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
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
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 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
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, 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
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 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
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 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
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
"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).
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
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.
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 making. This type of claim
requires a "mixed-motives analysis".
On June 9, 2003, by unanimous decision in Desert Palace, Inc. v.
Costa, 539 U.S. ___, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), the
United States Supreme Court eliminated the requirement of direct evidence
of discrimination in order for a plaintiff to proceed on a mixed-motives
theory. Prior to Desert Palace a plaintiff could only proceed
under a mixed-motives analysis if he provided direct evidence of
discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228,
109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring). As a
result of the change in the law enunciated in Desert Palace,
district courts around the country have wrestled with how to apply the
decision within the existing framework of McDonnell Douglas.
The burden-shifting analysis articulated in McDonnell Douglas
provided courts with a systematic way to analyze the entire spectrum of
discrimination claims (gender, race, age, disability, and so forth). To
the contrary, prior to Desert Palace the analysis of a
mixed-motive claim was far more ambiguous. For example, courts have found
that the mixed-motive standard is overall more generous to plaintiff than
the pretext analysis. However, there is a heightened evidentiary burden
the onset of a mixed-motive case, as compared with the
McDonnell Douglas prima-facie analysis. See Overall v.
Dunham, No. Civ.A. 02-1628, 2003 U.S. Dist. ...