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November 28, 2005.


The opinion of the court was delivered by: YVETTE KANE, District Judge


Presently before the Court is Defendant's Motion for Summary Judgment (Doc. No. 13) and all responsive pleadings thereto. The motion has been fully briefed and is ripe for disposition. For the reasons that follow, Defendant's motion for summary judgment will be granted.

I. Background*fn1

  Keith Conway ("Plaintiff") is an African-American male with work experience in customer service and sales. Bell Hearing Aid Centers, Inc. ("Defendant") is a Miracle Ear franchisee that sells hearing aids and related services throughout Pennsylvania. At all times relevant to this suit, John Beall served as CEO of Defendant, and his daughter, Julia Beall McKelvey, served as President. Beginning March 28, 2001, Plaintiff worked as an at will employee for Defendant as a Patient Services Manager ("Services Manager"), fitting and servicing hearing aids, conducting check-ups, and performing general customer service. Defendant employed only one other Services Manager, Spencer Miller, a white male. Defendant divided its locations into two groups, the Eastern Territory and the Western Territory, and stationed one Services Manager in each area. Plaintiff was stationed in Defendant's Eastern Territory, located primarily in central Pennsylvania.

  Plaintiff received a 5% commission on any sales of hearing aids. Sales were not a requirement of the Services Manager position and Plaintiff only sold four hearing aids during his nine-month tenure. In all other respects, Defendant concedes that Plaintiff performed his responsibilities in a "satisfactory and competent manner" and "found him to be dedicated and a conscientious employee. . . ." (Doc. No. 15 ¶¶ 36-37.) Mr. Miller sold about thirteen hearing aids during the same period.

  Ms. McKelvey was responsible for all hiring, training, and supervising of sales in both of Defendant's territories. In September 2001, Defendant promoted Jack Williams to Vice President, so that he could assume responsibility for these duties in Defendant's Western Territory. This promotion reduced Ms. McKelvey's travel time and allowed her to focus on the Eastern Territory. Mr. William's promotion also made the position of Services Manager unnecessary in both territories. Accordingly, in December 2001, Defendant eliminated the Services Manager position and terminated Plaintiff and Mr. Miller.

  Defendant claims that after being terminated, Mr. Miller asked Mr. Williams if he could be rehired as a Sales Consultant. Plaintiff claims that Mr. Miller was merely transferred into the sales department and only Plaintiff was actually terminated. Regardless, both parties agree that Mr. Miller took a position in the sales department immediately after the Services Manager position was eliminated. It is also undisputed that Plaintiff did not ask to be transferred or rehired into a different position upon receiving notice of termination.

  Despite having made contacts within Defendant, around January 2002, Plaintiff claims to have applied for a Sales Consultant position with Defendant by faxing a resume to a number listed in a newspaper advertisement. Defendant claims to have never received this second resume and Plaintiff admits that he did not call his former employers to express interest in the position or otherwise follow up on the inquiry. In March 2002, Defendant hired Ms. Eshelman for the advertised position of Sales Consultant. Ms. Eshelman had worked as a hearing aid salesperson for eleven years prior to joining Defendant.

  In April 2003, Defendant created the position of Operations Manager. This position is responsible for the hiring and training of clerical staff, and overseeing operations and compliance issues. Unlike the former Services Manager position, the Operations Manager does not perform any technical work on hearing aid units. It is undisputed that Plaintiff did not apply for this position.

  On October 9, 2003, Plaintiff initiated the instant civil action. In his Amended Complaint, Plaintiff claims Defendant unlawfully discharged him in 1991 because of his race (Count I) and failed to hire him in 1992 as a Sales Consultant because of his race (Count II), both in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 et seq. ("Title VII"). In Count III of his Amended Complaint, Plaintiff alleges race discrimination in violation of the Pennsylvania Human Relations Act ("PHRA"). II. Summary Judgment Standard

  Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56; White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). A factual dispute is material if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 249. The evidence presented must be viewed in the light most favorable to the non-moving party. Id. "The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one sided that one party must, as a matter of law, prevail over the other." Id.

  The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, the non-moving party may not simply sit back and rest on the allegations in the complaint. Instead, the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The Court must examine the evidence of record in a light most favorable to non-moving Plaintiff and resolve all reasonable inferences in her favor. Stewart v. Rutgers, The State University, 120 F.3d 426, 431 (3d Cir. 1997). "This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues." Id. (quoting Robinson v. PPG Indus. Inc., 23 F.3d 1159, 1162 (7th Cir. 1994). Summary judgment should be granted 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 at trial." Celotex, 477 U.S. at 322.

  III. Discussion

  A. Unlawful ...

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