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Thomas G. Palmer v. Harvey Gerstman Associates

December 22, 2011


The opinion of the court was delivered by: Chief Judge Kane


Presently pending before the Court is Defendants' motion for summary judgment. (Doc. No. 48.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the Court will grant Defendants' motion.


Plaintiff Thomas G. Palmer began working as a service representative for Defendant Harvey Gerstman Associates, Inc. ("HGA") on December 31, 1999. (Doc. No. 50 ¶ 1.)He was promoted to the position of District Manager for the northern Pennsylvania territory on January 1, 2005. (Id. ¶ 3.) In that position, Plaintiff was responsible for supervising service representatives and ensuring that projects were properly completed. (Id. ¶ 4.)

In 2007 and 2008, HGA employees received performance evaluations on a semi-annual basis, with the review period running from the date that the last evaluation was issued. (Id. ¶¶ 5-6.) Total performance evaluation scores were calculated by applying a weighting system, with some evaluation categories valued higher than others. (Id. ¶ 9.) The categories, and the values assigned to them, would often be revised from one review period to the next. (Id. ¶¶ 10-11.)

Regional Vice President Jerry Ashmen began supervising Plaintiff in September 2007.

(Id. ¶ 13.) He issued his first performance evaluation of Plaintiff's work on November 15, 2007. (Id.) In that evaluation, Mr. Ashmen rated Plaintiff a 2 (out of 5) in two categories: ensuring "set integrity" and effective email communication. (Id. ¶ 15.) Plaintiff's total evaluation score was a 3.51, which was rounded up to a 4, a score that Plaintiff felt was fair. (Id. ¶¶ 17, 20.)

On February 28, 2008, Plaintiff underwent quadruple bypass surgery. (Id. ¶ 29.)

Because of this surgery, Plaintiff requested leave time under the Family and Medical Leave Act ("FMLA"). (Id. ¶¶ 31-32.) HGA approved Plaintiff's request, effective February 25, 2008. (Id. ¶ 32.) About two months later, HGA received a note from Plaintiff's physician, stating that Plaintiff could return to work on May 12, 2008, but that he should only work six hours per day for four weeks. (Id. ¶ 34.) Plaintiff returned to work on May 12, 2008, and, other than his six-hour workday restriction, he had no physical limitations; in fact, Plaintiff often worked more hours than his physician advised because he felt "good." (Id. ¶¶ 37-39.) Plaintiff did not have discussions with Mr. Ashmen or other co-workers regarding his health and never requested additional leave time. (Id. ¶¶ 38, 42, 43.)

Mr. Ashmen issued a second performance evaluation of Plaintiff's work on June 20, 2008. (Id. ¶ 21.) The review period for this evaluation began after Plaintiff's November 15, 2007 evaluation was issued. (Id. ¶ 60.) The June 20, 2008 evaluation included an "Audit Score" category, which measured, "among other things, the employees' completion of certain projects that needed to be executed on a timely basis for customers and the amount of time that the employees were working." (Id. ¶ 52.) The Audit Score accounted for twenty-five percent of the total evaluation score, while the remaining seventy-five percent of the score was based on calculating the scores of twenty categories. (Id. ¶ 53.) To calculate the Audit Score for Plaintiff's evaluation, Mr. Ashmen conducted an audit of two stores within Plaintiff's territory by the end of May 2008. (Id. ¶ 45.) Mr. Ashmen also rated Plaintiff a 2 in the same two categories as he did in the November 15, 2007 evaluation; however, those categories were assigned greater values for the June 20, 2008 evaluation. (Id. ¶¶ 21, 23.)

Plaintiff discussed his June 20, 2008 evaluation with Mr. Ashmen and Larry Kaminsky, the Director of Human Resources. (Id. ¶¶ 54-55.) According to Defendants, Plaintiff felt that his evaluation was unfair because Mr. Ashmen conducted the audit of Plaintiff's stores shortly after Plaintiff returned from FMLA leave. (Id. ¶ 55.) According to Plaintiff, the Audit Score was never included on the copy of the evaluation that he received. (Doc. No. 55 ¶ 55.) Ultimately, Plaintiff's Audit Score was not factored into his overall performance evaluation score. (Id. ¶¶ 55-56; Doc. No. 50 at 55-56.)On August 4, 2008, Plaintiff emailed Mr. Ashmen and Mr. Kaminsky, expressing his disagreement with the scores he received in the June 20, 2008 evaluation. (Doc. No. 50 ¶ 57.) Plaintiff's total evaluation score was a 3.44, which was rounded down to a 3. (Id. ¶ 26.)

In August 2008, Regional Vice Presidents and District Managers were informed that HGA had lost a significant contract. (Doc. No. 50 ¶ 73.) As a result, on September 26, 2008, about twenty-nine District Managers, including Plaintiff, were either demoted or laid off. (Id. ¶ 70.)According to Defendants, Senior Vice President Brian Blair and Chief Operating Officer Matilde Tysz made all employment decisions. (Id. ¶ 75.) Decisions regarding demotion and lay offs were made by using a four-step process.*fn1 The first step was to consider which District Managers were eligible to oversee the reduced number of newly drawn geographic territories. (Id. ¶¶ 77, 83.) If two or more District Managers were eligible to oversee the same territory, the second step in the process was to demote or lay off the District Manager with the lowest overall score on his or her last performance evaluation. (Id. ¶ 83.) If two or more District Managers had the same score on their last evaluations, the District Manager who earned the higher salary would be demoted. (Id. ¶ 84.) Finally, if two or more District Managers earned the same salary, the District Manager with shorter tenure would be demoted or laid off. (Id. ¶ 85.)

According to Defendants, in considering whether to demote or lay off Plaintiff, it was first determined that both Plaintiff and Brent Carpenter were eligible to oversee a newly drawn Pennsylvania territory. (Id. ¶ 89.) Plaintiff was selected for demotion because he had an overall score of 3 on his last performance evaluation, while Mr. Carpenter had an overall score of 4. (Id. ¶ 91.) At this time, Plaintiff was approximately sixty-two years old, and Mr. Carpenter was approximately thirty-six years old. (Id. ¶¶ 2, 87.) While Plaintiff never complained to anyone at HGA that he felt he was being treated unfairly because of his age, he testified that Mr. Ashmen seemed to talk and joke around more with the younger District Managers. (Id. ¶¶ 112-13.)

Following Plaintiff's demotion in September 2008, Plaintiff worked as a service representative until he was laid off on October 23, 2009. (Id. ¶¶ 104-05, 109.) Plaintiff was one of about 500 employees who was laid off at that time. (Id. ¶ 107.)

In October 2008, Plaintiff filed a complaint with the Pennsylvania Human Relations Commission. (Id. ¶ 117.) Plaintiff filed the complaint in this action on September 30, 2009, alleging that Defendants violated Title VII of the Civil Rights Act, the Americans with Disabilities Act ("ADA"), the Rehabilitation Act of 1973, the Age in Discrimination Employment Act ("ADEA"), and the FMLA. (Doc. No. 1.) On July 11, 2011, Defendants filed a motion for summary judgment (Doc. No. 48), and a brief in support (Doc. No. 49). They filed a statement of facts on July 12, 2011. (Doc. No. 50.) Plaintiff filed a brief in opposition and a statement of facts on August 4, 2011. (Doc. Nos. 55, 56.) Defendants filed a reply brief on August 18, 2011. (Doc. No. 58.)


Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is material if it might affect the outcome of the suit under the applicable law, and it is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). At summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52. In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is warranted. Celotex, 477 U.S. at 322. With respect to the sufficiency of the evidence that the non-moving party must provide, a court should grant summary judgment where the non-movant's evidence is merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).


Plaintiff has asserted claims under the ADEA, ADA, and FMLA.*fn2 Defendants have moved for summary judgment as to all claims. (Doc. No. 48.) The Court ...

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