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TOOMEY v. APPLE PRESS

March 19, 2001

JOANNE M. TOOMEY
v.
APPLE PRESS, LTD. AND GARY GEHMAN



The opinion of the court was delivered by: Edmund V. Ludwig, J.

MEMORANDUM

This is an employment discrimination action invoking Title VII, 42 U.S.C. § 2000e, et seq., the Pennsylvania Human Relations Act, 43 Pa. C.S.A. § 951, et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. Defendants Apple Press, Ltd.*fn1 and Gary Gehman move for summary judgment. Fed.R.Civ.P. 56.*fn2 Jurisdiction is federal question and supplemental. 28 U.S.C. § 1331, 1367. The motion will be denied.*fn3

I. Background

On February 13, 1989, Apple Press employed plaintiff Joanne Toomey, now age 54, as a customer service representative. Amended cmplt. ¶ 8. She was hired by defendant Gary Gehman, who had founded the company in 1975, and who continues to be its owner and president.*fn4 Plaintiff had no prior experience in the print industry.*fn5 Toomey dep. at 24, 29-30. Gehman, who was then married to plaintiff's sister, "knew [plaintiff] worked for other employers. She was always a very diligent and loyal employee to them." Gehman dep. at 76.

In October, 1990, Gehman began divorce proceedings and found himself unable to perform some of his duties at Apple. Gehman dep. at 74. Later that month, he promoted plaintiff to supervisor of scheduling for the pressroom,*fn6 which increased her responsibilities significantly. Toomey dep. at 102-03; Gehman dep. at 74-75; Muehlbach dep. at 14. In particular, she reviewed deadlines, created and coordinated production and delivery schedules, checked compliance and performed quality control, monitored equipment maintenance, and hired and trained customer service representatives. Gehman dep. at 85-89.

In the spring of 1992, after his divorce, Gehman resumed his position as Apple's CEO. Toomey dep. at 103. Plaintiff continued as supervisor until December, 1992, when she took a leave of absence for treatment of breast cancer. Id. at 113. About that time, important changes occurred in the graphic arts industry — high-tech pre-press computers and faster delivery dates resulted in speed, efficiency, and lower prices. Toomey dep. at 199; Ache aff. ¶¶ 5, 6. Apple's main business, producing letters and flyers, decreased, and Gehman turned to multi-colored printing projects. Ache aff. ¶ 4; Gehman aff. ¶ 7. To that end, in August 1993, he hired Pamela Larkin as "Production Estimator." Larkin aff. ¶ 2. Larkin updated the company through computerization and trained employees in the new system. Ache aff. ¶ 7.

A month later, in September, 1993, plaintiff returned to work on a full-time basis. Toomey dep. at 23. After he decided that she was unable to perform some of her prior responsibilities, such as press scheduling, Gehman assigned her to the shipping area. Gehman dep. at 18; Gehman aff. ¶ 16. By early 1994, her job was relegated to the moving of bindery from the pressroom to an area near the delivery docks.*fn7 Toomey dep. at 11-12. In March, 1994, Apple hired Kevin Klabunde, then age 36, who had a number of years of experience in the print industry. Klabunde aff. ¶ 4. Although he was hired to replace Larkin as an estimator, within weeks he began to take over scheduling and supervising the pressroom.*fn8 Larkin dep. at 106; Klabunde aff. ¶¶ 1, 9.

On March 11, 1994, Gehman terminated plaintiff, and purportedly stated that Apple was "going high-tech." Amended cmplt. ¶ 17.

II. Discussion

A. Discriminatory discharge

Plaintiff's claims for wrongful termination under Title VII, the PHRA, ADEA, and ADA are based on theories of both mixed-motive and pretext. Price Waterhouse v. Hopkins, 490 U.S. 228, 244-46, 109 S.Ct. 1775, 1786-88, 104 L.Ed.2d 268 (1989) (mixed-motive cases require direct evidence); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973) (pretext cases involve circumstantial evidence). These two distinct frameworks, developed in the context of Title VII actions, have also been applied to PHRA, ADA and ADEA claims. See Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div., 60 F.3d 153, 157 (3d Cir. 1995) ("[T]he ADA, ADEA and Title VII all serve the same purpose — to prohibit discrimination in employment against members of certain classes. Therefore, it follows that the methods and manner of proof under one statute should inform the standards under the others as well.").

Plaintiff's pretext claims may be analyzed using the tripartite burden-shifting formula set forth in McDonnell Douglas.*fn9 In summary, plaintiff must first establish a prima facie case of discrimination. If successful, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for the employment decision. Once that occurs, plaintiff has "an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (citations omitted)). "While the burden of production may shift, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Id.

1. Prima facie case. — A prima facie case consists of four elements: 1) plaintiff is a member of a protected class; 2) was qualified for the position; 3) was affected by an employment decision; and 4) under such circumstances that there is an inference of unlawful discrimination, as where a similarly-situated person, not of the protected class, is treated differently. See McDonnell Douglas, 411 U.S. at 802 & n. 13, 93 S.Ct. at 1824 & n. 13; Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000) (ADA);*fn10 Jones, 198 F.3d at 411 (Title VII); Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995) (ADEA). The prima facie case is not intended to be rigidly applied or difficult to prove. Equal Employment Opportunity Comm'n v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir. 1990); see also Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3rd Cir. 1999) (the prima facie case "is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination"). Defendants maintain that plaintiff does not meet the second and fourth elements.

To determine the employee's qualifications for the position, an objective standard is used. See Sempier, 45 F.3d at 729. Defendants contest plaintiff's ability "to keep up with the demands of Apple Press' changing technology and business practices." Defs. mem. at 14. They proffer opinions of some of her co-workers to the effect that she lacked technical knowledge and was ineffective when she returned from the 1993 leave of absence. See, e.g., Ache aff. ¶ 8; Ache supp. aff. ¶ 9; Smith aff. ¶ 1; Knepp aff. ¶ 4; Klabunde dep. at ...


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