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Warren Jacoby v. Bethlehem Suburban Motor Sales

May 16, 2011


The opinion of the court was delivered by: Eduardo C. Robreno, J.



Plaintiff Warren Jacoby ("Plaintiff") filed a four count complaint against Bethlehem Suburban Motor Sales d/b/a Bethlehem Ford ("Defendant") alleging age and disability discrimination pursuant to the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and the Pennsylvania Human Relations Act ("PHRA"). (Compl. ¶ 30-57.) Discovery is now complete, and Defendant has filed a motion for summary judgment as to all of Plaintiff's claims. (Def.'s Mot. for Summ. J. at 4.) Based on the following analysis, the Court will grant Defendant's motion.


Plaintiff is a seventy-four year old car sales person who began working at Defendant's lot in October 1969. (Pl.'s Resp. at 2.) Plaintiff worked in this capacity for thirty-nine years, until August 21, 2008. (Id.) During the course of Plaintiff's employment he was very successful. In June 2003, at age sixty-seven, Plaintiff underwent prostate surgery and took a medical leave of absence for a period of six months, after which he returned to full-time employment with Defendant. (Id. at 3.) Beginning in 2007, Plaintiff began experiencing health problems stemming from his diagnosis of neuropathy in both legs. The neuropathy caused Plaintiff balance problems, difficulties walking, and required the use of a cane. However, despite these medical problems, these symptoms did not prevent Plaintiff from doing his job effectively.

On May 11, 2008, at the age of seventy-two, Plaintiff suffered a serious heart attack requiring hospitalization and a period of medical leave of absence. (Compl. ¶ 25.) Following his heart attack, Plaintiff applied for, and received, short-term disability benefits from American Fidelity Assurance Company for a period of six months. Plaintiff claims that, following Defendant's discovery of Plaintiff's heart attack, Defendant immediately and discriminatorily assumed, without any express information from Plaintiff or his family, that Plaintiff was unable to return to work. (Pl.'s Resp at 5-6.) As such, Plaintiff was terminated via letter on August 21, 2008.

It is undisputed that, during the fifteen week period from the date of Plaintiff's heart attack to his ultimate termination, Plaintiff never requested an accommodation or contacted Defendant in regards to his return to work. (Pl.'s Dep. at 44:11-18.) Defendant's President, Mr. Lee Kelechava ("Mr. Kelechava"), states that Plaintiff was not fired due to his age or disability, but rather because Defendant was unable to obtain a date on which Plaintiff would return to work. Moreover, Mr. Kelechava states that he acted on the advice of counsel when he sent Plaintiff the letter stating that Defendant was treating Plaintiff's employment as terminated. (Def.'s Mot. Summ. J. at

3.) Plaintiff never responded to Defendant's termination letter. Rather, Plaintiff filed a Charge of Discrimination on January 9, 2009. Thereafter, Plaintiff filed the complaint currently before this Court.


A. Summary Judgment Standard Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A motion for summary judgment will not be defeated by 'the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250.

B. Exhaustion of Administrative Remedies In order to bring suit under the ADA, ADEA, and PHRA, a plaintiff must first exhaust his administrative remedies. The ADEA and ADA require that a plaintiff file a complaint with the Equal Employment Opportunity Commission ("EEOC") within 300 days of the alleged discriminatory conduct if the plaintiff has filed a complaint with a local or state agency, such as the Pennsylvania Human Relations Commission ("PHRC"). 42 U.S.C. § 2000e-5(e)(1) (2011); see Seredinski v. Clifton Precision Prods. Co., 776 F.2d 56, 61 (3d Cir. 1985) (stating that in a deferral state, such as Pennsylvania, a plaintiff has 300 days from the date of the alleged unlawful employment practice to file with the EEOC).*fn1

Here, Plaintiff filed his Charge of Discrimination with the EEOC on January 9, 2009. Three hundred days prior to the filing date is March 15, 2008. Therefore, any claims of discrimination which took place on or after March 15, 2008 are not administratively barred. The only act of alleged discrimination which clearly took place after March 15, 2008 is Plaintiff's termination. As such, this act is not time barred. Plaintiff's complaint, however, references various other allegedly discriminatory acts which all occurred prior to March 15, 2008. Plaintiff argues that although these acts occurred prior to March 15, 2008, they were timely filed based on the continuing violation theory.*fn2

The continuing violation theory allows a plaintiff to pursue a claim of discrimination for acts that occurred prior to the filing period if he or she can show that the discriminatory acts are part of a continuing practice or pattern of discrimination. Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001). For the continuing violation theory to apply, a plaintiff must demonstrate that at least one discriminatory act occurred within the filing period and that the discriminatory conduct is an ongoing pattern, rather than an isolated or sporadic occurrence. West v. Phila. Elec. Co., 45 F.3d 744, 754-55 (3d Cir. 1995). In determining whether a plaintiff has shown an ongoing pattern of discrimination, this Court must consider: (1) whether the violations constitute the same type of discrimination; (2) the frequency of the alleged discriminatory acts; and (3) the degree of permanence, i.e., whether the nature of any of the violations should have triggered the employee's awareness of the need to assert his rights and whether the consequences of the act, such as being fired or being denied a promotion, would continue even in the absence of a continuing intent to ...

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