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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 As detailed herein, Seebald originally asserted claims of age discrimination, but has since withdrawn those allegations, but still pursues a retaliation claim.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 ...

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