The opinion of the court was delivered by: (judge Caputo)
Presently before the Court is Defendants Foxco Insurance Management Services, Inc. and Excalibur Insurance Management Services, Inc.'s Motion for Summary Judgment. (Doc. 23.) In her Complaint, Plaintiff Carol Tokash alleges she was fired on account of her age and has made claims against the Defendants predicated on the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 955 et seq.*fn1 The Defendants argue that Tokash was only employed by Defendant Foxco, an entity too small to be subjected to the ADEA, and that even if the ADEA did apply, that Tokash has failed to provide facts suggesting that her dismissal was pretextual. Because there is evidence in the record suggesting the Defendants were a sole employer and potentially discrediting their stated reasons for Tokash's termination, summary judgment will be denied on those issues.
Around the end of the first quarter of 2008, Charles "Chuck" Volpe, Jr.--acting as President and CEO of the Defendant corporations--determined that layoffs were financially necessary. (Defs.' Stmt. at ¶¶ 16, 17.) Ultimately, five employees were laid off, one of which was Plaintiff Carol Tokash. (Id. at ¶ 26.) Tokash was employed by Defendant Foxco for over thirteen years before her separation on August 29, 2008 and was sixty-six years old on that date. (Id. at ¶¶ 12, 41-42.) Although Tokash was notified that she was laid off in March of 2008, she was allowed to continue working until August 29, 2008. (Id. at ¶ 27.) During that period, however, Tokash trained a younger employee who also had been laid off so that the younger employee could be brought back to assume Tokash's former duties as well as her own. (Id. at ¶¶ 34, 36.) After leaving Foxco, Tokash filed the instant Complaint on April 23, 2010. In pertinent part, Tokash brings claims of age discrimination based on comments made to her following her layoff and departure and on the Defendants' apparent policy of mandatory retirement at age sixty-five.
I. The Relationship Between the Defendant Entities
Foxco Insurance Management Services, Inc. was a Pennsylvania close corporation created on March 5, 1986. (Defs.' Ex. B.) Excalibur Insurance Management Services, Inc. was a Pennsylvania business corporation created on August 23, 1991. (Defs.' Ex' C.) Foxco provided insurance related services to housing and development authorities. Specifically, Foxco acted as appointed Attorney-in-fact to the Housing and Redevelopment Insurance Exchange ("H.A.R.I.E."), an "inter-indemnification reciprocal insurance exchange operating and insuring entities across the Commonwealth of Pennsylvania." (Defs.' Stmt. at ¶¶ 6-7, Doc. 24.) On the other hand, Excalibur insured workers' compensation programs for municipalities and the like. (Id. at ¶ 10.) Since this action was filed, both corporations have been dissolved and consolidated into Excalibur, LLC. (Id. at ¶ 11.)
Plaintiff Carol Tokash began work with Defendant Foxco on October 3, 1994. (Tokash Dep. 27:7-10, Oct. 13, 2011.) During her employment with Foxco, Tokash was "primarily tasked with performing underwriting services for the property and casualty lines of insurance solely for housing and redevelopment authorities across the Commonwealth of Pennsylvania." (Defs.' Stmt. at ¶ 14.) Tokash, however, performed work for Excalibur at the intersection of Defendants' two businesses: underwriting services for workers' compensation lines of insurance for housing and redevelopment authorities. (Id. at ¶ 15.) Tokash received her paychecks from Foxco (Id. at ¶ 13), and does not contest that she was in fact employed by Foxco Insurance Management Services though she did not recall any formal employment contract. (Tokash Dep. at 24:9-16, 34:5-8, 31:21-32:3.) Linda Williams, the Vice President of Foxco, has been Tokash's supervisor since she began with Foxco. (Defs.' Stmt. at ¶ 21, Doc. 24.) At times, however, Tokash was also supervised by Jerry Wallick, the underwriting supervisor for Excalibur. (Id. at ¶ 22.) Wallick worked in the same office as Tokash, the Chestnut Street Office in Dunmore, Pennsylvania. (Tokash Dep. at 48:3-5, 27:11-28:8.)
Charles "Chuck" J. Volpe, Jr. was both president and CEO of Excalibur since its inception in 1991 and of Foxco since 1998. (Charles "Chuck" J. Volpe Dep. 6:23-7:8, Oct. 12, 2011.) Mr. Volpe testified that, although not entirely sure about the exact proportions, he held the majority of Excalibur shares (around sixty percent) while his three sisters held the remainder. (Id. at 10:23-11:9.) He was less sure about Foxco, but indicated that it was the "reverse of Excalibur" with his mother, Eleanor Volpe, as the primary shareholder with the siblings sharing the rest of the shares. (Id. at 11:11-11:17.)
Mr. Volpe directed the work for both entities (Id. at 22:12-14), and Tokash considered him to be her boss. (Tokash Dep. at 45:17-20.) Though he did not testify that Tokash was expressly subject to the supervision and direction of the respective managements of the two corporations, Mr. Volpe explained she was at least subject to his management. (C. Volpe Dep. at 25:17-21.) Mr. Volpe further explained that while Tokash was a Foxco employee, she assisted on the workers' compensation accounts for Excalibur but was subject primarily to the supervision and direction of Foxco. (Id. at 24:21-25:13.) He maintained that the two corporations "had distinct legal entities and responsibilities" (Id. at 24:14-15), and it was his belief that "they were separate companies and separate employees." (Id. at 183:5-11.) Each made separate filings with the Department of State and each corporation's employees received distinct paychecks and W-2s. (Id. at 186:8-187:20.) However, Mr. Volpe stated that he treated these organizations as "one big umbrella" and was "not exactly sure what are the Foxco employees and what are the Excalibur employees." (Id. at 24:8-13.)
II. Plaintiff Tokash's Layoff
In the first quarter of 2008, the Defendants combined lost approximately one million dollars in revenue. (Defs.' Stmt. at ¶ 16.) In his testimony, Mr. Volpe indicated that it was this loss that specifically triggered his decision to implement layoffs. (C. Volpe Dep. at 143:12-144:2.) While Mr. Volpe retained ultimate managerial authority, he indicated that he enlisted advice from other Foxco and Excalibur managers in the layoff process, including Linda Williams, Jack Judge, Jerry Wallick, and Michael Doyle. (Defs.' Stmt. at ¶ 19; C. Volpe Dep. at 31:10-32:2, 54:14-21.) Ultimately, Volpe laid of five employees: Joseph P. Schirra, Carol Tokash, Cathy Alexander, Marion Sillner, and Laura Moore. (Defs.' Stmt. at ¶ 26.)
Tokash was notified that she had been laid off in March of 2008. (Id. at ¶ 27.) While the other laid off employees departed shortly after notice of their layoffs, Tokash was allowed to stay on with full pay and benefits until August 29, 2008. (Id. ¶¶ 27-28, 41.) At the time of her layoff and separation, Tokash was sixty-six (66) years old. (Id. at ¶¶ 42, 61; Tokash Dep. at 6:23-25.) At their respective dates of layoff, Moore was thirty-three (33) years old, Schirra seventy-three (73), Alexander forty-six (46), and Sillner forty-nine (49). (Pl.'s Ex. X.) Laura Moore was called back on approximately September 1, 2008 to work in a newly-created position comprised of Moore's and Tokash's combined former positions. (Defs.' Stmt. at ¶ 34.) Linda Williams testified that Mr. Volpe elected to give Tokash time to get her affairs in order, that he could not afford to keep both on payroll at the same time, and that Moore agreed to be laid off until Tokash finally left. (Linda Williams Dep. 71:19-72:3, Oct. 12, 2011.) As such, during July and August of 2008, Moore came into the office to receive training from Tokash on underwriting duties. (Defs.' Stmt. at ¶¶ 36-37.) Joseph P. Schirra was also recalled to work six (6) months after his layoff. (Id. at ¶ 60.)
Throughout her entire employment with Foxco, Linda Williams was Tokash's supervisor. (Defs.' Stmt. at ¶ 21.) In her deposition, Linda Williams testified that Tokash's performance was merely adequate. While she "handled the responsibilities of the housing authorities very well," she had issues with new tasks such as tax credit properties. (Linda Williams Dep. at 45:18-46:14.) Williams also testified that she had expressly recommended that Tokash be one of the laid off employees because Williams felt that Laura Moore would be a better fit for both the underwriting and regulatory reporting. (Id. at 70:21-71:7.) While Moore would need to be trained in the underwriting, Williams was not confident in Tokash's ability to "to grasp a new idea" or her ability "to keep up to the regulator reports." (Id. at 71:7-16.)
In his deposition, Mr. Volpe confirmed that the layoffs he executed were triggered by economic issues, specifically the Defendants' million dollar revenue loss in the first quarter of 2008. (C. Volpe Dep. at 143:12-15.) And, once it became clear that such layoffs were necessary, his determinations were based on the value of a particular employee to the company. (Id. at 144:3-12.) As to Tokash, Mr. Volpe's decision was founded on the input he received from his subordinates, a decision he based on the "totality of the circumstances." (Id. at 191:19-24, 123:3-17, 144:11-12.) Mr. Volpe confirmed Williams's recollection that Tokash "struggled with some of the changes that were occurring." (Id. at 93:23-94:2.) In particular, he expressed that Tokash was "having a very difficult time in terms of dealing with what the underwriting guidelines were for non-profits." (Id. at 94:15-17.) Moreover, although the company did not have written performance evaluations, Mr. Volpe stated that he had observed a drop in the quality of Tokash's work over the last few years of her employment. (Id. at 159:13-23.) Mr. Volpe also testified to three different occasions where it had come to his attention that Tokash had not been diligent in responding to Board of Director members of H.A.R.I.E., which potentially had a detrimental effect on the business. (Defs.' Stmt. at ¶ 25(c)). Tokash contests these assertions. Mr. Volpe also noted, among other complaints including that Tokash had taken a hotel bathrobe on a company trip, that there was a general feeling among the employees that Volpe had grown discontented with her job (Id. at ¶ 25(d)), all of which Tokash also denies.
Mr. Volpe confirmed that it was almost exclusively Linda Williams who both championed letting go of Tokash and rehiring Moore. (C. Volpe Dep. at 192:9-17.) He testified that "[t]he most feedback on [Tokash] in terms of job performance, in terms of her being let go and in terms of who to hire back came from Linda Williams." (Id. at 192:14-17.) Specifically, Mr. Volpe remembered that Williams requested that Moore be trained and rehired as Williams had worked closely with Moore and was impressed by her potential. (Id. at 142:8-17.) Mr. Volpe believed that although Williams was not expressly trained for the job, she was "exceptionally qualified" and that she could "pretty much do every job in the company." (Id. at 146:3-15.)
Initially, Tokash "just figured [she] was getting laid off because of [her] age." (Tokash Dep. at 199:13-14.) Further, Tokash testified that Linda Williams commented to her over the phone at the time of her layoff that "it's a shame that you and Joe got caught up in this because of your age." (Defs.' Stmt. at ¶ 29; Tokash Dep. at 199:22-200:5.) This apparently referenced Joseph P. Schirra who also had been laid off and was seventy-three (73) years old at the time. Williams, in her deposition, denied ever making such a statement. (Williams Dep. at 84:10-85:3.) Similarly, Tokash testified that Eleanor Volpe--the nominal vice president of Excalibur and Foxco--expressed similar sentiments upon learning of Tokash's departure. (Eleanor M. Volpe Dep. at 50:6-12, Oct. 12, 2011; Defs.' Ex. P; Tokash Dep. at 200:11-201:21.) Specifically, Eleanor Volpe asked Tokash why she wanted to work, noting that "90% of the people your age are retried" and further asking "who is going to want to hire you at your age?" (Defs.' Stmt. at ¶ 31; Tokash Dep. at 200:19-201:1.) Eleanor Volpe also allegedly noted that Tokash had gone "a year and a half past the retirement age of sixty five." (Tokash Dep. at 201:11-14.) Eleanor Volpe did not recall having made these statements. (Eleanor M. Volpe Dep. at 24:24-26:9.) Further, Eleanor Volpe testified that she was under the impression that Tokash had voluntarily retired at the time of her alleged comments, and that she was not even involved in the layoff process. (Id. at 20:6-17, 24:19, 26:10-17.) Tokash disputes this and points out that Mr. Volpe testified that Eleanor Volpe was in charge of Foxco's personnel and policy matters. (C. Volpe Dep. at 42:5-19.)
Finally, the employee manual for Foxco and Excalibur employees provides that "all employees will be subject to a compulsory retirement upon attaining age 65." (Pl.'s Ex. C at 4.) In his testimony, Mr. Volpe equivocated as to whether he knew there was such a manual in force, but he was clear that he never looked at it. (Volpe Dep. at 38:23-24, 81:17-82:15, 190:4-8.) In any event, Mr. Volpe testified that he ran the company as if the guidelines "didn't exist" and that the employees were aware of his disregard for the policy. (Id. at 83:13-22.) In particular, Mr. Volpe added that he was unaware of the policy before Tokash brought it to his attention, to which he responded that there was "no manual as far as [he was] concerned" and that Tokash could continue in her ...