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December 20, 2005.


The opinion of the court was delivered by: WILLIAM STANDISH, Senior District Judge


Pending before the Court is Defendant's Motion for Leave of Court to File for Summary Judgment, Docket No. 52 ("Def.'s Mot.") For the reasons discussed below, the Motion is denied. Also pending are Defendant's Motion to Stay Proceedings, Docket No. 51, and Motion to Amend Motion to Stay Proceedings, filed at Docket No. 54. The Court will deny the Motion to Stay Proceedings as moot, consider the second motion as a Motion to Stay Proceedings, and deny that motion.


  The facts of this case are largely irrelevant to the pending motion and have been provided in the Court's previous Memorandum denying summary judgment in favor of Defendant Port Authority of Allegheny County ("Port Authority.") See Docket No. 33, December 20, 2004, "Sum. Judg. Memo." Briefly stated, Plaintiff C. Charles Cammarata was assigned by a temporary employment agency to work at Port Authority as a civil engineer. Some three years later, in June 1998, the Port Authority decided to fill the position on a permanent basis. Plaintiff, who was almost 59 years old at the time, applied for the position but was not hired. Instead, a person under forty years old and — according to Plaintiff — less qualified than he was selected. Mr. Cammarata subsequently filed suit pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq., claiming that the Port Authority had refused to offer him a full-time permanent position because of his age.

  The decision not to grant summary judgment was based on our conclusion that there were genuine issues of material fact concerning the legitimate business reason proffered by Defendant for its refusal to hire Mr. Cammarata. Port Authority claimed that in 1996, when Plaintiff had applied for another other full-time position as a structural engineer, the company had received negative evaluations of his performance with previous employers. According to Defendant, this precluded Mr. Cammarata from being seriously considered for the engineering position in 1998, even though he was given a "courtesy interview." In the opinion denying summary judgment, we noted that none of the documentary records from 1996 had been produced, even though affidavits had been provided to support Defendant's position. (Sum. Judg. Memo at 9 and footnote 2.)

  The case was set for trial in January 2005, but was continued until March 2005 at the requests of the parties. On March 8, 2005, Mr. Cammarata filed a Motion in Limine and for Discovery Sanctions (Docket No. 38), complaining that on March 4, months after discovery had closed and summary judgment denied, counsel for the Port Authority had provided some 36 pages of records pertaining to Plaintiff's rejected job application from 1996. These documents had not been produced during discovery herein, nor in the previous actions before the Pennsylvania Human Relations Commission and/or the Equal Employment Opportunity Commission ("EEOC.")

  In response to Plaintiff's claim that the notes had been deliberately concealed in bad faith, Defendant contended that they had been accidentally discovered when Kathleen Radkoff, a Port Authority employee who was to be called as a witness at the upcoming trial had, "on her own initiative," contacted a former employee to discuss the 1996 decision not to offer Mr. Cammarata a permanent position. (Defendant's Response to Plaintiff's Motion in Limine and for Sanctions, Docket No. 41, Exhibit C, Declaration of Kathleen A. Radkoff.) The former employee, Harold Elsasser, told Ms. Radkoff that when he retired, he had taken numerous documents with him, including his notes about the 1996 decision. He provided her with copies of his notes which she in turn passed along to counsel. As soon as Defendant's counsel reviewed the documents, he forwarded them to Plaintiff's counsel. The Court continued the trial once again to allow Plaintiff to depose Mr. Elsasser regarding the documents.


  A. Motion for Leave of Court to File for Summary Judgment

  On June 30, 2005, before a new trial date was set, the Port Authority filed the now-pending motion for leave to file a second motion for summary judgment. Defendant argues that the new evidence — Mr. Elsasser's notes and his deposition testimony — is highly relevant and could dispose of the matter without the need for trial. (Def.'s Mot., ¶¶ 4-5.) Mr. Cammarata opposes the motion, arguing that even if the "new evidence" were considered, issues of material fact would still remain, thus precluding a decision granting summary judgment in Defendant's favor. The Court agrees with Plaintiff.

  We assume familiarity with our decision denying summary judgment and with the burden-shifting analysis of employment discrimination claims developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. In the Memorandum denying summary judgment, we disposed quickly of Defendant's first argument that Plaintiff had failed to establish a prima facie case of age discrimination (Sum. Judg. Memo. at 7) and moved to the second step of the McDonnell Douglas analysis to consider Defendant's proffer of a legitimate business reason for failing to hire Mr. Cammarata in June 1998, i.e., that pursuant to Port Authority's employment policy of reviewing a job applicant's references for the ten years prior to the application, the negative references received in 1996 which disqualified him from consideration at that time consequently disqualified him in 1998. (Sum Judg. Memo. at 7.)

  We concluded that this explanation "undeniably constitutes a legitimate, nondiscriminatory reason" for the decision not to hire Mr. Cammarata. The burden therefore shifted to Plaintiff to come forth with evidence "from which a fact-finder could reasonably believe defendant's reasons for termination are a pretext for age discrimination, or that defendant was motivated by a discriminatory animus." (Sum Judg. Memo. at 8, citing Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).)

  Mr. Cammarata argued that the reason offered by Port Authority was pretextual because (1) the reasons for not hiring him had repeatedly changed; (2) there was "no evidentiary support of a 1996 reference check of Plaintiff's former employers;" (3) the individual hired in 1998 had worse references than Plaintiff and lacked the necessary qualifications for the position; (4) there was no evidence of a "mandatory disqualification policy" based on negative references; and (5) Mr. Cammarata was not interviewed nor were his references checked in 1998 until after the younger, less-qualified, applicant had already been selected for the position. (Sum. Judg. Memo. at 8-9.) In our analysis, we highlighted two arguments which we found particularly persuasive: first, that Defendant failed to produce any documentary support of the negative 1996 reference checks, relying entirely in this regard on affidavits of individuals who "allegedly heard of" those negative comments, and second, that Mr. Cammarata was interviewed only after someone else was selected for the position. (Id. at 9-10.) By identifying these two arguments as particularly persuasive, we did not reject the others and, indeed, found them possible evidence of pretext as well.

  As the court succinctly stated in Whitford v. Boglino, 63 F.3d 527, 530 (7th Cir. 1995) (per curium), because a decision denying summary judgment is not a final judgment, i.e., the denial has no res judicata effect, it does not bar parties from filing multiple motions. "A renewed or successive summary judgment motion is appropriate especially if one of the following grounds exists: (1) an intervening change in controlling law; (2) the availability of new evidence or an expanded factual record; and (3) need to correct a clear error or prevent manifest injustice." Whitford, id., internal quotation omitted; see also Gulezian v. Drexel Univ., CA No. 98-3004, 1999 U.S. Dist. LEXIS 4624, *5-*6 (E.D. Pa. April 8, 1999) and cases cited therein. "A subsequent motion for summary judgment based on an expanded record is always permissible." ...

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