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Mayk v. Reading Eagle Co.

March 24, 2010

GARY MAYK, PLAINTIFF
v.
READING EAGLE COMPANY, DEFENDANT



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

MEMORANDUM

Gary Mayk brings this case against the Reading Eagle Company, his current employer, alleging employment discrimination based on age and disability. The three-count complaint asserts two violations of the Age Discrimination in Employment Act ("ADEA") of 1967, 29 U.S.C. §§ 621, et seq., and a violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq. The defendant has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, I will grant the motion in its entirety, and enter judgment in favor of the defendant.

I. BACKGROUND

Gary Mayk was born on February 22, 1951, and has been employed by the defendant newspaper since 1996 when he was hired as a part-time copy editor by Charles Gallagher,*fn1 the Managing Editor. See Mayk Dep. at 11, 25. Later, Mr. Mayk became a full-time copy editor and was responsible for editing stories for grammar, fairness and factual accuracy, writing headlines and captions, designing inside pages of the newspaper, and performing related work. See Mayk Dep. at 11-13, 26. In 1998, Mr. Mayk was promoted to Metro Editor and became responsible for supervising half of the defendant's reporters and directing them to create content for the newspaper, focusing on the Reading suburbs. Id. at 26-27.

In 2000, Mr. Mayk asked for and was given a demotion to copy editor because of stress, depression, and severe migraines. Id. Mr. Mayk shared this medical information with management as an explanation for his request for demotion. Id. at 30. Even though the copy editor position was a demotion, the defendant continued to pay Mr. Mayk the same higher salary he received as Metro Editor. Id. at 28; see also Deitz Aff. ¶ 4; Gallagher Aff. ¶ 3.

Throughout the years, the defendant accommodated Mr. Mayk's requests to work various schedules. He currently works Friday through Tuesday, allowing him to have two consecutive days off each week. See Mayk Dep. at 14-15. The defendant has also granted Mr. Mayk's requests for time off or for additional breaks at work due to his migraine headaches. Id. at 29-30. On several occasions, he took extended leaves from work for both physical and mental health reasons. Id. at 44-45. Upon return from these leaves, Mr. Mayk experienced no effect on his position or status with the defendant. Id. at 46. He also conceded that he received no formal disciplines, suspensions, decreases in pay, or other punishment during his employment with the newspaper. Id. at 49.

In April 2006, Mr. Mayk received an annual performance review which noted he needed to focus on his job and work on his anger issues. Compl. ¶¶ 11-12. The review's overall score, however, was "above required," the highest score the company offers. Id. Mr. Mayk's job performance continues to be exemplary. See Mayk Dep. at 32. Mr. Mayk testified that he does not think he continues to have occasional angry outbursts at work. Id. at 37.

In June 2006, News Editor John Forester*fn2 asked Mr. Mayk to edit a series of stories on mental illness. See Mayk Dep. at 38. Mr. Mayk felt that Mr. Forester asked for his help to ensure the accuracy of the series, and because Mr. Forester was expressing confidence in Mr. Mayk's work, rather than because of Mr. Mayk's own mental health issues. Id. at 38, 41. On the second day of the series, Mr. Mayk noticed a notation in the margin of a story he had edited which stated: "what does this mean to the average loonytoon" referring to people with mental illness. Id. at 38. This remark offended and insulted Mr. Mayk, but he declined to employ the defendant's mechanism to complain about the harassment due to fear of retaliation. Id. at 38-39, 41, 42. Mr. Forester admitted that he had written the note, but did not apologize to Mr. Mayk. Id. at 39. The remark was also posted briefly on the newspaper's website, but not in the newspaper itself. Id. at 41. As soon as the remark came to its attention, the defendant's management agreed that the notation was inappropriate and it was removed. See Deitz Aff. ¶ 5; see also Gallagher Aff. ¶ 4. Mr. Forester was counseled for his poor judgment. Id.

Mr. Mayk admitted that other than this one remark, Mr. Forester did not make any other offensive comments. Id. at 41. In fact, there were no other comments from anyone else at work which were offensive to Mr. Mayk. Id. at 42. Once, however, when Mr. Mayk complained to Editor Harry Deitz*fn3 about not being named a writing coach,*fn4 Mr. Deitz responded, "you had a chance to be a key part of this team and you chose not to." Id. at 46; see also Deitz Aff. ¶ 6. Mr. Mayk viewed this response as evidence that he was being punished. See Mayk Dep. at 48-49. Mr. Deitz indicated that his response was not intended to reflect an attitude of punishment to Mr. Mayk but to explain to whom the responsibility of coaching writing belongs. See Deitz Aff. ¶ 6. The reporters Mr. Mayk wanted to coach were supervised by Metro Editor Jim Kerr whose responsibility it was to supervise reporters including coaching them on their writing. Id. Mr. Deitz told Mr. Mayk that he anticipated that his input would be welcome when it came to coaching the writers but that he would need to speak with Mr. Kerr before coaching them. Id. In fact, Mr. Mayk currently is sought out by interns and reporters at the newspaper for writing assistance, and he has provided such assistance since 2008. Compl. ¶¶ 35-36.

Mr. Mayk also testified that management asked its employees to set goals for themselves each year in addition to the goals management set for them. See Mayk Dep. at 32-33. Other copy editors informed Mr. Mayk that they presented various goals to management, and management considered those goals and permitted the copy editors to try to meet their goals. Id. at 37. Mr. Mayk testified that his goals were not given such consideration. Id. In 2002, one of the goals Mr. Mayk set for himself was to write a column for the newspaper. Id. at 32-33. When Mr. Mayk asked if he could write such a column, he was allegedly told that he was not permitted to submit a periodical column but that he could perhaps submit one for "Sound Off," a column which was open to anyone on the staff. See Compl. ¶¶ 26, 27. When Mr. Mayk discussed a potential article for "Sound Off," Mr. Gallagher refused to approve it because the topic was "too liberal." Id. ¶ 30. Mr. Mayk also indicated that he was denied a column because the defendant wanted him to focus on his job rather than taking on additional responsibilities. See Mayk Dep. at 36.

In his affidavit, Mr. Gallagher indicated that at some point Mr. Mayk suggested a column pertaining to home remodeling. See Gallagher Aff. ¶ 5. Mr. Gallagher directed Mr. Mayk to address that topic with the Marketing Department which was responsible for those types of stories. Mr. Mayk declined to do so. Id. Other times, when Mr. Mayk requested to be permitted to write a column, Mr. Gallagher told him to submit the idea and three columns for consideration in keeping with the newspaper's practice.*fn5 Id. Mr. Mayk again declined. Id.

Mr. Mayk testified that younger reporters, i.e., those thirty years old and younger, were offered the opportunity to submit three columns for consideration to be a columnist. See Mayk Dep. at 51. Three of those reporters "suggested that they should be able to write columns because they are young and that, therefore, they would appeal to young readers." Id. The defendant allegedly decided "that all those young reporters would get columns," and ran "advertisements boasting that it had asked all of its young reporters to write columns." Id. at 52. Mr. Mayk claims that no such offer was extended to the newspaper's older staff members. Id.

I note that even if Mr. Mayk had been awarded a column, however, he would not have received additional compensation. See Mayk Dep. at 37; see also Deitz Aff. ¶ 11. In 2005, the nominal payments of $20.00 per column ceased, and the writer no longer received additional compensation for them. Id.

Currently, Mr. Mayk has assumed a role writing for the newspaper. He writes a feature entitled "News Makers," for which he researches and assembles information on anyone prominent in the news. See Mayk Dep. at 33; see also Deitz Aff. ¶ 12.

In his affidavit, Mr. Deitz indicated that the defendant values Mr. Mayk as a good performer, and that it has rewarded Mr. Mayk with good performance evaluations and good pay increases. See ...


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