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).
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