The opinion of the court was delivered by: Gary L. Lancaster, District Judge.
This is an action in employment discrimination on the basis of age. Plaintiff, Stephen E. Waltsak, alleges that defendant, his former employer Shield Environmental Associates, Inc., discharged him in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 ("ADEA"). Plaintiff seeks money damages and equitable relief.
Defendant has filed a motion for summary judgment arguing that defendant is not an "employer" within the meaning of the ADEA. Defendant further argues that plaintiff's evidence of record fails to establish a prima facie case of age discrimination.
For the reasons set forth below, the motion will be granted.*fn1
Except where indicated, the following material facts are undisputed. Plaintiff was employed as a mid-upper level employee by defendant from August 6, 1999 through August 24, 2001. On August 24, 2001, the date of his discharge, plaintiff was forty-six years old. Plaintiff contends that he was discharged due to his age. Defendant contends that plaintiff's age played no part in its decision, but rather the discharge resulted from inappropriate behavior with customers and plaintiff's lack of productivity on the job. Specifically, defendant contends that plaintiff's billable hours did not meet its goals and expectations for plaintiff's position.
Plaintiff has a bachelor's degree in geology and a bachelor's degree in civil engineering and had been employed as a geologist for twenty-two years and as an engineer for ten years before joining defendant. Defendant is in the engineering and environmental consulting business. Upon hire, plaintiff was assigned to defendant's Monroeville, Pennsylvania office. This was a relatively small office and during plaintiff's tenure, it never employed more than twelve persons. One of plaintiff's co-workers was Chuck Peterman, a geologist. Although the record does not reflect formal job titles, it appears from the record that Mr. Peterman's job description, duties, and responsibilities were the same as or substantially similar to those of plaintiff's. Both Mr. Peterman's and plaintiff's job duties involved task management, writing proposals and reports, overseeing the work of others, working on projects with junior staff on tasks that required two persons, mentoring junior staff, and teaching them how to accomplish the tasks. Mr. Peterman, who is three years older than plaintiff, left the company in January of 2002 for reasons unrelated to this lawsuit. Other than Mr. Peterman, the record does not reflect that there were any other individuals in the Monroeville office similarly situated to plaintiff in terms of job duties and responsibilities.
Within six months after plaintiff was discharged, and within one month after Mr. Peterman voluntarily left the company, plaintiff hired two new employees, Ms. Joyce O'Connor, a geologist, and Mr. Vincent Ou, an engineer. Both were approximately the same age as plaintiff, their education and experiences were similar to plaintiff's, and defendant assigned them in the same mid-upper level range as were Mr. Peterman and plaintiff. During plaintiff's tenure, defendant also hired four other employees, either engineers or geologists, who were approximately twenty years younger than plaintiff. These were entry-level employees and their salaries ranged between $27,000 and $30,000. At the time of his discharge plaintiff's salary was approximately $48,000.
The court will grant summary judgment "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" only if it might affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Factual disputes concerning issues that are irrelevant to the outcome of the case are, therefore, not considered. Id. at 248. Factual disputes must also be "genuine" in that the evidence presented must be such "that a reasonable jury could return a verdict in favor of the non-moving party." Id.
A non-moving party may not successfully oppose a summary judgment motion by resting upon mere allegations or denials contained in the pleadings, or by simply reiterating those allegations or denials in an affidavit. Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990). Rather, the non-moving party must offer specific evidence found in the record that contradicts the evidence presented by the movant and indicates that there remain relevant factual disputes that must be resolved at trial. Id. If the non-moving party does not respond in this manner, the court, when appropriate, shall grant summary judgment. Fed. R. Civ. P. 56(e).
With these concepts in mind, the court turns to the merits of defendant's motion.
Defendant has moved for summary judgment on two independent bases. First, defendant contends that it is not an employer within the meaning of the ADEA because at no time material to this action did it employ twenty or more individuals. Resolution of this issue would depend on whether defendant and other affiliated companies should be treated as a single entity under the guidelines set forth in Nesbitt v. Beers Unlimited, 347 F.2d 72 (3d Cir. 2003). Because we find that defendant is entitled to summary ...