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Frantz v. Ferguson Enterprises

January 26, 2009


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


Before the Court is Defendant's Motion for Summary Judgment. (Doc. No. 12). The Plaintiff is suing for violations of the Age Discrimination in Employment Act ("ADEA") and the Pennsylvania Human Relations Act ("PHRA"). For the reasons that follow, the Court will deny Defendant's Motion.


On January 19, 2005, the Plaintiff, Phillip A. Frantz ("Frantz"), was hired by the Defendant, Ferguson Enterprises, Inc. ("Ferguson"), to work as an outside sales associate. (Def.'s Stmt. ¶ 2.) He was fifty-nine (59) years old. (Id. ¶ 12.) Twain Glaser ("Glaser"), a sales manager at Ferguson's East Petersburg location, made the decision to hire Frantz. (Id. ¶¶ 5-6.) On September 30, 2005, after nine (9) months of employment, Frantz was fired as a result of a joint-decision made by Glaser and the branch manager, Fenton Harpster, ("Harpster"). (Id. ¶¶ 36, 44, 46.) Frantz was sixty (60) years old. (Id. ¶ 45.) He was replaced by a twenty-six (26) year old salesman who had less experience than he. (Id. ¶¶ 47-48.)

During Frantz's employment with Ferguson, he recalled hearing derogatory comments about his age between ten (10) and fifty (50) times in a span of two months. (Id. ¶ 51; Frantz Dep. 140, 143.) Sean Way ("Way"), a customer of Ferguson and now Frantz's employer, recalled hearing Glaser and Harpster call Frantz "old man" and "grandpa" and tell him that he should "take a nap old man, you look tired," in Ferguson's East Petersburg office. (Def.'s Stmt. ¶ 59; Way Aff. ¶ 7.) Sam Schrum, a former Ferguson employee, also recalled hearing Glaser and Harpster make comments to Frantz about his age, such as "old fart," "old man," and "old f**k." (Def.'s Stmt. ¶¶ 63-64; Schrum Aff. ¶¶ 5, 10.) Shortly after Frantz's termination, Schrum asked Glaser about Frantz, and Glaser replied that "due to [Frantz]'s age he was unable to get the job done." (Pl.'s Add'l Stmt. ¶ 4; Schrum Aff. ¶ 14.)

Later, in October of 2005, Glaser visited Craig Moon ("Moon"), a Ferguson customer, to introduce Frantz's replacement. (Pl.'s Additional Facts ¶ 1.) In response to Moon's inquiries about Frantz, Glaser told Moon that Frantz was replaced because "at 60 years old [he] does not have the energy level to aggressively pursue new business." (Id. ¶ 2.) Glaser also told Moon that Ferguson was a "'young minded company[,]' and that it relies upon the 'ambition of young people to grow its business.'" (Pl.'s Stmt. ¶ 55.)

In its Motion for Summary Judgment, Ferguson argues that Frantz was fired due to his poor job performance. (Def.'s Br. 5-10.) In support, Ferguson cites to Frantz's low sales numbers, in light of his experience and salary. (Id.)

In response, Frantz argues that Ferguson's proffered reason is merely a pretext for discrimination. (Pl.'s Br. 12-14; Pl.'s Sur-Reply Br. 1-3.) Frantz also argues that Glaser's comments to Moon and Schrum constitute direct evidence of age discrimination. (Pl.'s Br. 15-17; Pl.'s Sur-Reply Br. 4-5.)


Summary judgment should be granted if the record, including pleadings, depositions, affidavits, and answers to interrogatories, demonstrates "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. Proc. 56(c). In making that determination, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The question is whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. It is not the role of the trial judge "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial," id. at 250, because "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. at 255. At "the summary judgment stage, in other words, 'all that is required [for a non-moving party to survive the motion] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve [at trial] the parties' differing versions of the truth.'" Jackson v. Univ. of Pittsburgh, 846 F.2d 230, 233 (3d Cir. 1987) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)).


To prevail on an age discrimination claim under either the ADEA or the analogous provision of the PHRA, a plaintiff must show that his or her age actually motivated or had a determinative influence on the employers's adverse employment decision. See Fasold v. Justice, 409 F.3d 178, 183-84 (3d Cir. 2005) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)). "A plaintiff can meet this burden (1) by presenting direct evidence of discrimination [under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and proceeding with a mixed motive theory], or (2) by presenting indirect evidence of discrimination that satisfies the familiar three-step framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) [and proceeding with a pretext theory]." Fasold, 409 F.3d at 184. As a practical matter, the distinction between the two theories "lies in the kind of proof that an employee produces on the issue of bias, and the effect that the evidence has on the burden." See Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096-98 (3d Cir. 1995). Whether a case is a pretext case or a mixed motive case is a question for the court once all of the evidence has been received at trial. See id. at 1098 (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 782 (3d Cir. 1994)).

I. Direct Evidence and Price Waterhouse

Ferguson contends that Frantz cannot show any direct evidence of age discrimination. (Def.'s Br. 4 n.1; Def.'s Reply Br. 5-6.) Frantz counters that the derogatory comments made by Glaser about Frantz's age to him, other employees, and customers constitute direct ...

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