Chapman, the reassignment of Danas to the Green team was a purely
lateral transfer that did not affect any of the terms and
conditions of Danas' employment; therefore, Chapman's refusal to
transfer Danas from the Green team to the Red team cannot
constitute an adverse employment action. Chapman largely bases
its argument on the Seventh Circuit's holding in Williams. In
Williams, the Seventh Circuit held that a lateral transfer
involving a small, indirect effect on an employee's earnings from
commissions did not rise to the level of a materially adverse
employment action under the ADEA. See Robinson, 120 F.3d at
1301, (citing Williams, 85 F.3d at 274). The plaintiff in that
case, Williams, had worked for many years as a salesman for E.R.
Squibb. Williams brought an age discrimination claim when his job
responsibilities changed following Squibb's merger with
Bristol-Myers. In a reorganization of its sales force, employer
Bristol-Myers Squibb reassigned Williams' sales territory and
charged him with selling a new group of drugs. Although Williams
continued calling on many of the same doctors he had worked with
before the reorganization, he claimed that he would lose
commission income while learning to market the new drugs. His
commissions, which had made up 10.7% of his income at Squibb, did
drop precipitously in the year of the reorganization. See
Williams, 85 F.3d at 272.
The Seventh Circuit ruled that "[t]he question whether a change
in an employee's job or working conditions is materially adverse,
rather than essentially neutral, is one of fact . . . and so can
be resolved on summary judgment only if the question is not
fairly contestable." Williams, 85 F.3d at 273-74. While
admitting that the question was close, the Court held that the
sharp drop in pay Williams suffered after the transfer did not
transform the transfer into a materially adverse action. See
id. at 274. Commissions were only a small part of Williams'
compensation, the Court reasoned, and they were likely to rebound
once Williams gained experience selling the new product line.
Williams does not compel a finding that Danas' transfer from
the Red to the Green team was purely lateral and that Chapman's
refusal to restore Danas to the Green team did not amount to a
material adverse employment action. Danas' compensation depends
entirely on the number of clock rate hours he turns; he does not
earn a base salary to cushion fluctuations as Williams did. A
jury could reasonably find, particularly given evidence of the
decrease in Danas' earnings following his reassignment to the
Green team, that a transfer to a newly formed team with a poor
customer base and an inexperienced service writer constitutes a
materially adverse change in working conditions. Drawing all
inferences from the underlying facts in favor of Danas, I find
that the question of whether his transfer was an adverse
employment action is too close for resolution at summary
The Third Circuit's decision in Torre further strengthens
that conclusion. In Torre, the Court held that a transfer, even
without loss of pay or benefits, can constitute an adverse
employment action. Torre, 42 F.3d at 831 n. 7. The plaintiff in
Torre survived summary judgment by demonstrating a material
fact issue as to whether he had been transferred to a dead-end
job that had effectively been eliminated before he assumed it.
See id. Similarly, a reasonable jury could find that Danas'
assignment to the Green team was not merely a change of color.
Rather than restore the Green team's members and customer base as
promised, Chapman outfitted the Green team with just three
technicians — in addition to Danas, one who left within weeks of
Danas' assignment and the other a C — level — a new service
writer, and a weak customer base. The jury could decide that this
transfer adversely affected not only Danas' compensation, but
also his long-term prospects at Chapman.
2) Circumstances Giving Rise to an Inference of Age
Chapman also contends that Danas cannot satisfy the fourth
prong of the prima facie case, which requires plaintiff to show
that the adverse employment action was taken under circumstances
giving rise to an inference of discrimination. Even assuming that
the assignment to the Green team was an adverse employment
action, Chapman argues, Danas still fails to produce sufficient
evidence that the decision to transfer Danas was made because of
his age. I disagree and hold that there are contestable issues of
fact as to the whether the circumstances surrounding the
employment actions taken against Danas give rise to an inference
To complete his prima facie case, Danas must present "evidence
adequate to create an inference that an employment decision was
based on a[n] [illegal] discriminatory criterion." O'Connor v.
Consolidated Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307,
134 L.Ed.2d 433 (1996) (quoting Teamsters v. United States,
431 U.S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). In the age
discrimination context, that inference can be drawn from the fact
that the adverse employment action was taken to the detriment of
a member of the protected class and to the benefit of another,
significantly younger worker. See O'Connor, 517 U.S. at 313,
116 S.Ct. 1307; see also Torre, 42 F.3d at 831 (the fact that
younger people were not transferred when Torre was transferred,
and that younger employees subsumed his duties, sufficed to
complete Torre's prima facie case).
Chapman has not proved an absence of evidence to support Danas'
age discrimination claim. Inferences in Danas's favor can be
drawn from the circumstances surrounding Danas' assignment to the
Green team in April 1997. Danas was 54 when he was moved from the
Red team to the new Green team. The master technician who
remained on the Red team, Jim Eyer, was 36 years old at the time.
Of the three former Green team members, only Danas was reassigned
to the new team as originally promised. The others, Scott
Schwengler and Paul Seladones, remained members of more
established, "desirable" teams.*fn15
In addition, factual issues remain as to why Danas was treated
differently on the job. First, Danas was passed over for
lucrative service jobs in favor of other, perhaps younger
employees. Danas told management that the priority order was
being violated, but nothing was done to improve the situation.
Second, the record reveals disputes as to why Danas was given a
disciplinary report for damaging a piece of equipment while a
younger employee was not disciplined for a similar mistake. While
the disciplinary warning alone might not rise to the level of a
materially adverse employment action, the fact that Danas
received such warnings while younger employees did not could
constitute evidence giving rise to an inference of
discrimination. Finally, the parties dispute why Danas was forced
to visit the company injury center rather than his own doctor —
missing work time as a result — while other, younger mechanics
might have been treated differently. A reasonable jury could
conclude that Chapman's tendency to single out Danas for
discipline and special medical attention suggests differential
treatment on account of age. "It is the very essence of age
discrimination for an older employee to be fired because the
employer believes that productivity and competence decline with
old age." Hazen Paper Co., 507 U.S. at 610, 113 S.Ct. 1701.
The comments made by Chapman General Manager Cecil Lam at the
July 1998 staff meeting, however, do not constitute
evidence supporting an inference of age discrimination. The
parties agree that Lam said something about a specific class of
employees — namely, those with seniority — placing a financial
burden on Chapman. Lam explained the comments in his deposition:
"There's a difference in older and longevity. You can say that
you have more longevity, obviously, being older may go with it,
but it doesn't have anything to do with your age."*fn16
The Supreme Court in Hazen Paper Co. held that an employer
did not violate the ADEA by acting on the basis of a factor, such
as seniority, that is empirically correlated with age. See Hazen
Paper Co., 507 U.S. at 612, 113 S.Ct. 1701; see also DiBiase v.
SmithKline Beecham Corp., 48 F.3d 719, 728 (3d Cir. 1995). In
Hazen, the Court was careful not to foreclose the possibility
that an employer might use a factor correlated with age — such as
seniority — as a proxy for age, and take unlawful actions
accordingly. Hazen Paper Co., 507 U.S. at 613, 113 S.Ct. 1701.
In this case, the evidence that nine of the eleven master and A —
level technicians at Chapman enjoy the same seniority benefits as
Danas dissolves any proxy theory that Danas might advance. A jury
could not reasonably conclude that Lam's comments, aimed at those
employees that place a financial burden on Chapman, were aimed at
older employees such as Danas.
Even if the inference of age discrimination is not
overpowering, I cannot say at this stage that it is insignificant
as a matter of law. See Torre, 42 F.3d at 831-32. Danas has
produced sufficient evidence to make his prima facie case under
step one of the McDonnell Douglas scheme.
B) Step Two: Legitimate, Nondiscriminatory Reasons
As Danas concedes, Chapman has met its burden of production
under the McDonnell Douglas scheme by offering evidence that
would be sufficient, if believed, to support a finding that it
had legitimate, non-discriminatory reasons for refusing Danas'
request for a transfer from the Green team to the Red team.
Chapman claims that when Danas was put on the Red team
following the dissolution of the Green team, he joined another
master technician, Jim Eyer, who had worked on the Red team for
several years. By contrast, Danas had spent only six months with
the Red team. The reconstituted Green team needed a master
technician. Danas had been told that he might be put back on the
Green team if it was reestablished. Rather than move a master
technician who had served well with the Red team for years,
Chapman service manager Gambone chose to put Danas back in his
former position. Those reasons allow Chapman to meet its burden
of production, shifting the burden back to Danas under the third
prong of the framework.
C) Step Three: Undermining Defendant's Legitimate Reasons
To defeat summary judgment when the defendant has answered
plaintiff's prima facie case with legitimate, non-discriminatory
reasons for its employment action, plaintiff must submit
From which a factfinder could reasonably either (1)
disbelieve the employer's articulated legitimate
reasons or (2) believe that an invidious
discriminatory reason was more likely than not a
motivating or determinative cause of the employer's
Fuentes, 32 F.3d at 763; accord Sheridan 100 F.3d at 1067.
The Fuentes test governs the Third Circuit's approach to
determining when a district court can grant summary judgment; it
articulates the quantum of evidence required to allow a
factfinder to conclude that defendant's proffered reasons for its
action were pretextual. The plaintiff meets the test if his
rebuttal evidence allows the factfinder to
reasonably infer that each of the proffered non-discriminatory
reasons is either (1) a post hoc fabrication, or (2) not the
actual motivation for the employment action. Fuentes, 32 F.3d
To prevail under prong one, Danas must demonstrate "such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons . .
. that a reasonable factfinder could rationally find them
`unworthy of credence,' and hence infer that the employer did not
act for [the asserted] non-discriminatory reasons." Fuentes, 32
F.3d at 765 (quoting Ezold v. Wolf, Block, Schorr &
Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)). Alternatively,
under prong two, Danas must identify evidence in the record that
"allows the factfinder to infer that discrimination was more
likely than not a motivating or determinative cause of the
adverse employment action." Fuentes, 32 F.3d at 762; Keller,
130 F.3d at 1111. Danas must point to evidence that proves age
discrimination based solely on the probative force of the
evidence. See Keller, 130 F.3d at 1111.
Danas has met his burden of demonstrating post hoc
fabrication under Fuentes. The record, read in a light most
favorable to the plaintiff, demonstrates that Danas' transfer was
not inevitable. Inconsistencies and weaknesses in Chapman's
arguments preclude summary judgment. If the new Green team needed
a master technician, it did not necessarily have to be Danas. If
the Red team had two master technicians, company policy did not
necessarily require that one depart; Danas and Eyer had served
simultaneously for six months in 1996. Indeed, Danas was told
that he would be reassigned to a reconstituted Green team.
However, he was the only one of the former members reassigned.
Danas was also told that the new Green team would recover its
customer base, but evidently this did not happen. Given these
contested issues of material fact, I cannot conclude at summary
judgment that plaintiff failed to defeat defendant's claimed
legitimate, nondiscriminatory reason for the transfer. Danas has
met his burden to defeat summary judgment.
II Negligent Infliction of Emotional Distress
Counts V and VI of plaintiffs' complaint, in which plaintiffs
allege negligent infliction of emotional distress, must be
dismissed. State law tort claims are barred by the exclusivity
provision of the Pennsylvania Workmen's Compensation Act (WCA).
The Act provides:
The liability of an employer under this act shall be
exclusive and in place of any and all other liability
to such employes, his legal representative, husband
or wife, . . . or anyone otherwise entitled to
damages in any action at law or otherwise on account
of any injury or death as defined in section
301(c)(1) and (2) or occupational disease as defined
in section 108."
77 Pa. Cons.Stat. § 481(a). The Supreme Court of Pennsylvania has
held that even intentional torts arising from the
employer-employee relationship are covered under the WCA. See
Poyser v. Newman & Company, 514 Pa. 32, 38, 522 A.2d 548, 551
(1987). The WCA carves out an exception only for "an injury
caused by an act of a third person intended to injure the employe
because of reasons personal to him . . ." 77 Pa. Cons.Stat. § 72.
The Third Circuit has accordingly held that the WCA bars claims
of negligent infliction of emotional distress against employers.
See Matczak v. Frankford Candy and Chocolate Company,
136 F.3d 933, 940 (3d Cir. 1997) (citing Dugan v. Bell Telephone of
Pennsylvania, 876 F. Supp. 713, 724 (W.D.Pa. 1994)); see also
Fieni v. Pocopson Home, 1997 WL 220280 (E.D.Pa. 1997); Wilsbach
v. Filene's Basement, 1997 WL 805164 (E.D.Pa. 1997); Quitmeyer
v. Southeastern Pennsylvania Transportation Authority ("SEPTA"),
740 F. Supp. 363 (E.D.Pa. 1990). Because Louis and Linda Danas
seek damages for negligent
behavior, and seek those damages from an employer, their claim
does not fall under the exception carved out the in the WCA.
III Loss of Consortium
Counts VII and VIII of the complaint, which bring claims
against Chapman for loss of consortium on behalf of Louis and
Linda Danas, also must be dismissed. Under Pennsylvania law, a
spouse's right to recover for loss of consortium derives only
from the other spouse's right to recover in tort. See Murray v.
Commercial Union Ins. Co., 782 F.2d 432, 438 (3d Cir. 1986). No
authority suggests that civil rights violations can support loss
of consortium claims. See, e.g. Quitmeyer, 740 F. Supp. at 370;
see also Stauffer v. City of Easton, 1999 WL 554602 *1 (E.D.Pa.
1999). Because plaintiffs' tort claims do not survive summary
judgment, their loss of consortium claims must be dismissed.
Defendant's motion for summary judgment is therefore granted on
Counts V, VI, VII and VIII. The motion is denied on Counts I and
III and denied as moot on Counts II and IV. An appropriate order
AND NOW, this day of October, 2000, it is ORDERED that:
1. Defendants' Motion for Summary Judgement (Docket Entry No. 9)
is DENIED on Counts I and III;
2. Counts II and IV have been dismissed as withdrawn in an order
entered this day; therefore, Defendants' Motion for Summary
Judgement (Docket Entry No. 9) on Counts II and IV is DENIED as
3. Defendants' Motion for Summary Judgement (Docket Entry No. 9)
is GRANTED on Counts V and VI;
4. Defendants' Motion for Summary Judgement (Docket Entry No. 9)
is GRANTED on Counts VII and VIII.