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Taby v. Fireman's Fund Insurance Co.

September 30, 2009


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


Kevin B. Taby is suing the Fireman's Fund Insurance Company, his former employer, for employment discrimination based on age pursuant to the Age Discrimination in Employment Act,*fn1 29 U.S.C. §§ 621, et seq., and the Pennsylvania Human Relations Act,*fn2 43 P.S. §§ 951, et seq. In his complaint, removed here from the Court of Common Pleas of Northampton County, Mr. Taby brings claims for disparate treatment, disparate impact, and unlawful retaliation. The defendant filed a motion for summary judgment, and the plaintiff responded. For the following reasons, I will grant the motion in its entirety.


Kevin Taby, born in 1956, began his employment at the Fireman's Fund Insurance Company in February 1984. See Compl. ¶ 3. The complaint alleges that during his employment, Mr. Taby received twenty-one satisfactory performance evaluations. Id. ¶ 7. At the time of his termination, he held the position of phone team manager. Id. ¶ 6. Sally Custenborder, Mr. Taby's direct supervisor, asked Mr. Taby to give a written performance warning to Adjner Gedeus, an African American woman over the age of forty whom Mr. Taby alleges was disabled. Id. ¶¶ 9-11. Mr. Taby objected to the request because there were three other employees who had received verbal warnings for the same performance issues. Id. ¶¶ 12-14. Those employees were not in a protected class. Mr. Taby sought guidance from the defendant's human relations department because he felt uncomfortable giving a written warning to an employee in a protected class. Id. ¶ 15. The human relations department allegedly advised Mr. Taby to issue a verbal warning to Miss Gedeus, rather than the written warning. Id. ¶ 16. The complaint alleges that when Miss Custenborder realized that Taby had issued a verbal warning against her instructions, she became furious with him and in turn gave Mr. Taby a verbal warning in retaliation. Id. ¶ 17.

Shortly thereafter, Geralyn Barbato replaced Miss Custenborder. Id. ¶ 18. After six weeks on the job, Miss Barbato decided to terminate Mr. Taby's employment citing performance problems. Id. ¶ 19. The complaint alleges that the defendant replaced Mr. Taby with Lynn Confalone, a younger female. Id. ¶ 23.


Summary judgment shall be awarded "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." FED.R.CIV.P. 56(c). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id.

A party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual 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." Celotex, 477 U.S. at 322. All inferences must be drawn and all doubts resolved in favor of the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gordon v.Youmans, 358 F.2d 261, 262 (2d Cir. 1965); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985); Liberty Lobby, 477 U.S. at 255. The court must decide not whether the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Liberty Lobby, 477 U.S. at 252. If the non-moving party has met the extraordinarily low burden of evidence and offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).


A. Disparate Treatment

In Counts I and IV of the complaint, Mr. Taby asserts claims for age discrimination, i.e., disparate treatment, under the ADEA and the PHRA, respectively.*fn4

He alleges that during his employment, his performance equaled or exceeded the standards established by the defendant, as evidenced by the satisfactory performance appraisals he received over the years. See Compl. ¶ 34. Thus, Mr. Taby alleges, given his satisfactory work performance and the lack of non-pretextual grounds for his termination, the defendant's motive must have been illegal and discriminatory. Id. ¶ 35. The defendant argues that it is entitled to judgment as a matter of law on these counts because there is no evidence of a discriminatory motive, and because it had a legitimate nondiscriminatory business reason for terminating Mr. Taby's employment. I agree.

To establish a disparate treatment claim under the plain language of the ADEA, a plaintiff must prove that age was the "but-for" cause of the defendant's adverse decision. Gross, 129 S.Ct. at 2350 (a plaintiff must prove by a preponderance of the evidence, which may be direct or circumstantial, that age was the "but-for" cause of the challenged employer decision). The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Id. at 2352. An employer discriminates because of age only if the employee's age actually played a role in the employer's decisionmaking process and had a determinative influence on the outcome. Id. at 2355 (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). An employer defending an ADEA claim does not need to show why its conduct was not discriminatory until the plaintiff first presents evidence that he suffered at least some employment discrimination relating solely to his age. Id. at 2348.

The Supreme Court has approved analyzing an ADEA claim under the McDonnell Douglas framework when the parties agree, as here, that applying the framework is proper. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Under the McDonnell Douglas framework, an employee must first establish a prima facie case of discrimination, after which the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its adverse employment decision. If the employer articulates one or more such reasons, the aggrieved employee must then proffer evidence that is sufficient to allow a reasonable finder of fact to find by a preponderance of the evidence that the employer's proffered reasons are false or pretextual.

Milby v. Greater Philadelphia Health Action, et al., 2009 U.S. App. LEXIS 16420 at *3 (quoting Fasold v. Justice, 409 F.3d 178, 184 (3d Cir. 2005)).

To establish a prima facie case of age discrimination under the ADEA, a plaintiff must demonstrate that he (1) was over the age of 40; (2) was qualified for the position; (3) suffered an adverse employment decision; and (4) ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination. Barbee v. SEPTA, et al., 323 Fed. Appx. 159, 161 (2009) (quoting Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 300-301 (3d Cir. 2004)).

It is undisputed that Mr. Taby satisfies the first element of the prima facie case in that he was born in 1956 and was 49 years old when he was terminated. The remaining two elements, however, need further evaluation.

Mr. Taby alleges that he was replaced by Lynn Confalone, a younger employee. However, at his deposition, Mr. Taby testified that the defendant had hired Miss Confalone before he was terminated, that he did not know what her title was, that he had no personal knowledge regarding her responsibilities, and that he had no personal knowledge whether she was over forty years of age when she was hired. See Taby Dep. at 152-153. Kim Tredo, the defendant's senior human resources consultant, indicated that Miss Confalone was hired by the defendant in August 2005 as a Project Manager, that she was forty-two years old when she was hired, and that she was not hired to replace Mr. Taby. See Tredo Aff. ...

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