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United States District Court, E.D. Pennsylvania

January 21, 2004.


The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge


Presently before the Court is Defendant, Acosta Sales & Marketing Company's, Motion for Summary Judgment, (Doc. No. 19), pursuant to Federal Rule of Civil Procedure 56. For the following reasons, Defendant's Motion will be granted.


  Plaintiff, Cynthia Spence, brings this lawsuit, alleging she was discriminated against because of her age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.*fn1 Plaintiff is a fifty-five year old woman who, until she was terminated in May 2002, worked for Defendant as a part-time*fn2 merchandiser. (Spence Aff. at ¶¶ 1, 6; Spence Dep. at 71.) Plaintiff was first hired by Weaver, Defendant's predecessor organization, in 1999. Page 2 Sometime after commencing her employment as a merchandiser, Weaver merged with Acosta. (Spence Aff. at ¶ 2.) Beginning in September, 2001, and during the time period relevant to this case, Plaintiff was under the supervision of Senior Unit Manager Kathleen Wiblishauser. (Id. at ¶ 4.)

  Plaintiff claims that Wiblishauser terminated her on May 20, 2002, because of her age. Defendant claims that Plaintiff was terminated because she submitted reimbursement requests for mileage on days that she did not work. The reimbursement requests were submitted to Wiblishauser, who concluded that Plaintiff did not work on the days in question, (the weeks of April 8th and 15th, 2002), because Plaintiff had requested those days off and did not submit time sheets for those days. (Spence Dep. at Exs. 3 and 4.) When Wiblishauser subsequently received the reimbursement request from Plaintiff, claiming she had driven hundreds of miles during that time period, she concluded that Plaintiff had submitted fraudulent reports. (Id. at 3.)

  Plaintiff admits that she submitted a reimbursement form that included at least one entry with incorrect information. (Spence Dep. at 155-58 (admitting that the expense report is inaccurate because it reflects mileage for Plaintiffs original assignment, not the assignment she now claims to have worked).) Plaintiff also admits that she did initially request not to work during the weeks of April 8th and 15th. (Spence Aff. at ¶¶ 10, 23.) However, Plaintiff contends that she subsequently notified Wiblishauser that she was available to work. (Id. at ¶¶ 12, 24.) According to Plaintiff, Wiblishauser responded by providing Plaintiff with new assignments, which Plaintiff completed to the extent reflected on her time sheets.*fn3 (Id. at ¶¶ 13-14, Page 3 18, 20, 26.) To counter Defendant's claim, Plaintiff provides copies of time sheets for the days that Defendant claims Plaintiff did not work. (Spence Dep. at Ex. 6.) In addition, Plaintiff's paychecks for the relevant time periods indicate that she was paid for having worked, at least some of the days in question. (Spence Dep. at 178 and Ex. 7.) Defendant insists that neither Wiblishauser nor any other employee involved in processing Plaintiffs time sheets and/or paychecks ever received the original time sheets. (Wiblishauser Dep. at 17-18.)

  Defendant also claims that, sometime during the second week of May, 2002, prior to mailing Plaintiff's termination letter via certified mail, Wiblishauser "called Plaintiff to tell her that she needed to speak with her and asked her to come into the office." (Def.'s Mot. for Summ. J. at ¶ 19 (citing Spence Dep. at 144; Wiblishauser Dep. at 57).) Wiblishauser claims that she left Plaintiff a voice mail, explaining that she had something to discuss with Plaintiff, and "Plaintiff responded by telling Wiblishauser in a voice mail that Plaintiff had no time to meet her in the Norristown office." (Id. (citing Wiblishauser Dep. at 57).) Wiblishauser claims to have forwarded this message to Deb Tenney in Defendant's Human Resources Department. (Wiblishauser Dep at 57.) Plaintiff denies saying that she could not meet with Wiblishauser and claims that she actually left Wiblishauser a message with a receptionist, stating that she could meet Wiblishauser for an appointment in Norristown on May 27, 2002. (Spence Dep. at 144-45.) Wiblishauser claims she never received such a message and that she further tried to contact Plaintiff by leaving a message at Plaintiff's home, with Plaintiff's husband. (Wiblishauser Dep. at 57.) Defendant maintains that Wiblishauser then waited another couple of days for a response, Page 4 and when Wiblishauser had not heard from Plaintiff by May 20, 2002, she mailed Plaintiff's termination letter.

  The letter cited Plaintiff's falsification of expense reports as the reason for the termination:

Several discrepancies were noted in your expense report for the month of April. Mileage was submitted for April 8th, 9th, 15th, 16th and 17th totaling 582 miles with $186.24 in expense reimbursement. You had voice mailed me on Sunday, April 7th indicating that you were sick and would not be working on April 8th or 9th, however you claimed mileage totaling $75.52 for those days. You had also requested to be off the schedule for the week of April 15th-19th and again submitted mileage for three days that week totaling $110.72.
(Spence Dep. at Ex. 3.)

  This dispute over the expense reports is not the first dispute between Plaintiff and Wiblishauser. On December 13, 2001, Wiblishauser issued a first and final warning to Plaintiff, detailing Plaintiff's unacceptable work performance. (Spence Dep. at 104-06; Wiblishauser Dep. at 14-15.) The warning discusses the problem of Plaintiff's last minute cancellation of her weekly work schedule.*fn4 It indicates that, despite an oral agreement that Plaintiff would have to accept shifts outside of the Allentown area, Plaintiff had canceled multiple shifts and "taken it upon herself to contact other Supervisors asking for work for the following week in the Allentown area after she has told me she would not work the schedule I gave her." (Spence Dep., Ex. 1, at unnumbered 1.) The warning also cites incidents demonstrating that Plaintiff had Page 5 problems getting along with her co-workers. The co-workers in question requested reassignment to locations away from Plaintiff. According to the warning, when Wiblishauser spoke with Plaintiff about the problem, Plaintiff "hung the phone up on [Wiblishauser] in the middle of [the] conversation." (Id. at unnumbered 1-2.) In addition, the warning referenced prior verbal reprimands and listed the weeks of September 24th, October 8th, October 29th, and November 27th, 2001, as occasions when Plaintiff "cancelled out on a Friday night." (Id. at unnumbered 2.) The warning stated that, "[i]mmediate improvement in Cynthia's attitude and performance must be noted. Cynthia will need to be more flexible with her schedule. I will need a week's advance notice prior to a schedule being written out that she can not work certain days." (Id.) When Wiblishauser presented the warning to Plaintiff, Plaintiff refused to sign or accept a copy of the written warning, (id.), maintaining that she, like all part-time employees, was free to accept or decline the proposed work schedules. (Spence Dep. at 110-11.)


  Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). In considering a motion for summary judgment, a court must view facts and inferences in the light most favorable to the party opposing the motion. Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995). The moving party bears the burden of proving that no genuine issue of material fact is in dispute. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986). Once the moving party has carried its initial burden, the non-moving party may not rest upon the mere allegations or denials of the Page 6 pleadings, but must "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e); Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986).

  "The familiar McDonnell Douglas burden shifting analysis applies to . . . claims of discrimination under . . . the ADEA." Sarullo v. U.S. Postal Serv., Civ.A.01-4203, 2003 U.S. App. LEXIS 25847, at * 19-20 (3d Cir. Dec. 19, 2003) (citing McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973)). Accordingly, plaintiff "bears the initial burden of establishing a prima facie case by a preponderance of the evidence." Sarullo, 2003 U.S. App. LEXIS 25847, at *20 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). A prima facie case of age discrimination is a question of law to be decided by the court and includes a showing that plaintiff: "(1) is over forty; (2) is qualified for the position in question; (3) suffered an adverse employment decision; and (4) was replaced by a sufficiently younger person to permit an inference of age discrimination." Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995) (citing Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir. 1995)). If the plaintiff makes such a showing, the burden then shifts to the defendant to state a "legitimate nondiscriminatory reason for the adverse employment decision." Brewer, 72 F.3d at 330 (citing St. Mary's Honor Ctr., 509 U.S. at 502). "If the defendant meets this burden, the presumption of discriminatory action raised by the prima facie case is rebutted." Sarullo, 2003 U.S. App. LEXIS 25847, at *20 (citing Texas Dep't of Cmtv. Affairs v. Burdine, 450 U.S. 248, 255 (1981)). "The plaintiff then must establish by a preponderance of the evidence that the employer's proffered reasons were merely a pretext for discrimination, and not the real motivation for the unfavorable job action." Id. In order "to do so, the plaintiff generally must submit evidence which: (1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a Page 7 factfinder could reasonably conclude that each reason was a fabrication; or (2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).


  For the purposes of this Motion, Defendant does not dispute the fact that Plaintiff has established a prima facie case of age discrimination. (Def.'s Mot. for Summ. J. at 11.) Plaintiff is fifty-five years old, she is qualified for her position, she suffered an adverse employment decision, i.e. termination, and she was replaced by a nineteen-year old woman.*fn5 Defendant contends, however, that "Plaintiff's prima facie case disappears . . . because Acosta has articulated a legitimate non-discriminatory reason for Plaintiff's termination." (Id.) Defendant claims that this non-discriminatory reason is Plaintiff's submission of falsified reports. Because Defendant has articulated a non-discriminatory reason for terminating Plaintiff, the burden shifts to Plaintiff to show that Defendant's articulated reason was merely a pretext for its discriminatory action. Viewing the facts in a light most favorable to Plaintiff, the nonmoving party, we are compelled to conclude that Plaintiff has not carried her burden.

  As hereinabove discussed, Plaintiff can establish that Defendant's proffered non-discriminatory reason is a pretext for discrimination in two ways. First, Plaintiff can show that Defendant's proffered reason was a fabrication. In this regard, Plaintiff has admitted that, on at least two occasions, she submitted incorrect information related to time sheets and reimbursement forms. (Spence Aff. at ¶¶ 19-21 (admitting that she submitted a time sheet that incorrectly states that she worked on April 9, 2002); Spence Dep. at 155-58 (admitting that she Page 8 submitted an expense report that reflects miles that she did not actually travel).) While Plaintiff attempts to explain that these submissions were oversights on her part, we cannot expect Defendant to simply ignore the fact that Plaintiff submitted payroll information which did not accurately reflect the time worked or the miles traveled. Nor can we require Defendant to accept Plaintiff's excuse.

  Plaintiff has also failed to cast doubt on Defendant's proffered reason because Plaintiff has provided no information whatsoever to indicate that age was a motivating factor in Defendant's decision. Nor has Plaintiff demonstrated that Defendant's reasons for termination are implausible, inconsistent, or incoherent. In Keller v. Orix Credit Alliance, Inc., the Third Circuit in affirming the granting of a motion for summary judgment, quoted from Fuentes as follows:

To discredit the employer's proffered reason . . . the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.
130 F.3d 1101, 1108 (3d Cir. 1997) (emphasis added): see also Rose v. Woolworth Corp., 137 F. Supp.2d 604, 609 (E.D. Pa. 2001) (citing Keller in support of its decision to grant summary judgment because plaintiff failed to provide evidence of animus to overcome defendant's proffered non-discriminatory explanation). In this case, Plaintiff has simply provided no evidence of discriminatory animus. Moreover, the record indicates that Defendant had more than adequate reason, unrelated to age, to terminate Plaintiff. It is apparent that Plaintiff was becoming a problem for Wiblishauser. Evidently, the submission of fraudulent or incorrect Page 9 reimbursement requests and the confusion generated by Plaintiff's conduct related to the submission was the last straw.*fn6

  "The central question in any employment-discrimination case is whether the employer would have taken the same action had the employee been of a different race (age, sex, religion, national origin, etc.) and everything else had remained the same." Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158 (7th Cir. 1996). The appropriate question "is whether the plaintiff has established a logical reason to believe that the decision rests on a legally forbidden ground." Id. at 159. It necessarily follows that the central issue in this case should not be whether the Defendant was correct in its evaluation of Plaintiff's reimbursement forms, but whether Plaintiff's age played a role in Defendant's decision-making process.

  Plaintiff has attempted to shift the focus of this lawsuit away from the issue of age discrimination and has provided no evidence to suggest that Defendant would not have made the decision to terminate Plaintiff, under the same set of facts, if Plaintiff had been under the age of forty. As a result, Plaintiff is essentially asking this Court to rule on the strength of Defendant's non-discriminatory reason for terminating Plaintiff. This is not our function.


"[F]ederal courts are not arbitral boards ruling on the strength of `cause' for discharge. The question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason is [discrimination].'"
Keller, 130 F.3d at 1109 (quoting Carson, 82 F.3d at 159). Because Plaintiff has failed to Page 10 demonstrated how Defendant's non-discriminatory reason is a fabrication and therefore a pretext for discrimination, we cannot conclude that Plaintiff has met her burden under Fuentes.

  With regard to the second way Plaintiff can show pretext, Plaintiff has offered no evidence whatsoever from which a factfinder could "infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Fuentes, 32 F.3d at 764. The limited information related to age in this record indicates that Wiblishauser, who is herself over forty, supervises thirteen employees, eleven of whom are over forty. Most of the employees that Wiblishauser has hired have also been over the age of forty. (Wiblishauser Dep. at 54-55.) In addition, Wiblishauser indicated that she frequently finds older, more experienced employees to be more reliable. Finally, Plaintiffs replacement, Danielle Hubscher, came well recommended because her father was already a highly regarded employee at Acosta. (Id. at 51.) There is no indication that Hubscher was hired because she was younger than Plaintiff. Likewise, there is no evidence from which one could infer that Plaintiff was terminated because of her age.


  For the foregoing reasons, Defendant's Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56, will be granted.

  An appropriate Order follows.


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