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October 26, 2005.

NOVELTY, INC., Defendant.

The opinion of the court was delivered by: JAMES McCLURE Jr., District Judge



On October 18, 2004, plaintiff Robert Creasy ("Creasy"), commenced this action in the Middle District of Pennsylvania. The three-count complaint alleged that Creasy's employment was wrongfully terminated by defendant Novelty, Inc. (Novelty), in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 (ADEA), the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (ADA), and the Pennsylvania Human Relations Act (PHRA), 43 Pa. C.S.A. §§ 951-63. Plaintiff alleges that he was discharged from his job because of his age, fifty-five,*fn1 and because of a physical impairment, sleep apnea. On July 17, 2005, Creasy filed an amended complaint to clarify his claims. In his amended complaint, Creasy continues to assert causes of action under the ADEA, ADA, and the PHRA. On September 15, 2005, defendant filed the instant motion for summary judgment. The motion is now fully briefed, and for the following reasons the court will grant the motion in part.

  It is appropriate for a court to grant a motion for summary judgment "if 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 that the moving party is entitled a judgment as a matter of law." Fed.R.Civ.P. 56(c).

  "If the nonmoving party has the burden of persuasion at trial, `the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden of proof at trial.'" Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d. Cir. 1987)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

  In evaluating a motion for summary judgment the court will draw all reasonable inferences from the evidence in the record in favor of the nonmoving party. Am. Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d 574, (3d Cir. 1995). The nonmoving party, however, cannot defeat a motion for summary judgment by merely offering general denials, vague allegations, or conclusory statements; rather the party must point to specific evidence in the record that creates a genuine issue as to a material fact. See Celotex, 477 U.S. at 32; Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999).


  A. Plaintiff's Failure to Comply with Local Rule 56.1

  First, we note that plaintiff has not complied with Local Rule 56.1 which provides in relevant part: "[t]he papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended there exists a genuine issue to be tried." L.R. 56.1.

  Defendant has filed a separate statement of material facts with citations to the record in support. (Rec. Doc. No. 32-2.) Under Local Rule 56.1, "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party." L.R. 56.1. Therefore, the court could admit all the statements provided by the defendants as unopposed. The plaintiff has provided a concise statement of facts in his brief in opposition, (Rec. Doc. No. 35, at 2-3); albeit, without citations to the record. Therefore, although plaintiff has not complied with the local rules, the court will not deem admitted statements made by defendant that plaintiff has opposed, so long as plaintiff's statements are supported by evidence in the record.

  B. Statement of Relevant Facts

  Plaintiff, Robert Creasy, is an adult individual residing in Mifflinburg, Pennsylvania. Creasy was born on January 7, 1948. Defendant, Novelty, Inc., is a foreign corporation authorized to conduct business in the Commonwealth of Pennsylvania and has a principal address at 351 West Muskegon Drive, Greenfield, Indiana.

  Creasy was an employee of Novelty from October 13, 1997 until December 2, 2002. While Creasy was employed with Novelty he was a Salesperson/Route Driver. As a Salesperson/Route Driver, Creasy's duties included servicing approximately eighty convenience stores. At the stores, Creasy was responsible for stocking shelves, organizing Novelty's products' displays, keeping display areas neat, and removing outdated products. Creasy's job required that he service twelve to fifteen stores per day, and that he load and unload his company vehicle. Creasy, however, did not have to adhere to any particular daily schedule, and rarely had contact with his supervisors.

  On November 12, 2002, Michael Evan Clark, then Creasy's Regional Manager, received a complaint from Shawn Hardy, a Regional Manager for Uni-Mart, that Creasy was not properly servicing Uni-Mart stores in his region. According to Clark's affidavit, Hardy specifically complained that Novelty's display racks in his stores were dirty, cluttered, and poorly merchandised. Upon receiving Hardy's complaint, Clark inspected several of Creasy's stores with Hardy. These inspections confirmed to Clark that the stores were not being properly serviced. Clark then developed an action plan for Creasy that contained specific requirements for each Uni-Mart store Creasy serviced.*fn2 Clark contends that he was extremely concerned about the Uni-Mart account because the company was Novelty's principal customer in the area serviced by Creasy. After approximately two weeks, Clark inspected Creasy's stores ...

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