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.
I. LEGAL STANDARD
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,
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 ...