United States District Court, E.D. Pennsylvania
April 6, 2004.
GUNNAR STEWARD Plaintiff,
SEARS ROEBUCK & COMPANY Defendant
The opinion of the court was delivered by: JAN DUBOIS, District Judge
ORDER AND MEMORANDUM
AND NOW, this 6th day of April, 2004, upon consideration of
the Defendant's Motion for Summary Judgment (Document No. 12, filed
October 24, 2003), Plaintiff's Brief in Opposition to Defendant's Motion
for Summary Judgment (Document No. 15, filed November 14, 2003),
Defendant's Reply Brief in Support of Summary Judgment (Document No. 16,
filed December 1, 2003), Plaintiffs Surreply in Opposition to Defendant's
Motion for Summary Judgment (Document No. 17, December 10, 2003), IT
IS ORDERED that Defendant's Motion for Summary Judgment is
GRANTED IN PART and DENIED IN PART as follows:
(1) Defendant's Motion for Summary Judgment is
GRANTED with respect to plaintiff's
claims under the Age Discrimination in
Employment Act for punitive damages and
damages for pain and suffering, humiliation
(2) Defendant's Motion for Summary Judgment is
GRANTED with respect to plaintiffs
claim under the Delaware Human Relations Act;
(3) Defendant's Motion for Summary Judgment is
DENIED in all other respects.
It is FURTHER ORDERED that a conference to schedule further
proceedings will be conducted in due course. MEMORANDUM
Plaintiff Gunnar Steward ("Steward") filed this action against his
former employer, Sears, Robuck and Co. ("Sears"), alleging that Sears
terminated his employment in violation of the Age Discrimination in
Employment Act, 29 U.S.C. § 261, et seq. ("ADEA"), and the
Delaware Human Relations Act, 19 Del. Laws § 711, et seq.
("DHRA"). Steward later agreed to withdraw his DHRA claim.
Sears moved for summary judgment on the ADEA claim based on the
following three arguments: (1) Steward cannot establish aprima facie case
of age discrimination; (2) Sears has presented a legitimate
non-discriminatory reason for discharging Steward; and (3) Steward cannot
establish that the reasons proffered by Sears for the discharge were a
pretext for illegal discrimination.
Steward began working for Sears on March 19, 1979 as a Lawn and Garden
Technician. He worked in that position for approximately eight years
until his promotion to Senior Technician in 1987. After eleven years as a
Senior Technician, Steward was promoted to the position of Technical
Manager in December 1998. Steward held this position until he was
terminated on July 2, 2001.
Throughout Steward's tenure as a Technician and Senior Technician, he
received positive performance evaluations, regular pay increases and
merit bonuses. Steward also received positive evaluations for his
performance as a Technical Manager from two former District Service
Managers ("DSM"), Alan Rushing and Roy Vasseur. Specifically, Mr. Rushing
testified that his view of Mr. Steward's leadership skills "was very
favorable." Rushing Depo. at 23, 25, 42, 43. Mr. Vasseuer also rated
Steward as "above meets expectations" in both business results and in
Steward alleges that his troubles at Sears began when Phillip Schweizer
("Schweizer") was hired as the DSM of the Wilmington Service Center in
December 2000. From the time Schweizer started at Sears's Wilmington
facility, Steward alleges that Schweizer treated him differently than the
younger Technical Managers. These younger Technical Managers were: Brian
Merkel ("Merkel"), age 35, Tony Carter ("Carter"), age 45,*fn1 and Mark
DeWit ("DeWit"), age 34. Joyce Sipple, age 59, was the only Technical
Manager under Schweizer's supervision who was older than Steward.
On February 21, 2000, Steward received his first negative performance
evaluation during his employment at Sears. The evaluation was completed
by Schweizer who, on a scale of "1" to "5"*fn2 rated Steward as follows:
"consistently meets expectations; solid, value-added performance" (3) in
business results or production; "some expectations met" (2) in
leadership; and "consistently meets expectations; solid, value-added performance"
(3) in customer satisfaction. Despite the negative evaluation, Steward
was awarded a 2% merit increase on March 1, 2001 and an annual bonus of
$9,960 on March 15, 2001.
As a consequence of the negative evaluation, Steward was placed on a
Performance Plan for Improvement ("PPI"). The PPI raised four
deficiencies in Steward's work performance: (1) failure to manage
technicians, as multiple repair attempts were being made without
Steward's involvement; (2) failure to follow-up with customer complaints;
(3) inadequate preparation for weekly GAP*fn3 meetings; and (4) failure
to meet a deadline for providing technicians' vacation information to
Steward disputes the accuracy and/or significance of each of the
criticisms raised in the PPI. First, Steward asserts he always consulted
the "Repeat Multiple Attempt" report that monitored the attempts to
complete a service call, and that Schweizer never provided him with
documentation showing that he did not provide input to technicians when
multiple attempts were required to complete a repair. Next, Steward
contends that the only customer complaint raised in the PPI resulted from
a technician having unexpected emergency gall bladder surgery during the
scheduled repair. Steward claims that the repair was ultimately completed
by another technician. Third, Steward argues that he always completed a
GAP report in collaboration with two other Technical Managers
Carter and Sipple. Steward also alleges that a younger Technical Manager,
Merkel, never participated in producing the GAP report and yet was never
reprimanded for that failure. Finally, Steward claims that he completed
the technician vacation schedules, although he was delayed a short time because the vacation slips were lost
during an office move that Schweizer ordered without giving notice to
Steward and while Steward was out of the office.
Steward contends that despite his disagreement with criticisms raised
in the PPI, he addressed all of the problems identified, and that he
should have been taken off the PPI. Schweizer, however, extended the PPI.
The 60-day PPI follow-up, given to Steward on April 26, 2001, raised four
additional performance issues: (1) poor management of technicians
Pandora, Lindsay and McNeese; (2) failure to follow-up with four customer
complaints; (3) failure to proactively communicate with the DSM; and (4)
massive backlog of repairs caused by inadequate involvement in the Parts
Distribution Center ("PDC") process*fn4 and failure to staff properly.
Steward disputes each of the criticisms raised in the 60-day follow-up
PPI. Steward contends: (1) he had approximately 3,000 customers per month
and that Schweizer's criticisms regarding customer service was
"conjuring" issues to criticize; (2) there is no evidence in the customer
reports for three of the customers alleged to have registered complaints;
(3) the customer report for one of the alleged complainants states
"customer satisfied with this service;" (4) there was a legitimate reason
for the single customer complaint that Steward can recall the
customer wanted repairs done outside the service contract; (5) all of the
Technical Managers had customer complaints and, to his knowledge, only
Steward was singled out for reprimand on this issue; (6) a backlog in the
service unit was not unusual and occurred every year; (7) all of the
Technical Managers shared responsibility for the backlog, yet to his
knowledge, no other Technical Manager was criticized; (8) Steward properly supervised
his technicians, attempting to be flexible with Pandora because she had a
runaway child at home, and placing each of the other two technicians on a
PPI to improve their performances; (9) Steward cleaned the tractor yard
as requested by Schweizer, although doing so was not his job
responsibility; and (10) Steward asked to discuss the PPI extension with
Schweizer, but Schweizer refused to meet with him and avoided
communication and interaction.
As further circumstantial evidence of age bias, Steward alleges that
Schweizer singled out Steward for additional duties that were not his
responsibility, including cleaning up the tractor yard and putting
Steward in charge of the PDC process. According to Steward, the added
duties created an insurmountable workload, as his responsibilities were
already greater than those of the younger Technical Managers because he
supervised more technicians. When Steward questioned Schweizer about the
added responsibility, Schweizer responded, "Hell, you are old enough, you
have been around long enough, you should handle this." Steward contends
that this comment, along with the fact that Steward was singled out for
additional assignments, substantiates his claim of age discrimination.
On June 26, 2001,*fn5 Schweizer performed another written follow-up
evaluation addressing issues raised by the initial February 26, 2001 PPI.
The June 26, 2001 follow-up PPI alleged the following performance related
deficiencies: (1) Steward inappropriately handled two more customer
complaints; (2) Steward failed to recruit technicians necessary to reduce
the backlog; (3) two weeks after shipping a number of mowers to New York
to alleviate the backlog in Wilmington, the Wilmington facility had a 70 order backlog; (4) to
alleviate the backlog, Schweizer had to ask Steward's technicians to work
overtime on a Sunday. Steward did not participate in the Sunday overtime.
Steward disputes the complaints raised in the June 26, 2001 follow-up
PPL Steward contends: (1) he did not inappropriately handle the customers
listed in the PPI and specifically recalls addressing the problem of one
of the identified customers; (2) Schweizer could not recall the nature of
that customer's problem and provided no documentation of the customer's
complaint; (3) Steward hired one individual, Morice Anderson, and was
prepared to hire another individual, Ray Fleckinger, but was refused
authorization to hire him because Sears "did not have the man hours;" (4)
Steward disputes having a 70 order backlog; (5) Steward claims that a
backlog occurred every year and that the backlogs were the responsibility
of all the Technical Managers; (6) Schweizer never asked Steward to work
the Sunday overtime to take care of the backlog, which Steward claims was
consistent with Schweizer's pattern of ignoring him.
On July 2, 2001, Sears terminated Steward. According to Steward,
Schweizer called him into his office. DeWit and Donna Desilets, Sears'
Human Resources Manager, were also present. Schweizer informed Steward of
his decision to terminate him and told Steward that there was to be no
discussion. Schweizer then escorted Steward out of the building through
the customer service routing area, causing Steward significant
humiliation after 23 years of service at Sears. Steward was fifty years
old at the time of his discharge.
On December 14, 2001, Steward filed a charge with the Equal Employment
Opportunity Commission ("EEOC") alleging that his termination was due to
age discrimination. Steward received a right to sue letter from the EEOC
dated September 26, 2002. Steward filed the instant action on December 6, 2002.
"[I]f the pleadings, depositions, answers to interrogatories, and
admissions on file, together with 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[,]" summary judgment should be
granted. Fed.R.Civ.P. 56(c). The Supreme Court describes the summary
judgment determination as "the threshold inquiry of determining whether
there is the need for a trial whether, in other words, there are
any genuine factual issues that properly can be resolved only by a finder
of fact because they may reasonably be resolved in favor of either
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). Therefore, "a motion for summary judgment must be granted unless
the party opposing the motion can adduce evidence which, when considered
in light of that party's burden of proof at trial, could be the basis for
a jury finding in that party's favor." J.E. Mamiye & Sons, Inc.
v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987).
"[O]n summary judgment, the inferences to be drawn from the underlying
facts . . . must be viewed in the light most favorable to the party
opposing the motion." Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587-588 (quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)). The party opposing summary
judgment "must do more than simply show that there is some metaphysical
doubt as to the material facts." Id. at 586. "If reasonable
minds can differ as to the import of proffered evidence that speaks to an
issue of material fact, summary judgment should not be granted."
Gelover v. Lockheed Martin, 971 F. Supp. 180, 181 (E.D.Pa.1997). IV. DISCUSSION
A. ADEA Claim
The ADEA prohibits age discrimination in employment against any person
over the age of forty. 29 U.S.C. § 623(a)(1). A plaintiff can sustain
an age discrimination claim by presenting either direct or circumstantial
evidence. When there is no direct evidence of discrimination, the
plaintiff may establish discrimination through circumstantial evidence
using the three prong burden-shifting analysis originally set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a racial
Under McDonnell, the plaintiff must first establish a
prima facie case of age discrimination by showing: (1) that he
is over 40; (2) that he is qualified for the position in question; (3)
that he suffered an adverse employment decision; and (4) that he was
replaced by a sufficiently younger person to permit an inference of age
discrimination. Brewer v. Quaker State Oil Refineries Corp.,
72 F.3d 326, 330 (3d Cir. 1995). If the plaintiff establishes a prima
facie case of age discrimination, McDonnell then shifts
the burden to defendant to produce evidence of a legitimate
nondiscriminatory reason for the discharge. This burden is one of
production, not persuasion. Id. If defendant offers a
legitimate reason for the discharge, in order to survive summary
judgment, plaintiff must submit evidence sufficient for a factfinder
either to "disbelieve the employer's articulated legitimate reasons or to
believe that an invidious discriminatory reason was more likely than not
a motivating or determinative cause of the employer's action."
Id. at 331 (quoting Fuentes v. Perskie, 32 F.3d 759,
763 (3d Cir. 1994)). 1. Prima Facie Case under ADEA
Sears argues that Steward cannot establish a prima facie case of age
discrimination because Steward was not "replaced" as required under
McDonnell Douglass, Sears argues that Steward's
responsibilities were merely redistributed among existing Technical
Managers which, according to Sears, bars Steward's ADEA claim.
The Court concludes that Steward's inability to show he was "replaced"
is not fatal to his ADEA claim. The Third Circuit has addressed the issue
of "replacement" in reduction in force ("RIF") cases, holding that
plaintiffs are not required to establish that they were replaced in order
to establish a prima facie case under McDonnell Douglas.
Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d
Cir. 1984). Because an RIF plaintiff would never be able to show age
discrimination under such a strict approach, the court in Duffy
modified the fourth prong of the McDonnell Douglas test to
require only a showing that employees outside the protected class were
treated more favorably. The "protected class" requirement was later
dropped in Pivirotto v. Innovative Systems, Inc., 191 F.3d 344,
353 (3d Cir. 1999).
A number of courts have also modified the fourth prong of the
McDonnell Douglas test in non-RIF cases where the discharged
employee's responsibilities were absorbed by other employees. See,
e.g., Morrow v. American Bag Corp., 2001 U.S. App. LEXIS 24474, *10
(6th Cir. 2001) (modifying fourth prong of McDonnell Douglas test to
require "additional direct, circumstantial or statistical evidence
tending to indicate that the employer singled out the plaintiff for
discharge for impermissible reasons."); Hitt v. Harsco. Corp.,
356 F.3d 920, 924 (8th Cir. 2004) (modifying fourth element to require a
showing that "age was a factor in the employer's decision to terminate.") While using different language,
these courts have generally required a plaintiff to proffer evidence that
younger employees were treated more favorably, as opposed to evidence of
replacement by a younger employee.
This case does not involve an RIF. The Third Circuit has yet to address
whether an employee can establish a prima facie case in a
non-RIF case where, inter alia, the employee's duties are
absorbed by other employees. That court has, however, held that "the
nature of the required showing [under McDonnell Douglas]
depends on the circumstances of the case." Id. In Pivirotto v.
Innovative Systems, Inc. 191 F.3d 344, 352 (1999), the court stated:
The central focus of the inquiry in a case such as
this is always whether the employer is `treating
some people less favorably than others because of
their race, color, religion, sex, or national
origin.' The method suggested in McDonnell
Douglas for pursuing this inquiry, however,
was never intended to be rigid, mechanized, or
ritualistic. Rather, it is merely a sensible,
orderly way to evaluate the evidence in light of
common experience as it bears on the critical
question of discrimination.
Id. (internal quotations and citations omitted).
Based upon the rationale adopted by the Third Circuit in
Pivirotto and Puffy, and decisions in other circuits
modifying the fourth prong of McDonnell Douglas in non-RIF
cases, this Court concludes that the fact that Steward was not "replaced"
after his termination is not fatal to establishing a prima facie
case of age discrimination. Steward can satisfy the fourth prong of
McDonnell Douglas by offering evidence that younger employees
were treated more favorably.
The Court concludes that Steward has met this burden. Steward presented
evidence that Schweizer singled him out for criticism and did not
criticize younger employees who engaged in similar conduct, or were
equally responsible for problems. For example, Steward claims he was criticized as a result of customer complaints, for two instances of
backlogs, and for the GAP report, whereas younger employees were not.
Steward also argues that he was singled out for extra responsibilities
despite having the heaviest workload of the Technical Managers. Such
evidence was largely corroborated by Carter's deposition testimony. The
Court concludes that this evidence is sufficient to establish more
favorable treatment of younger employees and meets that part of the
fourth prong of McDonnell Douglas.
B. Sufficiently Younger Employees
Sears argues that Steward cannot produce evidence that he was replaced
by, or in this case, treated less favorably than employees that were
sufficiently younger than Steward to permit an inference of age
discrimination. According to Sears, the majority of Steward's work was
assigned to Carter, an employee only five years younger than Steward, an
age difference not significant enough to support an inference of age
discrimination. See Gutknecht v. SmithKline Beecham Clinical Lab.
Inc., 950 F. Supp. 667, 672 (E.D. Pa. 1996)(internal citations
omitted). Moreover, Sears argues that the retention of Sipple, age 59,
precludes an inference that Steward was discriminated against because of
age. See, e.g., Brown v. McDonnell Douglas Corp., 113 F.3d 139,
142 (8th Cir. 1997).
In response, Steward claims that his work was divided among a number of
younger Technical Managers, including Merkel, 34, DeWit, 34, Carter, 45,
and an employee later hired to replace Carter, Russ Apple, age 42.
Steward argues that the combined age differential between himself and all
of the employees that assumed his duties after his termination is more
than sufficient to establish a prima facie case of age discrimination.
See Sempier v. Johnson, 45 F.3d 724, 729-30 (3d Cir. 1995)
(combined differences of four years and ten years between age of dismissed employee and the two employees that assumed his
responsibilities satisfies fourth prong of the McDonnell
Douglas test). Steward also contends that the retention of Sipple,
age 59, is not dispositive. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 153 (2000) (holding that employer's
retention of many managers over age 50, while relevant, was not
dispositive of an ADEA claim). According to Steward, not long after his
termination, Sipple received a low score on a performance evaluation and
thereafter volunteered for early retirement.
The Court concludes that the combined age differential between Steward
and the younger employees who were allegedly treated more favorably is
sufficient to meet that part of the fourth prong of McDonnell
Douglas. See Sempier, 45 F.3d at 729-30. The fact that Sears
retained Sipple is not dispositive of the age discrimination claim.
See Reeves, 530 U.S. at 153.
2. Legitimate Non-Discriminatory Reason for Discharge
According to Sears, all of Steward's alleged deficiencies can be
distilled into one legitimate non-discriminatory reason for his
termination: "Mr. Steward has demonstrated a lack of ownership of the
responsibilities of Technical Manager at Sears Product Repair Services."
Defendant's Mot. for Sum. J., at 16. In support of this contention, Sears
offers as evidence, inter alia, Schweizer's deposition testimony
and affidavit, DeWit's deposition testimony and affidavit, Steward's
February 21, 2000 written PPI, the written follow-ups to the PPI, and
Steward's Notice of Termination.
The Court concludes the above evidence is sufficient to meet Sears's
burden of producing evidence of a legitimate non-discriminatory reason
for the discharge under McDonnell Douglas, Thus, the burden
shifts to Steward to submit evidence that the stated reasons for
discharge were pretextual. 3. Evidence of Pretext
A plaintiff can demonstrate pretext by showing that a "defendant's
proffered reason is "merely fabricated justification for discriminatory
conduct . . . `either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by
showing that the employer's proffered reason is unworthy of credence."
Siegel v. Alpha Wire Corp., 894 F.2d 50, 55 (3d Cir. 1990).
Steward makes three arguments to establish that Schweizer's stated
reasons for discharging Steward were a pretext for discrimination: (1)
Steward's long and positive work history; (2) Schweizer's more favorable
treatment of younger Technical Managers; and (3) the implausibilities and
inconsistencies in Schweizer's proffered reasons for Steward's discharge.
First, Steward points to his long and positive work history at Sears,
in which he regularly received positive performance evaluations, pay
increases, and merit bonuses. Steward offers evidence of positive
evaluations from prior supervisors and co-workers. Additionally, Steward
provides evidence that he had the highest productivity of all the
Technical Managers in terms of service calls completed. In 2000, Steward
completed 35,272 service calls, Merkel 17,740 service calls, Carter
17,237 calls, and Sipple 9,947 calls. In 2001, up to the time of his
termination, Steward completed 17,623 calls, Carter 9462 calls, Merkel
4707 calls, and Sipple 4707 calls. In the year he was terminated, Steward
oversaw almost as many completed calls as the other three Technical
Managers combined. Steward also argues that the merit bonus of $9,960 he
received on March 15, 2001 refutes Schweizer's contention that Steward's
performance was substandard.
Next, Steward offers evidence that Schweizer treated him differently
than the younger Technical Managers from the time Schweizer began working at Sears's
Wilmington facility. Steward claims that Schweizer ignored him, took over
his meetings with his technicians, avoided having meetings with him, and
singled him out for extra assignments despite the fact that Steward had
the heaviest workload among the Technical Managers. Steward's claim of
less favorable treatment is supported by Carter's deposition testimony.
See Carter Dep. at 17-19, 38, 41-42, 46-47.
According to Steward, when he approached Schweizer about his workload,
Schweizer further displayed age bias by stating "Hell, you are old
enough, you have been around long enough, you should handle this." Carter
offers partial corroboration of this claim, testifying that Steward had
expressed discomfort with an age-based comment allegedly made by
Schweizer. Carter Dep. at 33.
Finally, Steward offers evidence of inconsistencies and
implausibilities in each of Schweizer's proffered reasons for discharging
Steward. For example, in response to Schweizer's claim that Steward did
not produce weekly GAP reports, Steward contends that he produced a
report every week in collaboration with Carter and Sipple. On the other
hand, Merkel never produced a GAP report and yet was never reprimanded
and/or terminated for this failure. Carter corroborates both of these
claims. Steward similarly refutes Schweizer's claim that Steward did not
hire sufficient personnel by citing his hiring of Morice Anderson and his
attempt to hire Ray Fleckinger, which was not authorized by Sears. These
claims are corroborated by Carter's deposition testimony.
Steward disputes Schweizer's claim regarding a customer complaint by
producing the customer record stating that the alleged complainant was
satisfied with his service. Steward also denies responsibility for submitting vacation reports late. To the
contrary, he argues that, while he was out of the office, Schweizer
ordered Carter to move the contents of Carter's and Steward's shared
office to a different location and that the vacation slips were lost
during the move. Carter corroborates this claim.
Steward offers a similar response to each of Schweizer's
performance-related charges. The Court concludes, however, that is it
unnecessary to enumerate all such responses because plaintiffs are not
cast doubt on each of proffered reason in a
vacuum. If the defendant proffers a bagful of
legitimate reasons, and the plaintiff manages to
cast substantial doubt on a fair number of them,
the plaintiff may not need to discredit the
remainder. That is because the facfinder's
rejection of some of the defendant's proffered
reasons may impede the employer's credibility
seriously enough so that a factfinder may
rationally disbelieve the remaining proffered
reasons, even if no evidence undermining those
remaining rationales in particular is available.
Fuentes v. Perskie, 32 F.3d 759
, 765 (3d Cir. 1994).
In summary, Steward has presented evidence of: (1) his positive
performance evaluations and merit bonuses; (2) less favorable treatment
than younger Technical Managers; and (3) inconsistencies and
implausibilities in Schweizer's proffered reasons for Steward's
discharge. Carter's deposition testimony substantially corroborates
Steward's claims. The Court concludes that this evidence is sufficient
for a factfinder to disbelieve Sears's reasons for termination or to
believe that the reasons were a pretext for invidious discrimination.
4. Sears's Objections
The Court rejects Sears's contention that Steward's responses amount to
nothing more than a subjective interpretation that he was doing a good
job. According to Sears, such a response is not relevant because it does
not address whether Schweizer honestly believed the reasons given for Steward's termination. See Billet v. Cigna
Corp., 940 F.3d 812, 825 (3d Cir. 1991).
The Supreme Court has rejected the argument that direct evidence of the
employer's mental state is required to sustain an ADEA claim. The Court
explained that the burden shifting test of McDonnell Douglas is
employed precisely because "there will seldom be `eyewitness' testimony
as to the employer's mental processes." Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 140 (2000). Thus, the Court in
Proving the employer's reason false becomes part
of (and often considerably) assists the greater
enterprise of proving that the real reason was
intentional discrimination. . . . In appropriate
circumstances, the trier of fact can reasonably
infer from the falsity of the explanation that the
employer is dissembling to cover up a
discriminatory purpose. Such an inference is
consistent with the general principle of evidence
law that the factfinder is entitled to consider a
party's dishonesty about a material fact as
affirmative evidence of guilt.
Id. (internal quotations and citations omitted).
Further, Steward cites specific examples to undermine the credibility
of Schweizer's criticisms. In Brewer v. Quaker State Oil Refining
Corp., 72 F.3d 326, 331 (3d Cir. 1995), the court held that an
employee's testimony regarding specific examples of "errant or misplaced
criticism" is more than just a "subjective opinion of his performance"
and is thus probative of whether or not the reasons offered by the
employer for the employee's discharge were pretextual.
The Court also rejects Sears's arguments that Steward's positive
performance evaluations are not relevant to whether the reasons for the
termination are pretextual. Sears contends that the evaluations are not
probative because Sears did not rely on poor performance evaluations for
the termination. However, evidence regarding Steward's productivity as a
Technical Manager is probative of whether Steward properly managed his
technicians and whether Steward had poor leadership over his technicians two reasons which were
given by Schweizer for Steward's termination. Moreover, Sears admits that
the merit bonuses are based in part on a unit's productivity. This
evidence is relevant because "a factfinder could find it implausible"
that an employer would fire an employee when that employee "was
successful in the sole area identified by the [employer's] own incentive
Lastly, the Court rejects Sears's argument that Schweizer's alleged
"you're old enough" remark cannot be considered probative of age
discrimination. Sears claims that the remark is a "stray remark by a . . .
decisionmaker unrelated to the decision process" which is "rarely given
great weight, particularly if . . . made temporally remote from the date
of the decision." Ezold v. Wolf, Block, Schorr &
Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1993). The Court concludes
that a reasonable jury could find that the comment, combined with
evidence of dissimilar treatment of younger employees by Schweizer, was
circumstantial evidence of age discrimination. Brewster, 72
F.3d at 334 (statements subject to competing interpretations should be
submitted for a jury's consideration).
Based on the entire record, the Court determines that there are genuine
issues of material fact with regard to each prong of the McDonnell
Douglas test. Therefore, that part of Defendant's Motion for Summary
Judgment which addresses this aspect of the case is denied.
5. Liquidated Damages
Under the ADEA, liquidated damages are available to a plaintiff who
proves that the defendant "willfully" violated the ADEA.
29 U.S.C. § 626(b). The Supreme Court has held that, for purposes of the
ADEA, an act of discrimination is "willful" if "the employer either knew or
showed reckless disregard for the matter of whether its conduct was
prohibited by the ADEA." Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126
(1985). The wilfulness analysis is fact-specific and must be conducted on
a case-by-case basis. Usually, "wilfulness is a factual question
requiring an examination of the employer's `state of mind, knowledge,
intent and belief regarding the propriety of [its] actions," and as such,
summary judgment is not appropriate in cases in which an employee is able
to proffer some evidence of wilfulness. Harter v. GAF Corp.,
967 F.2d 846, 852 (3d Cir. 1992) (internal citations omitted).
Steward argues that a jury could infer wilfulness from the following
facts: Schweizer's more favorable treatment of younger Technical
Managers; Steward's good employment record; the merit increases Steward
received from 1998 to 2001 as a Technical Manager; the bonuses Steward
received as a technical manager including the one he received in March
2001; the January 2001 "met expectation" record of Steward's performance
review; "the paper trail" efforts of Schweizer*fn6 to get rid of
Steward; the comment by Schweizer of "hell you are old enough, you have
been around long enough, you should handle this;" and the manner of
Steward's termination Schweizer escorting Steward out of the
The Court concludes that Steward has met his burden of providing some
evidence of wilfulness under Harter, Id. Thus, on the current
state of the record, Sear's Motion for Summary Judgment on plaintiffs
claim for liquidated damages is denied without prejudice to defendant's
right to raise the issue, and any other appropriate defense, at trial.
6. Punitive and Compensatory Damages For Pain and
Neither punitive damages nor damages for pain and suffering are
recoverable under the ADEA. Baur v. M&M/Mars 2001 U.S. DIST LEXIS 24162,
*24-27 (E.D. Pa. October 22, 2001). Thus, Defendant's Motion for Summary
Judgement is granted as to plaintiff's claims under the ADEA for punitive
damages and damages for pain and suffering, humiliation and
7. DHRA Claim
Plaintiff has agreed to withdraw his claim under the DHRA. Thus,
Defendant's Motion for Summary Judgment is granted as to plaintiff's
claim under the DHRA.
For the foregoing reasons, this Court grants Defendant's Motion for
Summary Judgment as to plaintiff's claims under the ADEA for punitive
damages and damages for pain and suffering, humiliation and
embarrassment. The Court also grants Defendant's Motion for Summary
Judgment as to plaintiff's claim under the Delaware Human Relations Act.
Defendant's Motion for Summary Judgment is denied in all other respects.