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Mar 1 2004

DAVID LLOYD, Plaintiff

The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge



  This matter is before the court on Defendants, City of Bethlehem and Dana B. Grubb's Motion for Summary Judgment filed August 15, 2003. Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment was filed September 18, 2003. For the reasons expressed below, we grant in part and deny in part defendants' motion for summary judgment. Page 2


  On February 19, 2002 plaintiff David Lloyd filed a Complaint. On April 29, 2002 defendants City of Bethlehem ("City") and Dana Grubb ("Grubb") filed a motion to dismiss. Subsequently, on May 24, 2002 plaintiff filed an Amended Complaint asserting five causes of action.

  Count I of plaintiff's Amended Complaint asserts a federal cause of action pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA").*fn1 Count II asserts a pendent state law cause of action pursuant to the Pennsylvania Whistleblower Law.*fn2 Count III asserts a state law cause of action for breach of implied contract. Count IV asserts a federal cause of action for retaliation pursuant to 42 U.S.C. ___ 1983 by virtue of an alleged violation of the First Amendment to the United States Constitution as the underlying basis of a Section 1983 claim. Finally, in Count V plaintiff brings a cause of action based upon Sections 955 and 962 of the Pennsylvania Human Relations Act.*fn3 Page 3

  On June 7, 2002 defendants filed a motion to dismiss plaintiff's Amended Complaint. By Memorandum and Order dated October 16, 2002 our colleague Senior United States District Judge Herbert J. Hutton*fn4 denied defendants' motion to dismiss.*fn5


  Based upon the pleadings, record papers, depositions, affidavits and exhibits, the pertinent facts are as follows.

  Plaintiff David B. Lloyd began working for the City of Bethlehem in 1972 as an ambulance driver. Subsequently, he worked his way up through the ranks. At the time of his forced resignation on August 22, 2001 plaintiff worked as the Director of Emergency Medical Services ("EMS") for the City. Plaintiff was replaced as EMS Director by Gordon Smith, a man nearly two years, nine months younger than plaintiff.

  In September 2000 plaintiff attended a meeting with City administrators including defendant Grubb, Deputy Director Page 4 of Community Development; Tony Hanna, Director of Community Development; and Jean Zweifel, Director of Human Resources, concerning personnel complaints in the EMS about plaintiff. What took place at this meeting is in dispute.

  Plaintiff contends that the meeting was informal and that he was told to be less intense with his personnel, but he was not given any specific direction or given any specific task. Defendants contend that the meeting was the first step in a policy of a progressive discipline utilized by the City.

  In December 2000 plaintiff met again with the same administrators. Defendants contend that a number of additional complaints were brought to plaintiff's attention at this meeting. Plaintiff contends that it was another informal meeting and that he was not specifically disciplined or advised what was required of him to improve relations with his subordinates. Plaintiff characterized the two meetings as "strange and bizarre".

  In October, 1999 plaintiff was interviewed for a newspaper article under the headline "Bethlehem EMS has a medical emergency". The article was published on October 19, 1999 in the Bethlehem edition of the Express Times. In that article, plaintiff was quoted as stating that Bethlehem's EMS was inadequately equipped and understaffed. Moreover, Page 5 plaintiff reportedly said that he was only able to handle 90% of the calls and EMS was missing 500 calls a year. In the article, plaintiff questioned how a police or fire commissioner would feel if he could not respond to that many calls.

  In July 2001 plaintiff was again interviewed by the press. In an article under the headline "Ambulance corps hanging on for dear life", published July 14, 2001 in The Morning Call, an Allentown newspaper. Plaintiff was quoted as stating that the EMS division was approaching a crisis because it was losing people as a result of low pay and high work demands. Plaintiff also reportedly said that it may get much worse before it gets better.

  Plaintiff was interviewed for The Morning Call article after he reported the same information during a meeting of the Bethlehem Board of Health. Plaintiff contends that defendants retaliated against him after the second article in violation of his First Amendment rights by forcing his resignation.

  Plaintiff asserts that comments made by former Mayor Donald Cunningham evidence a bias against older people. At a speaking engagement at a Jaycee's convention, Mayor Cunningham (a man in his 30's) allegedly commented on how good it was to Page 6 be interacting with people his own age. (Plaintiff is a man in his late 40's.) Plaintiff, who attended the Jaycee's convention as a presenter, further alleges that Mayor Cunningham commented on the benefits of having a younger workforce.

  Plaintiff contends that prior to his termination, he inquired about a local newspaper article which indicated that the City was considering offering an early retirement package to its employees. Specifically, plaintiff asserts that one of the proposed options was that eligible employees who by the combination of years of service plus their age attained 75 (Rule of 75) were going to be offered early retirement packages similar to those offered to former workers at the Bethlehem Steel plant.

  Plaintiff asserts that his 29 years of service plus his age, qualified him for early retirement under the proposed plan. He contends that he spoke to Tony Hanna about the early retirement option. Plaintiff avers that Mr. Hanna told him, "Dave, no one under 50 will be offered any retirement package", or words to that effect. Plaintiff further asserts that in October 2001, after his termination, the City offered a Rule of 75 package to its employees, including those under 50 years of age. Plaintiff maintains that this is evidence of Page 7 age bias against him.

  Finally, plaintiff asserts that the City has a Personnel Manual which includes a progressive discipline policy. Plaintiff contends that he was not provided with progressive discipline. He argues that the Personnel Manual is an implied contract between the City and its employees, notwithstanding the doctrine of at-will-employment in Pennsylvania. Defendant contends its Personnel Manual is only advisory and is not an implied contract which supplanted plaintiff's status as an at-will employee.

  Standard of Review

  In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Federal Home Loan Mortgage Corporation v. Scottsdale Insurance Company, 316 F.3d 431, 433 (3d Cir. 2003). Only facts that may affect the outcome of a case are Page 8 "material". Moreover, all reasonable inferences from the record are drawn in favor of the non-movant. Anderson, supra.

  Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. See Watson v. Eastman Kodak Company, 235 F.3d 851, 857-858 (3d Cir. 2000). A plaintiff cannot avert summary judgment with speculation or by resting on the allegations in his pleadings, but rather must present competent evidence from which a jury could reasonably find in his favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Woods v. Bentsen, 889 F. Supp. 179, 184 (E.D. Pa. 1995). Page 9


  Age Discrimination Claim

  An ADEA case is traditionally analyzed under the 3-step, burden shifting test established by the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Fakete v. Aetna, Inc., 308 F.3d 335 (3d Cir. 2002). Under McDonnell Douglas and its progeny a plaintiff must initially establish a prima facie case of discrimination. Upon a prima facie showing, the burden shifts to the employer to produce a legitimate, non-discriminatory reason for the adverse employment action. After defendant has met its burden of production, the burden shifts back to plaintiff to demonstrate that defendant's articulated reason was not the actual reason, but rather a pretext for discrimination. Simpson v. Kay Jewelers, 142 F.3d 639, 644 (3d Cir. 1998).

  To establish a prima facie case in an ADEA matter a plaintiff must show that he: (1) is a member of the protected class (i.e. he is at least 40 years of age); (2) is qualified for the position; (3) suffered an adverse employment decision; and (4) in the case of demotion or discharge, was replaced by a sufficiently younger person to create an inference of age discrimination. Simpson, supra. Page 10

  Plaintiff claims, in the alternative, that he may maintain a claim of discrimination under the ADEA if he demonstrates by a preponderance of the evidence that age was considered and impacted upon the employer's decision ...

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