that one party must
prevail as a matter of law. See Anderson, 477 U.S. at 250-52. If there is
sufficient evidence to reasonably expect that a jury could return a
verdict in favor of plaintiff, that is enough to thwart imposition of
summary judgment. See id. at 248-51.
A. Plaintiff's ADEA Claim
Count I of Plaintiff's Complaint alleges Defendant violated the ADEA.
See Pl.['s] Compl., ¶ 23-25. In McDonnell Douglas Corp. v. Green,
the United States Supreme Court created a special scheme for structuring
the presentation of evidence in discriminatory treatment cases under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et
seq. 411 U.S. 792 (1973). The Third Circuit has applied a slightly
modified version of this scheme in ADEA cases. See, e.g., Keller v. Orix
Credit Alliance, Inc., 130 F.3d 1101, 1108-113 (3d Cir. 1997); Waldron
v. SL Industries Inc., 56 F.3d 491, 494-95 (3d Cir. 1995); Sempier v.
Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995); Torre v. Casio,
Inc., 42 F.3d 825, 829-30 (3d Cir. 1994); Healy v. New York Life Ins.
Co., 860 F.2d 1209, 1214 (3d Cir. 1988).
The McDonnell Douglas scheme has 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. See St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 506, (1993). When the plaintiff alleges
unlawful discharge based on age, the prima facie case requires proof that
(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. See Sempier, 45 F.3d at 728.
If the plaintiff offers sufficient proof of these elements, step two is
reached. 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. Hicks, 509 U.S. at 506-07. If
the defendant cannot satisfy this burden, judgment must be entered for
the plaintiff. Id. at 509.
On the other hand, if the defendant employer meets this burden, the
presumption of discrimination arising from the prima facie case "simply
drops out of the picture." Hicks, 509 U.S. 502, 511 (1993). "`At the
summary judgment stage, it then becomes the plaintiff's burden to show
that there is a genuine dispute of material fact as to whether the
employer's proffered reason for the challenged action is pretextual
— i.e. unworthy of belief.'" Marx v. Schnuck Markets, Inc.,
76 F.3d 324, 327 (10th Cir. 1996).
The court must determine whether the evidence, interpreted in the light
most favorable to the plaintiff, "could persuade a reasonable jury that
the employer had discriminated against the plaintiff." Jones v. Unisys
Corp., 54 F.3d 624, 632 (10th Cir. 1995). "If no facts relating to the
pretextuality of the defendant's action remain in dispute, summary
judgment is appropriate." Id. The plaintiff at all times bears the
"ultimate burden of persuasion." See St. Mary's Honor Center, 509 U.S. at
The plaintiff may then survive summary judgment law by submitting
sufficient evidence from which a factfinder could reasonably either (1)
employer's articulated legitimate reasons; or (2) believe
that an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employers action. Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994); see also Palmisano v.
Electrolux, LLC, Civ.A. 99-426, 2000 WL 1100785, *5 (E.D.Pa. Aug 7,
In this Motion, the Court finds it unnecessary to consider step one of
the McDonnell Douglas scheme because for the purposes of this Motion,
Defendant does not dispute that Plaintiff has met her prima facie case.
See Def.['s] Brief in Support of Mot. for Summ. J., 27, n. 4.
Defendant's burden at step two is relatively light. See Fuentes, 32
F.3d at 763. It is satisfied if Defendant articulates any legitimate
reason for the discharge. See id. Defendant need not prove that the
articulated reason actually motivated the discharge. Id. at 763. The
Court finds that Defendant has proffered a legitimate, non-discriminatory
explanation for it's termination of Plaintiff's employment. See Defs.['s]
Brief, 5-13. At this point, the presumption of discrimination drops from
the case. Id. To prevail at trial, the plaintiff must convince the
factfinder "both that the reason was false, and that discrimination was
the real reason." Hicks, 509 U.S. at 512. Under prong two of the Fuentes
test, Plaintiff must identify evidence in the summary judgment record
that "allows the fact finder to infer that discrimination was more likely
than not a motivating or determinative cause of the adverse employment
action." See Keller, 130 F.3d at 1111; Fuentes, 32 F.3d at 762. In other
words, under this prong, Plaintiff must point to 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. See
Keller, 130 F.3d at 1111.
Plaintiff in this case provided sufficient evidence that would allow
the fact finder to infer that discrimination was more likely than not a
motivating or determinative cause of the adverse employment action.
There is evidence that in the Spring of 1995, Mark Kehoe ("Kehoe"),
Plaintiff's supervisor in 1995, allegedly made comments during a lunch
that suggested Plaintiff was getting too old to continue doing her job.
See Pl.['s] Depo., at 33. During this lunch, Kehoe also allegedly made
statements that indicate Kehoe preferred "sharp, young ladies [that] had
been out of college only a few years" that had the "professional look."
See id. 33-34. Other evidence indicates that Kehoe also allegedly told
another employee that "the `company is changing' and that `the Barbie
look' is in." See Nov. 15, 2000 Aff. of Barbara Durkalec. Plaintiff also
provides evidence that the day after she complained to a General Manager
about an unannounced interrogation by Kehoe, Plaintiff allegedly
overheard David Willard ("Willard,") Kehoe's supervisor, state to Kehoe
that "I don't care what you have to drum up on her, get whatever you
can. We have to get rid of her." See id. 90-91. Although Plaintiff cannot
state definitively whether
she was the subject of the statement, she believes she
was because the statement was made the day after her
complaint. See id. Plaintiff also puts forth evidence
that Kehoe did not hold a younger female account
representative to the same standard as Plaintiff, also
an account representative. Norma Del Viscio ("Del
Viscio"), who also worked for Kehoe during 1995 and
1996, testified that Julie Williams, a young with whom
she worked, performed her job below par. See Depo. of
Norma Del Viscio, at 57. Del Viscio indicated that
Kehoe knew of her performance problems, but took no
action. See id. at 58. Del Viscio also testified that
Kehoe was less demanding with Sue Pecora, another
employee who performed poorly. See id. at 62.
In addition, Plaintiff provides further from which a reasonable fact
finder could infer age discrimination. Kehoe, while District Sales
Manager from 1996 to 1997, distributed laptop computers to his sales and
service staff. See Pl.[s'] Depo. at 72. Plaintiff testified that Kehoe
said that Plaintiff "would not even know how to turn it on." See id. at
72-73. Defendant retorts that this comment makes no reference to age and
suggests nothing of age discrimination. See Defs.['s] Brief, at 22. The
Court notes, however, that people often use code words when making
discriminatory remarks. See e.g. Futrell v. J.I. Case,