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FAKETE v. AETNA

May 14, 2001

STEPHEN FAKETE,
V.
AETNA, INCORPORATED, D/B/A AETNA/US HEALTHCARE.



The opinion of the court was delivered by: Padova, District Judge.

        MEMORANDUM

Plaintiff Stephen Fakete filed the instant suit against Defendant Aetna/US Healthcare alleging age discrimination and retaliatory termination. In separate Motions*fn1, Defendant seeks summary judgment on all counts of the Second Amended Complaint, as well as Plaintiff's request for punitive damages. For the reasons that follow, the Court grants judgment in favor of Defendant on Counts I, II, III and IV, and dismisses Defendant's motion with respect to punitive damages as moot.

I. Background

The Second Amended Complaint*fn2 alleges the following facts. On April 26, 1992, Stephen Fakete ("Fakete") was hired by U.S. Healthcare ("USHC") as an audit consultant. In 1996, USHC merged with Aetna, Inc. to form Aetna U.S. Healthcare ("Aetna"). At the time of the merger, Fakete was 54 years old and the oldest audit consultant at USHC. The merger agreement prevented Aetna from terminating any USHC employees for at least 2 years following the merger, absent approval from a USHC executive. That agreement expired in July, 1998, when Fakete was 56 years old and eligible to retire on a substantial pension within 3 years.

In September of 1998, Aetna offered Fakete a transfer to the position of Vice President of Technical Services in the area of disaster recovery planning. This promotion, however, was overruled by Aetna's Supervisor of Internal Auditing, Diane Souza ("Souza"). Fakete believes that this denial of his promotion was due to his age to reduce Aetna's future liability for retirement benefits.

Aetna thereafter altered Fakete's duties in his position of audit consultant. Fakete also received a written warning ("Warning") from his superior, Thomas Larkin ("Larkin"), regarding unexplained absences from the workplace. The Warning listed objectives that Fakete had to meet and required him to use listed methods to achieve such objectives. Fakete, however, could not meet the objectives because Aetna terminated his e-mail capacity. On December 7, 1998, Aetna terminated Fakete for violations of the Warning and falsification of expense reports. In terminating him, Aetna did not follow the terms of the Warning which provided for probation for any subsequent violations.

At the time of his termination, Fakete was 56 years old. His pension would have vested in March, 1999. Under Aetna's new pension plan taking effect in January 1999, Fakete would have been eligible for early retirement at the age of 59. Fakete believes that his termination was effected pursuant to an unwritten "corporate challenge" to save $30 million by which Aetna terminated older employees nearing retirement to save on salary, pension, and health care benefits. Fakete filed a formal charge ("Charge") with the Equal Employment Opportunity Commission ("EEOC") on June 18, 1999, and received a right to sue notice on December 20, 1999.

II. LEGAL STANDARD

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex v. Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325, 106 S.Ct. 2548. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. "[I]f the opponent [of summary judgment] has exceeded the `mere scintilla' [of evidence] threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent." Big Apple BMW Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

III. DISCUSSION

The Second Amended Complaint states four counts. Count I alleges age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621. Count II asserts retaliatory discharge under the ADEA and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons.Stat. Ann. § 951. Counts III and IV allege intentional and willful discrimination under the ADEA and the PHRA.

Through three separate motions filed on February 23, 2001, Defendant seeks summary judgment on Counts I, III, and IV on their merits, Count II for failure to exhaust administrative remedies, and on Plaintiff's request for punitive damages. Plaintiff filed an untimely response only addressing Defendant's arguments with respect to the merits of Counts I, III, and IV, and the exhaustion of administrative remedies under the PHRA.*fn3 The Court, however, will address all of Defendant's arguments, contested and uncontested, under the legal standard for summary judgment under Federal Rule of Civil Procedure 56(c). See Local R. Civ. P. 7.1(c) ("In the absence of a timely response, the motion may be granted as uncontested except that a summary judgment motion, to which there has been no timely response, will be governed by Fed.R.Civ.P. 56(c).") (emphasis added).

A. Failure to Exhaust Administrative Remedies — PHRA

Aetna first seeks summary judgment on Plaintiff's claims in Counts II, III, and IV under the PHRA for failure to exhaust administrative remedies. The PHRA prohibits discrimination in employment on the basis of age. 43 Pa. Cons. Stat. Ann. § 953. To bring suit under the PHRA, a plaintiff must first have filed a verified administrative complaint with the Pennsylvania Human Rights Commission ("PHRC") within 180 days of the alleged act of discrimination. 43 Pa. Cons.Stat. Ann. §§ 959(a), 962. If a plaintiff fails to timely file a complaint with the PHRC, then he or she is precluded from judicial remedies under the PHRA. Woodson v. Scott Paper Co., 109 F.3d 913, 924 (3d Cir. 1997). The Pennsylvania courts have strictly interpreted this ...


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