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Guy F. Zern, Iii v. Pennoni Associates

March 2, 2012

GUY F. ZERN, III
v.
PENNONI ASSOCIATES, INC.



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

MEMORANDUM

This lawsuit arises from the termination of Guy Zern's employment as a Lab Inspector for defendant Pennoni Associates, Inc. ("Pennoni"). Following his termination in April 2008, Mr. Zern filed a complaint against his former employer, asserting violations of the Americans with Disabilities Act ("ADA") and the Pennsylvania Human Relations Act ("PHRA").*fn1 Mr. Zern claimed perceived disability discrimination and unlawful retaliation in violation of the ADA.

The defendant, Pennoni, now moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The Court will grant the defendant's motion.

I. Factual Background*fn2

Pennoni is an engineering and design consulting firm that provides services for governmental entities and private commercial, industrial, and construction firms. Its headquarters is in Philadelphia, Pennsylvania, and it has a regional office in Bethlehem, Pennsylvania. MSJ, Ex. A ("Sander Aff.") ¶ 4.

The plaintiff, Guy Zern, worked for Pennoni for approximately ten years, from March 1998 to April 2008, as a Lab Inspector in the cement lab at Pennoni's Bethlehem facility. He worked with the lab's chemist, Juan Fernandez, and was supervised by Charles Snyder, a Staff Engineer with Type II Diabetes. Mr. Zern handled the physical testing, while Mr. Fernandez was responsible for chemical testing. MSJ, Ex. B ("Zern Dep.") 18, 237; MSJ, Ex. C ("Snyder Aff.") ¶¶ 4, 6, 10.

A. Mr. Zern's Performance Evaluations After Pennoni's lab chemist, Juan Fernandez, retired on December 22, 2005, Mr. Zern was expected to learn chemical testing in the lab. Snyder Aff. ¶ 10. Over the course of the next three staff performance review periods, Mr. Zern's supervisors expressed their concerns about his work.

Mr. Zern's 2005 Staff Performance Evaluation indicated an overall rating of "Good." However, Mr. Zern's supervisor, Charles Snyder, noted that Mr. Zern needed improvement in six areas: work quality, organization/planning skills, time management, communication/cooperation, decision making, and profitability. Mr. Snyder commented that Mr. Zern's "[t]iming is not always ideal - particularly with more detailed assignments," that his more complex projects "tend to drag," and that "[c]ustomers are concerned with speed as well as accuracy." The evaluation also shows that Mr. Zern did not meet expectations in three additional performance goal categories, including becoming proficient in chemical testing. Snyder Aff. Ex. 1.

Mr. Zern's 2006 Staff Performance Evaluation was similar in substance to the 2005 evaluation. Mr. Snyder noted that Mr. Zern needed improvement in the same six areas as in 2005, in addition to initiative/problem solving. Mr. Snyder again commented on the fact that "timeliness is a concern" and that Mr. Zern's complex assignments "tend to drag." Mr. Snyder noted that Mr. Zern appeared "reluctant to tackle more complicated tests" and needed to learn additional tests to fill in when others in the lab are overloaded. In addition, Mr. Zern did not meet expectations with respect to three additional performance goals, some relating to testing. Snyder Aff. Ex. 2.

The following year, Edward Sander, then Division Manager for the Bethlehem facility and Mr. Snyder's supervisor, drafted Mr. Zern's performance evaluation himself because he did not see improvement in Mr. Zern's performance over time. Sander Aff. ¶¶ 5, 7. Mr. Zern's 2007 Staff Performance Evaluation reflected a "needs improvement" mark in every category of performance, and rated "does not meet expectations" in nearly all of his performance goals for the review period. His overall rating declined to "needs improvement." Sander Aff. Ex. 1.

Mr. Sander, like Mr. Snyder in years past, commented on Mr. Zern's issues with timeliness and failure to meet deadlines. In particular, Mr. Sander wrote that Mr. Zern's "[o]verall productivity does not meet minimum acceptable levels." Id.

Mr. Zern admitted that his supervisor, Mr. Snyder, took a project away from him because he did not complete it on time. Zern Dep. 110.

B. Cement Lab Profitability & Mr. Zern's Termination Mr. Zern's 2007 evaluation included a comment that the "[c]hemical lab was not profitable." Sander Aff. Ex. 1. Mr. Zern admitted that the lack of profitability in the cement lab was "a yearly thing [Pennoni was] saying . . . . We weren't making money, weren't making money." Zern Dep. 174; see also id. at 146, 224.

On January 14, 2008, Quinton Davis took Edward Sander's position and became the Division Manager of Pennoni's Bethlehem facility. Both Mr. Zern and Mr. Snyder began reporting directly to Mr. Davis. MSJ, Ex. D ("Davis Aff.") ¶¶ 3, 5.

It became apparent to Mr. Davis that the cement lab was suffering the greatest financial losses of the Bethlehem facility. In early 2008, Mr. Davis decided to out-source the chemical testing function of the cement lab to an outside company, but continue the physical testing in-house. Mr. Davis decided to eliminate Mr. Zern's position. Mr. Zern was terminated from Pennoni on April 1, 2008. Id. ¶¶ 6, 7; Snyder Aff. ¶ 18.

Pennoni told Mr. Zern that he was being terminated for poor performance and lack of work. Davis Aff. ΒΆ 7; Zern Dep. 238. Mr. Zern acknowledged that it was "obvious" what the given reasons for his termination meant: "Well, job performance because of my reviews, so I kind of figured that, that that's why. And then lack of ...


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