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April 16, 2004.


The opinion of the court was delivered by: THOMAS O'NEILL, Senior District Judge


As a result of his termination from the Montgomery County District Attorney's Office, plaintiff Robert Fasold, a former Montgomery County detective, has filed a claim for age discrimination and retaliation under Federal and Pennsylvania law against defendants County of Montgomery, Edmund Justice, Oscar P. Vance, Bruce L. Castor and Frank Bason. Defendants have filed a motion for summary judgment under Federal Rule of Civil Procedure 56(c).*fn1 Because there is no genuine issue of material fact as to whether defendants discriminated against plaintiff on the basis of his age or retaliated against him in violation of the Age Discrimination in Employment Act (ADEA) and the Pennsylvania Human Relations Act (PHRA) I will grant defendants' motion. Under the ADEA, it is "unlawful for an employer . . . to discharge any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). Where, as here, there is no direct evidence of discrimination, the burden of proof is governed by the framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).*fn2 Under McDonnell Douglas, plaintiff has established a prima facie case of discrimination based on age. He was born on September 24, 1962 and was over forty years old at the time of his termination. He was qualified for his position with the Montgomery County Detectives, having worked as a detective from May 1986 until January 2002. Plaintiffs employment was terminated on January 3, 2002. His position was subsequently filled by a thirty-two year old male. See, e.g., Id.; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).

Defendants, however, have produced evidence that plaintiff was terminated for performance problems, a legitimate nondiscriminatory reason for an employee's termination. See, e.g., Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1120 (3d Cir. 1997): Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996). Subsequent to his transfer to the narcotics unit, defendants argue plaintiff was not fulfilling his job responsibilities because he was only managing the cases in his region and not developing additional cases on his own. Defendants also assert that plaintiff's performance was insufficient because he allowed his family responsibilities to interfere with his ability to follow through with after hours assignments. In particular, defendants allege that plaintiffs early departure from a narcotics investigation on December 14, 2001 resulted in the loss of a "substantial amount of cash" and was a "critical error in judgment on plaintiff's behalf."

  Plaintiff disputes defendants' allegations but he has not produced evidence from which a jury could conclude that defendants' legitimate non-discriminatory reason for his termination was only a pretext for discrimination. To defeat defendants' motion for summary judgment, plaintiff must point "to some evidence, direct or circumstantial, from which a factfinder would reasonably either: (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes v. Perksie, 32 F.3d 759, 764 (3d Cir. 1994).

  The question under the first prong of the Fuentes test is not whether defendants' decision to fire plaintiff was "wrong or mistaken." Fuentes, 32 F.3d at 765. To survive summary judgment, plaintiff "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons that a reasonable factfinder could rationally find them `unworthy of credence.'" Id. "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." Reeves, 530 U.S. at 147. Here, however, plaintiff's evidence "falls short of what would be necessary to show that [defendants'] dissatisfaction with his performance was so clearly unfounded that it cannot have been sincere." Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1110 (3d Cir. 1997) (en banc).

  Plaintiff argues that he never left an assignment without first informing his supervisor and that his supervisor did not object to his leaving early on December 14, 2001. He also notes that he never had a negative performance review before his transfer to the narcotics unit. This is not dispositive however, because "[e]mployers who are dissatisfied with their employees sometimes voice criticism to those employees, but employers do not always do so." Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1111 (3d Cir. 1997) (en banc), citing Healy v. New York Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir. 1988). Further, his previous performance reviews do not apply to plaintiff's abilities to meet the specific requirements of his position in the narcotics unit.

  Plaintiff was aware of defendants' concerns with his performance after his transfer to the narcotics unit. Defendant Bason met with plaintiff in May 2001 to discuss his concerns about plaintiff's lack of productivity. Plaintiff counters defendants' allegation that his performance was insufficient by arguing that he ultimately rectified his failure to develop narcotics cases on his own after this meeting with Bason clarified his job responsibilities. Plaintiff argues that his performance markedly improved following the May 2001 meeting and that his arrest statistics subsequent to this meeting were "at least average." Bason did note an improvement in plaintiff's performance in summer and fall 2001, but he noted that, although plaintiff may have increased the number of arrests he was making, the "overall quality of work was not on par with" the other detectives.

  Despite plaintiff's arguments, a factfinder could not reasonably find from the evidence that defendants' had not legitimately decided that plaintiff's performance as a narcotics detective was not up to their standards. "At most, Plaintiff disputes the bases for his poor reviews and ultimate termination. This is insufficient to defeat summary judgment." Rose v. Woolworth Corp., 137 F. Supp.2d 604, 609 (E.D. Pa. 2001) (citations omitted). "[T]he plaintiff cannot simply show that the employer's decision was unwise or wrong since the actual issue is whether the employer had a discriminatory motive." Lawton v. Sunoco, Inc., et al., No. 01-2784, 2002 U.S. Dist. LEXIS 13039, at "17-18 (E.D. Pa. July 17, 2002). citing Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997 (en banc). The courts "hesitate to second-guess the process by which an employer evaluates an employee's performance, even when the appraisal involves subjective elements." Windfelder v. May Dep't Stores Co., No. 03-1879, 2004 U.S. App. LEXIS 3653 at *9 (3d Cir. Feb. 26, 2004). citing Healy v. New York Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir. 1988). Plaintiff has not shown that defendants' explanation for his termination is so implausible, inconsistent, incoherent, or contradictory that a jury could find it unworthy of belief.

  To show that a discriminatory reason was more likely than not the cause of his termination under the second prong of the Fuentes test, plaintiff "must point to evidence that proves age discrimination in the same way that critical facts are generally proved — based solely on the natural probative force of the evidence." Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1111 (3d Cir. 1997) (en banc). Here, plaintiff presents two remarks as evidence that his termination was based on his age. In January, 2001, when plaintiff first reported to his narcotics assignment and a year before plaintiff's termination, defendant Bason allegedly said, "can't you see the writing on the wall . . . [o]bviously, you know, they don't want you here anymore." In May, 2001, Detective Anthony Spagnoletti, the second in command in the narcotics unit, allegedly told plaintiff, "isn't it obvious to you that the people at the top do not want you here, . . . and Frank Bason is their hatchet man, and, you know, they gave you to him and they just want you out of here."

  In Long v. Thomson Indus., Inc., No. 99-1693, 2000 U.S. Dist. LEXIS 15511 at *28-29 (E.D. Pa. Oct. 23, 2000), plaintiff cited "two isolated instances of age-related comments, one of which occurred six years prior to Long's demotion" as evidence that defendants' justification for his demotion was pretextual The court found plaintiff's evidence was insufficient with respect to his ADEA claim and that "[n]o reasonable jury could find on the basis of this evidence that Defendant's justifications for transferring Plaintiff were pretextual and actually due to discriminatory animus based on age." Id.

  In Keller, plaintiff cited a conversation with one of defendant's employees who allegedly said "[i]f you are getting too old for the job, maybe you should hire one or two young bankers" as evidence of defendant's age-based animus. Keller, 130 F.3d at 1111 (emphasis omitted). The court held that while the "alleged words would certainly constitute evidence from which a reasonable factfinder could draw an inference of age-based animus, . . . we do not think that these words alone could reasonably be viewed as sufficient to prove by a preponderance of the evidence that age was a determinative cause of [plaintiff's] subsequent termination." Id. at 1112.

  Unlike the comments in Long and Keller, the remarks plaintiff cites do not directly refer to plaintiff's age and are not persuasive evidence of defendants' discriminatory intent. Even if it could be inferred that these comments were related to plaintiff's age, evidence of an isolated inappropriate remark unrelated to the decisionmaking process made by a decisionmaker or a non-decisionmaker fails to satisfy plaintiff's burden to show defendants' non-discriminatory reason is a pretext. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring). Neither of these remarks were made in the context of defendants' decisionto terminate plaintiff. Following Long and Keller, these remarks do not enable plaintiff to meet his burden of proof with respect to the second prong of Fuentes. To meet the second prong of the test outlined in Fuentes, "the plaintiff may [also] show that the employer has previously discriminated against [the plaintiff], that the employer has previously discriminated against other persons within the plaintiff's protected class, or that the employer has treated more favorably similarly situated persons not within the protected class." Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. 1998). Plaintiff has not produced any evidence to establish that defendants previously discriminated against him or against other detectives over age forty. He also has not presented evidence that defendants have retained other narcotics detectives under age forty who had performance records in the narcotics unit similar to his. Plaintiff has therefore not established a claim of age discrimination under the ADEA or the PHRA.

  Plaintiff has also failed to establish a prima facie case of retaliation. Plaintiff alleges that defendants' refusal to rehire him after his filing of age discrimination charges with the PHRA and the EEOC was retaliatory. To establish a prima facie case of retaliation under the ADEA and PHRA, plaintiff must show that he engaged in a protected activity, that defendants failed to rehire him subsequent to or contemporaneous with this activity and that a causal link exists between his protected activity and defendants' adverse action. See, e.g. Fogelman v. Mercy Hosp., 283 F.3d 561, 567-68 (3d Cir. 2002).

  Plaintiff engaged in a protected activity when he filed an age discrimination charge with the PHRC on June 21, 2002. When he filed the PHRC charge, defendants had already determined that he should not be rehired when they denied his grievance subsequent to a Step 1 hearing pursuant to the Montgomery County grievance procedure on April 17, 2002. Plaintiff cannot argue this decision was retaliatory because he had not yet engaged in a protected activity. Defendants then upheld plaintiff's termination and refused to reinstate him at a second grievance hearing with Montgomery County on August 20, 2002. ...

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