United States District Court, M.D. Pennsylvania
November 23, 2005.
SAM ALBA, Plaintiff
HOUSING AUTHORITY OF THE CITY OF PITTSTON, et al., Defendants.
The opinion of the court was delivered by: THOMAS BLEWITT, Magistrate Judge
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."
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
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
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
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 contracts cannot be ignored and must be considered. (Doc. 36,
pp. 6-7). See Strange, supra at * 4. ("Where parties have
reduced their agreement to writing, courts may ascertain the
parties' intent by examining the writing.") (citation omitted).
There is no question in this case that a formal relationship
between PHA and the stated workers was formed and was reduced to
writing by virtue of the contracts executed by the parties. (Doc. 35, Appx. 10, 11, 12). The Security Agreement between PHA
and the City stated that "Off-duty police officers while working
[i.e. patrolling PHA's projects] shall be in full uniform and
covered by the City of Pittston." (Doc. 35, Appx. 10). The
Agreement for Legal Services with Butera provided that he would
accept employment to provide legal services required by PHA in
the operations of its projects. (Id., Appx. 11). The Financial
Consultant Agreement with Lisak provided that PHA employs him as
financial consultant to monitor accounting records and complete
required financial reports. (Id., Appx. 12).
Thus, when considering the Agreements PHA had with the City,
Butera and Lisak, we find that the clear intent of the parties
was that the Police Officers, Solicitor and Financial Consultant
were independent contractors, and not employees of Defendant PHA.
As Defendants argue in their Reply Brief, there is no evidence
that these people were dependent upon PHA for their livelihood.
We agree. Further, as Defendants indicate, under their respective
contracts, Butera was paid $14,000 yearly, and Lisak was paid
$3600. (Doc. 42, p. 2). The contract with the City specified that
off-duty police officers would patrol PHA projects and provide
security. As stated, they were to be in uniform and covered by
the City while working for PHA. Defendants correctly state that
the monthly invoices from the City to PHA for the off-duty Police
Officers show that each officer only worked about 5 to 10 hours
per month. (Doc. 35, Appx. 10). Plaintiff's evidence also shows
this. (Doc. 36, SMF, attached monthly City invoices for Police
Officers to PHA).*fn8 We now consider the Darden factors. As the Verdecchia Court
stated, and as both parties indicate, the most emphasis of the
Darden factors is placed on the right to control, by the hiring
party, the manner and means that the work is accomplished.
274 F. Supp. 2d at 721. (Citations omitted).
C. Darden Factors.
Plaintiff argues that PHA controlled the workers in question,
since the Police Officers used PHA's vehicles and patrolled only
its projects and provided support services as requested by PHA.
Plaintiff argues that PHA controlled Solicitor Butera since he
performs all of PHA's legal work and since the PHA Board directs
him on what to do and he needs Board approval for his work. As to
CPA Lisak, Plaintiff states that he receives a fixed compensation
from PHA, as well as dental insurance, which is only provided to
employees. (Doc. 36, p. 7).
Defendants contend that the Police Officers provided security
at PHA's projects while wearing their police uniforms and were
covered by the City under the terms of the Security Agreement.
Defendants state that PHA did not exercise any control over the
manner of the Officers' performance of their duties under the
Agreement. The contract provided that the Police Officers were to
handle all calls and make any necessary arrests in the housing
projects. The power to make arrests and handle calls comes from
the City which employs the Officers. There is no evidence, and
the law does not permit, PHA to control the officers as to which
calls would result in arrests and which ones would not or as to
how the Officers would make an arrest and handle any calls.
Rather, the Officers were under the control of the City and its
authority thereunder with respect to these responsibilities. It would be in the execution
of the Police Officer's official duties to arrest someone at a
PHA project even though the Officer was off-duty. The Officer was
to be in full uniform with his badge, and this signifies that he
acted with official authority at the time of the PHA patrols.
See Pokalasky v. S.E. PA Transp. Auth., 2002 WL 1998175 (E.D.
Pa.). Further, there is no evidence that PHA controlled how the
Police Officers would conduct their patrols and their additional
support services at the projects. Also, as Defendants state, PHA
did not train the officers and did not direct, supervise or
evaluate their activities. (Doc. 35, Appx. 10, Appx. 5, NT 16-18,
Appx. 14, ¶ 18.). The Police Chief did the scheduling for the
Officers, and the Police determine which projects to patrol and
when, as well as how to patrol. (Doc. 35, Appx. 5, NT 16-18).
In sum, with respect to the Police Officers, we find that they
were not controlled by PHA and were at all times employees of the
As to Butera, as stated above, he has a contract with PHA which
provided that he is legal counsel to PHA and will provide it with
all legal services it requires in the operation of its projects.
(Doc. 35, Appx. 11). He was to advise PHA on legal matters when
requested. He is paid $14,000 per year and receives no benefits.
While it is not disputed that PHA controlled all legal work assigned to Butera related to its projects, it did not control
the legal opinions he rendered or the manner in which he advised
PHA to act within the law on any given legal question. Thus, PHA
did not control the manner of Butera's performance; rather, it
only controlled the topics assigned for his legal opinions and
advise. Butera was responsible for ensuring the legal advice he
provided was in compliance with the law.
As Plaintiff states, CPA Lisak did receive dental insurance
from PHA, but he paid for this himself. (Doc. 35, Appx. 5, NT 28,
53). He also receives a fixed amount of compensation as Plaintiff
states, but it is only $3600 per year. (Id., Appx.
12).*fn10 Lisak maintained and monitored accounting records
necessary to keep PHA in accordance with HUD regulations, and HUD
required PHA to obtain services of a consultant familiar with its
Capital Fund Program. As with Butera, Lisak's financial advice
and services he provided to PHA are governed by the contract, but
there is no evidence that PHA controls the manner and means by
which he accomplishes this work or how he completes required
records and monitors them. The evidence also reveals that Lisak
had his main job with the Housing Authority of Scranton and "with
Pittston he is a contract cost." (Id, Appx. 5, NT 51-52).
Further, there is no evidence that PHA exercised control over
any of the stated workers' daily activities.
Under the first and most significant Darden factor, i.e.
control, considering the totality of the circumstances in this
case, we find it weighs in favor of a determination that the
police officers, Butera and Lisak are independent contractors of PHA and not
2. Skill Required.
Plaintiff states that the use of special skills is not
indicative of whether the worker was an independent contractor if
they do not use the skills in an independent way. Plaintiff
states that the workers here were not given any control over the
day-to-day operation of PHA. (Doc. 36, p. 8). The Police Officers
used their skills they had as law enforcement personnel with the
City to patrol PHA's projects. They used their police uniforms
and their police training to perform the contracted tasks. PHA
did not train the officers, nor did it direct, supervise or
evaluate their activities. (Doc. 35, Appx. 14, ¶ 18.).
The skills required by Attorney Butera were his legal skills,
which were not ascertained from PHA. Likewise, the skills
required by CPA Lisak were his accounting skills not derived from
PHA. There is no evidence that PHA trained these professional or
that they had to attend any meetings or seminars. There is no
evidence that PHA was responsible for the stated professionals'
license fees and for ensuring compliance with state CLE
requirements. Although PHA requested legal services and
accounting services from Butera and Lisak, as discussed, they
were free to determine the manner and means of how they completed
their professional advice and what advice they
rendered.*fn11 3. Source of Instrumentality and Tools.
Plaintiff states that the Police Officers used PHA's vehicles
while patrolling its projects. (Doc. 36, p. 8, ¶ C.). Defendants
do not dispute this, and the contract shows that the Officers
used PHA's vehicles. (Doc. 35, Appx. 10, Appx, NT 16). However,
the contract also reveals that the Police Officers were to be in
their full uniforms, that they were covered by the City during
their patrols, and that the City Police Chief determined the
Officer's schedule. (Id.).
There is no evidence that PHA provided CPA Lisak or Attorney
Butera with any of the tools and professional resources they may
have needed to render their contracted services to it. There were
no specific professional requirements with which PHA mandated
compliance by the stated Solicitor and Financial Consultant.
(Doc. 35, Appx. 11 & 12).
4. Location of Work.
The Security Agreement with the City stated that Police
Officers would patrol PHA's projects. The Officers' schedules,
evaluations and manner and location of their specific patrols was
controlled by the City, as discussed. The Solicitor provided
legal services and the Accountant provided financial services to
PHA. They work for PHA as needed. (Doc. 35, Appx 5, NT 18-20).
Lisak worked off-duty hours, as did the Police Officers. There
was no requirement in the contracts with the Solicitor and CPA
that they had to perform their work at PHA's offices or sites,
although the Solicitor had to attend meetings. (Id., Appx.
10-12). However, the designation of any of the workers' location
of work, absent PHA's control over the work itself and the manner
in which it was performed, do not make the workers employees of
PHA. 5. Length of Time.
As Plaintiff states, it is undisputed that Butera had been
Solicitor for PHA since the 1980's and that Lisak had been
rendering services to PHA since 1970's. (Doc. 36, p. 8-9).
Plaintiff indicates that the Police have been patrolling PHA's
projects for the past ten (10) years. (Id.). (Doc. 35, Appx. 5,
NT 17, 19, 30). However, none of the workers have been shown to
be full-time with PHA during any of their tenures. Rather, the
off-duty Police patrol PHA projects about four (4) hours per
night four (4) days per week, and the CPA and Solicitor work for
PHA as needed. Thus, while PHA and the workers had considerably
lengthy relationships of numerous years, they were not on a
full-time basis and were limited in terms of compensation. They
received no pensions or paid benefits from PHA. The evidence
shows, as discussed, that the work of these people was all
supplemental to their full-time duties and work.
6. PHA's Right to Assign Additional Projects to Plaintiff.
As mentioned, PHA could request the Police Officers to provide
support services such as background checks and vehicle
registration and additional support services. The City scheduled
and evaluated all of its Officer's work for PHA. The Solicitor
and CPA were to provide legal and financial services provided by
their contracts, as needed by PHA.
7. Discretion of Workers over When and How Long to Work.
Plaintiff does not dispute that the City had complete autonomy
in setting the work schedule of the Police Officers. The evidence
shows this fact and the fact that the Officers patrolled four (4)
hours per night, four (4) days per week. (Doc. 35, Appx. 5, NT
16). The evidence also shows that CPA Lisak worked as needed.
(Id., NT 19). There is no evidence that PHA required any of
these workers, including Butera, to work on a full-time basis. PHA does
not determine the Officers' patrol routes. (Id., NT 17-18).
There is no evidence that the Solicitor and CPA had to work a
certain number of hours per month for PHA. (Id., Appx 11-12).
While the PHA Board directs Butera's PHA legal work for it, there
is no evidence that this work required a certain number of hours
per week or month or that this was Butera's exclusive legal
practice. Thus, the workers could work flexible hours, and PHA
did not control their daily schedules and the length of hours
which they worked. Nor did PHA directly supervise the workers in
the day-to-day performance of their work. Thus, the work of the
Police Officers, the Solicitor, and the CPA was not controlled
with any specific detail by PHA. Darden factor number 7 weighs
in favor of Defendants' position that the workers were
independent contractors and against Plaintiff's position.
8. Method of Payment.
The evidence shows that the Police Officers were paid an hourly
rate for the hours they worked. The Police Chief submits an
invoice to PHA at the end of each month, and PHA pays it. (Doc.
35, Appx. 10 & Appx. 5, NT 17). PHA does not know the Officer's
schedules or know who is working each day and what hours.
(Id.), The Solicitor and CPA work as needed and they are paid a
fixed amount under their contracts. (Id. Appx 11-12). Lisak
gets paid from various funds, three checks a month. (Id, Appx.
5, NT 19-20). Butera gets paid by PHA from the general fund at
contract cost on a monthly basis. (Id., NT 30).
There is no evidence that PHA paid these workers any fringe
benefits, retirement benefits, sick day pay or vacation pay.
Further, the evidence shows that PHA did not pay for any
insurance benefits for any of the stated workers. (Id., NT 28). 9. Worker's Role in Hiring and Paying Assistants.
As Defendants state (Doc. 32, p. 7), there is no evidence that
any of the stated workers could hire and pay any assistants. The
contracts with these workers did not provide for any hiring of
assistants. Therefore, we find that the workers could not have
hired any assistant or contracted with any assistant which would
have rendered that assistant in any way affiliated with PHA or an
employee of PHA. Additionally, the contracts did not indicate
that the workers could assign any of their rights as to their
work for PHA to any other party. (Id. Appx. 10-12).
10. Regular Business of Employer.
Under the Agreements with the stated workers, the services
which they performed were as follows: patrol and security
services (Police); financial services (CPA); and legal services
(Solicitor). Plaintiff argues that this was all part of the
regular business of PHA of providing safe, legal, and financially
acceptable housing to Pittston residents. (Doc. 36, p. 9). We
agree with Plaintiff to the extent that these services were
incident to PHA's undisputed business of providing low-cost
housing with an operating subsidy from the federal government,
i.e. HUD. (Doc. 35, Appx. 5, NT 14). PHA generates income from
rent payments of its units. It modernizes its units and receives
HUD subsidies. (Id.). It also has a Section 8 housing program
in which it subsidizes rents. (Id., NT 19). The stated workers
perform services necessary for PHA's housing services, but these
services are clearly not the regular business of PHA.
11. Whether the Workers were in Business.
There is no question that the Police Officers were in business
of protecting the residents of Pittston, that the Solicitor was
in business of providing legal advice and services, and that the
CPA was in business of providing financial advice and accounting
services. None of these workers were in the business of providing
low-cost housing to residents.
12. Provision of Employee Benefits.
The Security Agreement provided that the Police Officers would
use PHA's vehicles but that they were to be in their full police
uniforms and be covered by the City. Thus, while PHA was
responsible for providing the police with vehicles for patrols,
PHA did not pay any fringe benefits to the officers. The CPA and
Solicitor did not receive any PHA paid benefits, as discussed.
Additionally, the Agreements do not show that these workers had
full benefit status with PHA, as discussed above. In fact, the
workers were not provided any benefits whatsoever by PHA.
Additionally, the police had no set salary by PHA. PHA had set
contract costs with the Solicitor and CPA. (Doc. 35, Appx. 5, NT
18, 28, 30). None of the workers were guaranteed any additional
earnings or profits by PHA.
13. Tax Treatment of Workers.
There is no evidence that PHA paid any taxes for the workers.
They get monthly checks, which are contract costs. The Agreements
do not provide that PHA had to pay taxes for the stated workers
or that it would pay the licenses and certificates of the workers
necessary to perform their services.
Thus, we find that the workers had to pay their own taxes and
obtain their own licenses. Further, there is no evidence that PHA
paid, contributed to or withheld the workers' Social Security
taxes or any other type of taxes on earnings. Nor is there any
evidence that PHA deducted the workers' federal, state or local
tax liability from their checks. We thus find that these tax
obligations were the worker's responsibilities. Thus, in addition to PHA not
providing the stated workers benefits, and not requiring them to
work a certain number of hours, it had no tax responsibilities
with respect to them. (Doc. 35, Appx. 14, ¶ 25.).
Based upon the totality of the circumstances, we find that the
majority of the factors weigh against the stated workers being
considered employees of PHA. The written agreements between the
parties clearly indicated that their relationship was intended to
be one of independent contractor, and not employee and employer.
From consideration of the aforementioned factors and based upon
the undisputed record, viewing the evidence in a light most
favorable to Plaintiff, we conclude as a matter of law that the
Police Officers, CPA and Solicitor were not employees of PHA.
Therefore, we find that the workers identified by Plaintiff as
employees of PHA are independent contractors with respect to
determining whether PHA had the required number of employees to
render it an employer under the ADEA. We also do not find that
Plaintiff has controverted Defendants' evidence that PHA had
fewer than twenty (20) employees during the relevant times of
2003 and 2004.*fn12 We also agree with Defendants (Doc. 42,
p. 2) that Plaintiff's unsubstantiated Affidavit is insufficient
to show PHA had more than twenty (20) employees. (Doc. 33,
Plaintiff's Depo. NT 19). On the contrary, Defendants have shown
through their evidence that PHA did not have twenty (20)
employees during the stated years. (Doc. 35, Appx. 14). Grigas's
Affidavit, unlike Plaintiff's, is supported by the monthly
employment records of PHA for the relevant years.*fn13
For the above reasons, we find that the stated workers were not
employees of PHA for purposes of his ADEA claim. Thus, since PHA
was not an employer under the ADEA, Plaintiff has failed to
establish a substantive element of his ADEA claim.
D. Whether PHA and the City of Pittston are a single
Plaintiff contends that PHA and the City of Pittston are a
single employer and as such, they had well over twenty (20)
employees for the relevant years. Plaintiff states that the Mayor
of Pittston is the Controller of the City and PHA. Plaintiff
states that the Mayor appoints and terminates all Board members.
Plaintiff points to Grigas's deposition testimony in which she
stated that the PHA board members are appointed by the Mayor and
Council, and that the Mayor has terminated a Board member in the
past. (Doc. 33, Ex. A, NT 15, 50). Plaintiff states that the
Security Agreement between the City and PHA shows that the Mayor
and PHA controlled the payment to the Police, and he relies on
Defendants' Brief (Doc. 32, p. 8) wherein they argue that the
Police were under the control of the City and not PHA. (Doc. 36,
Plaintiff and Defendants both cite to the Daliessio v. Depuy,
Inc., 1998 WL 24330 (E.D. Pa.), for the standard for determining
whether two separate entities are a single employer. (Doc. 36, p.
11 & Doc. 42, p. 4). We agree with Defendants that, under the
Daliessio single employer standards and the joint employers
test of NLRB v. Browning-Ferris, 691 F.2d 1117 (3d Cir. 1981),
PHA and Pittston City were neither a single employer nor a joint
employer. (Doc. 42, pp. 4-5).
Defendants maintain that the City did not have complete control
over the PHA Board, that the Board does not report to the City,
and that the City does not provide any monies to PHA. Defendants
point to Grigas' deposition for support. (Doc. 32, p. 9). Grigas
testified as Defendants indicate. (Doc. 35, Appx. 5, NT 10,
14-15). Grigas also testified that PHA and the City are separate
entities, that PHA has its own Article of Incorporation, and that
the Board does not report to the City. PHA employees are paid
from rents collected from PHA housing units. PHA receives
subsides from HUD for projects, and it has a Section 8 voucher
program in which it subsidizes rents within the City. (Id. NT
15-19). Board members are not paid for their duties and are
appointed by the Mayor and City Council for five-year terms.
Similar to the appointment of federal judges by the executive, in
which both branches of government still remain separate and
distinct, simply because PHA board members are appointed by the
Mayor and City Council does not mean that PHA is controlled,
managed and owned by the City. Additionally, Plaintiff offers no
evidence to contest Defendants' evidence that the City provided
no financial support to PHA, and, as discussed below, that PHA
was legally incorporated in Pennsylvania as a non-profit
Further, Defendants state that PHA is a non-profit corporation
with its purpose to provide housing for low and moderate income
families. Defendants submit the 1973 Articles of Incorporation
for PHA. (Doc. 35, Appx. 15). We find that PHA is indeed a
separate legal entity from the City of Pittston. The City cannot
dissolve PHA, a duly incorporated non-profit organization under
the laws of Pennsylvania. The City cannot control the assets of
PHA, a separate legal entity. There is no evidence that any of
PHA properties are under common ownership with the City. There is no evidence that the City controls any of PHA's
employees, other than that it appoints PHA Board members. While
PHA contracts with the City for its off-duty Police Officers to
patrol its projects, showing a degree of functional integration
of operations, there is not control of the Police by PHA, as we
have found above, and there is no common management of either the
Police by PHA or of PHA employees by the City. Grigas avers the
same in her Affidavit. (Doc. 35, Appx. 14, ¶ 's 26.-28.). She
also avers that PHA has a Capital Fund Program Budget approved by
HUD through which it receives an operating subsidy from HUD.
(Id., ¶ 's 28.-30.). Also, HUD, not the City, approves PHA's
budget. (Doc. 35, Appx. 12). There is no evidence that the City
provides any monetary support to PHA. In fact, the uncontested
evidence reveals that the City does not provide any money to PHA.
(Id., Appx.5, NT 14-15). Further, we do not find, simply
because the Mayor and Council appoint the PHA Board members for
five-year non-paying terms and because the Mayor terminated a
Board member in the past since the member moved out of the City,
that this is sufficient to show that the City and PHA are a
single employer. (Id., NT 50).
Moreover, there is no evidence that the PHA and the City share
office space, that the City controlled any of PHA's records,
including employment records, and that the City and PHA had joint
employment. There is no evidence that the two legal entities
combine payroll or any other financial records.
There is evidence, however, that Plaintiff received benefits
from PHA such as a pension plan. PHA provides its own benefits to
its employees. PHA's Executive Director does not report to the
City. PHA's Board does not report to the City. PHA's Board hires
its own employees. (Doc. 35, Appx. 5, NT 10-14, 27-28). Thus, we
find no genuine issue of material fact that PHA and the City are separate legal entities and employers.
E. Section 1983 Claim.
As stated above, we granted Plaintiff leave to file a Second
Amended Complaint in which he added a § 1983 claim against all
Defendants. Initially, we agree with Defendants that our Order
granting Plaintiff leave to amend his pleading does not control
our present inquiry as to whether there is a genuine issue of
fact with respect to Plaintiff's § 1983 claim. (Doc. 42, p. 7).
The standards for determining a motion to amend a pleading and a
summary judgment motion are clearly different.
Defendants argue that the ADEA provides the exclusive remedy
for Plaintiff's age discrimination claim and hence Plaintiff's §
1983 equal protection claim should be dismissed.
Defendants, in opposing Plaintiff's Motion to file a second
amended complaint, argued that the proposed new Count of the
Second Amended Complaint, i.e., the § 1983 Equal Protection
claim, would be subject to dismissal because the Plaintiff has
the ADEA as his exclusive remedy for an age discrimination claim
and that this Act bars Plaintiff's § 1983 claim. The Plaintiff
disputed this contention and stated that he could bring his age
discrimination claim both under an anti discrimination law (ADEA)
as well as § 1983.
We indicated in our April 6, 2005 Order granting Plaintiff's
Motion that we were cognizant that courts have held that a
Bivens civil rights constitutional claim of age discrimination
(federal equivalent to § 1983) is barred by the comprehensive
remedial scheme of the ADEA. See Newmark v. Principi,
262 F. Supp. 2d 509, 519 (E.D. Pa. 2003). As we previously stated, the
Newmark Court also cited to the following similar cases holding
that the ADEA is the exclusive federal remedy for a claim alleging age discrimination in federal employment:
See Bumpus v. Runyon, No. 94 Civ. 2570 (DC), 1997
WL 154053 at *6 (S.D.N.Y. Apr. 2, 1997) (holding that
"to the extent [plaintiff's] constitutional claims
arise out of the alleged [age] discrimination against
plaintiff, those claims are barred by . . . the
ADEA") (citing Brown v. General Services Admin.,
425 U.S. 820, 825, 96 S.Ct. 1961, 48 L.Ed.2d 402
(1976)); Tapia-Tapia v. Potter, 322 F.3d 742, 745
(1st Cir. 2003) ("To the extent that [plaintiff's
constitutional] claims are a mere restatement of his
age discrimination claim, they are not justiciable.
The ADEA provides the exclusive federal remedy for
age discrimination in employment.").
The Newmark Court further stated:
The Third Circuit has held that Congress intended the
ADEA to preempt Bivens claims against agency
officials for age discrimination in federal
employment. See Purtill v. Harris, 658 F.2d 134,
137-38 (3d Cir. 1981) (analyzing Bush and holding
that "in light of the existence of ADEA remedies the
[federal] employer-employee relationship . . . is a
special factor that counsels hesitation in
recognizing a constitutional cause of action absent
affirmative contrary indications from Congress.");
Madden v. Runyon, 899 F.Supp. 217, 225 (E.D. Pa.
1995) (stating that "the exclusive remedy for federal
employment age discrimination is the ADEA" and
barring plaintiff's Bivens claim that "merely
mirrors his claims under . . . the ADEA") (citing
Purtill, 658 F.2d at 137).
We then stated in our April 6, 2005 Order that very recently
the Third Circuit in Cochran v. Pinchak, 2005 WL 589434 (3d
Cir. March 15, 2005), held that remedies provided by Title II of
the ADA, with respect to alleged discrimination against a
disabled prisoner, were not congruentand proportional to the
prisoner's § 1983 claims under the Equal Protection Clause. (Doc.
25). Thus, we held in our case, that Plaintiff's proposed § 1983
claim, if alleged properly, would not merely be a restatement of his ADEA claim. We stated that the standard
for a § 1983 equal protection claim requires proof of purposeful
discriminatory conduct. In a § 1983 equal protection claim, the
Plaintiff must show disparate impact plus some additional
"indicia of purposeful discrimination." Pa. v. Flaherty,
983 F.2d 1267, 1273 (3d Cir. 1993). We held that Plaintiff's ADEA
claim was not congruent and proportional to his § 1983
constitutionally based discrimination claim, and we allowed the §
1983 claim to be asserted in the Plaintiff's Second Amended
Complaint. (Doc. 26).
In a § 1983 equal protection claim, the Plaintiff must allege
that the Defendants purposely discriminated against him on the
basis of his age. Further, with respect to the § 1983 Equal
Protection claim, the Plaintiff must show the Defendants intended
to discriminate, either through direct or circumstantial
evidence. In Pa. v. Flaherty, 983 F.2d 1267 (3d Cir. 1993), the
Court held that intent is a prima facie element of a § 1983
equal protection claim of discrimination. (citing Washington v.
Davis, 426 U.S. 229 (1976). See also Williams v. Pa. State
Police, 108 F. Supp. 2d 460, 471 (E.D. Pa. 2000). ("to prevail
on a § 1983 claim, a plaintiff must prove that the defendant
intended to discriminate"). There is a different standard for a
constitutionally based civil rights claim of discrimination and a
Title VII discrimination claim. Flaherty, 983 F.2d at 1273;
Washington, 426 US. at 238-39.*fn14
In a constitutionally based civil rights claim of
discrimination, the Plaintiff must show that the Defendants
purposefully discriminated against him due to his age. The
Plaintiff may make a prima facie showing of discriminatory
intent by claiming disparate impact along with another indicia of
purposeful discrimination. Flaherty,
983 F.2d at 1273.*fn15 Thus, in the § 1983 claim, the focus is on the
motivation for the defendant's action. In the ADEA claim, the
focus is on the effects of the defendant's action on the
In our April 6, 2005 Order allowing Plaintiff to file his
Second Amended Complaint and add a § 1938 equal protection claim
(Doc. 25), we found that under the Washington v. Davis standard
of intent, the Plaintiff's proposed Equal Protection claim as
originally plead in his proposed Second Amended Complaint
contained insufficient allegations of purposeful discrimination
by the Defendants. The Plaintiff did not allege that the
Defendants intentionally discriminated against him due to his age
or that the Defendants' alleged actions were purposefully
discriminatory. As the Court in Flaherty, 983 F.2d at 1273,
stated "`intent' for purposes of an equal protection claim means that the [Defendant] `selected or reaffirmed a particular
course of action at least in part because of, not merely in
spite of, its adverse effects upon an identifiable group."
(Citations omitted) (emphasis original). In Plaintiff's "Count
III" (which should have been Count IV) of his proposed Second
Amended Complaint, the Plaintiff did not allege that the
Defendants intentionally engaged in a course of conduct which was
discriminatory against him based on his age. (Doc. 24, attached
Second Amended Complaint ¶ 's 22-25.). However, in Plaintiff's
Second Amended Complaint that was then filed in this case,
Plaintiff alleged in Count IV that Defendants purposefully
discriminated against him based on his age. (Doc. 26, pp. 6-7).
Since we found Plaintiff's equal protection claim of age
discrimination under § 1983 required a more specific averment of
intent, he was permitted to add this claim to his Second Amended
pleading. Therefore, we granted Plaintiff's Motion for Leave to
File a Second Amended Complaint and we allowed Plaintiff to file
his Second Amended pleading regarding his § 1983 claim.*fn16
(Doc. 25). As stated, Plaintiff filed his Second Amended
Complaint properly pleading a § 1983 equal protection claim.
Following our April 6, 2005 Order, the Third Circuit vacated
its opinion in Cochran, 2005 WL 589434, until the United States
Supreme Court decides the consolidated cases of U.S. v.
Georgia, No. 04-1203 and Goodman v. Georgia, No. 04-1236.
412 F. 3d 500 (3d Cir. 6-17-05). We relied on Cochran in our Order
allowing Plaintiff to amend his pleading to make both an ADEA claim and a § 1983 equal protection claim. In any event, we now
consider Plaintiff's § 1983 claim against all Defendants based on
a summary judgment standard.
In his Summary Judgment Motion, Plaintiff argues that there is
no dispute that Defendants purposefully discriminated against him
due to his age, and he points to Grigas' deposition testimony to
establish this. Grigas testified that PHA indeed had a Mandatory
Retirement Age policy which provided that an employee must retire
at age 70. There is no dispute that PHA had such a policy. In
fact, Defendants have submitted a copy of the 1978 policy which
was in effect during the relevant time of this case, i.e. April
2004, when Plaintiff became 70 years old. (Doc. 35, Appx. 3).
Further, there is no dispute in our case that this policy was
applied to Plaintiff and that pursuant to this policy, Plaintiff
was terminated from PHA effective on his 70th birthday. (Doc.
33, Ex. 1, NT 35-37, 48). It is also undisputed that the only
reason that Plaintiff was terminated was because of his age.
(Id.). The letter from PHA Solicitor to Plaintiff dated March
9, 2004 further verifies these facts. (Doc. 35, Appx. 6). The PHA
knew of the mandatory retirement age policy, and was aware, prior
to April 2004, that it was going to be enforced with respect to
Plaintiff on his 70th birthday. (Doc. 33, Ex. 1, NT 45-47).
The policy was in fact applied to Plaintiff. It was admitted by
Defendants that the sole reason Plaintiff was not still working
for PHA was because of his age. (Id., NT 48). Moreover, there
is no dispute that PHA's mandatory retirement age policy applied
equally to all of its employees and that Plaintiff was not
singled out for application of the policy. Plaintiff thus argues that there is no dispute that Defendants
have discriminated against him solely due to his age, and
contends that he is entitled to judgment as a matter of law with
respect to his § 1983 equal protection claim. (Doc. 36, p.
The Equal Protection Clause does not require that all persons
be treated alike, but instead, a plaintiff must show that the
differential treatment to those similarly situated was
unreasonable, or involved a fundamental interest or individual
discrimination. Tigner v. Texas, 310 U.S. 141, 147 (1940);
Price v. Cohen, 715 F.2d 87, 91 (3d Cir. 1983), cert. denied,
465 U.S. 1032 (1984). It is well-settled that a litigant, in
order to establish a viable equal protection claim, must show an
intentional or purposeful discrimination. Snowden v. Hughes,
321 U.S. 1, 8 (1944); Wilson v. Schillinger, 761 F.2d 921, 929
(3d Cir. 1985), cert. denied 475 U.S. 1096 (1986); E & T
Realty v. Strickland, 830 F.2d 1107, 1113-14 (11th Cir. 1987),
cert. denied, 485 U.S. 961 (1988). This "state of mind"
requirement applies equally to claims involving (1)
discrimination on the basis of race, religion, gender, alienage
or national origin, (2) the violation of fundamental rights, and
(3) classifications based on social or economic factors. See,
e.g., Britton v. City of Erie, 933 F. Supp. 1261, 1266 (W.D. Pa.
1995), aff'd, 100 F.3d 946 (3d Cir. 1996); Adams v.
McAllister, 798 F. Supp. 242, 245 (M.D. Pa.), aff'd.
972 F.2d 1330 (3d Cir. 1992).
Defendants rely upon the case of Farmer v. Camden City Bd. of
Ed., 2005 WL 984376 (D.N.J. 2005), (Doc. 32, pp. 1-1), for their
position that the ADEA preempts Plaintiff's § 1983 equal protection claim. Farmer was decided about two weeks after
Cochran, i.e., Cochran was decided March 15, 2005, and
Farmer was decided March 28, 2005. In Farmer, an employee and
administrator of the Defendant school district sued Defendants
asserting age discrimination in violation of the ADEA and § 1983.
The Farmer Court dismissed Plaintiffs' § 1983 claims since it
found that Congress has provided plaintiffs with a comprehensive
remedial framework, i.e. the ADEA, for their age discrimination
In Farmer, the Court recognized that a number of District
Courts have held that § 1983 claims asserting an independent
constitutional claim of age discrimination can still be pursued
in addition to an ADEA claim. Id. * 9.*fn18
The Farmer Court then held that its Plaintiffs did not offer
an independent constitutional claim for age discrimination. Id.
Likewise, in our case, we agree with Defendants (Doc. 32, p. 12),
and we find that Plaintiff Alba has not shown an independent
constitutional claim for age discrimination. Plaintiff's § 1983
claim (Count IV of Second Amended Complaint, Doc. 26, pp. 6-7) is
simply a re-averment of his ADEA claim. Both claims assert, and
the undisputed facts show, that Defendants applied PHA's
mandatory retirement policy to Plaintiff, that the policy applied
to all of PHA's employees, and that Plaintiff was made to leave
his position with PHA only because he became 70 years old.
However, Plaintiff has not offered an independent constitutional
claim for age discrimination.*fn19
Moreover, Plaintiff has not shown that he was treated
differently than similarly situated individuals, i.e. other
70-year-old employees of PHA, on the basis of his age. It is not
disputed that Plaintiff was treated the same as other PHA
employees who reach the age of 70. Plaintiff does not show that
Defendant PHA treated other employees who became 70 years old
more favorably than he was treated. Further, as discussed below,
the Plaintiff has failed to implicate the violation of a right
enforceable in a § 1983 action by Defendants since he had no
recognizable entitlement to continued employment with PHA.
In a § 1983 civil rights action, the Plaintiffs must prove the
following two essential elements: (1) that the conduct complained
of was committed by a person acting under color of state law; and
(2) that the conduct complained of deprived the Plaintiff of
rights, privileges or immunities secured by the law or the
Constitution of the United States. Parratt v. Taylor,
451 U.S. 527 (1981); Kost v. Kozakiewicz, 1 F. 3d 176, 184 (3d Cir.
1993). Further, Section 1983 is not a source of substantive
rights. Rather, it is a means to redress violations of federal
law by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85
(2002); Holocheck v. Luzerne County Head Start, Inc.,
385 F. Supp. 2d 491, 498-499 (M.D.Pa.). In Holocheck, this Court recently considered a Plaintiff's
AEDA, PHRA and § 1983 claims in a case in which Plaintiff, 56,
was employed as a teacher by Luzerne County Head Start and was
terminated and replaced by a younger person, under 40 years old.
Specifically, with respect to Plaintiff's § 1983 claim, it was
alleged, in part, that Plaintiff's termination violated the
substantive and procedural aspects of the Fourteenth Amendment
due process clause. This Court held that even if the decision to
terminate Plaintiff's employment was made by a person acting
under color of state law, "she must show that she was deprived of
`rights, privileges, or immunities secured by the Constitution or
laws of the United States.'" Holocheck, 385 F. Supp. 2d at 499
(citing Kost, supra).*fn20 Plaintiff Holocheck claimed
that Pennsylvania law gave her a property interest in her
continued employment and that this interest was protected by the
Due Process Clause. This Court reiterated the well-settled view
that "a public employee' held [his] position at the will and
pleasure of the [governmental entity] necessarily establishes
that [the employee] had no property interest' in the job
sufficient to trigger due process concerns." Id. (Citations
omitted). The Holocheck Court also cited to Robertson v.
Fiore, 62 F. 3d 596, 601 (3d Cir. 1995) (per curiam), "stating
that an at-will employee `lacks a protected property interest in
his position within the meaning of the Fourteenth Amendment.'"
Id. The Holocheck Court then cited to the recent Third Circuit
Court case of Elmore v. Learry, 399 F. 3d 279, 282 (3d Cir.
2005), which held that "a public employee in Pennsylvania
generally serves at the pleasure of her employer and thus has no
legitimate entitlement to continued employment." Id. at 500.
This Court in Holocheck concluded that Plaintiff "did not have
a property interest in her employment [with Luzerne County Head
Start] that was safeguarded by the Fourteenth Amendment due
process clause." Id. at 501.
Based on Holocheck, we find that Plaintiff Alba, even if he
did assert a constitutional claim for age discrimination
independent from his ADEA claim, has not shown that he was
deprived of a constitutional right by Defendants. As the
Holocheck Court summarized, "neither state nor federal law
clothed Plaintiff's employment with a right enforceable through
an action under 42 U.S.C. § 1983." Id. at 502.
Accordingly, we will grant Defendants' Summary Judgment Motion
(Doc. 31) with respect to Plaintiff's ADEA claim (Count I) and
§ 1983 Equal Protection claim (Count IV). (Doc. 26). We shall
decline to exercise supplemental jurisdiction over the
Plaintiff's remaining PHRA claims, Counts II and III, since neither of his federal claims, over
which we have original jurisdiction, are going to
proceed.*fn21 We shall deny Plaintiff's Motion for Partial
Summary Judgment. (Doc. 33).
An appropriate Order and Judgment shall be entered.
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