The opinion of the court was delivered by: Dalzell, J.
Plaintiff Michael McGrath's complaint alleges that defendant Lumbermens Merchandising Corporation (herein "defendant," the "employer", or "LMC")*fn1 terminated him because of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA") and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. ("PHRA").
LMC filed a motion for summary judgment, to which McGrath responded. Defendant then filed a reply, and plaintiff filed a sur-reply. For the reasons set forth below, we will grant LMC's motion for summary judgment.
I. Factual Background*fn2
Under Fed. R. Civ. P. 56(a), "[t]he court shall grant summary judgment 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," where "[a] party asserting that there is a genuine dispute as to a material fact must support that assertion with specific citations to the record." Bello v. Romeo, 424 F. App'x 130, 133 (3d Cir. 2011).
We will thus begin by reciting the undisputed facts in this matter. In so doing, we will keep in mind that "[h]earsay statements that would be inadmissible at trial may not be considered for purposes of summary judgment," Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009), and we should not credit statements in affidavits that "amount to (i) legal argument, (ii) subjective views without any factual foundation, or (iii) unsupported assertions made in the absence of personal knowledge." Reynolds v. Dep't of Army, 439 F. App'x 150, 152 (3d Cir. 2011).
The parties agree on the essential details of McGrath's employment history with LMC. Defendant, headquartered in Wayne, Pennsylvania, is the largest forest products and building materials buying group in the United States. LMC's 365 member-owners ("shareholders") are an exclusive network of independent lumberyard companies. On July 31, 2000, when he was fifty-one, McGrath began his employment with LMC in the Wayne headquarters as a trader/buyer ("trader") in the Lumber Commodities Division in the Eastern Spruce Department (the "department"). McGrath worked for LMC for about seven-and-a-half years until he was terminated in a reduction-in-force ("RIF") on February 4, 2008.*fn3
As a trader, McGrath was responsible for fielding calls from LMC's shareholders, advising them on the lumber products markets, and buying products and supplies for them. McGrath reported directly to Jim Lefever, Department Manager for the Eastern Spruce Department. Lefever reported to Fred Ashman, the Purchasing Manager until 2004 when John Raffetto assumed the Purchasing Manager role for the Western and Eastern Spruce Departments. Plaintiff reported to the Purchasing Manager about once a month.
Since the start of McGrath's employment with LMC, management thought him to be a disruptive influence at work. In addition, management consistently noted that he was contentious, abrupt, and intimidating. Def.'s Facts ¶ 9; Pl.'s Answer ¶ 9. McGrath acknowledges that during the course of his employment with LMC, managers discussed with him his curt and abrupt manner with dealers and vendors. In fact, he does not disagree with this description of his performance. Def.'s Facts ¶ 10 (citing Pl.'s Dep. 44:6-45:12); Pl.'s Answer ¶ 10. These concerns were reiterated in subsequent years on his annual performance evaluations, including the 2006 and 2007 evaluations. Pl.'s Exs. 8-11 (Exs. 10 & 11 describe plaintiff as "judgmental" and "intimidating", and note a lack of "patien[ce] with staff, mills and dealers" but also observe that he was improving some in these areas). These written evaluations were shared with McGrath in evaluation meetings.
In every review, Raffetto discussed plaintiff's aggressiveness, rudeness, inappropriate manner, and quickness to judge -- including the 2007 review that was McGrath's last. Raffetto also had counseling sessions with plaintiff both inside and outside of the review process. Senior Management, including John Broomell, Senior Vice-President of Purchasing, and then-CEO Anthony DeCarlo, were generally aware of McGrath's deficiencies. Nevertheless, in 2007 McGrath and a colleague received a 5% discretionary bonus while two others received a 3% bonus. Pl.'s Facts ¶ 47. In 2006, plaintiff was promoted to a Buyer 3 status because he was "one of the stronger, more experienced Traders [Brokers] in the Division." Id. ¶ 48 (emphasis added).
In late 2006 and through 2007, LMC experienced a significant downturn in business as a result of the collapse of the real estate and construction industries. McGrath admits that he observed a "big cutback" in production in 2006 that led to his department suffering "the most severe drop in business". Def.'s Facts ¶¶ 29, 45; Pl.'s Answer ¶¶ 29, 45. As a consequence, senior management held a meeting in January of 2008 to discuss LMC's finances and expenses. DeCarlo instructed Broomell and Andrew Toombs (Vice-President for Purchasing) to decide what cuts were needed and report back to him. Def.'s Facts ¶ 34; Pl.'s Answer ¶ 34. McGrath specifically admits that Toombs approached Raffetto and they discussed the reduced volume in the department and agreed that it would be necessary to terminate employees. Toombs asked Raffetto to look at his staff and recommend employees for the RIF.
Raffetto recommended to senior management that McGrath be eliminated in a first wave of RIF layoffs because his deficiencies weighed in favor of dismissal even in light of his sales figures. Specifically, it is uncontroverted that Raffetto based his decision to include McGrath in the RIF based on plaintiff's attitude and lack of seniority at the company. Pl.'s Facts ¶ 40; Def.'s Answer ¶ 40. DeCarlo approved the recommendation to terminate McGrath because the justifications given "seemed plausible." Def.'s Facts ¶ 49; Pl.'s Answer ¶ 49. It is uncontested that DeCarlo did not know the ages of the individuals recommended for the RIF, and his deposition testimony reveals that neither Toombs nor Broomell informed him of McGrath's age.
On February 4, 2008, plaintiff and others were notified that they were being terminated. McGrath was not surprised that LMC was forced to conduct a RIF. Following his termination, plaintiff's duties were distributed among the remaining buyers. He was not replaced. Def.'s Facts ¶ 68; Pl.'s Resp. Facts ¶ 68.
During February and March of 2008, eight employees were terminated as part of the RIF. After the February/March RIF, LMC's sales numbers did not improve and LMC conducted a second RIF in October of that year. At that time Raffetto recommended that a thirty-five-year-old buyer from the department, Mark Thornton, be eliminated, along with eleven other employees.
On a motion for summary judgment, "[t]he moving party first must show that no genuine issue of material fact exists," Adderly v. Ferrier, 419 F. App'x 135, 136 (3d Cir. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), whereupon "[t]he burden then shifts to the non-moving party to set forth specific facts demonstrating a genuine issue for trial." Id. "'A disputed fact is 'material' if it would affect the outcome of the suit as determined by the substantive law,'" J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 925 (3d Cir. 2011) (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992)). A factual dispute is genuine "'if the [record] evidence [taken as a whole] is such that a reasonable jury could return a verdict for the nonmoving party. . . . The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be [significantly probative] ...