The opinion of the court was delivered by: David Stewart Cercone United States District Judge
John Geisel ("Plaintiff") commenced this employment discrimination suit against his former employers, The Primary Health Network ("Network") and The Primary Health Charitable Foundation ("Foundation"), seeking redress for failure to promote based on age and for perpetuating a hostile work environment based on age and retaliation which resulted in plaintiff's constructive discharge. Plaintiff's complaint sets forth causes of action for disparate treatment based on age, retaliation for engaging in protected activity and hostile work environment which culminated in plaintiff's constructive discharge in violation of the Age Discrimination in Employment Act ("ADEA") and Title VII.*fn1 Presently before the court are defendants' motions for summary judgment. For the reasons set forth below, Foundation's motion will be granted in part and denied in part and Network's motion will be denied.
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue 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 (1986).
In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846 (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).
The record as read in the light most favorable to plaintiff establishes the background set forth below. Plaintiff was hired by Network in 1993 to perform part-time maintenance. Plaintiff was promoted to Director of Facilities in 1996. Plaintiff's daily duties were comprised of performing routine maintenance on Network's buildings. Plaintiff would either receive tasks directly or perform them based on his own initiative. Plaintiff was also responsible for assigning work to other maintenance employees.
In addition to his daily duties, plaintiff developed bid specifications, obtained estimates for new work projects, selected and coordinated bids, and oversaw the construction of new buildings and improvements on existing buildings. Plaintiff did not have computer or lease negotiation experience.
In early 2006, Network decided to restructure and create a new Facilities Administrator position. Plaintiff had a conversation with Network's dentist, wherein the dentist indicated that he had heard that plaintiff was being replaced by Mark Marriott ("Marriott"). Plaintiff was unaware of Network's decision to restructure and asked to meet with Network CEO Jack Laeng ("Laeng") out of concern about his position. Laeng told plaintiff he was satisfied with plaintiff's performance. The opening for the new position was not mentioned by Laeng and plaintiff was not thereafter encouraged to apply. During the meeting, Laeng asked when plaintiff planned to retire.
On April 1, 2006, Marriott was hired as Facilities Administrator. Marriott had been recommended to Laeng by friends.*fn2 The opening was never posted or advertised. The responsibilities of Facilities Administrator ultimately were refined to require "the person holding that position to administer service and construction contracts, solicit bids for construction projects, develop or arrange leases for the Network, assist with preparation of budgeting and tracking expense against budgets, as well as have computer literacy in Microsoft Word and Excel." Foundation's Concise Statement of Material Facts (Doc. No. 81) at ¶ 5.
A memorandum announcing Marriott's hire stated that Marriott's duties would be "[the] identification of new sites and or buildings for use by the Network and the management of leases, bids and housekeeping services." Deposition of Laeng (Doc. No. 63-6). As Facilities Administrator, Marriott identified his basic duties as retrieving and categorizing work orders, giving his employees daily assignments, and disbursing the employees to perform their assignments.
After high school Marriott worked in the carpentry and construction fields. According to Marriott's resume he was experienced in contract negotiation, project estimation, building regulations, material purchasing, recognizing design problems, budget analysis and construction planning and scheduling. Marriott had little or no familiarity with Microsoft Word or Excel at the time he was hired. Marriott completed Microsoft Word I training on October 19, 2006, Excel I training on October 26, 2006 and Excel II training on November 9, 2006.
Following Marriott's hire plaintiff experienced several changes to his daily routine. First, a certain amount of discretion in performing daily tasks was lost. Second, Network employees' requesting maintenance work were no longer able to contact plaintiff directly. Finally, his duty of setting the work schedule for the maintenance department was subsumed by Marriott.
Marriott made it clear to plaintiff that plaintiff was no longer in charge and was now under Marriott's direct order. Marriott took over the discretionary and supervisory duties that plaintiff had maintained under past supervisors. For example, plaintiff recalled an instance where plaintiff and another co-worker were changing outdoor light bulbs on a nice day. Marriott admonished plaintiff for taking this initiative - stating that plaintiff was to do nothing without the directive of Marriott. Additionally, Marriott took over a number of plaintiff's duties, including "retrieving and categorizing work orders, assigning work to his employees, and disbursing them to perform the work."Deposition of Marriott (Doc. No. 75-2) at page 8.
On September 25, 2006, plaintiff filed an EEOC claim against Network alleging unlawful discrimination on the basis of age in conjunction with the hiring of a new Facilities Administrator. Directly thereafter, plaintiff was no longer permitted to go upstairs in the administrative building. No explanation was provided for this prohibition.
Plaintiff filed a second claim against Network on June 6, 2007 for hostile work environment. Network hired a private detective to investigate plaintiff and interview plaintiff's co-workers, including Drew Welch ("Welch"). Shortly before a scheduled interview, Welch indicated to plaintiff that he felt uncomfortable meeting with the detective, stating "if I tell the truth, I jeopardize my job. If I lie, I screw you." Deposition of Geisel (Doc. No. 63-2) at 142.*fn3
The detective also interviewed Marriott and other co-workers of plaintiff, such as Mary Lynne Reed.
Plaintiff raises several other incidents in support of his hostile work environment claim. In 2005, plaintiff's immediate supervisor, Bill Friedrich ("Friedrich"), asked plaintiff to quit and in the process told plaintiff that Laeng had ordered Friedrich to fire plaintiff if he did not quit. Marriott taunted plaintiff on several occasions. For example, on a cold day when plaintiff was shoveling snow, Marriott called plaintiff and commented about the irony of Marriott being a 38 year old man in his warm office watching a 60 year old man shovel snow. Similar taunting occurred on hot summer days while plaintiff was cutting grass. Marriott later told plaintiff that he was sorry for treating plaintiff in this manner, explaining that Marriott had been directed either to find a reason to fire plaintiff or provoke him to quit.
Plaintiff worked for Network until January 31, 2008 when responsibility for facilities management and maintenance services for Network was transferred to co-defendant Foundation. Employees were required to reapply with Foundation as part of this process. Mark Tallarico ("Tallarico") was in charge of the hiring process. Plaintiff applied for the position of Facilities Administrator. Marriott was hired for the position. Plaintiff was hired by Foundation on February 1, 2008, as Director of Facilities. Plaintiff's pay and job responsibilities remained the same.
Plaintiff had a satisfactory work record during his course of employment. Laeng testified that plaintiff's performance throughout his employment was adequate. Plaintiff received salary increases following yearly evaluations. Plaintiff was written up once by Marriott for not performing a task within a given time period. However, the job had to be performed under poor working conditions and plaintiff had made every reasonable effort to complete the job on time.
On October 14, 2008, Welch and plaintiff were working at a job site when they got into a verbal confrontation. Welch left the job site. Marriott instructed plaintiff to clean up the job site, find Welch, and return to his office to meet with Marriott and Tallarico. When Welch and plaintiff arrived at the office, Welch left work and stated that he would meet with Marriott and Tallarico the next day. Welch was not disciplined for failing to attend the meeting as directed. Following this incident, plaintiff asked for and was given three days vacation time, with the expectation that he return to work the following Monday. Plaintiff viewed the incident as the "last straw" and submitted a letter of resignation on October 17, 2008. Plaintiff was told that his job was still open and Foundation wanted him to return.
I. Plaintiff's Failure to Hire\Promote Claim Under the ADEA
It is well-settled that claims of discrimination based on circumstantial evidence are to be evaluated at summary judgment using the shifting burdens of proof initially established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). St. Mary Honor Center v. Hicks, 509 U.S. 502, 506 (1993); Waldron v. SL Industries, Inc., 56 F.3d 491, 495 (3d Cir. 1995) (citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). Under this framework the parties' respective evidentiary burdens have been summarized as follows:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the [adverse employment action]. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981) (citation omitted).
Under the indirect evidence approach a plaintiff must present a prima facie case of discrimination. Keller v. Orix Credit Alliance, Inc.,130 F.3d 1101, 1108 (3d Cir. 1997). The major purpose of the prima facie case is to eliminate the most obvious lawful explanations for the defendant's adverse employment action and raise a presumptive inference of discrimination. Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 352 (3d Cir. 1999) (citing Burdine, 450 U.S. at 253-54 ("[t]he prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection.")). A prima facie case raises an inference of discrimination because the presumed circumstances, if left unexplained, indicate it is likely that the defendant's actions were based on consideration of impermissible factors. Id. (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)).
There is no talismanic formula for presenting a prima facie case. Jones v. School District of Philadelphia, 198 F.3d 403, 411 (3d Cir. 1999) ("the elements of a prima facie case depend on the facts of the particular case"). The relevant inquiry is whether the plaintiff has suffered an adverse employment action under circumstances which raise an inference of unlawful discrimination. Waldron, 56 F.3d at 494. Plaintiff's burden at this step is "minimal" and is viewed as a means of presenting a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. Id.; see also Furnco, 438 U.S. at 577.
If the plaintiff presents a prima facie case, the second stage of the McDonnell Douglas paradigm requires the defendant to articulate a legitimate explanation for the adverse employment action. Keller, 130 F.3d at 1108. The defendant's burden at this step is one of production, not persuasion, and the court's consideration of it "can involve no credibility assessment." St. Mary's Honor Center, 509 U.S. at 509. If the defendant meets this burden, the presumption of discrimination created by the prima facie case "drops" from the case. St. Mary's Honor Center, 509 U.S. at 511; Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).
Once the defendant has met its burden of production and provided a legitimate explanation for its adverse employment action, the court's analysis turns to the third and final step of the inquiry, which is usually the most critical in resolving a motion for summary judgment. Jones, 198 F.3d at 410. At this juncture the plaintiff must be afforded the "opportunity to [present evidence that is sufficient to] prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253. At trial, the plaintiff must have evidence that could convince the finder of fact "both that the [defendant's] reason was false, and that discrimination was the real reason." St. Mary's Honor Center, 509 U.S. at 515. This is because while the burden of production under the McDonnell Douglas analysis shifts, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Jones, 198 F.3d at 410 (quoting Burdine, 450 U.S. at 252-53 (1981)).*fn4
In general, a plaintiff may establish a prime facie case by demonstrating that (1) he is a member of a protected class, (2) he was qualified for the position, (3) he suffered an adverse employment action, and (4) the circumstances raise an inference of discrimination, such as where similarly situated individuals outside the protected class were treated more favorably. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002); see also Sheridan v. E. I. DuPont de Nemours & Co., 100 F.3d 1061, 1066 n. 5 (3d Cir. 1996) (en banc), cert. denied, 521 U.S. 1129 (1997) (discussing nature and purpose of prima facie case). The central focus of the inquiry is always whether the employee is being treated less favorably because of a protected trait. Pivirotto, 191 F.3d at 352 (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977)). In short, the plaintiff must be able ...