The opinion of the court was delivered by: Judge Munley
Presently before the court are Defendant IBEW Local Union No. 45's ("IBEW") Motion for Summary Judgment, and Plaintiff James M. Fitzpatrick's Motion to Strike the Motion for Summary Judgment. These matters have been fully briefed and argued, and therefore are ripe for disposition. For the following reasons, we will deny the Motion to Strike and grant the Motion for Summary Judgment.
A. Factual Background*fn1
Plaintiff was employed by National Mobile Television ("NMT") as a driver/technician, beginning on December 1, 2001. (Doc. 63, Pl. Ex. R. at ¶ 9 ("Pl. Aff."), Doc. 63, Pl. Ex. A. at 12-13 ("Pl. Dep.")). He was a member of Defendant IBEW. NMT hired him for a probationary period of six months. (Pl. Aff. at ¶ 13). On his first trip as a driver for NMT, he was involved in an accident at Veterans Stadium in Philadelphia, Pennsylvania. (Pl. Dep. at 29-32). He was backing up in his truck and hit a street sign mounted on a light pole. (Pl. Aff. at ¶ 44). The accident put a "small scratch" in the paint of the vehicle. (Id.). Plaintiff could not see the sign in his truck mirrors because of the way the sign was mounted on the pole and because the sign was twelve feet off the ground. (Id.). Plaintiff reported this incident to his manager, Bob Baker. (Id. at ¶ 47). Baker agreed that the damage was "minor." (Doc. 49 Baker Decl. at ¶ 5). Baker, however, determined that the accident was preventable because Plaintiff "could either have gotten out of the truck to determine that the path was clear or could have had another individual watch him back up to ensure that he did not hit anything." (Id.).
In March or April 2002, in the course of his employment, Plaintiff was involved in a reservation dispute with an employee of a Hampton Inn in Juno Beach, Florida. (Pl. Aff. at ¶ 57). As Plaintiff exited the lobby of the Hampton Inn, he stated, "I have stayed at hotels owned by Indian people before and I have never to this day including today, been completely satisfied with the stay." (Id. at ¶ 74). An NMT official questioned him regarding the incident, and Plaintiff explained that he had made this statement. (Id. at ¶¶ 79-80). Plaintiff signed an apology letter composed by an NMT official, but asserts that the company pressured him into signing it and that he had legitimate complaints. (Id. at 82-88).
In June of 2002, Plaintiff again backed into a stationary object. (Pl. Dep. at 35-36). On this occasion, Plaintiff was backing his truck into a garage at NMT's Sommerville New Jersey facility, and the garage door was not fully opened, and he backed the truck into the garage door. (Id.). Plaintiff claims the door "would not open to its full 14 foot height" but he proceeded to back the truck up anyway. (Pl. Aff. at ¶ 96). The fiberglass fairing on the truck was cracked, and the garage door was dented. (Id. at ¶ 96-97). As with the first accident, Baker determined that Plaintiff could have avoided the contact by exiting the truck to discern whether the path was clear or by enlisting another individual to watch him back up to ensure that he did not hit anything. (Baker Decl. at ¶5). Plaintiff reported the incident to Paul Wollack, the manager of the facility who witnessed the accident. (Pl. Aff. at ¶ 101, 108). Plaintiff did not report the accident to any other manager. (Pl. Dep. at 39-42). Following this accident, NMT suspended Plaintiff for the week of Sunday July 21 through Saturday July 27, 2002 without pay for failure to report the damage to an appropriate management supervisor. (Doc. 63 Pl. Ex. I; Pl. Dep. at 49 ln. 19-23).
On August 11, 2002, Plaintiff had a third accident. (Pl. Aff. at ¶ 129). He was driving a truck on a narrow street that was part of the grounds of Yankee Stadium in New York, New York. (Id. at ¶ 135). At the time, his "moto-mirror" was not functional. (Id. at ¶ 131). The moto-mirror is a mirror that pivots to allow the driver to view objects around the vehicle that would otherwise be out of the purview of the mirrors. (Id. at ¶ 131). At the end of the street, Plaintiff needed to make a wide turn to exit the stadium grounds. (Id. at ¶ 135). Plaintiff was outside of his vehicle moving police barricades when a young man stopped his vehicle next to the passenger side of the truck near the curb. (Id. at ¶ 138, 140). The young man asked if he could "squeeze between the truck and the curb and [Plaintiff] told him he should wait or move." (Id. at ¶ 141). Plaintiff told him he should wait or move because the street was not wide enough for both vehicles. (Id. at ¶ 143). Plaintiff returned to his truck, and made a wide swing to execute his turn because he observed that the young man had moved his car. (Id. at ¶ 147). After Plaintiff made the turn, the young man asserted that Plaintiff hit his car. (Id. at ¶ 148). Plaintiff observed that the young man's rear plastic bumper needed to be replaced. (Id. at ¶ 155). Plaintiff assumed that the young man must have tried to back up while Plaintiff was making his turn, otherwise the accident would not have occurred. (Id. at ¶ 149; Pl. Dep. at 69 ln. 11-16). Plaintiff reported the accident to Bob Baker. (Pl. Aff. at ¶ 151). Baker determined that the accident could have been prevented had Plaintiff waited long enough for the young man to move his car completely out of harm's way before moving the truck. (Baker Decl. at ¶6).
NMT terminated Plaintiff on August 13, 2002, two days after the Yankee stadium accident. (Pl. Aff. at ¶ 152). Bob Baker determined that Plaintiff should be terminated after this accident. (Baker Decl. at ¶ 8). Plaintiff was born on May 11, 1951, and therefore was fifty -one years old when he was terminated. (Pl. Aff. at ¶ 1).
Shortly after his termination, Plaintiff spoke with Rick Rogers, the Business Representative of Defendant IBEW, about filing a grievance against NMT. (Rogers Decl. ¶ 10). IBEW informed Plaintiff that filing a grievance would be futile because success was unlikely given Plaintiff's short tenure, history of accidents, and the Hampton Inn incident where he made a racial remark.
On May 12, 2003, Plaintiff filed suit alleging that NMT fired him because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Pennsylvania Human Relations Act ("PHRA") 43 PA. STAT. 951 et seq. Additionally he advanced a claim against IBEW asserting that they discriminated against him on the basis of age in violation of the ADEA. On July 24, 2003, IBEW filed a motion to dismiss for lack of personal jurisdiction. On March 8, 2004, we denied IBEW's motion to dismiss on the grounds that it was premature, and allowed it leave to re-file following discovery. We provided the parties sixty days to conduct discovery on the issue of personal jurisdiction and allowed IBEW ten days following this period to re-file the motion.
Thereafter, on May 4, 2004, we established the case management deadlines, providing that discovery on the remaining issues was due on July 20, 2004, and dispositive motions were to be filed on or before August 15, 2004.
On May 12, 2004, IBEW re-filed its motion to dismiss on jurisdictional grounds. On August 11, 2004, NMT filed a motion for summary judgment, arguing that Plaintiff could not create a genuine issue of material fact that he was fired because of his age. On March 17, 2005, we granted NMT's motion for summary judgment and denied IBEW's motion to dismiss in the same memorandum. On May 11, 2005, IBEW filed the instant motion for summary judgment, arguing that Plaintiff has failed to ...