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United States District Court, E.D. Pennsylvania

January 21, 2004.

PRAXAIR, INC., Defendant

The opinion of the court was delivered by: MICHAEL BAYLSON, District Judge


I. Procedural History and Jurisdiction

Plaintiff Thomas R. Seebald ("Seebald" or "Plaintiff") asserts claims for retaliation in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA") and the Pennsylvania Human Relations Act, 43 PA. STAT. ANN. § 951 et seq. ("PHRA"). As detailed herein, Seebald originally asserted claims of age discrimination, but has since withdrawn those allegations, but still pursues a retaliation claim. On April 4, 2003, Praxair, Inc. ("Praxair" or "Defendant") removed this action from the Court of Common Pleas of Northampton County. This Court has jurisdiction over Seebald's ADEA retaliation claim under 28 U.S.C. § 1331 and over plaintiff's PHRA retaliation claim under 28 U.S.C. § 1367.

  Presently before the Court is Praxair's Motion for Summary Judgment, which was filed on October 10, 2003. Plaintiff filed his Memorandum in opposition on October 24, 2003. Praxair filed a Reply Memorandum in further support of its Motion on October 30, 2003. For the Page 2 reasons which follow, Praxair's Motion is denied.

 II. Overview of Praxair

  Praxair is the largest industrial gases company in North and South America. It produces, sells, and distributes atmospheric gases, process gases, and high-performance surface coatings. Praxair operates production plants in more than 100 locations throughout North America. Praxair serves a wide range of industries, including the food and beverage, healthcare, pharmaceutical, semiconductor, chemical, refining, primary metals, and metal fabrication industries. (Saltarelli Aff. ¶ 2.)

  Praxair's Stockertown, Pennsylvania facility is engaged in the manufacture and distribution of industrial gases. It was originally owned by Liquid Carbonic, which merged with Praxair in 1996. The facility produces atmospheric gases — oxygen, nitrogen, and argon — by purifying, cooling, distilling, and condensing air. (Seebald Dep. at 21, 24.) After the gases are produced, they are delivered to Praxair customers by the approximately thirty drivers stationed at Stockertown. In addition to the drivers, the facility also employs four maintenance technicians and three production engineers. (Saltarelli Aff. ¶ 3.)

  Michael Saltarelli ("Saltarelli") is the facility manager, and he oversees the operations of the Stockertown plant. He has managed the facility since June 2000. (Id. ¶ 1.) Reporting directly to Saltarelli is David Hoffman ("Hoffman"), who holds the position of distribution superintendent. Hoffman has served in that capacity since January 2001; prior to his promotion, Hoffman was a Praxair driver. Hoffman supervises the drivers at Stockertown. (Id. ¶ 4.)

  A. Department of Transportation Regulations

  Praxair drivers are subject to the Federal Motor Carrier Safety Regulations promulgated Page 3 by the United States Department of Transportation. Most pertinent to the instant case are the Department's regulations that require Praxair to conduct random drug and alcohol testing of its drivers. See Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 49 C.F.R. § 40.1 et seq. (2003). Praxair uses an outside contractor to conduct these random tests. Those identities of those drivers selected for random drug testing are forwarded each month by the outside contractor to Praxair's Eastern Region Hub Administrator in Tonawanda, New York. The Eastern Hub Administrator then disseminates that information to the drivers' respective local facilities. Hoffman receives these names from the Eastern Hub Administrator and processes the random testing on behalf of the Stockertown facility. (Hoffman Aff. ¶ 2.) Hoffman notifies the drivers selected for random drug testing. According to Hoffman, neither he nor any other Praxair employee can suggest which local drivers are selected for random drug testing each month. (Id.) However, this is not to say that all drug and alcohol tests at Stockertown are administered only on a random basis; nor is this to say that Hoffman or any other Praxair employee has absolutely no influence in determining which employees are subject to non-random drug testing. To wit, Plaintiff testified that according to Saltarelli himself, Saltarelli, for instance, is able to choose an employee for drug and alcohol testing. (Seebald Dep. at 170.) Praxair's company policy permits managers to nominate employees for non-random substance screening. ("Personnel Policies Praxair Drivers," Pl.'s Ex. N, at 15.)

  As detailed below, Praxair drivers also are required to complete a physical examination every two years in order to continue their employment with Praxair.

  B. Praxair Policies

  The Stockertown drivers bid on their start times and days off, with preferences given Page 4 according to seniority. The facility conducts bids every three months. (Seebald Dep. at 62-63; Saltarelli Aff. ¶ 6.) Plaintiff is currently the most senior driver at Stockertown. (Seebald Dep. at 63.) Every three months, during this calendar bid process, Seebald has first choice regarding his start time and which weekdays he will work. (Saltarelli Aff. ¶ 6.)

  While the bidding session determines which days a particular driver will work, the session does not determine which deliveries and routes the driver will be assigned those days he chooses to work. Trips usually are assigned by dispatchers situated in the Logistics Department of the Tonawanda, New York Eastern Regional Hub. The Logistics Department generally bases its route assignments on such business factors as the drivers' start times, the customers' needs, and the United States Department of Transportation regulations that limit the number of hours drivers are permitted to drive. (Saltarelli Aff. ¶ 6; Seebald Dep. at 63.) However, this is not to say that all route assignments are conclusively and irrefutably established by the Tonawanda, New York office. Plaintiff testified that Saltarelli and Hoffman, by virtue of their positions and experience, can directly influence and select which drivers are assigned to which routes in the interests of efficiency. (Seebald Dep. at 224.)

  Praxair maintains and enforces specific procedures to ensure that its products meet the required standards of purity. Prior to loading a trailer, either a technician or a driver must preliminarily test the purity of the product; this screening process is referred to as a "pre-test." (Seebald Dep. at 27; Janney Dep. at 23-24.) The technician or driver records the results of the pre-test on his Quality Assurance Record ("QAR"), and then submits his QAR for review and approval either to an onsite party at Stockertown or, if Stockertown review is unavailable, to a Tonawanda reviewer via fax. (Seebald Dep. at 36-41, 51.) At the request of a customer, a driver Page 5 might be required to complete and deliver a Certificate of Conformance ("COC"). The COC indicates a heightened review and screening of the product pre-delivery. (Janney Dep. at 34; Seebald Dep. at 28-30.) A driver receives a COC form tailored to the needs of the requesting customer; preprinted on this specialized form are those additional tests now required to be executed in order to satisfy the customer's precise concerns. (Janney Dep. at 35-36; Seebald Dep. at 29-30.) Similar to the procedure for a QAR, the driver or technician still must submit his COC for review and approval and, where necessary, fax the COC to Tonawanda, New York. (Janney Dep. at 37.)

  Praxair drivers annually attend quality assurance training seminars and receive certification in these procedures. (Id. at 40-44; Seebald Dep. at 33-34.) In addition to the annual training seminar, these policies are also reviewed during quarterly safety meetings. (Janney Dep. at 50, 53.) On February 14, 2002, Seebald attended quality assurance training on the testing of shipping containers. (Seebald Dep. at 34-35.) Plaintiff and the other drivers in attendance reviewed the policies and procedures for testing and the completion of QARs, including Praxair's quality assurance policy titled Final Product Testing. (Id. at 35-36.) This policy established Praxair's requirements that QARs must be reviewed and approved before the product can leave the facility for delivery. (Def.'s Ex. E.) Regarding shipping container review for medical product, the policy states, in pertinent part:

PRIOR TO RELEASE of a shipping container, a second person, the Quality Assurance (QA) Reviewer, will independently review the vehicle test results, and sign and date the QAR in the Reviewed By column.
  When a QA Reviewer is not available locally, the original QAR shall be faxed to a designated location for review. The record is Page 6 reviewed, signed and dated, then faxed back to the shipping facility. The signed fax copy shall be attached to the original in the files.

 (Id.) During the February 2002 training seminar, Plaintiff completed a series of questions that reviewed the lessons learned during training. Of relevance to the instant case is that Seebald correctly answered "True" when asked whether "QARs for LN2 and LO2 loads must reviewed by an authorized QA reviewer before any trailer may leave the fill facility." (Seebald Dep. at 51.)

  Additionally during the February 2002 training seminar, Plaintiff attended a program conducted by Scott Reedy on Praxair's Trip Efficiency Effectiveness initiative ("TEES"). (Id. at 160-61.) As part of the TEES initiative and as explained during Reedy's presentation, he planned to conduct time studies of the Stockertown drivers' pre-trip inspections over the course of a three-day period. (Saltarelli Aff. ¶ 11.) Reedy observed several drivers closely during pre-trip inspections, one of whom was Plaintiff. (Id.) However, as Plaintiff testified during his deposition, when Reedy observed Seebald in May 2003, Plaintiff was unaware that the inspection was part of the TEES initiative or that other drivers had been subjected to the same observation. (Seebald Dep. at 162-63.)

 III. plaintiff's Retaliation Claim

  A. Seebald's Employment at Praxair — Background

  Seebald is a truck driver for Praxair. Having been born on July 23, 1958, Plaintiff currently is forty-five years old. (Pl.'s Ex. I.) Plaintiff has been employed by Praxair or Liquid Carbonic, its predecessor, for seventeen years. (Seebald Dep. at 21, 23.) Seebald has been based out of the Stockertown facility, both for Praxair and its predecessor, since the facility opened in the early 1990s. On or about October 6, 2001, when Seebald was forty-three years old, Seebald Page 7 filed a Charge of Discrimination with the Equal Employment Opportunity Commission.*fn1 In his Charge, Seebald claimed that Praxair discriminated against him because of his age by awarding promotional opportunities and non-driving management positions to three "younger" co-workers: Scott Reedy ("Reedy"), Jeff Seier ("Seier"), and John Quigley ("Quigley"). (Id.). In describing the particulars of his claim, Seebald wrote, in pertinent part:

In April of this year, Seebald was denied promotional opportunities that were given to younger men. These positions were non-driving management positions, and they were given to younger men, such as Jeff Seier. Scott Reedy and John Quigley. Seebald is 43 years of age. For example, a safety position was given to Jeff Seier. who is 38 years of age. As a justification for denying Seebald a non-driving management position, Seebald was told by Praxair that he could not be considered for promotion because he was married with children, which Seebald interpreted as an indication that Praxair was seeking to hire younger people for management positions. For example, Praxair hired Sean Mahoney, who is 30 years old, to serve as a dispatcher.
(Id.) (emphases added). Seebald had asked Hoffman why he did not receive these superior positions and Hoffman allegedly responded that Plaintiff did not receive these positions because of his appearance, his beard, and because he was married with children. (Seebald Dep. at 122-29.)

  On March 5, 2002, Seebald completed a Charge Information Questionnaire as requested by the EEOC. (Def.'s Supplement.) Plaintiff was instructed to identify those persons who Page 8 received the preferential treatment denied to him allegedly on the basis of age. Plaintiff identified Reedy, Quigley, and Seier as his comparators, and approximated their ages, Seier's included, as "40." (Id. at 6.)

  On either May 5 or May 6, 2002, Saltarelli received notice that Plaintiff had filed a charge of employment discrimination with the EEOC. In the notice received by Saltarelli, the EEOC requested both Praxair's response to the accusations and certain personnel information so the agency could review and assess the legitimacy of Plaintiff's charge. (Pl.'s Ex. A.) On or about September 23, 2002, the EEOC informed Plaintiff that further investigation by the EEOC would not result in a finding in his favor. (P1.'s Ex. K.) The EEOC explained that Plaintiff failed to demonstrate that Praxair engaged in age discrimination because his comparators who allegedly benefitted from the discrimination — i.e., Reedy, Seier, and Quigley — were all over forty years old and were either about the same age as or older than Plaintiff. (Id.) Moreover, Sean Mahoney, who had been hired as Praxair's new dispatcher, could not qualify as Seebald's comparator as Plaintiff had not applied for that position. (Id.)

  Whether Seebald could convince a reasonable fact finder by a preponderance of the evidence that he was the victim of age discrimination is not relevant to the instant case. As noted above, Seebald has withdrawn these allegations. However, the instant case does not concern Seebald's allegations that Praxair systematically promoted younger employees to the exclusion of able, yet older, employees. The instant case concerns Seebald's allegations that, upon learning of his communications with the EEOC, Praxair deliberately engaged in hostile, retaliatory conduct against him. According to Plaintiff, several incriminating events transpired after Praxair was given notice on either May 5 or May 6, 2002 of his pending EEOC charge, and while certain Page 9 events viewed in isolation might have been plausibly motivated by nondiscriminatory company policy, Praxair's post-May 6, 2002 conduct, when viewed in context and in its entirety, represented the organization's deliberate effort to punish an employee for filing an age discrimination claim with the appropriate federal agency.

  B. Alleged Retaliatory Acts

  1. Random Substance Screening

  On May 8, 2002, Seebald was subjected to a random drug and alcohol test at work.*fn2 Praxair contends that the selection process for these random inquiries is entirely determined by off-site personnel who would have been unfamiliar with Seebald's EEOC charge. However, as Plaintiff argued in his brief and as he suggested in an undated letter addressed to Julie Bartoldson ("Bartoldson"),*fn3 Seebald claims that he purposely was selected for this screening process by his employers, irate that he had filed an ADEA charge. (Def's Ex. G.) Seebald testified during his deposition that Saltarelli admitted being able to choose an employee for drug and alcohol testing. (Seebald Dep. at 170.) Saltarelli's admission is corroborated by Praxair policy, which permits nonrandom substance screening. ("Personnel Policies Praxair Drivers," Pl.'s Ex. N, at 15.) Saltarelli does not refute his managerial ability to select employees for nonrandom tests. (Saltarelli Aff, Def.'s Ex. A.) Page 10

  2. TEES Monitoring by Reedy

  On May 15, 2003, Reedy closely followed and observed plaintiff's pre-disembarkation preparations. Reedy stood by, armed with stopwatch and clipboard, and watched Seebald during his pre-trip procedures. (Id. at 161-62.) Seebald is unaware of any of his colleagues being similarly reviewed and shadowed by management during their pre-trip procedures. (Id. at 172.) In the same undated letter to Bartoldson in which he criticized his "random" drug test, Seebald also complained about Reedy's suspicious behavior. (Def.'s Ex. G.)*fn4

  3. Saltarelli's Interruption and Alleged Provocation

  On May 29, 2002, while Seebald and a colleague stood in the drivers' room having a private conversation, Saltarelli entered the room and, upon recognizing Seebald, yelled aloud, "What a wonderful day. Great day." (Def's Ex. I; Seebald Dep. at 178-79.) According to Seebald, Saltarelli's loud interjection intentionally interrupted the ongoing conversation. Page 11 (Seebald Dep. at 178-79.) Further, as Saltarelli left the room, "he got within inches of [Seebald's] face with a half smerky [sic] smile on his face. As if he was trying to provoke a confortation [sic] or a response from [Seebald.]" (Def's Ex. I.) Seebald believed that Saltarelli threatened physical violence with his booming voice and uncomfortable closeness. (Seebald Dep. at 180-81.) Fearing that Saltarelli would act hosfilely again toward him, Seebald has since purposely avoided the Facility Manager; however, Seebald's evasiveness has prevented him from working full days and the stressful situation has compelled him to consult medical attention. (Seebald Dep. at 146-47.) Again, Seebald complained about this seemingly confrontational behavior in another letter to Human Resources (Def.'s Ex. I); Maggie Wilson, Bartoldson's successor, concluded that there was no reasonable basis to conclude that Saltarelli's behavior was motivated by retaliatory animus. (Def.'s Ex. J.)

  4. COC Documentation

  An additional instance of alleged retaliatory conduct occurred in November 2002. On November 26, 2002, Seebald was issued a warning for incorrectly documenting a COC, as per Praxair procedures. (Pl.'s Ex. E; Seebald Dep. at 188.) Specifically, Seebald failed to get a reviewer's signature on the form before departing the facility to make the delivery. (Pl.'s Ex. E.) Seebald testified at length on this precise matter during his deposition. (Seebald Dep. at 190-218.) According to Seebald, because of trip complications and an earlier test having been run, he was unsure about the particular procedure prescribed. Seebald testified that he checked the manual, but could not independently find any helpful information. Seebald then telephoned Hoffman because as a reviewer empowered to sign off on COC forms, Hoffman presumably could answer Seebald's queries. (Id. at 197.) While on the telephone, Seebald and Hoffman Page 12 exactingly reviewed the COC form line-by-line. According to Seebald, Hoffman told him a reviewer's signature would not be needed on the COC form because an earlier pretest conducted by Seebald's colleague satisfied this requirement, even though Seebald had conducted tests above and beyond those originally performed by his colleague. (Id. at 199.) As Seebald testified, another driver, Mr. Stanford, was seated next to Seebald while he spoke to Hoffman on the telephone and overheard Hoffman's answers as Seebald repeated them verbatim.*fn5 (Id. at 197.)

  5. Psychiatrist Appointment

  Seebald believes that he was treated unfairly in January 2003, when he requested to rearrange his schedule so he could honor an appointment with his psychiatrist. Thinking he was the planner for the Stockertown board, Seebald approached Michael Pearson to request a shorter work day. (Id. at 241-42, 245.) Hoffman subsequently learned of Seebald's actions and instructed him to cancel his appointment and instead to work that day for the good of the company. (Id. at 242.) According to Seebald, Hoffman became "belligerent" during the telephone call. (Id. at 245.) Unsuccessful with Hoffman, Seebald contacted Maggie Wilson, Page 13 then-Human Resources Officer, who similarly advised Seebald to cancel his appointment in order to fulfill his obligations to the company and the customers. (Id. at 242-43.) Seebald does not recall that Wilson and Hoffman offered to rearrange his schedule to accommodate his psychiatric appointment, (Id. at 246), even though Praxair states otherwise in its brief. (Def.'s Br. at 13, 22.)

  6. Coffee Rationing and Alleged Insinuations

  Seebald allegedly suffered other indignities post-May 6, 2002. For instance, Saltarelli began rationing coffee available to Praxair drivers and allegedly intimated to Seebald's colleagues that such limitations were necessary because Seebald had been stealing coffee from the company. (Id. at 186-87.)

  7. New York Delivery Assignments

  From May 8, 2002 until August 29, 2002, Seebald was dispatched twice as often to New York (presumably a longer, therefore less desirable route). (Id. at 220, 226.) Seebald testified that Saltarelli and Hoffman, by virtue of their positions and experience, can directly influence and select which drivers are assigned to routes in the interests of efficiency. (Id. at 224.) After Seebald complained to Human Resources about the increase in his New York assignments, the number of New York trips he was assigned decreased immediately. (Id. at 225-26.)

  8. Replacement of Safety Equipment

  Seebald asserts that on two separate occasions, Hoffman failed to assist him in replacing his damaged safety equipment. Having followed the appropriate replacement procedure to no avail, Seebald consulted Hoffman for assistance in securing safety goggles. According to Seebald, Hoffman brusquely replied that unissued safety goggles was Seebald's problem, not his. Page 14 (Id. at 226-28.) Later, Seebald approached Hoffman, explained that his newly acquired safety boots had fallen apart, and asked whether he could return them. Again, according to Seebald, Hoffman responded that his broken safety boots was Seebald's problem, not Hoffman's. (Id. at 228-29.)

  9. Physical Examination Reminder

  Lastly, in June 2003, Seebald received in his mailbox a written reminder from Hoffman to attend his regular physical examination, as required of all Praxair drivers. (Id. at 250-51.) Drivers are required to undergo a physical examination every two years. (Hoffman Aff. ¶ 4.) As the date for the examination approaches, Praxair mails its drivers notices reminding them of their medical obligation. (Id.) When a Stockertown driver receives his fourth such notice, Hoffman also receives a copy, and it is his policy typically to leave an additional separate notice reminding the driver of the physical requirement. (Id.) Seebald testified that for the past twenty years, he always had complied with the physical examination requirement and he famously fulfilled the obligation at the last possible moment, but still never had received one of Hoffman's final reminders. (Seebald Dep. at 250.) Hoffman assumed his position as distribution superintendent in January 2001. (Saltarelli Aff. ¶ 4.) Therefore, Hoffman would have been responsible for reminding Seebald about his last required physical in June 2001. Presuming Seebald testified accurately, Hoffman chose not to notify Seebald about the examination requirement in 2001 but chose to notify him in 2003. Because Seebald's behavior had not changed from the behavior implicitly accepted in years past, particularly 2001, Seebald testified that he believed that Hoffman's 2003 note, taken in context of his EEOC charge, constituted retaliatory harassment. (Seebald Dep. at 253.) Hoffman admits having placed a reminder notice in Seebald's mailbox. Page 15 (Hoffman Aff. ¶ 5.)

 IV. Defendant's Motion for Summary Judgment

  Praxair argues that Seebald cannot establish the prima facie case for retaliation. First, Praxair contends that Seebald did not engage in protected activity by filing a charge of age discrimination with the EEOC because he either knew or should have known that his claim would not succeed, and that he filed his EEOC claim in bad faith. Second, Praxair argues that whatever response Praxair took subsequent to Seebald's activity would not constitute an "adverse employment action" as defined, and thus Seebald did not suffer a misfortune significant enough to merit protection under the anti-retaliation provision of the ADEA. Third, even if Seebald engaged in protected activity and assuming arguendo that Praxair's response constituted an adverse employment action, Praxair argues that there exists no causal nexus between the action and the reaction such as to invoke protection under the law.

 V. Issue

  Whether there is a genuine issue of material fact for trial as to whether Seebald established a prima facie case of retaliation under the ADEA and whether Praxair's proffered legitimate, nondiscriminatory reasons were pretextual.

 VI. Legal Standard

  Summary judgment is appropriate "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 a 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 non-moving party. Anderson v. Liberty Lobby, Page 16 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 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 moving party's initial 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. After the moving party has met its initial burden, "the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). 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. 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.

 VII. Retaliation

  The anti-retaliation provision of the ADEA provides, in pertinent part:

  It shall be unlawful for an employer to discriminate against any of his employees . . . because such individual . . . has opposed any practice made unlawful by this section, or because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter. Page 17

 29 U.S.C. § 623(d). Similarly, the anti-retaliation provision of the PHRA states, in pertinent part:

It shall be an unlawful discriminatory practice . . . for any . . . employer to discriminate in any manner against any individual because such individual has opposed any practice forbidden by this act, or because such individual has made a charge, testified or assisted, in any manner, in any investigation, proceeding or hearing under this act.
43 PA. CONS. STAT. § 955(d).

  Retaliation requires a plaintiff to show that (1) he engaged in a protected activity; (2) the employer took an adverse action against him; and (3) there is a causal link between the protected activity and the adverse action. Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 201 (3d Cir. 1994). The procedural framework in ADEA retaliation cases also follows that of Title VII disparate treatment cases as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Barber v. CSX Distrib. Servs., 68 F.3d 694, 701 (3d Cir. 1995). To wit,

  [A plaintiff] must show by a preponderance of the evidence that a prima facie case of unlawful discrimination exists. Once a plaintiff establishes a prima facie case, the employer must produce evidence showing that a legitimate nondiscriminatory reason can account for its action. However, even if the employer produces such evidence, the plaintiff can still survive a summary judgment motion if he produced sufficient evidence to raise a genuine issue of fact as to whether the employer's proffered reasons were not its true reasons for the challenged employment action. To discredit a legitimate reason proffered by the employer, a plaintiff must present evidence demonstrating such weaknesses, implausibilities, contradictions, or incoherence in that reason which a fact finder could reasonably conclude is unworthy of belief. Although the burden of production shifts throughout this process, the ultimate burden of persuading the trier of fact always remains with the plaintiff. Page 18

 Bailey v. Principi, No. 02-942, 2003 U.S. Dist. LEXIS 15538, at *22 (E.D. Pa. Aug. 25, 2003) (citations and quotations omitted).

 VIII. The Instant Case

  There is a genuine issue of material fact for trial as to whether Seebald established a prima facie case of retaliation under the ADEA.

  A. Engagement in Protected Activity

  The Court first must consider whether Seebald's actions can be considered protected activity under the ADEA. As the statutory language clearly states, protected activity under the ADEA consists of making charges or participating in proceedings under the terms of the statute. 29 U.S.C. § 623(d). Though, the simple fact that Seebald filed an EEOC charge does not conclude the Court's inquiry; the Court must assess whether Seebald was acting under a good faith, reasonable belief.


As a preliminary matter, protesting what an employee believes in good faith to be a discriminatory practice is clearly protected conduct. Thus, a plaintiff need not prove the merits of the underlying discrimination complaint, but only that he was acting under a good faith, reasonable belief that a violation existed.
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (citations and quotations omitted).

  The parties do not dispute that Seebald never could have succeeded in demonstrating that Reedy, Seier, and Quigley — the comparators Seebald listed — were treated more favorably by the allegedly ageist Praxair.*fn6 Reedy and Quigley are both older than Seebald: Reedy by one week Page 19 and Quigley by thirteen years. (Wilson Aff. ¶¶ 3, 5.) Seier is younger than Seebald, but only by four months. (Id. ¶ 4.) See, e.g., Gray v. York Newspapers. Inc., 957 F.2d 1070, 1087-88 (3d Cir. 1992) (upholding summary judgment in ADEA discrimination case as a reasonable jury could not find that a displaced employee was replaced by someone "sufficiently younger" under the ADEA where the employee and his comparator were born within one year of each other). However, as stated above, the ultimate defeat of an EEOC charge does not automatically insulate an employer from a subsequent retaliation charge. Even though a disgruntled employee might not succeed in demonstrating age discrimination, it is still entirely possible and plausible that his employer might later retaliate against that mistaken employee. E.g., EEOC v. Dessen' Moses & Sheinoff, No. 01-4625, 2002 U.S. Dist. LEXIS 11525 (E.D. Pa. Mar. 6, 2002)

  However, the law will not protect a disgruntled employee who claims he was a victim of discrimination when those allegations either are unreasonable or are in bad faith. Aman, 85 F.3d at 1085. As stated above, an employee who fails to demonstrate employment discrimination may later succeed in proving retaliation because "a plaintiff need not prove the merits of the underlying discrimination complaint, but only that he was acting under a good faith, reasonable belief that a violation existed." Id. (citations and quotations omitted). Praxair argues that Seebald could not have entertained a reasonable, good faith belief in his underlying charge of age discrimination because Reedy, Seier, and Hoffman were his contemporaries age-wise. Though, touting their ages now does not easily demonstrate that no material issue of genuine fact exists for trial. Seebald still could have entertained a reasonable, good faith belief in his thought that Page 20 his comparators were younger than he, even though the actual birthdays proved otherwise. This Court must determine whether a material issue of genuine fact remains such that a reasonable jury could conclude by a preponderance of the evidence that Seebald reasonably, albeit incorrectly, believed in good faith that his accusations were meritorious.

  What complicates this inquiry are two documents submitted by Seebald to the EEOC in which he makes seemingly contradictory estimates of his comparators' ages. In their briefs, each party adopts one document as conclusive and omits to explain the implications attendant in the other document. Praxair would have the Court base its conclusion entirely on a Charge Information Questionnaire completed by Seebald at the request of the EEOC. (Def.'s Supplement.) Seebald would have the Court refer solely to his Charge of Discrimination that he filed, which initiated the entire saga. (Pl.'s Ex. I.) After reviewing both forms and viewing them in the light most favorable to Seebald, this Court concludes that a reasonable fact finder could determine from these documents that Seebald had a reasonable, good faith belief in the merits of his accusations. As such, it would be improper to grant summary judgment on this ground.

  The Charge of Discrimination, highlighted by Seebald, contains the following language:

In April of this year, Seebald was denied promotional opportunities that were given to younger men. These positions were non-driving management positions, and they were given to younger men, such as Jeff Seier, Scott Reedy and John Quigley. . . . For example, a safety position was given to Jeff Seier, who is 38 years of age.
(Id.) This language itself would indicate that Seebald believed his comparators were younger than he was. Seebald twice identifies the three men as "younger" men. In fact, he estimates Seier's age as thirty-eight, which had it been true, would have likely sufficed to demonstrate that an above-forty employee had been discriminated against. Praxair responds only with the Page 21 comparators' birthdates and implicitly argues that no one could have a reasonable, good faith belief wherever the accuser ultimately is thwarted by the facts. The fact that Seebald did not actually have a discrimination claim is not the focus of a retaliation claim. See, e.g., Dessen. supra. It is entirely possible for someone to mistake the age of another. The only legal issue is whether that mistake would prevent Seebald from demonstrating that his complaint was reasonable and in good faith. Aman, 85 F.3d at 1085. Praxair cannot argue that the established record of fact demonstrates beyond genuine dispute that Seebald's error was unreasonable. Moreover, Praxair has introduced no evidence that demonstrates that Seebald initiated his charge in bad faith (let alone evidence that would demonstrate that this question no longer is in genuine dispute among the parties). Seebald filed a charge that alleged that "younger men" received favorable treatment at work. Absent evidence that Seebald's approximation was unreasonable or motivated by bad faith, a reasonable fact finder could conclude that Seebald's EEOC charge is protected activity under the ADEA. Cf. Barber, 68 F.3d at 702 (holding that a letter of general complaint that does not explicitly or implicitly allege that age was the reason for the alleged unfairness cannot translate into a charge of illegal age discrimination).

  However, there remains for this Court's consideration Seebald's Charge Information Questionnaire. (Def.'s Supplement.) In this questionnaire, completed by Seebald at the request of the EEOC after he had filed his initial charge, Seebald estimates the age of his comparators as 40. Interestingly, Seebald's Memorandum does not refer to this document (nor does it offer any explanation for having adjusted his earlier approximation of Seier's age). Praxair argues that by identifying his comparators as being age 40 plus, Seebald cannot genuinely argue that he had a reasonable, good faith belief in the merits of his EEOC charge. This Court does not agree. There Page 22 is no requirement under the ADEA that a plaintiff's comparator be outside the protected class, i.e., younger than forty. Barber, 68 F.3d at 699. To succeed under the ADEA, a plaintiff need show that the alleged beneficiary is young enough relative to himself to permit an inference of age discrimination. Id. Praxair argues that, according to his Charge Information Questionnaire, Seebald at most could only have presumed a three-year gap in age, which case law has consistently found insufficient to support the inference of discrimination. While case law is helpful, "[t]here is no magical formula to measure a particular age gap and determine if it is sufficiently wide to give rise to an inference of discrimination. . . ." Id. Rather, courts should avoid mechanistic approaches to the prima facie case, and should look not only to the age difference, but additionally to the surrounding circumstances to determine whether a plaintiff possibly could raise an inference of age discrimination. Tozzi v. Union R.R. Co., 722 F. Supp. 1236, 1240 (W.D. Pa. 1989); see, e.g., Roach v. Am. Radio Sys. Corp., 80 F. Supp.2d 530, 532 (W.D. Pa. 1999) (denying an employer's summary judgment motion even where one of the plaintiff's comparators was only two years, ten months younger than the plaintiff and the other comparator was three years, four months older than the plaintiff). But see Martin v. Gen. Elec. Co., 891 F. Supp. 1052, 1057 n.5 (E.D. Pa. 1995) (denying an employer's motion for summary judgment but excluding, without authority or explanation, a comparator three years the plaintiff's junior, as not being "substantially younger").*fn7 Because courts view age differences flexibly and in context of the surrounding circumstances, this Court is reluctant to conclude as a matter of law that given the three-year gap implied by the Charge Information Questionnaire, Seebald should Page 23 have realized that his EEOC charge was meritless and processed in bad faith.*fn8

  Clarifying the Court's determination are Praxair's own words, which seem to acknowledge that the "Charge of Discrimination" document emphasized by Seebald should be of central focus to the Court's inquiry. In its memorandum, Praxair wrote, clearly in reference to this document, "In October 2001, Seebald filed a Charge of Discrimination with the Equal Employment Opportunity Commission. . . ." (Def.'s Mem. Supp. Summ. J. at 1.) Later in its memorandum, Praxair wrote, "Seebald's alleged protected activity in this case was the filing of a Charge of age discrimination in which he complained that he was denied positions that were given to three other employees." (Id. at 18.) Seebald's Charge Information Questionnaire, in which Seebald surmised that his comparators were 40 and to which Praxair heavily cites, is dated March 5, 2002. Therefore, even Praxair seems to recommend that this Court focus on the October 2001 Charge of Discrimination, notwithstanding that its contents indicate that whether Seebald acted reasonably and in good faith remain genuinely contested by the parties.

  Given that this Court must view the evidence in the light most favorable to the nonmoving party, this Court concludes that Seebald's paperwork filed with the EEOC indicates that whether Seebald had a reasonable, good faith belief that his accusations were meritorious Page 24 remains a genuine issue of fact for trial. Summary judgment will not be granted on this ground.

  B. Adverse Employment Action

  Praxair argues that Seebald's litany of would-be retaliatory treatment contains not a single instance that amounts to more than a minor or trivial quibble. While Seebald's memorandum in opposition thoroughly depicts the actions that befell Seebald after Praxair received notice of his EEOC charge and discusses the first and third prongs of the prima facie case for retaliation, the brief is woefully deficient in its analysis of the second prong: that is, whether Praxair's behavior constituted an "adverse action" against Seebald as defined by the statute and interpreting case law.

  The definition of adverse employment action is the same in the retaliation and the disparate treatment contexts. Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001). In order to rise to the level of an adverse employment action, retaliatory conduct must alter the employee's "compensation, terms, conditions, or privileges of employment, deprives him . . . of employment opportunities, or adversely affects his . . . status as an employee." Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997) (quotations removed). "[N]ot everything that makes an employee unhappy qualifies as retaliation, for otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." Id. (quotations removed). While not everything listed by Seebald would qualify as an adverse action sufficient to justify his lawsuit continuing to trial, there exist certain allegations, apparently supported by more than a litigant's simple beliefs or a deponent's conclusory affidavit, that would lead this Court to conclude that whether Seebald suffered an adverse employment action remains a genuine issue of fact for trial. The Court will discuss these Page 25 allegations seriatim in the order that they were listed above in section III.B, titled "Alleged Retaliatory Acts."

  1. Random Substance Screening

  If Seebald can prove that the drug testing selection process was deliberately manipulated such that Seebald was subjected to significantly more drug tests than he would have been otherwise absent such manipulation, such evidence could establish an adverse employment action. See, e.g., Mailhot v. FedEx Ground Package Sys., Inc., No. 02-257-JD, 2003 U.S. Dist. LEXIS 15087, at * 12-13 (D.N.H. Aug. 29, 2003) (unpublished opinion) (an unexplained increase in drug testing would constitute an adverse employment action and would possibly indicate retaliation even where employer claims test was random and required by the United States Department of Transportation). A deliberate increase in an employee's drug-testing frequency could be part of a pattern to persuade a reasonable fact finder that the terms and conditions of Seebald's employment had changed. Furthermore, Seebald's allegation can survive summary judgment because his belief that Saltarelli can unilaterally select employees for drug testing is based not on Seebald's personal, unsubstantiated presumptions, but supposedly based upon both Praxair's official company policy ("Personnel Policies Praxair Drivers," Pl.'s Ex. N, at 15) and Saltarelli's admission, (Seebald Dep. at 170), which is uncontested in Saltarelli's affidavit. (Saltarelli Aff, Def.'s Ex. A.)

  2. TEES Monitoring by Reedy

  Reedy's observation of Seebald's pre-trip inspections pursuant to Praxair's TEES initiative would not constitute an adverse employment action. Seebald has failed to establish how the silent observation effected a material change in the conditions of Seebald's employment. Page 26 For example, Seebald has offered no evidence that Reedy's TEES observation even resulted in a negative evaluation of his pre-trip preparations that subsequently affected Seebald's prospects for retention or advancement.

  3. Saltarelli's Interruption and Alleged Provocation

  The Court concludes that Saltarelli's loud interruption of Seebald's conversation with another driver and Saltarelli's alleged near-provocation of physical violence would not constitute adverse employment actions. Seebald presents no evidence indicating that whether Saltarelli's actions affected or impliedly revised Seebald's conditions of employment is a genuine issue of fact for trial. Seebald might testify that personal anxiety has followed the alleged confrontation, but Seebald refers this Court to no evidence that the terms of his employment have been materially changed. Instead, this situation seems comparable to City of Pittsburgh, supra, in which the Third Circuit concluded that a supervisor's silent treatment of an employee — when the supervisor was not making unnecessary derogatory comments toward her — was not sufficiently tangible to rise to the level of adverse employment actions. 120 F.3d at 1300-01.

  4. COC Documentation

  Seebald was officially reprimanded for failing to secure COC approval, and he claims this reprimand was fabricated in order to retaliate against him for the EEOC charge. Regardless of whether Praxair had a legitimate, non-discriminatory reason for reprimanding Seebald, which the Court will address later in this opinion, "[f]ormal reprimands that result in a notation in an employee's personnel file could be sufficiently concrete" to constitute an adverse employment action. City of Pittsburgh, 120 F.3d at 1298. The written reprimand itself indicates that a courtesy copy was to be placed inside Seebald's personnel file. (Pl.'s Ex. E.) Page 27

  5. Psychiatrist Appointment

  This Court concludes that Praxair's failure to accommodate Seebald's medical appointment would not constitute an adverse employment action. Seebald refers this Court to no evidence demonstrating that Praxair's uncooperative stance altered the terms, conditions, or privileges of his continued employment.

  6. Coffee Rationing and Alleged Insinuations

  Seebald's allegation that Saltarelli limited the number of coffee cans available to employees each week certainly would not constitute an adverse employment action. However, Seebald contends that Saltarelli decided to reduce coffee availability at Stockertown because of his suspicions that Seebald was stealing coffee from the company. Had Saltarelli voiced such an accusation solely to Seebald, then the scenario would be reminiscent of the stray derogatory comments that the employer made to the employee in City of Pittsburgh, supra, and Seebald would not have demonstrated an action tangible enough to rise to the level of an adverse employment action. In the instant case, though, Seebald testified that a colleague told him that Saltarelli had openly insinuated that Seebald's suspected theft had motivated his decision. If true, Saltarelli's insinuations conceivably could tarnish Seebald's reputation at work, and such a decrease in his professional reputation would constitute an adverse employment action. See, e.g., Horvath v. Rimtec Corp., No. 99-670(JEI), 2000 U.S. Dist. LEXIS 10128, at *24-25 (D.N.J. July 19, 2000); Tumolo v. Triangle Pacific Corp., 46 F. Supp.2d 410, 413 (E.D. Pa. 1999).

  7. New York Delivery Assignments

  Seebald alleges that after he complained to the EEOC, he was assigned twice as often to make deliveries to New York. As stated above, although no evidence has been provided on this Page 28 point, a reasonable fact finder might infer from the record that routes to New York are less desirable among Praxair drivers. Praxair might have a legitimate, non-discriminatory reason for the increase in Seebald's assignments, but the Court will not address Praxair's explanation at this stage of its inquiry. Rather, the Court must decide whether assigning an employee to an undesirable schedule can amount to more than a minor or trivial change in the employee's working conditions. A reasonable fact finder could conclude that an increase in assignments to an undesirable route constitutes an adverse employment action. See, e.g., Mondzelewski v. Pathmark Stores. Inc., 162 F.3d 778, 787-88 (3d Cir. 1998) (supermarket meatworker demonstrated an adverse action when his schedule deviated from his coworkers, assigned him to the undesirable shifts, and reduced the free time previously available to him).

  8. Replacement of Safety Equipment

  Seebald argues that Hoffman's failure to replace or even to assist in the replacement of his professional equipage constitutes an adverse employment action. This Court agrees that a jury could so find. Seebald has produced evidence that he was not furnished with the proper equipment needed to complete his professional duties safely and effectively, and that management twice rebuffed his requests for replacements. See, e.g., Schmidt v. Montgomery Kone. Inc., 69 F. Supp.2d 706, 714 (E.D. Pa. 1999) (denying an employer's motion for summary judgment where the plaintiff had introduced evidence demonstrating that his supervisors, fully aware of the safety risks posed by employment, had deliberately failed to provide him with suitable equipment). Although Seebald did not testify as such, the reasonable inference, which a jury might make, is that prior to filing his EEOC charge, Seebald never had such a problem securing replacement gear from his supervisors. Page 29

  9. Physical Examination Reminder

  Lastly, Seebald claims that Hoffman's reminding him of the biennial physical requirement constituted an adverse employment action. The Court does not agree with Seebald's interpretation of the law. Reminding someone of office policies is a normal work-related administrative matter and is not an "adverse action" within the meaning of the Act. Cunningham v. Gradison, No. 87-4984, 1989 U.S. Dist. LEXIS 3747, at *17 (E.D. Pa. Apr. 11, 1989). Absent evidence, for example, that Hoffman's reminder was accordingly reflected in Seebald's personnel file and that accumulating a certain number of such reminders would automatically result in subsequent punishment, this Court cannot conclude that a simple reminder of company policy constitutes an "adverse action" under the Act, regardless of context.

  C. Causal Link

  Praxair argues that Seebald fails to present a prima facie case of retaliation because Seebald fails to show that there exists a causal connection between his protected activity and the adverse employment actions. Seebald's deposition testimony suggests that Praxair received notice of the plaintiff's EEOC charge on May 5, 2002, the day on which Praxair's mailman apparently delivered the charge to Saltarelli. (Seebald Dep. at 169.) Praxair contends that the reprisals of which Seebald complains happened either before or too far after it received notice, thus indicating that Praxair's actions were not motivated by retaliatory animus. In the alternative, since causation is not always proved or disproved authoritatively through reference to time alone, Praxair argues that there is insufficient evidence of a "pattern of harassment," another factor from which a causal nexus could be inferred.

   A court must consider several factors when determining whether the necessary causal link Page 30 has been established, including the timing of the employer's act as well as circumstantial evidence of ongoing antagonism. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000). A causal connection may be inferred from temporal proximity between the protected activity and alleged retaliatory conduct when it is "unusually suggestive." See Kachmar v. Sunguard Data Svs., Inc., 109 F.3d 173, 178 (3d Cir. 1997): see also City of Pittsburgh, 120 F.3d at 1302; Szustowicz v. City of Philadelphia, No. 02-2054, 2003 U.S. Dist. LEXIS 5621 (E.D. Pa. Mar. 26, 2003) (holding that one day between the filing of the EEOC complaint and the serving of formal disciplinary charges against the complainant sufficiently established causation). However, absent very close timing, a plaintiff cannot rely on temporal proximity alone to establish causation. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001).

   The Court applies its analysis only to those alleged reprisals that it determined to constitute adverse employment actions under the ADEA in the immediate past section.

   1. Random Substance Screening

   At first blush, Seebald's contention that awareness of his EEOC charge having prompted Saltarelli to nominate Seebald for a "random" drug test seems supported by more than Seebald's simple belief or hunch. Praxair's employee manual alerts its employees that drug testing is not limited only to random substance screening. Praxair's Substance Detection Policy provides, in pertinent part, under the subsection "Substance Screening":

To assure compliance, employees and applicants for employment may be subject to substance screening under the following circumstances:
   (1) upon reasonable evidence of impairment, under State or Federal Page 31 requirements, and/or


(2) upon involvement in a job-related accident or safety incident.
("Personnel Policies Praxair Drivers," Pl.'s Ex. N, at 15.) Moreover, Seebald testified that Saltarelli made comments confirming this managerial prerogative. (Seebald Dep. at 170.) In his deposition testimony, Seebald referred to another Praxair employee, Gary Peeler, responsible for mail delivery who could testify that he delivered the EEOC charge to Saltarelli potentially prior to Seebald's selection for substance screening. (Id. at 169.)

   However, Seebald's arguments are undermined by Praxair's "Monthly Employee Randomization Report for May," which is attached to Hoffman's affidavit. That internal correspondence, which is dated April 26, 2002, identifies Seebald for random drug and alcohol screening in May 2002. (Hoffman Aff, Def.'s Ex. C, Attach. A.) Seebald's deposition testimony suggests that Praxair's mailman delivered the EEOC charge to Saltarelli on May 5, 2002, at the very earliest. (Seebald Dep. at 169.) Furthermore, the Notice of Seebald's Charge of Discrimination sent by the EEOC to Saltarelli is dated April 30, 2002. (Pl.'s Ex. A.) Seebald cannot in good faith argue that the EEOC notice, even if mailed spontaneously upon completion by the EEOC, prompted Praxair four days prior to select him for a "random" drug test. See, e.g., Massaro v. Chester Hous. Auth., No. 98-245, 1999 U.S. Dist. LEXIS 12564, at *6 (E.D. Pa. Aug. 6, 1999) (concluding no causal nexus exists when an employee is terminated two weeks prior to his initiation of an EEOC claim). Since Seebald fails to identify any credible evidence in the record that the April 26, 2002 internal correspondence is intentionally misdated or fabricated, this Court will not doubt its veracity and accuracy. Seebald also presents no evidence that Praxair knew about Seebald's outstanding EEOC charge prior to its receipt of the EEOC notice. At most, Page 32 all that has been shown is that Seebald's selection for substance screening having occurred nearly contemporaneous with his employer receiving notice of his EEOC charge was an inauspicious coincidence. Therefore, this Court concludes that Seebald cannot demonstrate a causal link between his EEOC charge and his May 2002 drug and alcohol test.

   2. COC Documentation

   Having inferred from the record that Praxair received notice of the EEOC charge on either May 5 or May 6, 2002, simply too much time had passed before Seebald was reprimanded for his COC infraction. The reprimand Seebald received for having failed to comply with the COC requirements is dated November 26, 2002. (Pl.'s Ex. E.) As seven months nearly had passed, the Court concludes that the passage of time is not "unusually suggestive" of retaliatory motivation. See, e.g., Abramson v. William Paterson Coll. of N.J., 260 F.3d 265 (3d Cir. 2001) (the passage of two weeks between protected activity and an adverse action will not, on its own, be sufficient to establish a prima facie case of retaliation). Seebald cites no authority where other courts ruled to the contrary.

   However, as stated above, the passage of time is only one factor that courts have considered in determining whether a plaintiff could demonstrate a causal nexus. The Court remains guided by the caution that "it is causation, not temporal proximity itself, that is an element of the plaintiff's prima facie case." Kachmar, 109 F.3d at 178. A plaintiff can prove a causal nexus and defeat a motion for summary judgment by demonstrating a "pattern of harassment," even where the protected activity and the adverse employment action are, in isolation, distant from each other. See, e.g, Robinson v. S.E. Pa. Transp. Auth., Red Arrow Div., 982 F.2d 892, 895 (3d Cir. 1993) (hereinafter "SEPTA"). Seebald asserts that Praxair Page 33 harbored a grudge against him for having filed a charge with the EEOC and that Praxair acted upon that grudge by committing various acts. To demonstrate a level of ongoing antagonism sufficient to indicate a causal nexus, Seebald needs to provide more than generalized and unsupported allegations. Silvestre v. Sera Care. Inc., No. 02-446, 2002 U.S. Dist. LEXIS 25267, at *27 (E.D. Pa. Dec. 30, 2002) (granting an employer's summary judgment motion where employee did not allege any specific instances in which she had been treated differently than other employees).

   In SEPTA, supra, the plaintiff demonstrated a causal nexus despite a two-year lapse between protected activity and adverse employment action because of the plaintiff's evidence that showed "a pattern of harassing [the plaintiff] by repeatedly disciplining him for minor matters, miscalculating his points for absences from work, and generally trying to provoke [the plaintiff] to insubordination." SEPTA had begun supervising its employee "unusually closely." 982 F.2d at 895 n.2. According to the trial judge in SEPTA. "SEPTA subjected [the plaintiff] to a `constant barrage of written and verbal warnings . . ., inaccurate point totalings, and disciplinary action, all of which occurred soon after plaintiff's initial complaints and continued until his discharge.'" Id. at 895.

   Seebald has testified that another employee, Mr. Stanford, "had a problem with the same scenario and never once received a disciplinary action." (Seebald Dep. at 209.) In Silvestre. supra, the plaintiff tried to introduce evidence of ongoing antagonism and treatment different from that of her coworkers in order to demonstrate a causal nexus. However, the plaintiff in Silvestre admitted that the discipline received at work was justified given her professional lapses of judgment, thus defeating her claims that there had been a causal nexus. 2002 U.S. Dist. Page 34 LEXIS 25267, at *26-28. The instant case is distinguishable from Silvestre in that Seebald disputes the legitimacy of the COC reprimand; Seebald argues that his obligations under company policy had been relaxed by Hoffman personally and that the reprimand issued by Hoffman himself conveniently forgets the telephone conversation between the gentlemen.

   3. Coffee Rationing and Alleged Insinuations

   Having inferred from the record that Praxair received notice of the EEOC charge on either May 5 or May 6, 2002, simply too much time had passed before Saltarelli allegedly insinuated that Seebald had stolen coffee. The record is not entirely clear on the precise dates, but the Court approximates the dates as follows. According to the "Summary of Investigation into Complaint," Seebald faxed a complaint to Julie Bartoldson on June 2, 2002, in which Seebald objected to Saltarelli's allegedly insinuations that he had stolen coffee. (Pl.'s Ex. C.) Therefore, this Court infers that Saltarelli would have made these comments, if at all, before June 2, 2002, nearly one month after learning about Seebald's EEOC charge. However, as stated above, a reasonable jury could conclude from Seebald's "pattern of harassment" evidence that a causal nexus existed between Seebald's EEOC charge and Saltarelli's incriminating statements, despite a lack of suggestive temporal proximity.

   4. New York Delivery Assignments

   The evidence of record permits the inference that Saltarelli learned of Seebald's EEOC charge on either May 5th or 6th. (Seebald Dep. at 169.) According to Seebald's deposition testimony, which is uncontradicted by Praxair on this matter, Seebald's deliveries to New York began to rise on May 8, 2002. (Id. at 225-26.) From this evidence, a reasonable fact finder could conclude that Seebald has demonstrated a causal nexus between his protected activity and the Page 35 adverse employment action where only two or three days have passed. See, e.g., Jalil v. Avdel Corp., 873 F.2d 701, (3d Cir. 1989) (concluding, on the passage of time alone, that an employee demonstrated a causal nexus by showing only two days between his protected activity and the employer's adverse action); Helfrich v. Lehigh Valley Hosp., No. 03-5793, slip op. at 10 (E.D. Pa. Dec. 22, 2003) (employee demonstrates a causal nexus by showing three-day lapse).

   5. Replacement of Safety Equipment

   Having inferred from the record that Praxair received notice of the EEOC charge on either May 5 or May 6, 2002, simply too much time had passed before Hoffman rebuffed Seebald's safety equipment queries. The record is not entirely clear on the precise dates, but the Court approximates the date as follows. In its March 4, 2003 letter to Seebald, Praxair referred to Seebald's five allegations that Seebald would not discuss, on advice of counsel. (Pl.'s Ex. F.) In his deposition testimony, Seebald testified that the Hoffman rebuff was among those five allegations. (Seebald Dep. at 226.) Therefore, a reasonable fact finder likely would infer that Hoffman shrugged off Seebald some time before March 4, 2003. Under no circumstances could ten months' passage constitute an "unusually suggestive" lapse. However, as stated above, in view of Seebald's "pattern of harassment" evidence, a reasonable jury could conclude nonetheless that a causal nexus existed between Seebald's EEOC charge and Hoffman's alleged rebuff, despite a lack of suggestive temporal proximity.

   In general, the Court concludes that Seebald has introduced sparse but sufficient evidence of an ongoing "pattern of harassment" — e.g., his increased trips to New York; near-incitation to violence in the employee lounge; open insinuations of theft; refusals to provide safety equipment; potentially illegitimate COC reprimands — that could lead a reasonable fact finder to conclude by Page 36 a preponderance of the evidence that a causal nexus existed between Praxair receiving notice of Seebald's EEOC charge and certain adverse employment actions, despite a lack of suggestive temporal proximity.

   D. Legitimate, Nondiscriminatory Reason and Pretext

   Retaliation claims follow the burden-shifting framework applicable to employment discrimination claims first established by the United States Supreme Court in McDonnell Douglas, supra. Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). Under this analysis, the plaintiff first bears the burden of establishing the prima facie case for retaliation. McDonnell Douglas, 411 U.S. at 802. As stated above, the Court concludes that Seebald is entitled to have a jury consider his prima facie case for retaliation. Once the plaintiff demonstrates his prima facie case, the burden shifts to the employer who must articulate some legitimate, nondiscriminatory reason for its actions. Id. at 802-03. Should the employer satisfy this requirement, the burden returns to the plaintiff who must demonstrate that the employer's proffered explanation was merely pretextual. Id. at 803.

   The Court only applies the McDonnell Douglas burden-shifting analysis to those alleged reprisals for which Seebald has established his prima facie case of retaliation.

   1. COC Documentation

   Whether Praxair has an official policy that regulates the screening and approval process before its drivers depart on deliveries is not genuinely disputed by the parties. Seebald cannot disagree that Praxair has a legitimate, nondiscriminatory reason for reprimanding his failure to adhere to the dictates proscribed by company policy, nor does he. It now becomes Seebald's responsibility to offer evidence demonstrating that Praxair's proffered reason was pretextual. Page 37 The Court concludes that Seebald has introduced competent evidence from which a jury could determine Praxair's justification was pretextual. Seebald testified that Hoffman is qualified to review and sign off on driver pretests. (Seebald Dep. at 197.) Seebald testified that Hoffman, in his official capacity, excused Seebald from securing the review and signatures typically required under these circumstances. (Id. at 199.) Seebald testified that another employee, Mr. Stanford, heard relevant portions of the conversation and presumably would corroborate Seebald's depiction of events. (Id. at 208-09.) Lastly, Seebald testified that Mr. Stanford had an earlier problem under similar circumstances and that Mr. Stanford had not been disciplined. (Id. at 209.) Given Seebald's testimony, a reasonable fact finder could conclude that while Praxair had a legitimate, nondiscriminatory reason for reprimanding Seebald, that reason might have been pretextual.

   2. Coffee Rationing and Alleged Insinuations

   Neither party briefed the issue whether Praxair has a legitimate, nondiscriminatory reason for limiting coffee or for insinuating that Seebald steals coffee from the company. Even assuming arguendo that Praxair could demonstrate such a reason for its actions, the competent evidence of record could support a jury's conclusion that that reason was pretextual. It is unclear from the evidence, but common sense hints that Seebald criticizes Saltarelli's alleged accusations presumably because they are untrue. Given this reasonable inference from the record, a jury could conclude that even if Praxair could articulate its reasons, Seebald has introduced sufficient evidence that a reasonable fact finder could find, by a preponderance of the evidence, that those reasons were pretextual. Page 38

   3. New York Delivery Assignments

   In his affidavit, Saltarelli provides a legitimate, nondiscriminatory reason for any increase in Seebald's trips to New York. According to Saltarelli, "trips are assigned by dispatchers at logistics in Tonawanda, and are based upon business factors such as the drivers' start times, the customers' needs, and the number of hours drivers are permitted to drive under United States Department of Transportation." (Saltarelli Aff. ¶ 6.) Saltarelli also states that neither he nor Hoffman assigns trips to Praxair drivers. (Id.) Seebald maintains, though, that Saltarelli and Hoffman review the Tonawanda assignments and have ordered Sean Mahoney, the Stockertown dispatcher, to make last-minute corrections wherever the change would be more efficient. (Seebald Dep. at 222-26.) In his deposition, Seebald testified that he "ha[s] it in writing on a DFT that [Saltarelli] reviews all trips for efficiency." (Id. at 223.) This DFT (an acronym whose meaning is unknown to the Court) was not produced for this Court's consideration. Still, given Seebald's reference to this evidence and his testimony identifying Mahoney as a potential corroborating witness, Seebald has adduced enough evidence such that a reasonable fact finder could determine, by a preponderance of the evidence, that Praxair's reason for the increase in Seebald's trips to New York is pretextual.

   4. Replacement of Safety Equipment

   Praxair cannot plausibly contend that Hoffman acted pursuant to a legitimate, nondiscriminatory justification when he shrugged off Seebald's requests for suitable safety equipment. Praxair's own employee handbook supports that conclusion. "All employees are required to wear approved head, foot, and eye protection while on duty or on Company property other than in officers, locker rooms, lunch rooms, and other designated areas." ("Personnel Page 39 Policies Praxair Drivers," Pl.'s Ex. N, at 10.) Regarding eyewear specifically, the manual guarantees that "[e]ye protection will be provided free of charge for all employees." (Id.) Plaintiff is entitled to have a jury consider whether Hoffman was in dereliction of his duty to secure replacement goggles for him. Hoffman's conduct may have been diametrically opposed to Praxair's established policy of providing protective eyewear for its employees. Nor does Praxair identify any evidence that could demonstrate that Hoffman's inaction was in accordance with another legitimate Praxair policy.

   Praxair's policy regarding its employees safety shoes is not identical to its language regarding eyewear, but still will support the continuation of Seebald's action. The Praxair employee handbook states, in relevant part, that "[t]he Company will reimburse you for one pair of regular safety shoes each calendar year." (Id.) This language does not as evidently guarantee safety shoes as another passage's clear guarantee of protective eyewear. Though, especially in context of the entire "Protective Equipment" section, this safety shoes language evinces the company's interest in the equipage and safety of its employees. The language states that Praxair only will subsidize one pair of regular safety shoes, but Seebald was not interested in purchasing a second, gratuitous pair of safety shoes. A jury reasonably could infer from the evidence that Seebald wanted to return the defective shoes and secure replacement footwear, and that Seebald approached Hoffman to ensure that he still received the original $75 subsidy promised (as opposed to increasing his subsidy to $150). Again, for Hoffman to have rebuffed Seebald seems directly counter to any legitimate, nondiscriminatory reason Praxair could argue in its defense.

   Regarding the McDonnell Douglas burden-shifting framework, this Court concludes that Praxair has not articulated a legitimate, nondiscriminatory reason for Hoffman's rebuff of Page 40 Seebald, and subsequently has not satisfied its burden at this step.

  IX. Conclusion

   Plaintiff has apparently thrown everything in the water (in defending against a motion for summary judgment) to see what rises to the top, even if a good deal of evidence sinks to the bottom. The plaintiff's evidence of retaliatory conduct is at some points trivial, and at other points insufficient as a matter of law. But the Court concludes that some contentions, particularly when taken together and in view of the principles governing disposition of summary judgment motions, might warrant a jury finding for Plaintiff.

   Because there is a genuine issue of material fact as to whether Seebald established a prima facie case of retaliation under ADEA and whether Praxair's proffered legitimate, nondiscriminatory reasons were pretextual, Praxair's Motion for Summary Judgment is denied.

   An appropriate order follows. Page 41


   AND NOW, this day of January, 2004, upon consideration of Defendant's Motion for Summary Judgment (Docket No. 8), it is hereby ORDERED that Defendant's Motion is DENIED.

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