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November 23, 2005.

SAM ALBA, Plaintiff

The opinion of the court was delivered by: THOMAS BLEWITT, Magistrate Judge


I. Background.

On October 11, 2004, the Plaintiff, Sam Alba, filed this age discrimination action pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. and the PHRA, 42 Pa.C.S.A. § 951, et seq. (Doc. 1). An Amended Complaint was filed by the Plaintiff on January 10, 2005. (Doc. 11). The Defendants, Pittston Housing Authority ("PHA"), and Andrea Grigas, Supervisor of PHA, filed their Answer to Plaintiff's amended pleading on February 2, 2005. (Doc. 16). On April 7, 2005, following our Order granting Plaintiff leave, Plaintiff filed his Second Amended Complaint, and it included, in addition to the stated original claims, an equal protection claim under 42 U.S.C. § 1983. Also, individual Defendant Gerald Shovlin, Chairman of the Board of Directors for the Defendant Pittston Housing Authority was added as a Defendant. (Doc. 26).*fn1 On April 26, 2005, Defendants jointly field an Answer to Plaintiff's Second Amended Complaint. (Doc. 28).

  Thereafter, discovery ensued.*fn2

  Defendants jointly filed a Motion for Summary Judgment on June 28, 2005. Defendants' Motion has been briefed by the parties and is ripe for disposition. (Docs. 31, 32, 35, 36, 37 & 42).*fn3 Additionally, on June 28, 2005, Plaintiff filed a Motion for Partial Summary Judgment. (Doc. 33). Plaintiff's Motion is also ripe. (Docs. 34, 38, 39 & 43).*fn4

  Plaintiff basically alleges that Defendant PHA had an illegal mandatory retirement plan which required him, an employee of PHA for over ten years, to retire at age 70. Prior to reaching the age 70, Plaintiff was advised that his birthday on April 22, 2004 would be his last day of employment as a mechanic with PHA based on PHA's mandatory retirement policy. Plaintiff's last day with PHA was April 22, 2004. Thereafter, on July 21, 2004, Plaintiff filed a complaint with the EEOC for age discrimination. On September 20, 2004, the EEOC closed its file on Plaintiff's discrimination charge since it found that PHA employed less than the required number of employees or was not otherwise covered by the statutes. (Doc. 35, Appx. 6 & 7). (Doc. 31, attached SMF & Doc. 36, attached SMF). Plaintiff alleges that during depositions, he learned that the PHA Board of Directors approved of the recommendation of Defendant Grigas to terminate him due to his age. Plaintiff then raised his § 1983 equal protection claim regarding the PHA Board's official age 70 retirement policy and his claim that the Board approved of his termination.

  Defendants' evidence indicates that during 2003, PHA only had eleven (11) employees, and during 2004, PHA had at the most fourteen (14) employees, but of these, three (3) employees worked less than twenty(20) weeks for this year. Plaintiff disputes this and states that in 2003 Defendant PHA had twenty-three (23) employees, and twenty-six (26) employees in 2004, or, in the alternative, states that PHA and the City of Pittston should be construed as one employer and combined they had well over twenty (20) employees in each of the stated years. (Doc. 31, attached SMF & Doc. 36, attached SMF). Herein lies the basis of Defendants' first argument in support of their Summary Judgment Motion. We shall consider first this issue as to whether PHA had the requisite number of employees for the ADEA to apply to it under the summary judgment standard, as Plaintiff recognizes. (Doc. 36, p. 4). Carr v. Bor. of Elizabeth, 121 Fed. Appx. 459, 460 (3d Cir. 2005) (Non-Precedential) (Twenty employee threshold of ADEA was not jurisdictional but was substantive element, i.e. whether an employer exists, of an ADEA claim). Thus, we do not apply the standard under Fed.R.Civ.P. 12(b)(1) to this issue. Rather, we must construe the evidence in a light most favorable to Plaintiff as the nonmoving party. Carr, supra.*fn5 As discussed below, we agree with Defendants and we will grant their Summary Judgment Motion with respect to Plaintiff's ADEA claim, Count I, and § 1983 claim, Count IV. (Counts I and IV of Second Amended Complaint, Doc. 26). We shall also decline to exercise our supplemental jurisdiction over Plaintiff's remaining state law claims (i.e. PHRA claims) (Counts II and III).

  II. Summary Judgment Standard.

  A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). An issue of fact is "`genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A fact is "material" if proof of its existence or non-existence could affect the outcome of the action pursuant to the governing law. Anderson, 477 U.S. at 248. "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).

  The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982), aff'd mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

  In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the nonmovant's allegations as true and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976) cert. denied, 429 U.S. 1038 (1977).

  Under Rule 56 summary judgment must be entered 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." Celetox Corp. v. Catrett, 477 U.S. 317, 322 (1986).

  III. ADEA Standards.

  The ADEA provides that:
"[I]t should be unlawful for an employer to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U.S.C. § 623(a)(2).
  Thus, "the ADEA prohibit[s] employers from discriminating against qualified individuals on the basis of . . . age." Verdecchia, 274 F. Supp. 2d at 719. See 29 U.S.C. § 623(a)(1). An employer is defined in the ADEA as follows:
a person engaged in industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . 29 U.S.C. § 630(b). 29 U.S.C. § 630(b). Verdecchia, 274 F. Supp. 2d at 719.
  In Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001), the Third Circuit stated the following elements to establish an ADEA age discrimination claim:
The ADEA prohibits employers from discriminating against individuals in hiring, discharge, compensation, term, conditions or privileges of employment on the basis of their age. See 29 U.S.C. § 623(a)(1). Age discrimination may be established by direct or indirect evidence. See Connors v. Chrysler Fin. Corp., 160 F.3d 971, 972 (3d Cir. 1998) When evaluating ADEA discrimination claims based on indirect evidence, a plaintiff may establish a prima facie case of age discrimination under the ADEA by demonstrating that she: (1) was a member of a protected class, i.e., that she was over forty, (2) is qualified for the position, (3) suffered an adverse employment decision, (4) and was ultimately replaced by a person sufficiently younger to permit an inference of age discrimination. See id. at 973.
The Duffy Court also noted that:
A prima facie case creates an inference of unlawful discrimination. The burden of production then shifts to the employer who can dispel the inference by articulating a legitimate, nondiscriminatory reason for its actions. See Connors, 160 F.3d at 974 n. 2. If the employer meets this burden, the employee must then prove by a preponderance of the evidence that the articulated reasons are a pretext for discrimination. See id. Where the employee is unable to establish a prima facie case, however, no inference of discrimination is raised and the employer has no burden to proffer a reason for any action. Spangle v. Valley Forge Sewer Auth., 839 F.2d 171, 174 (3d Cir. 1988).

  The ADEA does not allow "age discrimination by employers against employees and applicants for employment." EEOC v. Zippo Mfg. Co., 713 F.2d 32, 35 (3d Cir. 1983) (citations omitted). Further, this Court has held that the Plaintiff must allege an actual or de facto employment relationship with a Defendant as a requisite to an age discrimination claim under the ADEA. See Tyrrell v. City of Scranton, 134 F. Supp. 2d 373, 380 (M.D. Pa. 2001). Here, Plaintiff was undisputedly an employee of Defendant PHA. (Doc. 31, SMF). However, if Defendant PHA is not an employer for purposes of the ADEA, Plaintiff's ADEA claim must fail since Plaintiff will have not met a substantive element of his claim.*fn6 See Carr, 121 Fed. Appx. at 460.

  We must decide if the individuals identified by Plaintiff are employees of PHA in addition to those who the Defendants concede are employees. This issue must be resolved under the summary judgment standard. Id. As stated, Defendants claim that in 2003, PHA had eleven (11) employees and that in 2004, PHA had at most fourteen (14) employees. (Doc. 31, SMF, ¶ 's 12-13.). Plaintiff claims that PHA had twenty-three (23) and twenty-six (26) employees for the respective years. (Doc. 36, SMF, ¶ 's 12.-13.). Specifically, Plaintiff argues that the Pittston City police officers who patrol PHA's projects, and that the PHA Solicitor (Attorney Butera) and Financial Consultant (CPA Lisak) are all employees of PHA. Defendants contend that these individuals are not employees of PHA; rather, they are independent contractors.

  A. Employee Under the ADEA.

  As the Verdecchia Court stated "the ADEA offer[s] [a] circular definition[s] of the term `employee,' defining it as an individual employed by an employer." Id. Citing 29 U.S.C. § 630(b). The Verdecchia Court then stated as follows:
"The law is now clear that where the statute does not helpfully define the term `employee,' courts are to use a common-law agency test to determine employee status." Jean Anderson Hierarchy of Agents v. Allstate Life, 2 F.Supp. 2d 688, 693 (E.D. Pa. 1998), citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 322, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). See also Walker v. Correctional Medical Systems, 886 F.Supp. 515, 520 (W.D. Pa. 1995) (concluding that Darden requires application of the common-law agency test in determining employee status under Title VII). "Under this test, all of the incidents of the relationship must be assessed and weighed with no one factor being decisive. . . ." Jean Anderson Hierarchy, 2 F.Supp. 2d at 693.
Id. at 720-721.

  B. Relationship of Claimed Employees and Defendant.

  We are presented with the question of whether the stated individuals identified by Plaintiff were employees of Defendant PHA within the meaning of the ADEA. Generally, when there are no material facts in dispute, this issue is a question of law for the court to determine. See Stouch v. Brothers of the Order of Hermits of St. Augustine, 836 F. Supp. 1134, 1142 (E.D. Pa. 1993); Strange v. Nationwide Mut. Ins. Co., 1997 WL 550016, *2 (E.D. Pa.). However, if there is a genuine issue of fact or conflicting inferences can be drawn from the undisputed facts, then the determination of the employment status is a question of fact for the fact finder to resolve. Id. Also, as the Court in Carr directed, we must construe the evidence in a light most favorable to Plaintiff. Carr, supra.

  Both parties agree upon the standard to be utilized by the court in deciding the employee issue, namely the standard annunciated by the Supreme Court in Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 323-24, 112 S.Ct. 1344(1992); Verdecchia, 274 F.Supp. 2d at 721. (Doc. 32, p. 7 & Doc. 36, p. 4). The Darden Court looked to the general common law of agency in determining whether a hired person is an employee. Id. The Darden Court stated that "[i]n determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished." Id.

  The other relevant factors identified by the Darden Court were as follows:
Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party." 490 U.S. at 751-752, 109 S.Ct. at 2178-2179 (footnotes omitted).
  The Darden Court also stated that:
Since the common-law test contains "no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor being decisive." NLRB v. United Ins. Co. of America, 390 U.S. at 258, 88 S.Ct., at 991.
Id. at 324 (citation omitted).

  The Darden Court indicated that courts should use the common law agency test to determine if a person is an employee when statutes do not helpfully define this term. See Verdecchia, 274 F. Supp. 2d at 721. The definition of employee under the ADEA is not helpfully defined. In the ADEA, "employee" is defined as "an individual employed by any employer." 29 U.S.C. § 630(b). Under the common law agency test, which must be used in this case, the hiring party's right to control the manner and means by which the work is accomplished is emphasized as well as consideration of a list of the specified factors and analysis of the totality of the circumstances. Frankel v. Bally, Inc., 987 F. 2d 86, 90 (2d Cir. 1993).

  Defendants maintain that during the relevant time periods, PHA employed eleven (11) people in 2003 and up to fourteen (14) people in 2004. Defendants have offered evidence to support their position, namely the PHA payroll for each month of 2003 and 2004, with the names of employees listed. (Doc. 35, Appx. 8 & 9). Defendants also submit the Affidavit of Defendant Grigas, in which she verifies the yearly payrolls of PHA and avers that during the stated years, PHA had less than twenty (20) employees. (Id., Appx. 14). Three (3) employees hired by PHA in 2004 were only seasonal employees and worked less than the required twenty (20) weeks. (Id. & Appx. 5, NT 22). The stated payroll records support the number of employees which Defendants attribute to PHA for 2003 and 2004, absent the City Police Officers, and PHA's CPA and Solicitor. We do not find that Plaintiff has submitted any evidence to controvert the number of employees which Defendants claim that PHA had for 2003 and 2004. (Doc. 36, SMF). Rather, Plaintiff's evidence goes to the issue of whether the City Police Officers, CPA and Solicitor hired by PHA were employees of PHA.*fn7

  There is no dispute between the parties that PHA contracts with the City of Pittston for off-duty police officers to patrol PHA's projects. (Doc. 35, Appx. 14 & 10). Further, there is no dispute that PHA had contracts with Solicitor Butera and CPA Lisak with respect to their legal and financial consultant services, respectively, for the PHA. (Id., Appx. 14, 11, 12). Defendants argue that the Police Officers, Lisak and Butera were, under common law, independent contractors and not employees of PHA. The question now arises as to whether these contracted persons were employees of PHA for purposes of the ADEA. We apply the Darden factors, as both parties do in their Briefs. (Doc. 32, pp. 7-10 & Doc. 36, pp. 7-10).

  Plaintiff points out that the contracts between PHA and the CPA and Solicitor stated that they covered employment and that PHA employed the CPA. The contract between PHA and the City indicated that the Police Officers were to provide specific support services to PHA and support services as requested. (Doc. 36, p. 6). Plaintiff, in part, bases his claim that these persons were employees of PHA upon the terms of the contracts. However, the contracts do not in and of themselves dispose of the question of whether the stated people were employees of PHA for purposes of the ADEA. The fact that the Police Officers, CPA and Solicitor had employment contracts with PHA is not dispositive of the employment relationship they had with PHA. See Stouch, 836 F. Supp. at 1139. Plaintiff concedes this much, but states that the terms of the contracts go to show that the stated workers were employees of PHA and not independent contractors. We agree that the ...

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