaspar's age discrimination claim is barred because he filed his
complaint after the 90 days statute of limitations. Furthermore, he is
unable to support a Title VII race discrimination claim because he fails
to prove a prima facie case of racial discrimination, or that Merck's
reasons for termination were pretextual. Gaspar's PHRA claim is barred
because he neglected to exhaust the administrative remedies available to
him. Finally, the race discrimination claim is barred by the applicable
two-year statute of limitations.
Having considered all the arguments and evidence of record, I conclude
that there remains no genuine issue of material fact and that the
defendant is entitled to summary judgment as a matter of law.
An appropriate Order follows.
AND NOW, on this 26th day of October, upon consideration of the motion
of defendant Merck for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure (Document No. 15), having thoroughly
reviewed the pleadings, evidence of record and affidavits submitted
therewith, and having concluded, for the reasons set forth in the
foregoing Memorandum, that there is no genuine issue of material fact,
and that defendant is entitled to a judgment as a matter of law on all of
plaintiff's claims, IT IS HEREBY ORDERED that the motion of Merck for
summary judgment is GRANTED.
It is further ordered that FINAL JUDGMENT is HEREBY ENTERED in
favor of Merck and Company, Incorporated, a/k/a Merck and against
Ruben C. Gaspar.