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United States District Court, Eastern District of Pennsylvania

February 5, 2001


The opinion of the court was delivered by: Dalzell, J.


In this case, a 62 year old man brings claims of age discrimination in connection with his termination as circulation director of the Delaware County Daily Times. We here consider the defendants' motion for summary judgment.

I. Factual Background*fn1

Plaintiff Wayne Ziegler, who was born on July 2, 1938, in 1977, after spending the previous seventeen years in various aspects of the newspaper business, accepted a position with the Delaware County Daily Times (the "Daily Times") as Circulation Manager. The following year, the Daily Times promoted him to the position of Circulation Director, the position he held until his termination twenty years later. As Circulation Director, Ziegler was in charge of all aspects of the circulation department, including home delivery, single copy purchases*fn2, and distribution. Ziegler reported directly to the Daily Times's publisher.*fn3 The Daily Times's publisher was and is Frank Gothie, who has held that position since 1986.

From 1989 until 1998, Goodson Newspaper Group owned the Daily Times. In February or March, 1998, a newspaper broker contacted the Journal Register Company ("JRC") and reported that the Goodson Newspaper Group's papers were for sale. JRC is a publicly-traded*fn4 corporation that owns and operates well over one hundred newspapers*fn5 nationwide. On May 17, 1998, JRC entered into a contract to purchase the Goodson Newspaper Group, which then included newspapers in Massillon, Ohio, Oneida, New York, Kingston, New York, Ardmore and Pottstown, Pennsylvania, as well as the Daily Times.*fn6 The sale closed on July 15, 1998.

Immediately following the closing, Ziegler, then sixty years old, was terminated as Circulation Director of the Daily Times. Michael Starn, then thirty-six years old, replaced him. This action followed.

II. Procedural History

A. Plaintiff's Claims

In his Complaint, Ziegler claims age discrimination against the Delaware County Daily Times, JRC, Robert Jelenic (JRC's CEO), and William Higginson (JRC's Vice-President of Production). Counts 1 (against the Daily Times) and 2 (against JRC) allege that these firms violated the Age Discrimination in Employment Act (ADEA) and the Pennsylvania Human Relations Act (PHRA) in that their decision to terminate Ziegler was based in whole or in part on his age. Counts 3 (against Robert Jelenic) and 4 (against William Higginson) allege that these men violated the PHRA, and in particular 42 Pa. Con. Stat. Ann. 955(e), by aiding, abetting, inciting, compelling, and/or coercing Ziegler's wrongful age-based termination, or by obstructing or preventing people from complying with the ADEA or PHRA.

B. Defendant's Motion for Summary Judgment

After the close of discovery, the defendants*fn7 filed for summary judgment as to all counts. With respect to Count 2, defendants argue that JRC was not Ziegler's employer and therefore cannot be held liable under the ADEA or the PHRA for an allegedly discriminatory employment action. With respect to both Counts 1 and 2, defendants contend that they have proffered a legitimate, non-discriminatory explanation for Ziegler's termination, and there is no showing that this explanation was a pretext. Defendants also urge that Counts 3 and 4 are procedurally barred for failure to exhaust administrative remedies, and that, moreover, Counts 3 and 4 fail because there is no showing that Jelenic or Higginson in fact aided or abetted any unlawful discriminatory practice.

III. Analysis*fn8

A. Overview of Employment Discrimination Law

We begin with the legal structure under which our analysis must progress.

Under the ADEA, it is "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). When a plaintiff alleges disparate treatment, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701 (1993). That is, the plaintiff's age must have "actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome." Ibid.

Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2105 (2000).

Claims under the ADEA and PHRA*fn9 are assessed using the analytical framework developed for Title VII claims under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775 (1989) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973) and their progeny, Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997).

Under Price Waterhouse, "if a plaintiff `show[s] by direct evidence that an illegitimate criterion was a substantial factor in the decision,' the burden of persuasion shifts to the employer `to show that the decision would have been the same absent discrimination.'" Keller, 130 F.3d at 1113 (quoting Price Waterhouse, 490 U.S. at 276, 109 S.Ct. at 1804 (O'Connor, J., concurring)) (emphasis in Keller)*fn10.

Alternatively, the McDonnell Douglas analytic model permits a plaintiff to go forward in the absence of direct evidence of discrimination. The McDonnell Douglas model consists of three steps. "First, the plaintiff must produce evidence that is sufficient to convince a reasonable factfinder to find all of the elements of a prima facie case," Keller, 130 F.3d at 1108. If the plaintiff makes such a showing, we move to step two. "The burden of production (but not the burden of persuasion) shifts to the defendant, who must then offer evidence that is sufficient, if believed, to support a finding that it had a legitimate, nondiscriminatory reason for the discharge," Keller, 130 F.3d at 1108. If the defendant cannot satisfy this burden, we enter judgment for the plaintiff. Conversely, if the defendant satisfies the burden, the presumption of discrimination created by the prima facie case disappears, Reeves, 120 S.Ct. at 2106, and we then proceed to step three. In step three, the plaintiff must submit evidence from which the factfinder could find that the defendant's allegedly legitimate reason was a pretext for discrimination, Reeves, 120 S.Ct. at 2106.

The assessment of the defendants' motion for summary judgment that follows will track these analytic steps.

B. The Journal Register

Company's Status as a Proper Defendant

Before beginning our discussion of the Price Waterhouse or McDonnell Douglas frameworks, we must first address a threshold question, namely, whether JRC was Ziegler's employer for purposes of liability under the ADEA or PHRA. In their motion for summary judgment, defendants argue that in order for JRC to be liable under Count 2, we must first find that JRC was Ziegler's employer, since liability for Ziegler's termination under the PHRA or ADEA lies with his employer. In response, Ziegler argues that JRC, as the Delaware County Daily Times's corporate parent at the time Ziegler was terminated, was in fact Ziegler's employer*fn11.

Marzano v. Computer Science Corp., 91 F.3d 497 (3d Cir. 1996)*fn12 addressed the circumstances under which a corporate parent and one of its subsidiaries can be treated as a single employer for purposes of employment discrimination law.*fn13 In Marzano, our Court of Appeals essentially analyzed this question as analogous to the question of piercing the corporate veil in the particular circumstances of employment, and looked initially to applicable state law*fn14 for guidance.

In Pennsylvania*fn15, there is a strong presumption against piercing the corporate veil, Miners, Inc. v. Alpine Equip. Corp., 722 A.2d 691, 694 (Pa.Super. 1998) (citing Lumax Indus., Inc. v. Aultman, 669 A.2d 893, 895 (Pa. 1995)). Pennsylvania courts have also recognized*fn16 that there are two separate types of veil piercing theories: the "alter ego" theory, in which a plaintiff seeks to hold a controlling owner of a corporation liable, and "single entity" theory, in which a plaintiff argues that two corporations share common ownership and are in fact operating as a single corporate combine.*fn17 With respect to "alter ego" veil piercing, "factors which may, at times, justify disregarding the corporate form and holding the shareholder(s) liable include intermingling of personal and corporate affairs, undercapitalization, failure to adhere to corporate formalities, or using the corporate form to perpetrate a fraud," Commonwealth v. Vienna Health Prods., Inc., 726 A.2d 432, 434 (Pa. Cmwlth. 1999). In "single entity" veil piercing, "two or more corporations are treated as one because of identity of ownership, unified administrative control, similar or supplementary business functions, involuntary creditors, and insolvency of the corporation against which the claim lies," Miner's, Inc., 722 A.2d at 695.*fn18

In addition to looking to state corporate law, the Marzano panel looked to decisions in other circuits, and quoted at length from Johnson v. Flowers Indus., Inc., 814 F.2d 978 (4th Cir. 1987), in which the Fourth Circuit held that the presumption that a corporate subsidiary, and not the parent, was the individual's employer could be overcome in one of two ways:

First, the parent could control the employment practices and decisions of the subsidiary. If the parent company hired and fired the subsidiary employees, routinely shifted them between the two companies, and supervised their daily operations, it would be hard to find that the parent was not their employer. Second, the parent might so dominate the subsidiary's operations that the parent and the subsidiary are one entity and thus one employer. For example, the subsidiary may be highly integrated with the parent's business operations, as evidenced by the commingling of funds and assets, the use of the same work force and business offices for both corporations, and the severe undercapitalization of the subsidiary. The parent might also fail to observe such basic corporate formalities as keeping separate books and holding separate shareholder and board meetings.

Marzano, 91 F.3d at 513 (quoting Johnson, 814 F.2d at 981).

With this guidance, we now move to examine the relationship between JRC and the Daily Times. As Marzano makes clear, we begin with the presumption that the corporate parent is not the employer, and we will consequently proceed by canvassing the validity of Ziegler's arguments as to why the veil should be pierced.

We should note at the outset that there is no claim here that JRC ever directly employed Ziegler. To the extent that Ziegler was "employed" by JRC for ADEA purposes, it was through the Daily Times.*fn19 Consequently, the only time in which Ziegler could have been a JRC employee was in the few hours between the closing of the sale of the Goodson Newspaper Group to JRC and Ziegler's termination, Ex. D, Defs.' Mem. of Law (Dep. of Frank Gothie) at 124-25 (noting that he was informed that closing had occurred by a phone call in the late morning of July 15, 1998 and that "shortly" afterward he began the process of informing the four terminated Daily Times employees, including Ziegler).

In any event, Ziegler organizes his general arguments regarding the relationship between JRC and the Daily Times along four lines: functional integration of operations, centralized control of labor relations, common management, and common ownership.*fn20 These categories correspond largely to the "single entity" veil piercing theory.

Ziegler first argues that there is a functional integration of operations between JRC and the Daily Times. In support of this contention, Ziegler points to deposition testimony showing that JRC centralizes aspects of certain functions, such as information systems and printing, of the papers it owns, Pl.'s Mem. of Law at 46. Ziegler also notes evidence showing that when a JRC paper in Coatesville, Pennsylvania was closed, its subscription list was forwarded to a JRC-owned paper in West Chester, Pennsylvania, and observes that JRC's website contains hyperlinks to the websites of its component papers, Pl.'s Mem. of Law at 46-47.*fn21

With respect to centralized control of labor relations, Ziegler points out that the 1998 W-2 form for Michael Starn, Ziegler's replacement, lists JRC as Starn's employer and that both Starn and Frank Gothie, the Daily Times's publisher, received JRC stock options as part of their compensation, Pl.'s Mem. of Law at 48. Ziegler also points out that in answers to interrogatories, Robert Jelenic, JRC's CEO, stated that he had to power to, inter alia, hire, transfer, and discharge the employees of JRC or of facilities JRC owned, Pl.'s Mem. of Law at 48, Ex. U, Pl.'s Mem. of Law (Defendants' Responses to Interrogatories). Further, Ziegler cites Frank Gothie's testimony that after JRC's purchase of the Goodson Newspaper Group was announced, Gothie became aware that JRC had a model for the number of people that it expected to be on the staff of a newspaper the size of the Daily Times, and that under this model, the Daily Times would have to reduce the number of people on its staff in certain ways after JRC's takeover, Pl.'s Mem. of Law at 48-49.*fn22 Finally, Ziegler observes that new hires at any JRC facility must be approved by JRC corporate headquarters, and that such hires are documented through the use of a standardized form, Pl.'s Mem. of Law at 50.*fn23

Moving to the question of common management, Ziegler notes that in its Answer to the Complaint, JRC stated that the two individual defendants, Jelenic and Higginson, were officers both of JRC and of "The Goodson Holding Company d/b/a the Daily Times", Pl.'s Mem. of Law at 52. Ziegler also points to testimony that Frank Gothie has phone contact with Jelenic and Jean Clifton, JRC's Chief Financial Officer, several times weekly, that JRC conducts consolidated meetings for the publishers of its papers and that individual paper's budget meetings are sometimes held at JRC's corporate headquarters, and that various staff members of JRC's newspapers, including the Daily Times*fn24, periodically travel to JRC's headquarters in Trenton, New Jersey, Pl.'s Mem. of Law at 51-52. As to common ownership, the last category of contacts that Ziegler documents, there appears no question but that the Daily Times and JRC have common ownership, since JRC itself owns the Daily Times.

As we have just rehearsed at length, Ziegler directs our attention to many contacts between JRC and the Daily Times. After careful examination, however, we conclude that these do not raise a question of material fact as to whether JRC was Ziegler's employer. Recall, first, that there is a strong presumption against piercing the veil so as to hold a parent liable for the actions of a corporate subsidiary. Equally important, recall the fundamental point that we mentioned at the outset: to the extent that JRC was Ziegler's employer, it could only have been so through the Daily Times and therefore only for those few hours between the sale closing and Ziegler's termination.

Therefore, in looking for connections between the two entities that would justify taking the substantial step of piercing the corporate veil and finding that JRC was Ziegler's employer, we must look not to the relationship that has come to exist between the Daily Times and JRC between July 1998 and now, but rather the relationship as it existed in the moments immediately after the sale closed. For this reason, the evidence the plaintiff puts forward — regarding such things as the current frequency of contact between Frank Gothie and JRC executives, or the fact that Daily Times employees now may frequently travel to JRC's headquarters, or that Daily Times budget meetings are sometimes conducted at JRC headquarters — are all irrelevant and inapposite to the question before us. Similarly, the fact that Jelenic claims to have the power to hire and fire employees of the papers that JRC owns, or that JRC must approve its paper's hiring decisions, are not by themselves helpful to us. The question is the extent to which there was in fact interrelation between the Daily Times and the JRC in the hours immediately following the sale closing on July 15, 1998, not whether there was a potential for it to happen in the future.*fn25

It is, to be sure, true that there were contacts between JRC and the Daily Times before the time of the sale closing, and that these contacts may illuminate the relationship that existed immediately following closing, the time of Ziegler's termination. Some of these contacts are also associated with the chain of events leading to Ziegler's termination, and we will therefore discuss those at length before addressing whether they would allow a reasonable jury to conclude that JRC was Ziegler's employer.

In April 1998, David Carr of the Goodson Newspaper Group informed Frank Gothie, the Daily Times's publisher, that a sale agreement was imminent with JRC, Ex. B, Pl.'s Mem. of Law (Dep. of Frank Gothie) at 69. Later that month, Frank Gothie met for the first time with Robert Jelenic, JRC's CEO, and Jean Clifton, JRC's CFO, id. at 77. In this meeting, which took place at the Daily Times's offices, Jelenic spoke with Gothie about Gothie's future with the paper — Jelenic asked if Gothie would be willing to stay on as publisher — and stated that it was his (Jelenic's) hope that the ultimate settlement would happen quickly, id. at 77 & 78. Jelenic gave Gothie an overview of JRC's history and its concept of operations, and sounded Gothie out on the Daily Times's market, as well as the paper's sports coverage, id.

In either May or early June, 1998, Gothie went to JRC headquarters in Trenton, New Jersey and met with several JRC executives, including Jelenic and Clifton, id. at 81. At this meeting, which lasted several hours, the participants discussed the Daily Times's operations as well as JRC procedures and JRC's expectations of Gothie as a publisher, id. at 82. They discussed a host of specific topics, including Daily Times's advertising (e.g., average rates and biggest advertisers), whether the Daily Times expected to make budget, whether the Daily Times should consider launching new products, the retail atmosphere in Delaware County, the quality of the sales staff, financial reporting procedures that the Daily Times would have to follow after the purchase, the type of reporting to JRC that would be required, the Daily Times's labor union environment, the strength of the Daily Times's competition, and the condition of the printing press and press crew, id. at 84-87, 91-92.

Later, a group of about five JRC executives went to the Daily Times's offices to introduce themselves to Daily Times staff in a brief meeting, which most (if not all) of the Daily Times management employees, including Ziegler, attended. Id. at 95-96. Jelenic spoke briefly at the meeting, stating that JRC was happy to be acquiring the Daily Times, and introducing the other JRC executives who were present, id. at 96-100. After these remarks, and after Daily Times's staffers asked one or two questions, the meeting adjourned, with the JRC executives greeting and shaking hands with some of the Daily Times's staff, in a "receiving line" fashion, Ex. B, Pl.'s Mem. of Law (Dep. of Frank Gothie) at 100-01, Ex. E, Pl.'s Mem. of Law (Dep. of Thomas Abbott) at 20-24.

In addition to these face-to-face meetings between JRC and Daily Times staff, Frank Gothie had a number of phone conversations with JRC executives, Ex. B, Pl.'s Mem. of Law (Dep. of Frank Gothie) at 102. One such call, which Gothie believes occurred after the group meeting at the Daily Times's offices, was a five or six minute conversation with Jelenic regarding the Daily Times's circulation, and in this call Jelenic reflected his concern about the decline in the Daily Times's circulation that he had seen from the Audit Bureau of Circulation reports for the Daily Times, id. at 102-04. Jelenic told Gothie that something would have to be done to stop the decline, and Jelenic told Gothie that he should talk to one Mike Starn, who was then the circulation director at the West Chester Daily Local News and who had done a good job there and at other JRC newspapers at which he had worked, id. at 103.

Shortly after this conversation, Gothie telephoned Starn and arranged to have lunch with him, id. at 105-06. Over a two-hour lunch, Gothie talked to Starn about the Daily Times, and asked Starn to talk about his background and the papers at which he had worked, id. at 106. After the meeting at the restaurant, Gothie called Jelenic and told him that Starn had been very impressive and articulate at the meeting and that they had discussed some of the ideas that Starn had found successful, id. at 114. Jelenic then asked Gothie if he'd like to have Starn as his circulation director, and Gothie said that he would, id. Jelenic told Gothie that if he wanted Starn, he should call Starn's publisher. Gothie did so and that publisher reluctantly gave Gothie permission to talk to Starn about the job, id. at 114-15. Gothie then called Starn and offered him the job of circulation director at the Daily Times, id. at 115.

These various contacts do not raise an issue of material fact such that a jury could reasonably find that JRC was Ziegler's employer. While Ziegler points to the meetings that took place between JRC and Daily Times staff (particularly Frank Gothie), there is no evidence that these meetings, which were informational in nature, led to any interrelation of JRC and the Daily Times at any point prior to the actual closing. To the extent that these meetings outline procedures that would begin after the closing, Ziegler points to no evidence to show that these procedures led, in the few hours immediately after the closing, to an integration of operations sufficient to hold JRC liable as Ziegler's employer.

Again, although Ziegler points to many contacts and interrelations that have come to exist between JRC and the Daily Times at some point after the closing, there is simply not enough evidence in the record to permit a reasonable jury to pierce the veil and find the JRC was Ziegler's employer at the time of his termination. Marzano and the cases it cites, particularly Johnson v. Flowers Indus., Inc., demonstrate that there must be a close, ongoing relationship between two corporations in order to justify piercing the veil to hold a parent corporation liable under employment discrimination law. The evidence that Ziegler cites does not establish that this relationship existed on the afternoon of July 15, 1998 when Ziegler was terminated. There is no evidence, for example, that JRC then controlled the Daily Times's day-to-day operations, or that JRC, at that time, was making a routine practice of shifting employees between the Daily Times and JRC, or that JRC, at that time, was commingling assets of the corporations.*fn26

Moreover, we note that the question here, under Marzano, is not whether a JRC employee may have played some role in Ziegler's termination. The question is whether the operations of JRC and the Daily Times were so integrated as to make them a single entity. Therefore, the fact that it was Jelenic who first suggested that Gothie contact Starn cannot be enough to permit the conclusion that JRC was, in some legal fiction sense, Ziegler's employer.*fn27 Furthermore, although Jelenic suggested Starn's name to Gothie, Gothie's undisputed deposition testimony shows that it was he who decided that he wanted Starn on board*fn28. Similarly, with respect to the other three people terminated from the Daily Times on July 15, 1998, Ziegler makes no argument that it was anyone other than Gothie's decision to do so.*fn29

We have discussed this issue at such length because Ziegler sets such store on it as shown in the volume of evidence that he proffers in his effort to show that JRC was indeed his employer. Ultimately, however, our resolution of this question is simple. As Marzano and state corporate veil piercing law show, there is a presumption that a corporate parent is not the ADEA "employer" of its subsidiaries' employees. In order to pierce such a veil, a plaintiff must show a very close relationship between the parent and subsidiary. Ziegler here faces an additional hurdle in that the parent and subsidiary relationship had only existed for at most a few hours before the employment decision at issue in this case. As we have discussed in detail, such connections as later came to exist between JRC and the Daily Times are not relevant to the question of whether JRC was Ziegler's employer, and such connections as did exist in the moments after the sale closing are not sufficient to permit a reasonable jury to conclude that JRC was Ziegler's employer.

We therefore will enter judgment for defendant JRC as to Count 2.

C. Evaluation of Plaintiff's Claims of Employment

Discrimination Against the Daily Times and JRC

We next consider the merits of Ziegler's discrimination claims. The defendants seek summary judgment on Counts 1 and 2 on the basis that Ziegler has not shown that the Daily Times or JRC violated the ADEA or the PHRA. As discussed in the previous section, JRC was not Ziegler's employer, and therefore Ziegler cannot maintain his claims in Count 2 that JRC terminated his employment in violation of these two statutes.*fn30 We now examine the claims of discriminatory discharge leveled against the Daily Times in Count 1.

1. Direct or "Mixed Motives" Analysis

Although defendants do not discuss Price Waterhouse or "mixed motives" analysis in their motion for summary judgment, in his response Ziegler asserts that the allegations in Count 1 must survive summary judgment because the record contains direct evidence of age-based discrimination.

As discussed above, under Price Waterhouse the existence of "direct evidence" of the use of an illegitimate criterion would shift the burden of persuasion to the defendants to show that their decision would have been the same without discrimination. In order to shift the burden, it must be that "the evidence the plaintiff produces is so revealing of discriminatory animus that it is not necessary to rely upon any presumption from the prima facie case [as is necessary in a pretext action]," Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 (3d Cir. 1995) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994)). Our Court of Appeals has looked to Justice O'Connor's concurrence in Price Waterhouse for guidance on what would constitute such direct evidence:

[S]tray remarks in the workplace, while perhaps probative of [a discriminatory animus], cannot justify requiring the employer to prove that its [employment] decisions were based on legitimate criteria. Nor can statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiff's burden in this regard;. . . . What is required is . . . direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision.

Starceski, 54 F.3d at 1096 (quoting Price Waterhouse, 490 U.S. at 277, 109 S.Ct. at 1805 (O'Connor, J., concurring)) (emphasis in Starceski).

Still, "[i]n point of fact, the term `direct evidence' is somewhat of a misnomer, for we have held that certain circumstantial evidence is sufficient for a mixed motives [jury] instruction, if that evidence can `fairly be said to directly reflect the alleged unlawful basis' for the adverse employment decision," Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1997) (quoting Hook v. Ernst & Young, 28 F.3d 366, 374 (3d Cir. 1994)) (some internal quotation marks omitted). On the other hand, our Court of Appeals "ha[s] also repeatedly made clear that a plaintiff must clear a high hurdle to qualify for a mixed-motives instruction: `The burden of persuasion shifts to the employer only after the plaintiff ha[s] proven that [his] employer acted unlawfully, and not merely on the basis of a prima facie showing,'" Walden, 126 F.3d at 513 (quoting Hook, 28 F.3d at 374) (some internal quotation marks omitted).

Ziegler points to a number of items of evidence in the record to support his contention that the burden should shift here to the defendants. None of the proffered evidence, however, constitutes direct evidence of a discriminatory basis for Ziegler's termination.

The first set of "direct" evidence that Ziegler cites is taken from five depositions from the Leslie v. Journal Register Company case in the District of New Jersey*fn31. The testimony purports to document, inter alia: age discrimination carried out by JRC generally, JRC's corporate culture of age discrimination, Robert Jelenic's reference to older employees as "gray haireds", JRC's direction that young women should be hired to staff the advertising department of a Pawtucket, Rhode Island paper, the fact that the entire Italian over-forty workforce in the circulation department of the New Haven Register was terminated after JRC bought that paper, Pl.'s Mem. of Law at 60. However, none of this evidence in any way constitutes direct evidence, for, among other things, the simple reason that none of it is connected in any way to the decision to terminate Ziegler, or even to JRC's management of the Daily Times in general.

The next purportedly "direct" evidence Ziegler offers is a statement Jelenic made in his deposition:

Q: Okay. So the decision to discharge Wayne [Ziegler] was because the circulation was declining; is that correct?

A: No. I told you before. You're not listening to my answers. We thought that the circulation department could be run better, more aggressively, and one of the factors was that circulation was down for a lot of years. But I think it was more from the point of view of Tony Simmons and people like that thought we could be more aggressive in the circulation area.

Q: Did you ever refer to the appointment of Mike Starn as providing new energy?

A: That would make sense, from what I just said. More aggressive, new energy, I think the two go together.

Ex. C, Pl.'s Mem. of Law (Dep. of Robert Jelenic) at 85-86.

Ziegler then refers to a deposition in the Leslie case in which a former JRC Human Resources Director testified that Jelenic ordered her to hire "young employees, energetic" and that Jelenic remarked to her that older employees didn't like to work. Pl.'s Mem. of Law at 61. Consequently, Ziegler contends that this demonstrates that Jelenic equates energy with youth, and thus his deposition statements show that he wanted a younger person in circulation at the Daily Times.

Again, this is not direct evidence that Ziegler's termination was age-based. Even to the extent that it was in fact Jelenic who terminated Ziegler*fn32, his alleged remarks to the human resources director were completely divorced from the Daily Times acquisition or the termination of Ziegler. We cannot take Jelenic's use of the term "energy" in a deposition — particularly in response to a question that introduced that term — legally to constitute direct evidence of discrimination where the plaintiff can point to no "age-ist" remarks made specifically in connection with his own termination or even in connection with the Daily Times in general.

Ziegler also argues that the timing of Jelenic's conversation with Gothie about circulation issues at the Daily Times is direct evidence of discrimination. Ziegler points out, as discussed above, that Gothie testified that the phone call in which he and Jelenic first discussed the Daily Times's declining circulation, and the need to change that trend, occurred after Jelenic and other JRC executives had been to the Daily Times's office and had met the staff, including Ziegler. Ziegler apparently seeks to draw the inferences that (1) Jelenic saw Ziegler, (2) concluded that he was old, and then (3) decided to make circulation an issue with Gothie because of Ziegler's age. To describe this reasoning is to demonstrate that this sequence of actions cannot constitute direct evidence of discrimination within the Price Waterhouse scheme.

Finally, Ziegler argues that JRC Vice-President William Higginson's reaction to Ziegler's statement at the time of the termination is direct evidence of age discrimination. Higginson was present at the Daily Times on July 15, 1998 as JRC's corporate representative to address any issues arising in the change of control as part of JRC's standard operating procedures, Ex. C, Pl.'s Mem. of Law (Dep. of Robert Jelenic) at 70-72. Higginson testified that he went to the Daily Times in part because Gothie had eliminated the position of production director on Higginson's recommendation, and Higginson (who is JRC's Vice-President for Production) wanted to ensure a smooth transition, Ex. D, Pl.'s Mem. of Law (Dep. of William Higginson) at 60-62. Ziegler testified that Higginson was present in Gothie's office when Gothie called Ziegler in and told him he was terminated, Ex. A, Pl.'s Mem. of Law (Dep. of Wayne Ziegler) at 148. After Gothie told Ziegler this bad news, Ziegler informed the men that he had a statement to make, and stated to them that the only reason he was being terminated was his age, id. at 149. Ziegler testified that after this statement neither Gothie nor Higginson said anything for fifteen or twenty seconds, id. Ziegler, citing to Black's Law Dictionary and Fed.R.Evid. 801, argues that Higginson's silence following Ziegler's statement constitutes an admission because Higginson would be naturally be expected to deny such an allegation if it were untrue.

We first observe that Ziegler fails to elaborate this claim to any extent, setting it forth in a single sentence, Pl.'s Mem. of Law at 62. Moreover, Ziegler proffers no evidence that would go to show why Higginson would reasonably have been expected to respond to this statement. There is no evidence in the record that Higginson had any role in, or even knowledge of, Ziegler's termination prior to July 15, 1998, and therefore Ziegler has failed to demonstrate, nor could we or any reasonable factfinder ascribe, any legal significance to his failure to respond to Ziegler's statement. Indeed, far from demonstrating qui tacet, consentire videtur, Higginson's silence could just as well show his polite sensitivity at a difficult time in another man's life.

We conclude that no jury could reasonably take the evidence Ziegler has proffered as direct evidence sufficient to shift the burden to the defendants in the Price Waterhouse scheme.

2. Indirect or "Pretext" Discrimination

a. The Prima Facie Case

The first step in the McDonnell Douglas analytic framework is the plaintiff's production of evidence sufficient to prove the elements of a prima facie case. In age discrimination cases, a prima facie case has four elements: "(i) the plaintiff was a member of the protected class, i.e., was 40 years of age or older (see 29 U.S.C. § 631(a)), (ii) that the plaintiff was discharged, (iii) that the plaintiff was qualified for the job, and (iv) that the plaintiff was replaced by a sufficiently younger person to create an inference of age discrimination," Keller, 130 F.3d at 1108.

For the purposes of this motion, at least, the defendants do not dispute that the plaintiff can make such a showing on the evidence in the record.*fn33 We therefore move to the second McDonnell Douglas step.

b. The Legitimate

Justification for Termination

In this step of the McDonnell Douglas analysis, "[t]he burden of production (but not the burden of persuasion) shifts to the defendant, who must then offer evidence that is sufficient, if believed, to support a finding that it had a legitimate, nondiscriminatory reason for the discharge," Keller, 130 F.3d at 1108. Significantly, "[t]his burden is one of production, not persuasion; it can involve no credibility assessment," Reeves, 120 S.Ct. at 2106 (internal quotation marks omitted). We have little difficulty in finding that the defendants have carried their burden.

As the legitimate, nondiscriminatory explanation for Ziegler's termination, the defendants contend that the Daily Times's circulation had been in decline for years. The primary evidence the defendants cite in support are the annual Audit Bureau of Circulation (A.B.C.) circulation reports. A.B.C. is an independent auditor that verifies newspapers' reports of their circulation, Ex. A, Pl.'s Mem. of Law (Dep. of Wayne Ziegler) at 56. The Daily Times A.B.C. reports for 1990 through 1998*fn34 show a significant decline in Monday through Friday circulation (61,160 in 1990 and 50,846 in 1998) as well as losses in Sunday circulation (50,837 in 1990 and 48,823 in 1998). The Monday through Friday circulation showed a drop in each year of reporting. Sunday circulation showed a small increase between 1990 and 1991, and again between 1992 and 1995, but between 1995 and 1998 Sunday circulation dropped 5.5%, Defs.' Mem. of Law at 6, Ex. 1, Pl.'s Mem. of Law (A.B.C. Reports).

As Circulation Director, Ziegler was "totally in charge of all phases of the circulation department," Ex. A, Pl.'s Mem. of Law (Dep. of Wayne Ziegler) at 23, and Ziegler understood that the decline in circulation was undesirable and that Gothie expected Ziegler to work to correct it, e.g., id. at 117-18, Ex. B, Defs.' Mem. of Law (Second Dep. of Wayne Ziegler) at 72-73, 82. Moreover, Gothie had communicated to Ziegler in writing many times regarding Gothie's belief that the declining circulation numbers were troublesome and that the trend needed to be changed; see Ex. C, Defs.' Mem. of Law (Exhibits from Ziegler's Deposition) at:

DELCO90-91*fn35 (memo from Gothie to Ziegler dated July 5, 1989, stating in part, "Our goal is to return our daily circulation to a growth pattern");

DELCO74-75 (letter from Gothie to Ziegler dated December 28, 1992, stating in part that "[w]e will need to find ways to build single copy sales as well as sustain the growth of home delivery. Returning to our daily ABC figure above the 60,000 threshold should not be unrealistic if the Inquirer boosts their price and we continue to skillfully promote ourselves effectively");

DELCO72 (memo from Gothie to Ziegler dated September 13, 1993, stating in part, "[w]ith our circulation down from a year ago and the fact that we're not recovering well, I think it's important for you, Richie, Bob, and I to determine what we can do this fall to grow the number");

DELCO186 (memo from Gothie to Ziegler dated May 16, 1994, stating in part, "[u]nfortunately circulation figures were not where we wanted them to be in April and as a result the incentive pay plan you are on did not provide any additional earnings. However, I have authorized a $325.00 bonus payment . . . because I believe your efforts deserve some recognition,");

DELCO62 (memo from Gothie to Ziegler dated November 22, 1994, stating in part, "[t]his year one of our most important issues we will address is how we will re-build our daily circulation");

DELCO66-67 (letter from Gothie to Ziegler dated December 27, 1994, stating in part, "Wayne, the circulation picture continued to be a mixed bag. Although Sunday's number is hanging on pretty much with year ago levels, the daily continued to decline. Perhaps with the extra help . . . we can turn it around");

DELCO36-37 (letter from Gothie to Ziegler dated December 26, 1995, stating in part, "Wayne, our aggressive efforts to build circulation will undoubtedly be needed to continue into the new year. . . . It seems the number has finally bottomed out, we'll need to look for new and creative methods to grow. . . .");

at DELCO34-35 (letter from Gothie to Ziegler dated December 13, 1996, to which Gothie appended a handwritten note stating in part, "Wayne — The most important challenge this newspaper faces is the stabilization of our circulation. . . . I'm counting on you.").

The defendants have thus met their burden by demonstrating that circulation was declining, that Daily Times management since 1989 saw this decline as a problem, and that Ziegler was to a great part responsible for circulation. As the defendants have succeeded in proffering a legitimate, nondiscriminatory explanation for Ziegler's termination, we now move to examine Ziegler's claims of pretext.

c. The Claimed Justification as Pretext

As the defendants have produced a legitimate, nondiscriminatory justification for Ziegler's termination — namely, that circulation of the Daily Times had been falling for the last nine years of Ziegler's tenure as Circulation Director — we now move to the third step of the McDonnell Douglas analysis, in which the plaintiff must produce evidence to show that the proffered justification was a pretext for discriminatory behavior.

Here, "the plaintiff may attempt to establish that he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence,'" Reeves, 120 S.Ct. at 2106 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095 (1981)), or by submitting evidence "from which a factfinder could reasonably . . . believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action," Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).*fn36 In this regard,

[t]o discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the non-moving 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 (internal quotation marks and citations omitted). On the other hand, a demonstration that discrimination was more likely than not the motivating cause of the employment decision must rely on "evidence that proves age discrimination in the same way that critical facts are generally proved — based solely on the natural probative force of the evidence." Keller, 130 F.3d at 1111. "While this standard places a difficult burden on the plaintiff, it arises from an inherent tension between the goal of all discrimination law and our society's commitment to free decisionmaking by the private sector in economic affairs," Fuentes, 32 F.3d at 765 (internal quotation marks omitted).

To the extent a plaintiff's job performance is something we must consider in evaluating the employer's proffered reason for termination, a plaintiff "cannot survive summary judgment . . . simply by pointing to evidence that could convince a reasonable factfinder that he did as well as he could under the circumstances. . . . [H]e must show, not merely that the employer's proffered reason was wrong, but that it was so plainly wrong that it cannot have been the employer's real reason," Keller, 130 F.3d at 1109.

Ziegler refers to at least seven different sets of evidence in arguing that the decline in Daily Times circulation was only a pretext for terminating him as Circulation Director and that age discrimination was the true reason. We now consider each set.

First, Ziegler argues that the circulation of the Daily Times was not in fact declining. In particular, he notes that with the addition of a Saturday paper in 1997 (the Daily Times had previously only been Monday through Friday and Sunday) the average weekly circulation, as documented in the A.B.C. reports, was in fact up, Pl.'s Mem. of Law at 64. This evidence could not serve to permit a jury to reject the defendants' nondiscriminatory justification. Ziegler's comparison of cumulative circulation figures that include a new Saturday edition with those that do not is a comparison of apples to oranges: these figures simply cannot be compared with any rational meaning. Moreover, Ziegler makes no argument to gainsay the fact that Monday through Friday and Sunday circulation was in fact dropping, as the defendants have documented. Ziegler's creative use of circulation statistics thus does not reasonably cast doubt on the nondiscriminatory reason for his discharge.

Next, Ziegler maintains that in fact the focus in JRC newspapers is on revenue, and not on circulation as such, and that therefore the justification for his discharge is pretext, Pl.'s Mem. of Law at 65. In support of this, Ziegler first notes that Jelenic testified that an increase in revenue, not an increase in circulation per se, was what he wanted, Ex. C, Pl.'s Mem. of Law (Dep. of Robert Jelenic) at 22 ("Circulation growth for the sake of circulation growth is not a major focus."). Ziegler then argues that he was in fact successful as circulation director with respect to revenue. He points out that his incentive pay was tied to revenue, not circulation, Ex. P, Pl.'s Mem. of Law (Ziegler's Incentive Pay Plans), and that he in fact received revenue-generated bonus pay almost every month between January 1996 and July 1998, Ex. Q, Pl.'s Mem. of Law (Ziegler's Bonus Pay Receipts).

This evident success in revenue, however, is not sufficient reasonably to cast doubt on the proffered nondiscriminatory justification. First of all, it is not reasonable to interpret Jelenic's deposition testimony as meaning that circulation growth was unimportant or that the decline in circulation would not be troublesome. It is a common-sense proposition that, ceteris paribus, an increase in circulation will also increase revenue. In line with this economic reality, there is no dispute that Jelenic also testified that he was concerned about the Daily Times's dropping circulation. Also, the mere fact that Ziegler received bonus payments based on revenue is not reliable information about the state of Daily Times revenue. An examination of the actual incentive plans, Ex. P, Pl.'s Mem. of Law, shows that under some plans Ziegler would receive some level of payment even if circulation revenue was below the budgeted amount, and in other plans he received a fixed percentage (generally in the neighborhood of one tenth of a percent) of circulation revenue. Under these plans, then, Ziegler's receipt of a revenue-based bonus provides no information whatever about whether the revenue results were good or bad.*fn37 Similarly, while Ziegler argues that revenues from January to June 1998 were up an average of over $23,000 per month from the same period in 1997, this bare fact cannot aid Ziegler's pretext theory, particularly as the Saturday edition of the Daily Times was launched in October 1997, thus destroying the comparative value of these figures.

Ziegler next presents evidence that he was receiving positive feedback for good performance, Pl.'s Mem. of Law at 65. He notes that in 1998 Gothie had given him tickets to a Phillies game as a performance reward and also that both Gothie and David Carr of Goodson Newspaper Group gave him letters of recommendation. Gothie testified that under the Goodson Newspaper Group, the paper had four tickets to each Phillies home game, and that Gothie gave tickets out to certain management employees, Ex. B, Pl.'s Mem. of Law (Dep. of Frank Gothie) at 169. Gothie stated that "one reason" such tickets are distributed was when he felt an employee was "doing a good job," id. However, there is no testimony here about why it was that Gothie gave these tickets to Ziegler. All we know from the evidence Ziegler proffers is that Gothie gave some tickets to some employees for their performance, not that Ziegler got his tickets for good performance. Moreover, even if the tickets were for "doing a good job", this minor reward for a "good job" cannot be enough reasonably to show that the nondiscriminatory justification is a lie.

As to the letters of recommendation, Ex. R, Pl.'s Mem. of Law (Recommendation Letters), neither Carr nor Gothie make any remarks at all about Ziegler's recent circulation numbers,*fn38 and so to the extent that they say positive things about Ziegler's abilities, they do not discount the justification for his dismissal. Instead, they at best support Ziegler's prima facie case in that they confirm that he was "qualified" for the job.

Ziegler next offers evidence that he says demonstrates that younger workers were in general treated more favorably than older ones, Pl.'s Mem. of Law at 65-67. He first argues that evidence regarding the West Chester Daily Local News shows that the circulation of that paper was in fact decreasing while Michael Starn*fn39 was circulation director, but he was hired at the Daily News while Ziegler was terminated. Ziegler also points out the case of Robert Jarjisian. Jarjisian, who is fourteen years younger than Ziegler, was the home delivery manager for the Daily Times, was retained after July 15, 1998, and subsequently became circulation director at the West Chester Daily Local. Ziegler argues that Jarjisian was responsible for the same circulation numbers as Ziegler was and that he was promoted instead of terminated.

Neither of these examples can go to show that there was discriminatory animus in Ziegler's termination. Ziegler has provided no evidence to show that Starn's circulation numbers or that his performance in general was not considered satisfactory by his supervisors at the Daily Local News.*fn40 Thus, the mere fact that both Starn's and Ziegler's circulation numbers — at different papers in different markets — were falling cannot be logically connected with the conclusion that both should have been treated the same by their employers. Ziegler is again attempting to compare apples and oranges in his effort to overcome the legitimate nondiscriminatory justification for his termination. The same reasoning applies to Jarjisian. While Ziegler claims that Jarjisian was equally responsible for the circulation numbers, and that therefore their differential treatment goes to show age discrimination, Jarjisian and Ziegler were in no way equally placed. Jarjisian was Ziegler's subordinate, and Ziegler's implicit claim that his own subordinate should have been held equally responsible for the falling circulation again makes no logical sense.

Ziegler next maintains that when JRC took over the Daily Times, older department heads were terminated and younger ones were kept. In addition to Ziegler, the other department head terminated on July 15, 1998 was Michael D'Arienzo, the Production Director, then 47 years old. Four department heads were retained: Steve Lambert, editor, then 41 years old, Thomas Abbott, Classified Advertising Director, then 37 years old, Elaine D'Arienzo, Display Advertising Director, then 43 years old, and John Tashjian, Business Office Director, then 41 years old.*fn41 Also terminated on July 15, 1998 were Bonnie Healy, City Editor, then 47 years old, and Steve Cantor, Promotions Manager, then 29 years old.

We cannot accept Ziegler's attempt to characterize these facts as evidence of age discrimination. While Ziegler is technically correct that the oldest two department heads were terminated on July 15, 1998, focusing on this obscures the fact that the majority of the department heads retained were over 40 years of age and therefore members of the same protected class as Ziegler. Moreover, the other "oldest" department head terminated with Ziegler, Michael D'Arienzo, was only 47 years old, still much younger than Ziegler. In that sense, it is hard to see how, relative to Ziegler, Michael D'Arienzo is terribly distinguishable from the retained department heads. Moreover, as noted above, the four Daily Times employees terminated on July 15, 1998 were diverse with respect to age, with one manager 29 years old. We therefore cannot accept that this "pattern" — if indeed it can be called that — of terminations could be seen by a reasonable jury in any way to show that Ziegler's termination was age-based.*fn42

Ziegler next argues that the defendants' proffered legitimate nondiscriminatory justification for his termination is too generalized, and that it is too easily used as a smokescreen since circulation is dropping at other JRC newspapers, Pl.'s Mem. of Law at 67. We do not find that such a claim reasonably could bring the defendants' explanation into doubt. While "declining circulation" might be in some sense a general justification, there is no dispute here that Ziegler was in charge of all circulation at the Daily Times. The various memoranda and letters from Gothie to Ziegler dating back over almost a decade prior to Ziegler's termination conclusively demonstrate that "declining circulation" in general was a matter of concern at the Daily Times and was something for which Ziegler was held accountable. It is therefore beyond any reasonable question that the "declining circulation" complaint was not some hopelessly vague excuse that a discriminating employer pulled out of thin air in seeking to terminate Ziegler because of his age.

Similarly, the long history of Gothie's concern with declining circulation — concern that was documented for years before JRC's acquisition — forecloses Ziegler's claim that declining circulation made a convenient excuse for age discrimination simply because many of JRC's other newspapers have had declining circulation. What is relevant here are the conditions at the Daily Times, and the state of circulation at other JRC papers is simply beside the point of our discussion here.*fn43

Ziegler further contends that the defendants' legitimate nondiscriminatory explanation for his termination is pretextual because "a jury could reasonably find that circulation fluctuations were not caused solely by the plaintiff's performance but that other factors cause circulation fluctuations," Pl.'s Mem. of Law at 67. This argument, however, misses the point. As noted above, in seeking to demonstrate pretext, a plaintiff must do more than to show that the decisionmakers erred in discharging the plaintiff, or that the plaintiff did as well as he could have been expected to under the circumstances. Ziegler's theory here attempts to do both of these things in that he seeks to argue that the decline in circulation was not the result of his job performance or, alternately, that Gothie was mistaken in holding him responsible for the decline in circulation, which was in reality caused by other (exogenous) factors. Consequently, Ziegler's contention that the decline in circulation was caused by price increases, headlines, weather, population growth or decline, advertising sales, and competition is again simply misplaced in an effort to show that the defendants' claim that he was discharged because of the declining circulation was pretext.*fn44

Ziegler also argues that he has demonstrated pretext because he had better qualification, years of experience, and levels of success that "far exceed[ed]" those of his replacement, Michael Starn, Pl.'s Mem. of Law at 68. Once again, we cannot see how this evidence could serve to discredit the defendants' justification for Ziegler's termination because it also seeks essentially to demonstrate that the decisionmakers were wrong, not that they unlawfully discriminated against him. Put another way, the question before us at this stage of the analysis cannot be whether in our or a jury's view Ziegler was or was not more qualified than Starn*fn45, but rather whether the defendants' proffered justification is false or, alternately, whether age discrimination was more likely than not a motivating factor for Ziegler's termination.

In sum, we find that none of the evidence*fn46 that Ziegler would deploy in an effort to demonstrate pretext could in fact reasonably allow a jury to conclude that the decline in the Daily Times's circulation was in fact a pretext.*fn47 As we have found that no jury could reasonably find that there was direct evidence of discrimination, judgment should be entered in favor of the Daily Times on Count 1.*fn48

D. Jelenic and Higginson's Aiding and

Abetting of the Alleged Discrimination

As we have just discussed, Ziegler's claims that he was discriminated against on the basis of his age must fail as a matter of law. Consequently, neither Jelenic nor Higginson can be held liable for aiding or abetting this legally non-existent discrimination. We will therefore enter judgment for these defendants as to Counts 3 and 4.

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