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