The opinion of the court was delivered by: DONETTA AMBROSE, District Judge
OPINION and ORDER OF COURT
Pending is Defendant's, Allegheny General Hospital's
("AGH"),*fn1 Motion for Summary Judgment. (Docket No. 8).
Plaintiff has filed a Response thereto. (Docket No. 11). AGH then
filed a Reply Brief. (Docket No. 12). Based on my opinion set
forth below, said Motion is granted.
Plaintiff, Bernice Taylor, was born on March 6, 1953. See,
Plaintiff's Depo., p. 7. Plaintiff was hired by AGH on November
8, 1971. Prior to her termination, Plaintiff had returned to work
following a back injury resulting in a herniated disc. She was working under a 10 pound lifting restriction. AGH
terminated Plaintiff's employment on June 19, 2003. At the time
of her discharge, Plaintiff was fifty (50) years old and working
as a unit secretary in AGH's Medical Ambulatory Care Clinic.
Plaintiff commenced this suit against Defendant asserting that
she was fired by Defendant in violation of the Age Discrimination
in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq and the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et
seq. See, Complaint. Defendant has filed a Motion for Summary
Judgment. (Docket No. 14). Plaintiff has responded thereto.
(Docket No. 11). The issues are now ripe for review.
A. LEGAL STANDARD OF REVIEW
Summary judgment may only be granted 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 to judgment as a matter of law. Fed.R.Civ.P.
56(c). Rule 56 mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against the party
who 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 Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
In considering a motion for summary judgment, this Court must
examine the facts in a light most favorable to the party opposing
the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d
Cir. 1990). The burden is on the moving party to demonstrate that
the evidence creates no genuine issue of material fact.
Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.
1987). The dispute is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
fact is material when it might affect the outcome of the suit
under the governing law. Id. Where the non-moving party will
bear the burden of proof 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 non-movant's burden of proof at trial.
Celotex, 477 U.S. at 322. Once the moving party satisfies its
burden, the burden shifts to the nonmoving party, who must go
beyond its pleadings, and designate specific facts by the use of
affidavits, depositions, admissions, or answers to
interrogatories showing that there is a genuine issue for trial.
Id. at 324. Summary judgment must therefore be granted "against
a party who 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." White
v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988),
quoting, Celotex, 477 U.S. at 322.
Plaintiff alleges that she was fired by AGH because of her age,
in violation of the ADEA, 29 U.S.C. § 621, et seq. See,
Complaint, Count I. The ADEA provides, in relevant part that: "It
shall be unlawful for an employer . . . to fail or refuse to hire
or to discharge any individual . . . because of such individual's
age." 29 U.S.C.A. § 623(a)(1). The ADEA applies only to
"individuals who are at least 40 years of age."
29 U.S.C.A. § 631(a). There are two avenues for proving Plaintiff's ADEA claim:
(1) direct evidence under a "mixed motives" theory of liability,
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), or (2)
circumstantial evidence of discrimination under a burden shifting
theory of liability. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).*fn2 Both parties agree that this case is
proceeding under the latter burden shifting theory of liability.
To prevail under the burden shifting analysis, Plaintiff must
first establish a prima facie case of discrimination. To
establish a prima facie case for age discrimination, a
plaintiff must prove: (1) that she is a member of a protected
class (i.e. over 40), (2) that she was qualified for her
position, (3) that she suffered an adverse employment action, and
(4) that the position was ultimately filled by someone
substantially younger than the plaintiff to permit an inference
of age discrimination. O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312-13 (1996); Fuentes v. Perskie,
32 F.3d 759, 763 (3d Cir. 1994), citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Pivirotto v. Innovative
Systems, Inc., 191 F.3d 344, 353 (3d Cir. 1999). If the
Plaintiff is successful in establishing a prima facie case, the burden of production shifts to Defendant to articulate a
legitimate, nondiscriminatory reason for failing to hire him. If
Defendants meet this minimal burden, then Plaintiff must prove,
by a preponderance of the evidence, that the articulated reason
was mere pretext for discrimination. Keller v. Orix Credit
Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997). Throughout
this analysis, however, the burden of proving intentional
discrimination rests with Plaintiff. Fuentes v. Perskie,
32 F.3d 759, 763 (3d Cir. 1994). In other words, the burden of
persuasion does not shift. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 509 (1993).
Defendant argues that summary judgment is appropriate because
Plaintiff cannot establish the fourth element of a prima facie
case for age discrimination. See, Defendant's Brief in Support,
p. 6. In opposition to the Motion for Summary Judgment,
Plaintiff, without citation to any case law, merely states
"Plaintiff specifically identifies similarly situated employees,
under the age of 40 that continually breached confidentiality out
in the open of the waiting area under Joan Crawford's direct
supervision who did not receive discipline from
Crawford."*fn3 Docket No. 11, p. 4. The treatment of
"similarly situated employees," however, applies in the context
of a reduction in force ADEA case, which is not the case here.
See, Anderson v. Consol. Rail Corp., 297 F.3d 242, 249-50 (3d
Cir. 2002). The element that Plaintiff must establish in a
termination case is that the position was ultimately filled by
someone substantially younger than the plaintiff to permit an
inference of age discrimination. O'Connor, 517 U.S. at 312-13. In this case,
Plaintiff did not engage in any discovery. As a result, there ...