The opinion of the court was delivered by: Christopher C. Conner United States District Judge
Plaintiff Michael D'Altilio brings this action alleging that defendants violated his right to equal protection and discriminated against him on the basis of national origin and age while he served as director of the Department of Public Works for Dover Township. Presently before the court is the motion (Doc. 68) for summary judgment filed by defendants Dover Township and township supervisors Madelyn Shermeyer, Donald Bonsell, and Duane Hull. For the reasons that follow, the defendants' motion will be granted in part and denied in part.
I. Factual Background*fn1
In late 2003, Michael D'Altilio applied for a job as director of the Department of Public Works with defendant Dover Township. (Doc. 75, Ex. A at 23-24.) Township policy vests hiring decisions with township manager Michael Morris ("Morris"). (Doc. 75, Ex. P ¶ 2.26.) Because this was a key position, however, Morris arranged for three candidates, including D'Altilio, to interview with the township's board of supervisors. (Doc. 70 ¶¶ 14-15; Doc. 75 ¶¶ 14-15.) Morris was in favor of hiring D'Altilio. (Doc. 70 ¶ 17; Doc. 75 ¶ 17.) After the board concluded its interviews, defendant township supervisor Madelyn Shermeyer ("Shermeyer") favored hiring a younger candidate instead of D'Altilio, (Doc. 75, Ex. C at 15), but a majority of the supervisors agreed to hire D'Altilio, (Doc. 70 ¶ 30; Doc. 75 ¶ 30). Accordingly, Dover Township hired him on December 29, 2003. (Doc. 70 ¶ 40; Doc. 75 ¶ 40.) D'Altilio was sixty-four years old on his date of hire. (Doc. 70 ¶ 41; Doc. 75 ¶ 41.)
Pursuant to Dover Township policy, D'Altilio underwent a six-month probationary period. (Doc. 70 ¶ 43; Doc. 75 ¶ 43.) During this period defendant township supervisor Donald Bonsell ("Bonsell") and supervisor Shermeyer received a number of complaints about D'Altilio's performance. (Doc. 70 ¶¶ 45, 113, 156; Doc. 75 ¶ 156; Doc. 75, Ex. C at 63:8-9, 72-73, 75, 78, 85-87). As a result, Morris commenced an investigation into eight issues, (Doc. 70 ¶ 154; Doc. 75 ¶ 154; Doc. 75, Ex. C at 64:2-3, 72:17-18, 75:7-15), including more than one instance in which D'Altilio's abruptness demonstrated a poor attitude.*fn2
Both Shermeyer and Bonsell expressed a desire to terminate D'Altilio's employment at the end of his probationary period. (Doc. 70 ¶ 109; Doc. 75 ¶¶ 109; Doc. 71, Ex. E at 201-03.) Nevertheless, by majority vote, the five-member board of supervisors extended D'Altilio's probationary period an additional sixty days in order for Morris investigate and resolve the outstanding issues concerning D'Altilio's performance. (Doc. 70 ¶¶ 148, 152; Doc. 75 ¶¶ 148, 152.) At the conclusion of his investigation, Morris presented a report, dated June 28, 2004, to the board of supervisors. (Doc. 70 ¶ 154; Doc. 75 ¶ 154; Doc. 75, Ex. C at 72.) Morris recommended that the board grant D'Altilio permanent employment status. (Doc. 70 ¶ 161; Doc. 75 ¶ 161.) A majority of the board did so, with Shermeyer and Bonsell dissenting. (Doc. 70 ¶ 161; Doc. 75 ¶ 161; Doc. 71, Ex. E at 201.)
Various employees of Dover Township-including Dennis Jadro, Stephanie Barnes, and Laurie Rummel-allege that Shermeyer made derogatory remarks about D'Altilio on several instances around this time, referring to him as "Mafia Mike" because of his Italian descent and as "Humpty-Dumpty" because of his size and weight (Doc. 75 ¶ 243; Doc. 75, Ex. H at 42; Doc. 75, Ex. I at 10; Doc. 75, Ex. J at 15). In addition, Bonsell made allegedly derogatory comments about D'Altilio's work attire and commented to other township employees that D'Altilio "'[wasn't] one of us.'" (Doc. 71, Ex. C at 101; Doc. 75, Ex. Q ¶ 17.) Shermeyer and Bonsell remained unsatisfied with D'Altilio's job performance. (Doc. 71, Ex. E at 90:10-13; Doc. 71, Ex. E at Depo. Ex. 4; Doc. 71, Ex. C at 53:11-12.) They also objected to D'Altilio's hiring of a particular job applicant, in September 2004, due to the applicant's gender and size. (Doc. 84, Ex. A at 167-77; Doc. 84, Ex. B at 109-11.)*fn3
At a board meeting held December 13, 2004, Shermeyer asked for a motion to discharge D'Altilio, Bonsell made the motion, and defendant supervisor Duane Hull ("Hull") seconded it. (Doc. 75, Ex. L at 4.). In the ensuing discussion, supervisor Michael Husson ("Husson") took issue with the fact that D'Altilio's personnel file contained no documentation that would support discharge, such as complaints or formal reprimands.*fn4 (Doc. 70 ¶¶ 53, 160, 204; Doc. 75 ¶¶ 53, 160, 204.) Supervisor Shane Patterson ("Patterson") expressed concern that the motion circumvented the township manager's ordinance for discharging employees. (Doc. 75 ¶ 228.) Over the dissent of Patterson and Husson, however, a majority of the board approved the motion to discharge D'Altilio. (Doc. 70 ¶ 219; Doc. 75 ¶ 219; Doc. 75, Ex. L at 4.)
The board's resolution to dismiss D'Altilio departed from some of Dover Township's policies and customs. Township policy provides that "[a]ll dismissals shall be made by the Manager." (Doc. 75, Ex. K at 19.) Although Morris carried out D'Altilio's dismissal, Morris's testimony indicates that he was acting pursuant to the board's directive, not his own volition. (Doc. 75, Ex. C at 35-36, 42-43.) On no other occasions did the board direct Morris to dismiss an employee, except when it was voting to eliminate a position from the township budget. (Doc. 75, Ex. C at 39.) Township policy also provides that "[n]o dismissal shall occur until a written statement containing the charges is presented to the employee by the Manager and a hearing held within five (5) days to determine the validity of the charges and hear the employee's defense." (Doc. 75, Ex. K at 19.) D'Altilio received a notice of termination when the township dismissed him, but the township did not hold a hearing. (Doc. 75, Ex. C at 36-37.)
D'Altilio filed the present action on September 28, 2006. He alleges violations of his Fourteenth Amendment right to equal protection under 42 U.S.C. § 1983. He also advances claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-934; and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. STAT. ANN. §§ 951--963. Defendants filed a motion for summary judgment (Doc. 68) pursuant Rule 56(c) of the Federal Rules of Civil Procedure. The parties have fully briefed these issues, which are ripe for disposition.
Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). The burden of proof is upon the nonmoving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-movant on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
D'Altilio alleges violations of his right to equal protection by all defendants under 42 U.S.C. § 1983. He also asserts claims of disparate treatment in violation of the ADEA, Title VII and the PHRA against Dover Township, claims of retaliation in violation of Title VII and the PHRA against Dover Township, and a PHRA claim for individual liability against Shermeyer, Bonsell, and Hull (hereinafter collectively "individual defendants"). The court will address these issues seriatim.
A. Equal Protection Pursuant to 42 U.S.C. § 1983
D'Altilio advances a claim pursuant to 42 U.S.C. § 1983,*fn5 alleging that defendants deprived him of his right to equal protection guaranteed by the Fourteenth Amendment. Section 1983 provides protection when official action causes a "deprivation of rights protected by the Constitution." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). However, § 1983 is not an independent source of substantive rights. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Rather, "it provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Kneipp, 95 F.3d at 1204; see also Collins v. City of Harker Heights, 503 U.S. 115, 119 (1992) (stating that § 1983 "does not provide a remedy for abuses that do not violate federal law"). In order to establish a § 1983 claim, a plaintiff must demonstrate, first, the deprivation of a constitutional right, and, second, that a "person acting under the color of state law" is responsible for the alleged deprivation. Kneipp, 95 F.3d at 1204 (internal citations omitted); Collins, 503 U.S. at 120.
In the instant case, the undisputed facts show that defendants acted under color of state law by discharging D'Altilio through a formal vote and resolution of the board of supervisors. See Russoli v. Salisbury Twp., 126 F. Supp. 2d 821, 839 (E.D. Pa. 2000) ("Actions by an officer in his official capacity are under color of law even if they are not in furtherance of state policy and even if they violate state law."). D'Altilio has satisfied the first of the prima facie inquiries; the court therefore turns to the alleged deprivations of his equal protection right.
The Equal Protection Clause of the Fourteenth Amendment directs that all similarly situated individuals be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Two theories exist upon which a plaintiff may predicate an equal protection claim: the traditional theory and the class-of-one theory. The traditional theory protects a plaintiff from discriminatory treatment based on membership in a protected class such as race. See, e.g., id.; McLaughlin v. Florida, 379 U.S. 184, 192 (1964). To assert a protected class claim, the plaintiff must demonstrate that (1) he or she is a member of a protected class and (2) the government treated similarly situated individuals outside of the protected class differently. See Oliveira v. Twp. of Irvington, 41 F. App'x 555, 559 (3d Cir. 2005) (observing that a prima facie case under the Equal Protection Clause requires plaintiffs to prove membership in "a protected class and that they received different treatment than that received by other similarly-situated individuals"); Keenan v. City of Phila., 983 F.2d 459, 465 (3d Cir. 1992). Under this theory a plaintiff "must prove the existence of purposeful discrimination" by defendants. Keenan, 983 F.2d at 465.
In contrast, under the class-of-one theory, a plaintiff may advance an equal protection claim absent membership in a protected class if the plaintiff shows irrational and intentional differential treatment when compared with similarly situated individuals. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). This theory allows a plaintiff to assert an equal protection claim regardless of protected class when the government irrationally treats the plaintiff differently than similarly situated individuals. Id. at 564; Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). To assert a class-of-one claim, D'Altilio must demonstrate "that
(1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment." Hill, 455 F.3d at 239.
D'Altilio advances claims under both theories against all defendants. The court will first analyze whether D'Altilio's claim against the individual defendants can survive summary judgment under either theory. ...