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Deangelo v. DentalEZ

September 2, 2010


The opinion of the court was delivered by: Gene E.K. Pratter, District Judge


Susan DeAngelo has sued her former employer, DentalEZ, Inc., as well as JEP Management Inc., and Jeffrey E. Perelman, the owner of both companies (collectively, "DentalEZ"), alleging age and gender discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), Title VII of the Civil Rights Act of 1964, and the Pennsylvania Human Relations Act ("PHRA"). DentalEZ moves for summary judgment on all counts. For the reasons discussed below, the motion is granted in part and denied in part.


A. Factual Background*fn1

Susan DeAngelo is 58 years-old. She was hired by DentalEZ, Inc.,*fn2 a producer of dental handpieces and scalers for use in dental offices, as Executive Assistant to the President and Sales Administrator on June 6, 1996. She was then 44 years-old. Beginning in April 1997, Ms. DeAngelo also served as the Office Manager for DentalEZ's corporate office in Malvern, Pennsylvania.

To perform her duties, Ms. DeAngelo sometimes was required to be away from her desk. (Pl.'s Ex. 7, Hagler Dep. at 57-59.) Her out-of-office duties increased in late 2007, when she was put in charge of overseeing and carrying out the logistics of moving DentalEZ's corporate headquarters to a new location. (Pl.'s Ex. 3, DeAngelo Dep. at 95, 98; Pl.'s Ex. 12, Denman Dep. at 59, 63.) Ms. DeAngelo's supervisors were aware that this new job responsibility would require her to be out of the office. (Pl.'s Ex. 6, Clements Dep. at 70; Pl.'s Ex. 7, Hagler Dep. at 61, 78-9; Pl.'s Ex. 12, Denman Dep. at 67-70.) At the same time, her job also required her to be accessible to DentalEZ employees during normal working hours, and to act as a liaison between the company President and senior management. (Defs.' Ex. 5, Assistant to the President/Office Manager Job Description.)

In 2005, DentalEZ hired Gordon Hagler to be the new President, and he became Ms. DeAngelo's immediate supervisor. (Defs.' Ex. 6, Hagler Dep. at 8.) Mr. Hagler's position required a great deal of travel, and he was out of the office several times a month. (Defs.' Ex. 6, Hagler Dep. at 26-27.)

Other than these basic facts, the parties dispute the events leading to Ms. DeAngelo's termination on February 29, 2008.

i. DentalEZ's Version of Events Leading to Ms. DeAngelo's Termination

According to DentalEZ, at some point in the mid-2000s, Mr. Perelman began noticing a pattern that Ms. DeAngelo was away from her desk when he called the office. (Defs.' Ex. 3, Perelman Dep. at 141-142.) Mr. Perelman noticed that these situations often occurred when Mr. Hagler was traveling. (Defs.' Ex. 3, Perelman Dep. at 138-139.) Mr. Perelman subsequently voiced his dissatisfaction with Ms. DeAngelo's lack of accessibility to Karin Goldman, JEP Management's Director of Administration.

In early 2008, Ms. DeAngelo's attendance issues allegedly became more problematic when Mr. Hagler discovered that Ms. DeAngelo frequently was not accessible to Mr. Perelman when Mr. Hagler was traveling. (Defs.' Ex. 6, Hagler Dep. at 72-3.) Mr. Hagler also was informed that Ms. DeAngelo was not submitting the requisite attendance documentation in connection with her absences to DentalEZ's payroll administrator, Joyce Hafner. (Defs.' Ex. 6, Hagler Dep. at 72-3.)

According to DentalEZ, during this time period, Mr. Perelman again attempted to contact Ms. DeAngelo regarding a business matter, but was advised that she was not in the office. (Defs.' Ex. 3, Perelman Dep. at 167-169.) This prompted Mr. Perelman again to voice his displeasure to Ms. Goldman regarding Ms. DeAngelo's lack of accessibility. (Defs.' Ex. 7, Goldman Dep. at 94.) After this conversation, Ms. Goldman contacted Ms. Hafner to determine if Ms. DeAngelo had taken approved time off. (Defs.' Ex. 7, Goldman Dep. at 91-93.)

When Ms. Goldman contacted Ms. Hafner, she claims that Ms. Hafner said she was relieved that someone was finally looking into Ms. DeAngelo's attendance. Ms. Hafner reportedly told Ms. Goldman that Ms. DeAngelo would often disappear without informing anyone in the office of her whereabouts. (Defs.' Ex. 7, Goldman Dep. at 105-107.) Ms. Hafner further advised Ms. Goldman that this was problematic because Mr. Perelman periodically called looking for Mr. Hagler or Ms. DeAngelo, and the office staff did not know their whereabouts. (Defs.' Ex. 9, Hafner Dep. at 67-69.) Following her conversation with Ms. Hafner, Ms. Goldman informed Mr. Perelman of what Ms. Hafner had told her. (Defs.' Ex. 7, Goldman Dep. at 131-134.)

The following week, namely sometime in mid-February 2008, Mr. Hagler and Mr. Perelman both attended the Chicago Dental Society mid-winter meeting. Prior to leaving for Chicago, Mr. Hagler told Ms. DeAngelo to submit any missing attendance slips while he was away. (Defs.' Ex. 6, Hagler Dep. at 72-73, 180-181, 183.) Ms. DeAngelo told Mr. Hagler that she would submit the requisite attendance slips.

While Mr. Hagler and Mr. Perelman were in Chicago, Mr. Perelman expressed to Mr. Hagler his dissatisfaction with Ms. DeAngelo's lack of accessibility, and recommended that Ms. DeAngelo be terminated. (Defs.' Ex. 3, Perelman Dep. at 165-167.) Mr. Hagler, however, informed Mr. Perelman that he had addressed Ms. DeAngelo's attendance with her before he left for Chicago and had received assurances from Ms. DeAngelo that she would address the issue. (Defs.' Ex. 6, Hagler Dep. at 134-136.)

Mr. Hagler returned to DentalEZ on February 25, 2008. At that time, he asked Ms. DeAngelo if she had submitted the missing attendance slips to Ms. Hafner. (Defs.' Ex. 6, Hagler Dep. at 95-97.) Ms. DeAngelo said that she had. Later that day, Mr. Hagler asked Ms. Hafner about Ms. DeAngelo's missing attendance slips, and Ms. Hafner reported that Ms. DeAngelo did not, in fact, turn in any attendance slips while Mr. Hagler was in Chicago.*fn3 (Defs.' Ex. 6, Hagler Dep. at 95-97.)

On February 27, 2008, Mr. Hagler again contacted Ms. Hafner to determine if Ms. DeAngelo had submitted her missing attendance slips. Ms. Hafner informed him that Ms. DeAngelo had still not spoken with her about the missing attendance slips. (Defs.' Ex. 6, Hagler Dep. at 95-97.) Mr. Hagler then terminated Ms. DeAngelo's employment at DentalEZ on February 29, 2008.

ii. Ms. DeAngelo's Version of Events Leading to Her Termination

Ms. DeAngelo presents a significantly different account. According to Ms. DeAngelo, two or three weeks before she was terminated, she saw Mr. Perelman enter Mr. Hagler's office and heard him say, "I want that old bitch fired." (Pl.'s Ex. 3, DeAngelo Dep. at 118.) Only after she was fired did she realize that Mr. Perelman was referring to her as the "old bitch." (Pl.'s Ex. 3, DeAngelo Dep. at 118.) Ms. DeAngelo alleges that such language was not unusual for Mr. Perelman, who had previously referred to her as a "fucking secretary." (Pl.'s Ex. 3, DeAngelo Dep. 155.)

According to Ms. DeAngelo, Mr. Perelman made the decision to terminate Ms. DeAngelo after not being able to reach her in early February 2008. At that time, Ms. Goldman tried to talk Mr. Perelman out of the decision, telling him that termination was not the way to handle the situation. (Pl.'s Ex. 5, Perelman Dep. at 187; Pl.'s Ex. 15, Goldman Dep. at 133.) Nevertheless, Mr. Perelman was adamant that Ms. DeAngelo be fired. (Pl.'s Ex. 15, Goldman Dep. at 132.) When Mr. Hagler formally terminated Ms. DeAngelo, he emphasized that she was being terminated because "the owner of the company feels we can't trust you." (Pl.'s Ex. 3, DeAngelo Dep. at 62.)

During her employment at DentalEZ, Ms. DeAngelo received positive performance reviews and pay raises every year. (Pl.'s Ex. 11, Wage and Salary Review Forms.) In the three performance reviews before her termination, Mr. Hagler rated Ms. DeAngelo's performance as "Exceptional" overall, the highest rating allowed. (Pl.'s Ex. 16, 2008 Performance Evaluation; Pl.'s Ex. 17, 2007 Performance Evaluation; Pl.'s Ex. 18, 2006 Performance Evaluation.) Two months prior to terminating her, Mr. Hagler wrote in her annual evaluation under attendance, "Punctual and always reachable even when out of office." (Pl.'s Ex. 16, 2008 Performance Evaluation.) Before the termination at issue, Ms. DeAngelo contends that she was never disciplined, never received any reprimands or disciplinary warnings, and never received negative comments about her attendance or availability. (Pl.'s Ex. 3, DeAngelo Dep. at 86-87.)

B. Procedural Background

Ms. DeAngelo filed an administrative complaint with the Pennsylvania Human Rights Commission ("PHRC") on May 13, 2008, alleging age and gender discrimination. On December 18, 2008, Ms. DeAngelo requested a Right to Sue letter from the Equal Employment Opportunity Commission, which she received on January 16, 2009.

Ms. DeAngelo filed her original Complaint here on February 6, 2009, against DentalEZ and JEP Management, Inc., initially alleging violations of the ADEA and Title VII. On May 18, 2009, Ms. DeAngelo filed her Amended Complaint, adding PHRA claims against DentalEZ, JEP Management, and Jeffrey E. Perelman in his individual capacity. Following a period of discovery, DentalEZ filed the summary judgment motion and the parties presented oral argument.


Upon motion of a party, summary judgment is appropriate "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 a judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" 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). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing the district 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 moving party's initial 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 the initial burden, "the adverse party's response, by affidavits or as otherwise 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. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing, that is, the non-moving party. Anderson, 477 U.S. at 255.


A. Whether Ms. DeAngelo May Assert Both Age and Gender Discrimination ...

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