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October 11, 2005.


The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge


On October 3, 2003, Plaintiff Joan Mincevich ("Plaintiff" or "Mincevich") filed a complaint against her former employer, Defendant Bavarian Pretzel Bakery ("Bavarian"). Mincevich alleges that her termination by Bavarian violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. (2000), and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. §§ 951 et seq. (1991). Specifically, Mincevich alleges that Bavarian's performance-based reasons for her discharge, namely low sales volume and child labor law violations, were a pretext for intentional age discrimination. (Pl.'s Br. in Opp. to Summ. J. Mot., Dkt. Entry 28, at 13-16.) Mincevich further alleges that age-related comments made by her superiors at Bavarian constitute direct evidence of age discrimination. (Id. at 161-9.)

Currently pending is Bavarian's motion for summary judgment. (Dkt. Entry 21.) For the reasons stated below, Bavarian's motion will be granted. I. BACKGROUND

  From May of 1987 to February of 2002, Mincevich worked as the Store Manager for a Bavarian pretzel kiosk in the Stroudsburg Mall, Stroudsburg, Pennsylvania. (Mincevich Dep., Dkt. Entry 30, at 9, 11.) Mincevich was born on January 11, 1941. (Id. at 9.) Al Callucci, Regional Director for Bavarian, terminated Mincevich's employment on February 22, 2002, replacing her with fifty-one (51) year-old Linda Morley, the Assistant Manager. (Callucci St., Dkt. Entry 31, at ¶ 12.) Mincevich was informed that she had been discharged from her Store Manager position because she failed to improve sales volume and failed to correct child labor law violations, particularly during a ninety (90) day probationary period following a November 15, 2001 performance evaluation. (Id. at ¶¶ 14, 16.) Callucci claims that he had no knowledge of and made no reference to anyone's age in relation to Mincevich's discharge. (Id. at ¶¶ 15-16.) Plaintiff admits that Callucci never treated Plaintiff differently because of her age and never made any age-bias comments to Plaintiff or in her presence. (Def.'s Statement of Material Facts ("SMF"), Dkt. Entry 22, at ¶¶ 34-35.)*fn1

  As stated in Bavarian's Operations Manual, the Store Manager is responsible for "optimizing profits" and "continually building sales volume." (Mincevich Dep., Dkt. Entry 30, at Ex. 13). Over the last few years Mincevich had served as Store Manager, sales at her store had been decreasing considerably. (Id. at Ex. 23, 33, 37.) On multiple occasions, dating back to 1996, Bavarian management counseled Mincevich about poor sales performance. (Id.) A January 1999 performance evaluation of Mincevich indicated that her store's income was seventy-three (73) percent under budget. (Mincevich Dep., Dkt. Entry 30, at Ex. 33.) A May 2000 letter to Mincevich pointed out that her store's profit had dropped by 375%, representing the single worst profit decline in the entire company over the previous year. (Id. at Ex. 37.) Mincevich admitted in her deposition, as she had in response to past performance appraisals by Bavarian management, that sales for her store were indeed down. (Id. at 74, Ex. 36.)

  In October of 2001, Regional Manager Callucci conducted a labor audit of Mincevich's store and discovered multiple child labor law violations. (Callucci St., Dkt. Entry 31, at ¶¶ 4-6.) Mincevich posted at her store, and admits that she understood the contents of, a Pennsylvania Child Labor Law notice which stated, in part, that employees under the age of eighteen (18) must have on file with their employer an employment certificate issued by their high school and that they must take a thirty-minute meal period after five (5) hours of work. (Mincevich Dep., Dkt. Entry 30, at 19-20, 25, Ex. 2.) Through his labor audit, Callucci found that Mincevich had employed a high school student, Christina Sinno, without having her employment certificate on file. (Callucci St., Dkt. Entry 31, at ¶ 6.) Sinno worked at the store from May through July of 2001 and again from September of 2001. (Mincevich Dep., Dkt. Entry 30, at 204-07.) Callucci also found that, in September and October of 2001, sixteen (16) year old Ashley Stumpp worked more than eight (8) hours without a break on fourteen (14) instances, while Sinno worked over five (5) hours without a break on (5) occasions. (Callucci St., Dkt. Entry 31, at ¶ 4.)

  On November 15, 2001, Callucci met with Mincevich and presented her with a written performance evaluation. (Id. at ¶ 9.) In this evaluation, Callucci expressed "serious concern" about Mincevich's capabilities as Store Manager and indicated that failure to improve might lead to her dismissal. (Mincevich Dep., Dkt. Entry 30, at Ex. 39.) Callucci placed Mincevich on a probationary period of ninety (90) days and directed her to submit by December 1, 2001 an action plan that would address such issues as sales performance and labor law compliance on an "immediate and sustained basis." (Id.) In his meeting with Mincevich, Callucci particularly emphasized the importance of addressing the areas of sales and labor law compliance. (Callucci St. at ¶ 10.)

  Mincevich failed to submit an action plan for improvement.*fn2 (Id. at ¶ 11.) Moreover, Mincevich did not demonstrate any improvement in areas such as sales and profitability during the ninety (90) day probationary period. (Id.). Sinno continued to work without her employment certificate and Stumpp worked over eight hours without a break on two occasions during this period. (Callucci St. at ¶ 11-12.) On February 22, 2002, Callucci fired Mincevich. (Id. at ¶ 12). Callucci observed that Mincevich had displayed no sense of urgency in addressing the matters set forth in his November 15, 2001 evaluation. In this regard, Mincevich took a three (3) week vacation during the probationary period. (Def.'s SMF, Dkt. Entry 22, at ¶ 22.) Plaintiff admits that there were violations of work hours restrictions during December, 2001 and January, 2002, and that Sinno worked without proper working papers until January 6, 2002. (Id. At ¶¶ 20, 22.)

  Mincevich reports that, over the course of her employment with Bavarian, two District Managers made comments she perceived to reflect age bias. On March 26, 1995, seven (7) years before Plaintiff was fired, District Manager Pam Abrams asked Mincevich in front of a group of people whether she was over fifty (50). (Mincevich Dep., Dkt. Entry 30, at 108-109.) Some time later, another District Manager, Karen Price, asked Mincevich when she planned on retiring and, on another occasion, told her, "if you don't like it, quit!" (Id. at 156-158, 163-164.) These were the only instances of age-related comments made to Mincevich at Bavarian. (Id. at 166). Neither Abrams nor Price worked for Bavarian at the time of Mincevich's discharge, as Abrams had left the company in 1997 and Price in the summer of 2001. (Def. Br. in Supp. of Summ. J. Mot., Dkt. Entry 22, at 23.) Callucci did not approach either of them in making his decision to terminate Mincevich. (Callucci St. at ¶ 12). II. DISCUSSION

  A. Summary Judgment Standard

  Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if proof of its existence or nonexistence might affect the outcome of the suit under applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022 (1994). "Summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

  Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 329 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988); Continental Ins. Co. v. Bodie, 682 F.2d 436 (3d Cir. 1982). Once the moving party has satisfied its burden, the nonmoving party "must present affirmative evidence to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Rule 56 requires the entry of summary judgment, after adequate time for discovery, where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

  B. The Age Discrimination Claim

  Mincevich asserts that Bavarian terminated her employment on the basis of her age in violation of the ADEA and PHRA.*fn3 The ADEA bans employment discrimination "because of an individual's age," 29 U.S.C. § 623(a)(1), but limits protection to those "who are at least forty years of age." 29 U.S.C. § 631(a). "This language does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but ...

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