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Harvan v. Kovatch Corp.

March 20, 2007

EDWARD HARVAN, PLAINTIFF,
v.
KOVATCH CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court are Magistrate Judge Thomas M. Blewitt's Report and Recommendation (Doc. 27) and Plaintiff Edward Harvan's Objections to the Magistrate Judge's Report and Recommendation (Doc. 28). For the reasons set forth below, the Court will adopt the Magistrate Judge's Report and Recommendation and overrule Plaintiff's Objections. Accordingly, the Court will grant Defendant Kovatch Corporation's Motion for Summary Judgment (Doc. 22).

BACKGROUND

As a preliminary matter, the Court notes that Plaintiff has failed to respond to Defendant's Statement of Material Facts as required by Local Rule 56.1 of the Local Rules of Court of the Middle District of Pennsylvania. Local Rule 56.1 provides that "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." M.D. Pa. L.R. 56.1. As such, the Court adopts all of Defendant's facts that are properly supported by citation to evidence and that are not controverted by the evidence Plaintiff has filed in opposition to Defendant's motion. See United States ex rel. Paranich v. Sorgnard, 396 F.3d 326, 330 (3d Cir. 2005) (noting with approval the district court's adoption of all the facts of one party which were not clearly disputed by the other party with sufficient citation to the record). Plaintiff's evidence in opposition to Defendant's motion for summary judgment consists solely of his affidavit. (Doc. 25-2.) Accordingly, Defendant's version of the facts, to the extent they are not controverted by Plaintiff's affidavit, are as follows.

Defendant is a manufacturer of specialty heavy-duty motor vehicles, including fire trucks. (Doc. 23 at 3.) Plaintiff began working for Defendant in 1987 at fifty-two (52) years of age. (Doc. 23 at 4.) Plaintiff was hired by John "Sonny" Kovatch, Jr. ("Kovatch"), who is currently eighty-one years old. (Id.) Plaintiff referred to Kovatch as "the old man." Plaintiff began his employment with Defendant as a shear helper. (Id.) In late 1987 or early 1988, Plaintiff moved to the position of senior hose assembler. (Id.) As a senior hose assembler, Plaintiff was primarily responsible for assembling high-pressure hydraulic hoses for fire trucks. (Id.) Plaintiff was the only senior hose assembler and, at the time of his termination in 2004, he was the only employee of Defendant with the primary responsibility of making hoses for trucks. (Doc. 23 at 4-5.)

Plaintiff's job involved the assembly of two (2) different systems of hoses -- reusable hoses with threaded fitting and hoses with crimped collars. (Doc. 23 at 5.) Hoses with crimped collars are assembled by inserting the hose into the collar until it "bottoms out" in the inside of the collar. (Id.) The collar and hose are then put into a machine that crimps the collar around the end of the hose that has been inserted into the collar. (Id.) The hose can come out of the collar if not enough hose length has been inserted into the collar. (Id.) Such a situation, Plaintiff admitted, can create a safety risk. (Id.)

To ensure that enough hose length has been inserted into the collar, the hose manufacturer manual states that "to insure that hose is bottomed in collar, mark the insertion depth on the hose before inserting it in the hose end." (Id.) Plaintiff's immediate supervisor, Ron Arndt ("Arndt"), testified that even if the hose has "bottomed out" in the collar, the pressure involved in the crimping process can cause the hose to move down, away from the bottom of the collar. (Doc. 23 at 5-6.) Therefore, the only way that one can visually determine if a hose is improperly crimped and prone to failure is to mark the insertion depth on the hose before crimping. (Doc. 23 at 6.) Defendant's production manager, Francis Smell ("Smell"), testified that over ninety (90) percent of hose failures result from the hose not being inserted properly in the collars. (Id.)

Plaintiff admitted in his deposition that he did not follow the hose manufacturer manual procedure of marking the hoses. (Id.) Plaintiff failed to mark hoses during assembly despite the fact that Smell instructed Plaintiff to do so. (Id.) Plaintiff admitted during his deposition that, on numerous occasions, hoses which he assembled failed. (Doc. 23 at 6-7; see Doc. 24-4 at 30.)

In 1998, Plaintiff received a written warning from Kovatch after Plaintiff was observed reading a newspaper with his feet up on his desk during work hours. (Doc. 23 at 7.) After being confronted regarding his behavior, Plaintiff replied with a sarcastic remark. (Id.) Smell also noted that Plaintiff was disrespectful to both his superiors and his co-workers and displayed a dislike for following orders or answering to anyone. (Id.)

Specifically, Plaintiff testified that he was questioned by Smell about hoses having dirt in them. (Id.) Smell asked Plaintiff to demonstrate how this could occur. (Id.) Plaintiff refused to demonstrate it for Smell. (Doc. 23 at 8.)

Plaintiff received a score of two (2) in his annual performance review for the year 2001. (Id.) A performance review score of two (2) meant that Plaintiff "need[ed] improvement." (Id.) Plaintiff's performance review score for 2002 was two and one-eighth (2.125). (Id.) This score also meant that Plaintiff "need[ed] improvement." (Id.) No performance reviews were conducted in 2003 or 2004, the years prior to Plaintiff's termination. (Id.)

In 1999, Plaintiff turned sixty-five (65) years of age. (Id.) Plaintiff testified that, at that time, Defendant did not ask him about retirement. (Id.) Plaintiff stated that, in order to remain employed with Defendant, he just kept working and nobody approached him about retirement. (Doc. 23 at 8-9.) Plaintiff testified that he knows of employees of Defendant who worked past their sixty-fifth (65th) or even seventieth (70th) birthday. (Doc. 23 at 9.)

In February 2004, Plaintiff turned seventy (70) years old. (Id.) Plaintiff voluntarily made his age known to his fellow co-workers. (Id.) Plaintiff admitted that he never reported any age-based harassment to his supervisors. (Id.)

In late May 2004, Plaintiff made a hose that failed during pump testing after being installed on a fire truck. (Id.) This hose failure caused hydraulic fluid to be sprayed over everything in the immediate area and required Defendant to expend additional time and effort to clean up the mess. (Doc. 23 at 10.) Defendant was also forced to expend additional time and effort to uncover the cause of the hose failure. (Id.) Defendant determined that the hose failure was the result of the hose not having been inserted deeply enough into the collar before being crimped. (Id.)

After the hose failure, Plaintiff was ordered to make a new hose. (Id.) This new hose was then installed on the fire truck. (Id.) Like the first hose, the second hose made by Plaintiff failed during pump testing. (Id.) Plaintiff stated in his deposition that "[w]hen the second one [failed], I said to myself there is something wrong here. I must be doing something wrong." (Id.)

In his answers to the Equal Employment Opportunity Commission ("EEOC") Questionnaires, Plaintiff stated that he "made two faulty hoses (in my seventeen years of service) that malfunctioned during test mode . . . ." (Doc. 23 at 11.) After the second hose failed, Smell took the failed hose to Plaintiff and told him that it was Plaintiff's poor workmanship that caused both hoses to fail during testing. (Id.) Specifically, Smell told Plaintiff that "this [was] the second hose that failed in a two day stretch, it wasn't put on properly like I told you . . . , it wasn't inserted properly, it better never happen again, this is bad workmanship, something could have caught fire and disciplinary action could be taken." (Id.) Smell stated in his deposition that Plaintiff, at first, was offensive when he was confronted with the faulty hose but, then, realized that it was his fault. (Doc. 23 at 12.) Smell then called Ronald Blisard ("Blisard") and told him that two hydraulic hoses had failed back-to-back costing Defendant a significant amount of time and money. (Id.) Smell suggested that disciplinary action be taken against Plaintiff. (Id.) Smell did not suggest what type of disciplinary action should be taken against Plaintiff. (Id.)

After speaking with Smell, Blisard contacted Kovatch regarding Plaintiff's poor workmanship. (Id.) After considering the risk to the safety of others created by the hose failures, the extra work and expense incurred in cleaning up and correcting these failures as well as Plaintiff's general work history, Kovatch decided to terminate Plaintiff's employment. (Id.)

On June 1, 2004, Blisard met with Plaintiff to inform him that Plaintiff's employment with Defendant was terminated. (Id.) Blisard gave ...


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