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Johnson v. McGraw-Hill Co.

September 5, 2006

RICHARD M. JOHNSON, PLAINTIFF,
v.
THE MCGRAW-HILL COMPANIES, MACMILLAN/MCGRAW-HILL, MCGRAW-HILL SCHOOL DIVISION, SUCCESSORS AND ASSIGNS, DEFENDANTS.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER

Before the Court for disposition are DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Document No. 52), with brief in support (Document No. 53), Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment (Document No. 81), Defendants' Reply Brief (Document No. 93), PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (Document No. 55), with brief in support (Document No. 56), Defendants' Brief in Opposition to Plaintiff's Motion for Partial Summary Judgment (Document No. 75), and Defendants' Brief in Response to Plaintiff's Motion for Leave to Cite Supplemental Authority (Document No. 97). After considering the filings of the parties, the evidence of record and the relevant statutory and case law, Plaintiff's Motion for Partial Summary Judgment will be denied and Defendant's Motion for Summary Judgment will be granted in part and denied in part.

Background

Plaintiff Richard M. Johnson ("Johnson") was born on February 24, 1944, and is presently sixty-two years of age. Defendants' Statement of Undisputed Material Facts in Support of Motion for Summary Judgment at ¶ 1.*fn1 He worked as a sales representative for Defendant McGraw-Hill Companies ("McGraw-Hill") for a period of thirty-three years, until his employment with the company was terminated on May 19, 2005. Id. at ¶¶ 2-3. Throughout most of Johnson's career, his primary sales territory was located in southwestern Pennsylvania. Id. at ¶ 25. Alonzo Farr, a fellow sales representative who was born on December 2, 1947, also serviced parts of western Pennsylvania. Id. at ¶¶ 26-27. Farr's territory initially consisted of parochial schools in Allegheny, Washington and Greene Counties, and public schools from Butler and Beaver Counties to Erie. Id. at ¶ 28. Farr's territory extended as far east as north central Pennsylvania. Id. at ¶ 28.

In the early 1990s, Johnson's territory was expanded to include five territories in Ohio, including Akron, Cleveland, Canton, East Liverpool and Youngstown. Id. at ¶ 29. Farr's territory was expanded to include all schools located in the southeastern portion of Ohio. Id. at ¶ 30. As of 2000, both of these territories were a part of the Great Lakes region, which also included the rest of Ohio, Michigan, Illinois and Indiana. Id. at ¶ 37. The region was under the direction of Great Lakes Regional Vice-President Robert Wakeham. Id. at ¶ 38. Wakeham was born on January 26, 1946, and is currently sixty years old. Id. at ¶ 39.

In 2001, McGraw-Hill promoted Wakeham to the position of National Sales Manager, Open Territory. Id. at ¶ 42. On March 14, 2001, McGraw-Hill announced that the former Central and Great Lakes sales regions had been reorganized into a new Midwest region. Id. at ¶ 43. Kathy Nauman was named as the Midwest Regional Vice-President, and Yancy Toney was the District Manager for Ohio. Id. at ¶¶ 45-46. Western Pennsylvania was included within the Midwest region, while Eastern Pennsylvania was included within the East region. Id. at ¶ 47. In June, 2001, McGraw-Hill decided to place Pennsylvania entirely within the East region, leaving Ohio in the Midwest region. Id. at ¶ 48. Wakeham had discussions with Nauman and Toney about the 2001 realignment. Id. at ¶ 50. After the completion of the 2001 realignment, Farr was responsible for Western Pennsylvania and Johnson was responsible for the Northeast Ohio territory, which included sixteen Ohio counties. Id. at ¶¶ 56-57. Johnson was no longer responsible for any part of Pennsylvania. Id. at ¶¶ 57-58.

Johnson was unhappy with the realignment, and he sought the advice of legal counsel in August, 2001. Id. at ¶ 61. He would have preferred either the Western Pennsylvania territory given to Farr or the combined Western Pennsylvania and Ohio territory that he had serviced prior to the realignment. Id. at ¶¶ 62-63. He negotiated a $5,000.00 signing bonus when he began to work in his new Ohio territory, which was noted in a memorandum from Wakeham dated August 17, 2001. Id. at ¶ 66. When Johnson signed and returned the memorandum, however, he attached a letter to Wakeham indicating that he would need "reasonable accommodations" concerning "the driving and lifting demands of the job," given his "physical limitations." Id. at ¶ 68.

At the time of the 2001 realignment, McGraw-Hill employed seventy-nine sales representatives in the United States. Id. at ¶ 81. Of those seventy-nine representatives, forty-seven were male and sixty-six were over the age of forty. Id. at ¶ 81. Of the sixty-six sales representatives over the age of forty, fourteen were older than Johnson. Id. at ¶ 81. From January to July, 2002, Johnson was on short-term disability leave, which was necessitated by surgery that he had on his neck. Id. at ¶ 123. In April, 2002, Johnson sought treatment from Dr. Robert Ackerman. Id. at ¶ 124. In July, 2002, Dr. Ackerman cleared him to return to work without restrictions. Id. at ¶ 125.

In 2001, McGraw-Hill acquired Benziger and its sectarian school products. Id. at ¶ 94. Prior to this acquisition, Johnson and his fellow Ohio sales representatives sold textbooks to Catholic schools. Id. at ¶ 96. In 2002, Wakeham decided that former Benziger representative Robert Temme would be responsible for selling both secular and sectarian school products to all Catholic schools in the State of Ohio. Id. at ¶ 99. Consequently, Johnson and the other McGraw-Hill Ohio representatives were no longer responsible for those Catholic schools. Id. at ¶ 100. Before the Benziger acquisition, Farr sold secular textbooks to Catholic schools in Pittsburgh. Id. at ¶ 101. After the acquisition, that responsibility was taken from Farr and given to former Benziger representative Clem DeFrancesco. Id. at ¶ 102. After Temme's employment with McGraw-Hill ended in 2003, Wakeham returned responsibility for the Ohio Catholic schools to the Ohio sales representatives, including Johnson, who then sold both secular and sectarian products to those schools. Id. at ¶ 103.

During the period of time in which Johnson was not responsible for sectarian schools in Ohio, all of McGraw-Hill's representatives in Ohio were male and all of its representatives in Indiana were female. Plaintiff's Response to the Defendants' Statement of Undisputed Material Facts in Support of Motion for Summary Judgment at ¶ 104. Ohio was an "open territory," as were Pennsylvania, Michigan and Illinois. Defendants' Statement of Undisputed Material Facts in Support of Motion for Summary Judgment at ¶ 107. In each of the open territories, textbook purchase decisions were made separately by each of the counties and districts therein. Id. at ¶ 108. Indiana was a "state adoption" territory, in which textbook purchasing decisions were made at the state level and followed uniformly in each of the school districts. Id. at ¶¶ 109-110. While Temme was responsible for selling products to the Catholic schools in Ohio, McGraw-Hill's Indiana sales representatives retained the responsibility for selling textbooks to the Catholic schools in Indiana. Id. at ¶¶ 104, 111.

On October 30, 2002, Johnson filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Id. at ¶ 115. His counsel mailed the charge to the EEOC on November 1, 2002, and the EEOC acknowledged it as filed on November 5, 2002. Id. at ¶ 116. In the charge, Johnson alleged discrimination by McGraw-Hill on the basis of age, gender and disability. Id. at ¶ 117. Specifically, he challenged the August, 2001, territory realignment, McGraw-Hill's alleged failure to accommodate his disabilities at the time of the realignment, the temporary removal of Catholic school sales from him and the other Ohio sales representatives in 2002, and his salary. Id. at ¶ 118. The EEOC charge was dual-filed with the Pennsylvania Human Relations Commission ("PHRC"). Id. at ¶ 119.

By 2004, McGraw-Hill's East region included all of New England, New York, New Jersey, Maryland, Washington, D.C., Pennsylvania and Ohio. Id. at ¶ 131. Ed Bonessi was the East Regional Vice-President. Id. at ¶¶ 130-131. Bonessi was born on December 30, 1958, and is presently forty-seven years of age. Id. at ¶ 132. In July, 2004, McGraw-Hill hired Lyn Klages to be the District Manager of Ohio and Pennsylvania. Id. at ¶ 130. Klages was born on April 5, 1950, and is a fifty-six year old female. Id. at ¶ 129.

On October 20, 2004, Johnson emailed Bonessi and Klages, informing them that he needed to go on leave because of neck, back and knee problems. Id. at ¶ 133. He was suffering from cervical and lumbar disc disease, cervical and lumbar radiculopathy, and degenerative arthritis in the cervical and lumbar areas of his back and knees. Id. at ¶ 120. Johnson's leave of absence began on October 21, 2004. Id. at ¶ 137. His statutory entitlement to leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., expired on January 14, 2005. Id. at ¶ 138. On January 21, 2005, Johnson sent Klages an email indicating that he would be able to return to work immediately if certain accommodations were made. Id. at ¶ 139. In response to inquiries made by McGraw-Hill, Dr. Ackerman sent Johnson a letter dated March 29, 2005. In that letter, he stated that Johnson was unable to lift more than ten pounds, drive for more than one hour or more than forty miles one way in a given work day, or look at a computer screen for more than a half-hour at a time. (Document No. 61-2, at 34). Dr. Ackerman also stated that Johnson should not engage in pushing, pulling, squatting, kneeling or bending, and that he should not sit or stand for more than one hour without an equal opportunity to walk, stretch, and change positions. Id. Given these restrictions, Johnson and McGraw-Hill were unable to agree on a mutually acceptable accommodation. In a letter dated May 18, 2005, Bonessi informed Johnson that his employment with McGraw-Hill was being terminated because of his inability to perform the essential functions of his job. Id. at ¶ 202. Johnson's termination was effective on May 19, 2005. Id. at ¶ 199.

After exhausting his administrative remedies, Johnson commenced this action against McGraw-Hill on June 13, 2003, alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e et seq., and the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. After his remedies before the PHRC were fully exhausted, Johnson amended his Complaint on October 9, 2003, to include a previously unavailable claim under the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.C.S. § 931 et seq. On July 5, 2005, Johnson filed a Second Amended Complaint to include the circumstances related to his termination. On January 6, 2006, McGraw-Hill filed a Motion for Summary Judgment (Document No. 52) and Johnson filed a Motion for Partial Summary Judgment (Document No. 55). This Court has jurisdiction over Johnson's federal claims pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(3). This Court also has supplemental jurisdiction over Johnson's claims arising under Pennsylvania law pursuant to 28 U.S.C. § 1367(a).

Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure reads, in pertinent part, as follows: "[Summary Judgment] shall be rendered forthwith 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."

In interpreting Rule 56(c), the United States Supreme Court has stated:

"The plain language . . . mandates entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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 of proof at trial. In such a situation, there can be "no genuine issue as to material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial."

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

An issue of material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view the facts in a light most favorable to the non-moving party, and the burden of establishing that no genuine issue of material fact exists rests with the movant. Celotex, 477 U.S. at 323. The "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against the moving party." Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972)). Final credibility determinations on material issues cannot be made in the context of a motion for summary judgment, nor can the district court weigh the evidence. Josey v. John R. Hollingsworth Corp., 996 F.2d 632 (3d Cir. 1993); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224 (3d Cir. 1993).

When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. If the moving party has carried this burden, the burden shifts to the non-moving party, who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets, 998 F.2d at 1230. When the non-moving party's evidence in opposition to a properly supported motion for summary judgment is "merely colorable" or "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.

In federal employment discrimination cases, the familiar McDonnell Douglas*fn2 formulation regarding the appropriate burdens of proof and allocation of production of evidence governs and guides the analysis of the evidence presented on a motion for summary judgment. Under McDonnell Douglas, the plaintiff must establish a prima facie case of discrimination; if this burden is met, the defendant must then articulate some legitimate, nondiscriminatory reason for the employee's treatment. McDonnell Douglas, 411 U.S. at 802. If the defendant articulates a legitimate, nondiscriminatory reason for the employee's treatment, then the plaintiff must demonstrate that the defendant's stated reasons were a pretext for unlawful action. Id. at 804. The prima facie case under McDonnell Douglas "is not intended to be onerous." Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995), cert. denied, 515 U.S. 1159 (1995). The prima facie case raises an inference of discrimination because the courts presume that the challenged acts, if otherwise unexplained, are "more likely than not based on the consideration of impermissible factors." Id.

Pennsylvania courts generally interpret the PHRA in accordance with its federal counterparts. See Kelly v. Drexel Univ., 94 F.3d 102, 104 (3d Cir. 1996). The PHRA is to be interpreted "as identical to federal anti-discrimination laws except where there is something specifically different in its language" justifying different treatment. Fogleman v. Mercy Hospital, Inc., 283 F.3d 561, 567 (3d Cir. 2002). Neither party has argued that the PHRA should be interpreted differently from federal law in this case.*fn3 Therefore, this Court will interpret the PHRA "as applying identically in this case and governed by the same set of precedents" as the relevant provisions of the applicable federal anti-discrimination statutes. Id.

Discussion

A. The Timeliness of Johnson's EEOC Charge

McGraw-Hill argues that since Johnson's EEOC charge was filed on November 5, 2002, all claims based on conduct alleged to have occurred prior to January 9, 2002, should be dismissed as time-barred. Defendants' Brief in Support of Motion for Summary Judgment at 3. Specifically, McGraw-Hill contends that the claims related to the August, 2001, territory realignment, including its alleged failure to accommodate Johnson's disabilities at that time, should be dismissed. McGraw-Hill also asserts that Johnson's claims regarding his salary are time-barred. For the reasons hereinafter stated, the Court agrees with McGraw-Hill's argument regarding the 2001 realignment but disagrees with its argument regarding Johnson's salary.

In National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), the U.S. Supreme Court explained that "[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify." Morgan, 536 U.S. at 114. The Court went on to say that "[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'" Id. at 114. Claims based on discrete acts differ meaningfully from claims based on the existence of a hostile work environment. In the latter category, the alleged violation "occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Morgan, 536 U.S. at 115.

Morgan involved a claim filed pursuant to Title VII. Earlier this year, however, the U.S. Court of Appeals for the Third Circuit explained that "the distinction between 'continuing violations' and 'discrete acts' is not an artifact of Title VII, but is rather a generic feature of federal employment law." O'Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006). Therefore, "in whatever statutory context the distinction may arise, Morgan will control." Id. at 128. Morgan directly governs this Court's analysis under Title VII, the ADEA and the ADA. Furthermore, the Pennsylvania courts generally construe the PHRA in accordance with its federal counterparts. Stultz v. Reese Brothers, Inc., 835 A.2d 754, 759 (Pa.Super. 2003). Consequently, this Court's analysis under Morgan will likewise be dispositive of Johnson's PHRA claims.

The 2001 realignment, which clearly occurred more than three hundred days before Johnson's charge was filed with the EEOC, constituted a discrete act for which Johnson cannot belatedly seek redress. In O'Connor v. City of Newark, 440 F.3d 125 (3d Cir. 2006), the Court of Appeals stated that the "non-exhaustive list of discrete acts for which the limitations period runs from the act" consists of the following: termination, failure to promote, denial of transfer, refusal to hire, wrongful suspension, wrongful discipline, denial of training, and wrongful accusation. O'Connor, 440 F.3d at 127. McGraw-Hill's decision to reassign Johnson to Ohio, rather than leave him responsible for the portion of Pennsylvania that he preferred, was akin to a "denial of transfer." In one way, it was a forced transfer. In another way, it was a denial of the transfer that Johnson preferred, since the realignment itself, from a structural point of view, made Johnson's retention of his former territory impossible. In either case, the realignment was a discrete act by ...


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