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August Durante, Jr. v. Tredyffrin Township

March 28, 2011


The opinion of the court was delivered by: Juan R. Sanchez, J.


Plaintiff August Durante, Jr. filed this action against his former employer, Defendant Tredyffrin Township (Township), alleging age discrimination and retaliation in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq. The Township asks this Court to grant summary judgment in its favor, asserting Durante was fired due to cost-cutting measures implemented in response to a municipal budget crisis. For the following reasons, the Township's motion is granted.


Durante was employed by the Township's Public Works Department from July 1977 to July 22, 2009. In February 1990, Durante was promoted to the position of foreman, a title he held until his termination. As a foreman, Durante supervised a work crew responsible for cutting grass, weeding, collecting debris, repairing machines, and clearing snow, among other maintenance duties in the Township.

From October 1998 until March 2006, Durante reported to Steve Norcini, Assistant Director of Public Works, with whom he had a collegial working relationship. On March 22, 2006, Charles Puelo was hired as an Assistant Director of Public Works and became Durante's new supervisor.

Durante experienced difficulties working for Puelo. Between 2008 and July 2009, Norcini told Durante several times he and Puelo were displeased with the way Durante's crew was performing its work, particularly the work at the Township's largest property, the 90-acre Wilson Farm Park (WFP). Puelo and Norcini both asked Durante to work more efficiently and to take on more tasks. Durante alleges the increased work, shorter deadlines, and intensified scrutiny of his work were part of a scheme to create a record of poor performance as a pretense for his subsequent termination. The record shows, however, that Durante received far fewer work orders than at least two of the fourt other foremen employed during the period from March 11, 2009, to July 21, 2009.*fn1

Meanwhile, the Township began facing serious budget problems in 2008, including running a deficit of almost $3 million. At a November 2008 meeting which Durante attended, Township residents complained the municipality paid its employees too much money and provided too many benefits. In March 2009, the Township created a Budget Advisory Working Group (BAWG) to determine how to remedy the Township's budget shortfall. Due to the budget problems and public pressure, the Township imposed budget controls on hiring and purchasing. Because of these restrictions, Durante was forced to use a smaller crew to complete his maintenance tasks from 2008 to 2009, which he claims caused him a considerable amount of stress and led to his poor performance.

Norcini and Puelo scheduled a meeting with Durante for June 4, 2009, to discuss his ongoing performance issues and the unsatisfactory condition of WFP. Durante failed to attend the meeting because he was out sick, and the meeting was rescheduled for June 25, 2009. The notice of the meeting, which was sent to Durante, explained the meeting was a "high" priority and detailed some of the issues Norcini intended to cover relating to Durante's job performance. For reasons which are unclear, this rescheduled meeting did not take place.

On June 19, 2009, Durante asked Township Manager Mimi Gleason about the possibility of retiring early while retaining the full pension benefits normally surrendered by early retirement. Gleason said she would look into it. Gleason also informed Durante that Norcini and Puelo were dissatisfied with his performance. Although Gleason and Norcini were contemplating the elimination of Durante's position at this time, Gleason did not inform Durante of this fact.

On July 16, 2009, Gleason met with three Township supervisors and told them Durante had requested an early retirement package. At the same meeting, she relayed Norcini and Puelo's concerns about Durante's performance to the supervisors. Norcini also appeared at the meeting to discuss Durante's poor performance. Gleason told the supervisors she did not support giving Durante his full pension, but she did recommend that he receive retiree medical benefits. The supervisors decided to terminate Durante's position, along with that of another foreman who had decided to retire, but declined to award Durante medical benefits.

On July 22, 2009, Gleason informed Durante the Township was eliminating his position and that he would not be entitled to a full pension or medical benefits. Instead, Durante was offered full pay and benefits through December 31, 2009. Durante emailed Gleason expressing his displeasure at this result, and Gleason reiterated to Durante that his position was eliminated and his request for full retirement benefits had been denied. Durante was 55 years old at the time of his termination.

In August 2009, BAWG sent its preliminary proposal to Gleason, in which it advised the Township's budget problems could be ameliorated by eliminating all but one Public Works foreman. In September 2009, the Township finished its implementation of the BAWG plan and laid off 11 employees, including Puelo, based on merit evaluations by the directors of each department. Eight of the laid-off employees were younger than Durante. The Township retained and promoted Dean Wilkins, a foreman two years younger than Durante, as the sole remaining general Public Works foreman.

Durante thereafter filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) and the Pennsylvania Human Relations Commission (PHRC), and received a Notice of Right to Sue from the EEOC. On April 2, 2010, Durante filed the instant suit, alleging that his termination violated the ADEA ...

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