The opinion of the court was delivered by: Judge Munley
Before the court for disposition is the defendant's motion for summary judgment in this age discrimination in employment case. The plaintiff is Corrine Holshue, a former employee of Defendant Fanelli Window Pros, Inc. The matter has been fully briefed and is ripe for disposition.
Fanelli Window Pros employed plaintiff as a telemarketer beginning in February 1999. Defendant is in the business of sales and installation of windows. (Pl. Ex. F, 1). Defendant laid off the plaintiff on May 7, 2003 when plaintiff was forty-nine years of age. (Def. Ex. A, Pl. Dep. at 26). Defendant claims that it laid plaintiff off due to lack of work in the telemarketer department. (Def. Ex. B, Dep. Martin Fanelli, 21). Approximately eight days later, however, defendant placed an advertisement in a local newspaper for a telemarketer position. Defendant asserts that it did not hire plaintiff for this position because of plaintiff's history as a "troublemaker" and her difficulty getting along with co-workers. (Id. at 7-8).
Plaintiff claims that she telephoned the defendant and asked about going back to work when the defendant advertised for telemarketers. Her supervisor, Castellano informed her that she would not be rehired because the company was "looking for new blood." (Def. Ex. A, Pl. Dep. 66).*fn1
Plaintiff subsequently filed the instant action asserting age discrimination in employment. The complaint consists of two counts, Count I based upon the Age Discrimination in Employment Act (hereinafter "ADEA") 29 U.S.C. § 623; and Count II, age discrimination under the Pennsylvania Human Relations Act (hereinafter "PHRA") 43 PENN. STAT. § 951, et seq. At the close of discovery, the defendant moved for summary judgment bringing the case to its present posture.*fn2
As this case is brought under the ADEA we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.")We have supplemental jurisdiction over the plaintiff's state law claim pursuant to 28 U.S.C. § 1367.
Granting summary judgment is proper if 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 judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)).
"[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.
The ADEA prohibits the failure or refusal to hire or to discharge anyone or otherwise discriminate against them in employment because of the individual's age. 29 U.S.C. § 623(a).*fn3 To fall under the protection of the ADEA, an employee ...