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
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
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).
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 requirement. Id. The defendant
bears the burden of pleading and proving that the plaintiff has failed to
exhaust administrative remedies. Williams v. Runyon, 130 F.3d 568, 573
(3d Cir. 1997).
It is undisputed that Plaintiff did not file a separate complaint with
the PHRC, nor did Plaintiff request that the EEOC dually file his Charge
with the PHRC. (Def. Mot. for Summ. J. on Counts I, III, IV ("Summ. J.
Mot.I") Ex. G; Pl. Mem. of Law in Opp'n to Def's Mot. for Summ. J.
("Pl.Resp.") at 24-25.) Plaintiff argues that these deficiencies are
cured because the EEOC actually transmitted his complaint to the PHRC on
July 21, 1999, pursuant to a worksharing agreement. As evidence that his
complaint was transmitted, Plaintiff points to a letter addressed to
Defendant's counsel from Peggy Raynock, the Assistant to the Director of
Compliance for the PHRC, stating that the PHRC received a copy of
Plaintiff's EEOC Charge on July 21, 1999. (Summ. J. Mot. I Ex. M.) The
letter, however, also states that:
[the] PHRC did not docket this case because of two
reasons: (1) the complainant did not check the box on
the EEOC form 5 requesting dual filing and (2) the
standard request for dual filing was not attached. For
these reasons, PHRC believed that Mr. Fakete did not
wish his complaint filed with PHRC.