The opinion of the court was delivered by: Amy Reynolds Hay Chief United States Magistrate Judge
Chief Magistrate Judge Amy Reynolds Hay
In this employment discrimination action, the Plaintiff, Shirley Olejarz ("Olejarz" or "Plaintiff"), acting pro se, alleges that the Defendant, Shaler Township ("Defendant" or "Township"), violated her rights under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, the Family Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654, ("FMLA"), and the Pennsylvania Human Relations Act, 42 Pa. Cons. Stat. Ann. § 951 et seq. ("PHRA"), when it terminated her employment. Because the Court finds that the Plaintiff has failed to establish that the Defendant engaged in conduct prohibited by any of these statutes, it will grant the Defendant's Motion for Summary Judgment (Doc. 41 ).
Olejarz began work as a receptionist/office clerk with the Township in February 1988. (Doc. 44 Ex. A at 14-15). Except for two short periods in other areas, Olejarz was assigned to the Township's Water Department where her duties included posting payments, handling billing and collection, taking telephone calls, writing and scheduling orders, addressing complaints, and assisting with switchboard duties. (Id. Ex. C. at 31). From 1998 on, she reported to Mary Rapacchietti Round ("Round"), the Township's Benefits Administrator. Round, in turn, reported to Deborah Vita ("Vita"), who began her employment with the Borough in 1987 and was the Township's Assistant Manager, and to Timothy Rogers, who became the Township's Manager in 1992.
Although her early years with the Township appear to have been problem free, cracks in the employer-employee relationship were evident as early as August 1991. Olejarz contends that from that time until her termination, she was "subjected to a continuous pattern of less favorable and discriminatory treatment . . . This harassment and being 'singled-out' for disparate treatment created a hostile work environment [that] resulted in [her] ultimate terminations [sic]." (Doc. 44 Ex. A pt. 2 at 8). According to the Defendant, performance and attendance issues eroded the parties' relationship and reached a point of no return late in 2005. Following a hearing held pursuant to Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1984) (holding that public employee is entitled to pretermination hearing including notice of reasons for proposed action, explanation of supporting evidence, and opportunity to present "his side of the story"), the Township's Board of Commissioners ("the Board") terminated the Plaintiff's employment on December 14, 2005.*fn1 At the time, Olejarz was fifty- eight years old. ( Doc 1 ¶5).*fn2
The day following her termination, Olejarz filed a grievance with Teamsters Local 205, which was pursued to arbitration and resolved in favor of the Township in May 2006. (Doc. 44 Ex. A Pt 2 at 23). No appeal was taken. In September 2006, the Plaintiff dual filed a charge with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"), alleging discrimination based on age, retaliation, and "harassment and hostile work environment." (Id. at 6). A Dismissal and Notice of Rights was issued by the EEOC in May 2008, and the PHRC case was closed days later. (Id. Ex B at 27, 11). This action was filed in November 2009.
The parties do not agree on the reasons for the Plaintiff's discharge. Olejarz contends that her termination was based on age discrimination and was imposed in retaliation for her exercise of rights protected by the FMLA. The Defendant insists that the Plaintiff's discharge resulted from longstanding attendance issues and poor performance.
Summary Judgment is appropriate only where there are no genuine issues of material fact. Matsushita Elec. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue of material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, if the evidence, however, is "'merely colorable' or is 'not significantly probative,'" summary judgment may, nonetheless, be granted. Equimark Commercial Fin. Co. v. C.I.T. Fin. Serv. Corp., 812 F.2d 141, 144 (3d Cir.1987) (quoting Anderson, 477 U.S. at 249-50).
Erika Williams ("Williams") who was twenty-four when the Plaintiff was terminated, worked as an office clerk from March 2004 until her resignation in February 2008.
In evaluating the evidence, the Court must view the facts and the inferences to be drawn therefrom in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255. The burden of establishing that no genuine issue of material fact exists rests with the movant. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). At the summary judgment stage, the Court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. When examining the record to see if there are genuine issues of material fact, the Court's focus is on issue finding, not on issue resolution.
A. The Claim Based on Age Discrimination
1. The Analytical Framework
The Court's task is not to second-guess the Township's decision to terminate the Plaintiff's employment. Rather, it is to determine whether there is evidence to suggest that the decision was motivated by an illegal discriminatory purpose. Claims made under the ADEA and the PHRA are analyzed according to the familiar burden shifting approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Smith v. City of Allentown, 589 F.3d 684 (3d Cir. 2009). Under that approach, once a plaintiff produces evidence sufficient to establish a prima facie case, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the adverse employment decision. See Stanziale v. Jargosky, 200 F.3d 101, 105 (3d Cir. 2000). If the employer is able to meet this "rather light burden, the plaintiff must discredit the defendant's proffered reason . . . or adduce evidence that the discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 300 (3d Cir. 2004) (citing Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004)).
A prima facie case of age discrimination has four elements. A plaintiff must show that she: 1) is over forty; 2) is qualified for the position in question; 3) experienced an adverse employment decision; and that 4) her replacement was sufficiently younger to permit a reasonable inference of age discrimination. Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001). A plaintiff must produce sufficient evidence to convince a reasonable factfinder of each element. Potence, 357 F.3d at 370.
The Defendant does not dispute that Olejarz has established the first three elements of a prima facie case. Olejarz contends that she has also established the fourth in that her job duties were absorbed by two employees, one of whom, Erika Williams ("Williams"), was twenty-four years old in December 2005. The Defendant is willing to presume, arguendo, that this is sufficient. The Court will do the same.
Because the elements of a prima facie case have been established, the Court considers the Defendant's contention that its decision to terminate Olejarz had a legitimate non-discriminatory basis - longstanding deficiencies in the Plaintiff's job performance and attendance. This contention is sufficient to satisfy the Township's minimal burden. Thus, in order to survive summary judgment, the Plaintiff must point to evidence in the record which would allow a factfinder reasonably either to disbelieve the Township's articulated legitimate reason for the termination, or to believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause. See Kautz v. Met-Pro Corp., 412 F.3d 463, 465 (3d Cir. 2005) (quoting Stanziale, 200 F.3d at 105). Accordingly, the Court turns next to whether Olejarz has raised a question of fact as to whether the Township's proffered reason for her termination was pretextual.
Proof of pretext does not require evidence of discrimination. "In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147 (2000). This "does not change [the] standard for proving pretext which 'places a difficult burden on the plaintiff.'" Id. at 467 (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)). "The question is not whether the employer made the best or even a sound business decision; it is whether the real reason is discrimination." Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (quoting Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir.1996)). The Plaintiff must present evidence "contradicting the core facts put forward by the employer as the legitimate reason for its decision." Id.
The Township asserts that it terminated Olejarz for performance-related reasons, including her "continual pattern of abuse of time off, punching in late, returning late from lunch breaks, falling asleep at lunch/breaks, personal phone calls while on the switchboard, ignoring the public works radio, leaving the water department counter unattended/ not acknowledg[ing] the presence of a customer, continually scheduling doctor and other appointments without prior notice, violati[ng] the dress code, continual[ly] . . . 'bucking' management, and negative influence in the office." (Doc. 43 at ¶ 102). In attempting to impugn the Township's assertions, Olejarz must contend with the record evidence bearing on her job performance.*fn3 This evidence is summarized by date and substance:
! August 1991- issues were raised with the Plaintiff including the need to refrain from placing incoming calls on hold, delay in answering the telephone due to conversations with co-workers, making excessive personal calls, and leaving her work station too often and for too long. Other issues noted included Olejarz's failure to sort mail promptly, her lack of response to base radio calls, talking with customers for too long before routing calls, failing to wait on customers, and reading the newspaper during work hours. Also cited were her failure to complete and total invoices, and neglecting to include a single vendor with multiple invoices on a single summary sheet. (Doc. 44 Ex. A pt. 2). ! March 1992 - Olejarz failed to comply with instructions to put social security numbers on checks. (Doc. 47 Ex. 8 at 19). ! April 1992 -Two memos regarding overtime requirements were placed in the Plaintiff's personnel file. She also received memos regarding tardiness, incorrect filing of taxpayer submissions, failing to give priority to accumulated mail, and taking time off without permission (Id.). ! May 1992 - Olejarz was instructed that if she failed to give adequate notice, her request for time off would be denied. The record also references a "grievance for insubordination regarding overtime requirements by the Township." (Id.). ! December 1992 - Olejarz left the earned income tax drawer containing cash at the counter over the weekend in violation of policy requiring that the drawer be emptied and cash placed in the safe. (Id.) ! February 1993 - The Plaintiff received a memo regarding excessive tardiness. (Id.). ! January 1995 - Olejarz was observed making personal calls while manning the switchboard, ignoring a foreman's radio call, and making a doctor's appointment during working hours. She was warned about ...