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Sterling v. McKesson Automation

September 26, 2006


The opinion of the court was delivered by: McVerry, J.


Presently before the Court is the MOTION FOR SUMMARY JUDGMENT, with brief in support, filed by Defendants McKesson Automation, Inc., McKesson Corporation, Jim Stringer, Ryan Payne, Karen Bojarski, Christian Kebekus, and Phil Spano (Document Nos. 18 and 19), the BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT filed by Plaintiff, Timothy H. Sterling (Document No. 28), and the REPLY BRIEF filed by Defendants (Document No. 32).

The issues have been fully briefed and the matter is ripe for disposition. After a careful consideration of the motion, the filings in support and opposition thereto, the memoranda of the parties, the relevant case law, and the record as a whole, the Court finds that there is not sufficient record evidence upon which a reasonable jury could return a verdict for Plaintiff, Timothy H. Sterling, on his claims of disability and age discrimination and retaliation. Therefore, the Court will grant the Defendants' motion for summary judgment in its entirety.


Plaintiff, Timothy H. Sterling ("Plaintiff") brought this lawsuit on September 23, 2004, by the filing of a three-count Complaint against his employer, McKesson Automation, Inc., and McKesson Corporation*fn1 (collectively referred to as "McKesson"), and McKesson employees, Jim Stringer ("Stringer"), Ryan Payne ("Payne"), Karen Bojarski ("Bojarksi"), Christian Kebekus ("Kebekus"), and Phil Spano ("Spano"), in which he alleges that he was discriminated against because of his disability (epilepsy) and age and then retaliated against for having opposed those discriminatory actions.*fn2

In Counts I and II of his complaint, Plaintiff broadly alleges discrimination against all defendants under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et. seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §§ 951-963 .*fn3 In Count III of the Complaint, Plaintiff broadly alleges a claim of "aiding and abetting employment discrimination" under the PHRA against the individual named defendants, 43 P.S. § 955(e).

Defendants have filed the instant motion for summary judgment in which they contend that Plaintiff is unable to establish a prima facie case of discrimination under either the ADA, ADEA, or PHRA. In the alternative, McKesson contends that assuming arguendo that Plaintiff could state a prima facie case under the ADEA, summary judgment should still be granted in its favor because there is no evidence that McKesson's articulated legitimate, non-discriminatory and non-retaliatory reason for placing him on a Performance Improvement Plan ("PIP") (i.e., poor work performance) was false and/or that Plaintiff's "age" was the real reason for placing him on a PIP.


As the law requires, all disputed facts and inferences are resolved most favorable to the Plaintiff.

History of Epilepsy

At the age of 17, Plaintiff was diagnosed with nocturnal seizure disorder, commonly known as epilepsy. Since that time, Plaintiff has almost continuously taken phenobarbital and continues to take it daily. At age 26, Plaintiff had a grand mal seizure when he had not taken phenobarbital for about a year. Since that time, Plaintiff has not been off phenobarbital and has not suffered another grand mal seizure. Plaintiff's epilepsy causes him to suffer mini mal seizures that he describes as episodes of spasmodic jerking that sometimes evolve into stuttering and stammering.

Employment at McKesson

Plaintiff has been employed by McKesson since December 2000, when he was hired as a Senior Software Development Engineer in its AcuScan-Rx (now Admin-Rx) group in Pittsburgh. At the time he was hired, Plaintiff was 43 years old and was the oldest developer in the group.

In April 2001, Plaintiff's supervisor, Karen Bojarski ("Bojarski") directed a co-employee, Ryan Payne ("Payne"), to conduct a non-traditional code review/critique of Plaintiff's work. Payne prepared a written, severely critical review without Plaintiff's input. Payne's review was given to Bojarski, who in turn gave it to her supervisor, Phil Spano ("Spano").

In September 2002, Plaintiff applied for the position of Project Manager within McKesson, a position which would have been a promotion. On October 8, 2002, Plaintiff was advised that he had not been selected for the Project Manager position. McKesson continues to employ Plaintiff as a Senior Software Development Engineer, the position into which he was hired in 2000.

Plaintiff contends that over the next three years he experienced an "escalating environment of harassment, hostility and disparate treatment." Pl's Br. at 2. According to Plaintiff, his performance evaluations were artificially low. The younger developers were provided with far more opportunities to learn new skills, receive new training and participate in group design meetings, from which Plaintiff was excluded.

In March 2004, Plaintiff was placed on a 60-day performance improvement plan ("PIP") that was to be effective from March 16 through May 16, 2004. The parties are in disagreement as to the reason Plaintiff was placed on the PIP, to wit: Plaintiff contends that he was placed on the PIP because of his disability and age. Defendants contend that Plaintiff was placed on the PIP because his performance needed to improve.

From April 23, 2004, until January 5, 2005, Plaintiff took a leave of absence from work due to severe depression, stress, and anxiety. On April 29, 2004, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and Pennsylvania Human Relations Commission ("PHRC") in which he alleged discrimination and harassment based upon age and disability/perceived disability and unlawful retaliation.

On March 7, 2005, after Plaintiff had returned from his leave of absence, he was placed on a second PIP that was a continuation of the PIP he began in March 2004, but had not been completed. Plaintiff was not given any credit for the first 30 days he had served on his first PIP in 2004. Neither PIP on which Plaintiff was placed involved being placed on probation; rather, they were considered a temporary, constructive measure to aid Plaintiff in improving his performance. Plaintiff completed the second PIP effective June 3, 2005.

Plaintiff contends that his job duties drastically changed when he returned to work following his leave of absence. For example, instead of writing code as a Senior Software Development Engineer, he is now performing quality assurance tasks, effectively being demoted to a Quality Assurance Analyst. It is undisputed, however, that Plaintiff has suffered no decrease in salary but rather his salary has increased during his employment.

McKesson has adopted an anti-harassment policy, as set forth in its employee handbook, which provides that harassment in any form is strictly prohibited, directs any employee who feels he or she is being harassed to speak up to the harasser and to McKesson, and to immediately report the incident to his or her manager, any other manager or to the Human Resources department, and prohibits retaliation for such conduct. If an employee reports harassment, the policy provides that McKesson "will conduct a thorough and objective investigation of the incident or incidents."

Plaintiff received a copy of McKesson's employee handbook in September 2002. Plaintiff testified that he could not recall complaining to Bojarski, when she was his supervisor, that he was being treated badly because of his age or epilepsy. Additionally, Plaintiff testified that he never complained to anyone in Human Resources that he was being subjected to discrimination based on his epilepsy.*fn4

Individual Named Defendants

Jim Stringer ("Stringer") has been a co-worker of Plaintiff's since 2000, when Plaintiff was hired by McKesson. Stringer has held the positions of junior developer, senior developer, and lead developer. He has never supervised Plaintiff and has not been part of management.

Ryan Payne ("Payne") was hired by McKesson as a Software Development Engineer in the AcuScan group in April 1999, and resigned from McKesson in March ...

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