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Anderson v. Radio One

September 20, 2010


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


Plaintiff, Cheryl Anderson, has alleged that Defendant, Radio One, Inc., terminated her employment in violation of both the Age Discrimination in Employment Act, 29 U.S.C. 631 et seq., ("ADEA") and Title I of the Americans with Disabilities Act, 42 U.S.C. 12111 et seq., ("ADA"). Before the Court is Defendant's Motion for Summary Judgment, which seeks dismissal of both claims. Because Plaintiff has failed to produce sufficient evidence establishing: (1) that her discharge was pretextual under either statute; and (2) that she is disabled within the meaning of the ADA, Defendant's motion will be granted.


Unless otherwise indicated, the facts discussed below are undisputed. Plaintiff, who was forty-eight years of age during the relevant time periods, had been diagnosed with high blood pressure in 1996. She also suffered a heart attack in 2005. Defendant, Radio One, Inc. (hereinafter "Radio One"), is a broadcasting company that operates radio stations in the Philadelphia area. During the summer of 2007, Radio One initiated a contest to fill a programming assistant position, which would support the program directors. Plaintiff won the contest and began her employment with Radio One on October 15, 2007, primarily being tasked with administrative functions. (Def.'s State. Facts, ¶¶ 1, 15-16, 19, 70, 73.)

Plaintiff's direct supervisor was Elroy Smith, the operations manager of the Philadelphia stations. (Def.'s State. Facts, ¶ 3.) Cheryl Golden and Moresha Strickland were assistant program directors, who indirectly supervised Plaintiff's work. (Def.'s State. Facts, ¶ 4; Hicks Depo., pp. 41-42; Strickland Depo., pp. 37-38; Golden Depo., p. 40.) Karen Hicks, who managed accounting and payroll, also had daily contact with Plaintiff. (Def.'s State. Facts, ¶ 4; Hicks Depo., pp. 9, 40-41.)

Soon after starting at Radio One, Smith began complaining about Plaintiff's work performance. On October 22, 2007, Smith sent Plaintiff an email criticizing her failure to deliver his phone messages on a timely basis. Shortly thereafter, Smith advised Plaintiff via email that she needed to inform additional persons of his whereabouts when he was absent from the office. On November 14, 2007, Smith sent Plaintiff an email memorandum, which outlined four points of concern with her performance, including her need to "raise [her] efficiency level," "get things done on time," "double check on all of [her] work," and "work on being ahead of [her] schedule at all times." (Def.'s State. Facts, ¶¶ 25-28.)

Smith also expressed concern with Plaintiff's failure to complete a particular ratings assignment within the necessary time constraints. The next day, Smith instructed Plaintiff by email that she needed to "read over everything thoroughly so there wo[uldn't] be any oversights." Smith additionally complained that he had just received notification of his missed calls from several days earlier. In an email dated November 19, 2007, Smith advised Plaintiff that he was receiving his messages too late and that it was embarrassing. The email further requested that she "handle this responsibility effective today" and "clean out voice mail (3) times a day as we agreed" [sic]. (Def.'s State. Facts, ¶¶ 28, 30, 34.)

Complaints regarding Plaintiff's performance were not limited to Smith. By the beginning of November 2007, Golden had also become concerned over Plaintiff's failure to meet deadlines and she conveyed these concerns to Smith. In addition, Strickland provided two or three negative assessments of Plaintiff's performance. (Def.'s State. Facts, ¶¶ 42-45.)

Reviews of Plaintiff's work were not universally negative. Golden testified that when Plaintiff began at Radio One, her organizational skills were very good, that she initially performed well at juggling work responsibilities between the three radio stations, and that, in her estimation, Plaintiff's delivery of voice messages occurred within a reasonable time. (Pl.'s State. Facts, ¶¶ 41, 95.)

At some point during her employment, Plaintiff began to experience chest pains when she was "highly stressed," accompanied by anxiety and shortness of breath. (Anderson Depo., p. 192:19-24.) Plaintiff attributed these sensations to her "heart condition," which she disclosed to Golden, Hicks, and Smith individually.*fn1 (Pl.'s State. Facts, ¶ 80; Anderson Depo., p. 208.; Hicks Depo., p. 52.) There is some dispute as to when Plaintiff notified Golden of her condition. According to Plaintiff, she informed Golden that she was experiencing chest pains, "either a day or a couple days prior to November 19th." (Pl.'s State. Facts, ¶ 80.) Golden stated that the conversation occurred either at the end of October or the beginning of November of 2007. (Pl.'s State. Facts, ¶ 80.) In either case, Golden responded by advising Plaintiff to apprise Smith of her chest pains and prior heart attack. (Pl.'s State. Facts, ¶ 80; Golden Depo., pp. 53:20-54:1.) Plaintiff also mentioned her heart attack to Hicks, who indicated that she would keep Plaintiff's condition in mind. (Pl.'s State. Facts, ¶ 80; Anderson Depo., p. 208.; Hicks Depo., p. 52.)

Plaintiff told Smith of her heart condition during the afternoon of November 19, 2007. (Def.'s State. Facts, ¶ 81; Pl.'s State. Facts, ¶ 81.) Though she could not recall the details of the conversation, Plaintiff testified that Smith's reaction was not sympathetic, and that he acted "kind of funny" or "very strange" afterward. (Pl.'s Ex. B., pp. 209-12.) Smith's criticism of Plaintiff's work performance peaked the following day, when the two met and Smith issued Plaintiff a memorandum with the subject line "Observations #2." (Def.'s State. Facts, ¶¶ 36, 37.) In this memorandum, Smith listed numerous deficiencies with Plaintiff's work.*fn2 Plaintiff signed the memorandum despite disagreeing with its contents. (Pl.'s State. Facts, ¶ 39.)

Following the meeting on November 20, 2007, Plaintiff testified that Smith's "whole attitude" or "whole demeanor" changed towards her. (Pl.'s State. Facts, ¶ 81; Anderson Depo., pp. 213:22-214:4.) The record indicates, however, that Smith's criticism of Plaintiff continued after this meeting. Smith told Plaintiff that she was "too slow" in completing her work, and on December 4, Smith sent a series of emails highlighting proof-reading errors in an email that Plaintiff had drafted and sent on his behalf. (Def.'s State. Facts, ¶¶ 40, 47.)

On December 13, 2007, Smith and Hicks met with Plaintiff, terminated her as programming assistant, and offered her a position as a receptionist. (Def.'s State. Facts, ¶¶ 51, 52.) Plaintiff responded by asking whether she had done anything wrong, but she received no response. (Pl.'s State. Facts, ¶ 52; Anderson Depo., p. 134:4-13.) Plaintiff rejected the receptionist position, and her employment with Radio One was terminated. (Def.'s State. Facts, ¶ 53.) Plaintiff was replaced by Zorina Brown, who was in her twenties. (Id. ¶ 83.)

Plaintiff filed her complaint against Radio One on January 15, 2009, raising (1) age discrimination under the ADEA; (2) discrimination on the basis of a disability under the ADA; (3) violation of the Fair Labor Standards Act; and (4) violation of the Pennsylvania Minimum Wage Act. On October 9, 2009, Radio One filed its Motion for Summary Judgment. In her response, Plaintiff abandoned her claims under the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. We heard oral argument on Plaintiff's remaining claims on February 16, 2010.


According to Federal Rule of Civil Procedure 56(c), summary judgment is proper "if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. 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. See 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, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. A "[p]laintiff cannot simply reassert factually unsupported allegations in his pleadings." Poles v. St. Joseph's Univ., 1995 WL 542246, at *5 (E.D.Pa. Sep. 11, 1995) (citing Celotex, 477 U.S. at 325).


The ADEA states that it shall be unlawful for an employer"to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age[.]" 29 U.S.C. § 623(a)(1). The Supreme Court has explained that the phrase "because of" in this provision signifies that age must be more than a "motivating factor" in the employer's action, and thus claims rooted in the "mixed motive" doctrine of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) are unavailable. Gross v. FBL Financial Servs., Inc., 129 S.Ct. 2343, 2350-52 (2009). Therefore, "[t]o establish a disparate-treatment claim . . . under the ADEA . . . a plaintiff must prove that age was the "but-for" cause of the employer's adverse decision." Id. at 2351. Where, as with the case before the Court, a plaintiff has produced no direct evidence that age was the cause of her employer's course of action, the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) is applied. See Smith v. City of Allentown, 589 F.3d 684, 690-92 (3d Cir. 2009).

Under the McDonnell Douglas paradigm, an employee must first establish a prima facie case of discrimination. Fasold v. Justice, 409 F.3d 178, 184 (3d Cir. 2005).A plaintiff establishes a prima facie case of age discrimination by demonstrating that "(1) the plaintiff is over 40 years of age; (2) the plaintiff is qualified for the position in question; (3) the plaintiff suffered an adverse employment decision; and (4) the plaintiff was replaced by a sufficiently younger person to create an inference of job discrimination." Evans v. Penn. Power and Light Co., 98 Fed. Appx. 151, 154 (3d Cir. 2004) (citing Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc)). For the purposes of this motion, Radio One does not dispute that Plaintiff has made out her prima facie case.

Once Plaintiff has met her initial burden, "the burden [of production] shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment decision." Fasold, 409 F.3d at 184. Radio One asserts that it terminated Plaintiff on the basis of her "poor performance and failure to meet the expectations of the job." (Def.'s Br. at 9.) Thus, Plaintiff, "the aggrieved employee," must "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." Fasold, 409 F.3d at 184.

In establishing a pretext, a plaintiff must "point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). In order to discredit an employer's articulated non-discriminatory reason, a plaintiff's evidence must therefore be sufficient to allow a reasonable inference that the reason was "either a post hoc fabrication or otherwise did not actually motivate the employment action[.]" Id. (emphasis in original). It is insufficient for Plaintiff "simply [to] show that the employer's decision was wrong or mistaken." Id. at 765. She "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons . . . that a reasonable factfinder could rationally find them 'unworthy of credence.'" Id.

With these standards in mind, we find that Plaintiff has failed to raise an issue of material fact as to whether Radio One's reason for terminating her was a pretext for age discrimination. As discussed below, Plaintiff cites several facts to support her claim. We conclude, however, that these facts are insufficient to survive summary judgment.

Plaintiff first argues that she "possessed the skills and experience required of an administrative assistant[,]" as she had previously worked in a similar position at TIAA-CREF, a financial services company, without receiving any "discipline or counseling regarding her job performance." (Pl.'s Br. at 6.)The adequacy of her previous performance, she suggests, is evidence that the criticisms produced by Radio One are fabrications. (Id.) However, Plaintiff's performance at her former employment is not at issue in this case and is irrelevant to Radio One's decision to terminate her. See Bernhard v. Nexstar Broadcasting Group, Inc.,146 Fed. Appx. 582, 586-87 (3d Cir. 2005) (finding that positive reviews from co-workers and managers in an employee's subsequent employment is irrelevant to the issue of pretext).

Plaintiff next contends that the instances of positive feedback from Golden and Hicks belie Radio One's negative assessment of her abilities. (Pl.'s Br. at 6-9.) However, "[t]he mere existence of positive evaluations by a supervisor does not give rise to the inference that negative evaluations from another supervisor were a pretext." Hunter v. Rowan University, 299 Fed. Appx. 190, 194-95 (3d Cir. 2008); seeSullivan v. Nationwide Life Ins. Co. of America, 2010 WL 2654673, at *12 n.125 (D.Del. Jul. 6, 2010) (collecting ...

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