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 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
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. ...