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Joseph Socoloski v. Sears Holding Corp. and Sears

July 31, 2012


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


Before the Court for consideration are Defendants' Motion for Summary Judgment (ECF No. 14), Plaintiff's Response in Opposition thereto (ECF No. 15), Defendants' Reply in further Support thereof (ECF No. 16), and Plaintiff's Surreply in further Opposition thereof (ECF No. 19). For the following reasons, Defendants' Motion is denied.

Factual Background

Plaintiff alleges that Defendants violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 630, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, and the Pennsylvania Human Relations Act ("PHRA"), 42 Pa. Stat. Ann. § 952.

Born in 1954, Plaintiff is a former preventative maintenance technician who had worked for Sears Holding Corp. for thirty-eight years before he was terminated. Pl.'s Mem. Opp'n. Summ. J. Ex. A, at 25:13-14. On May 13, 2010, a video camera depicted Plaintiff leaving Sears at approximately 10:35 a.m.; however, on May 14, he revised his time card to state that he had left at 2:00 p.m. Pl.'s Opp'n. Ex. C, at 20:9-21:15. When confronted with the accusation that he improperly revised his time card, Plaintiff stated that he could 1not remember the exact time that he left, and that he had his dates confused. Pl.'s Opp'n. Ex. C, 67:6-10. Lizanne Leh, Sears' former Director of Human Resources, testified that "[she] believe[d] [Plaintiff] may not have remembered on this occasion." Pl.'s Opp'n. Ex. C, at 67:11-17.

Ryan Fysz, Sears' Loss Prevention Manager at the Neshaminy Mall store, witnessed Plaintiff depart work early through a side door, Defs.' Mem. Supp. Summ. J. Ex. E, at 49:15-50:11, and subsequently brought the alleged time clock fraud to the attention of Frank Macgregor, the Store Manager. Defs.' Mem. Ex. E, Leh 1. Thereafter, Macgregor, Stephen Cassidy-one of Plaintiff's supervisors-Leh, and Fysz jointly investigated the matter, and met with Plaintiff. Defs.' Mem. Ex. E, Leh 2. During the meeting, Plaintiff admitted that he "left early" on May 13, 2012. Defs.' Mem. Ex. B, at 97:9-18. Macgregor made the final decision to fire Plaintiff because of Plaintiff's "violation of company policy." Defs.' Mem. Ex. F, ¶ 4.*fn1

Plaintiff alleges that "one to two months before he was ultimately terminated," Leh and Macgregor told Plaintiff: "You're 55, take the early retirement, but we are not going to give you your pension and you're not going to get your 401(k), and we guarantee you are not going to collect unemployment." Pl.'s Opp'n. Ex. A, at 50:14-51:15. Plaintiff further alleges that Leh once said to him: "Oh Joe, Joe, what are we going to do with you? You ought to just retire." Pl.'s Opp'n. Ex. A, at 53:6-16.

Moreover, Plaintiff asserts that Cassidy frequently assigned him time-consuming work that was not included in his job description, and that took up large portions of his day. Pl.'s Opp'n. Ex. A, at 40:9-14. Plaintiff also testified that when he was unable to successfully complete all of his work in a given day, Cassidy made comments to him such as: "Oh, you are 55, you should quit anyway" and "You're old . . . you're too slow . . . you're 55, why don't you retire?" Pl.'s Opp'n. Ex. A, at 41:1-24. Furthermore, Plaintiff alleges that Cassidy referred to him as an "old fart." Id. at 82:17-83:16. Defendants deny that Cassidy, Leh, and Macgregor made any of the alleged comments referencing Plaintiff's age. Defs.' Mem. at 9, 11.

Both parties stipulate that after Plaintiff was fired, Barrett Johns, who was born in 1978, ultimately replaced him. See Pl.'s Opp'n. Ex. H, at No. 6, p. 8. Jones previously worked as a shoe salesman, and he reportedly had no prior experience as a preventative maintenance technician. Pl.'s Opp'n. Ex. E, at 34:1-19.

With regards to his alleged disability, Plaintiff claims that "[he] used to moan all the time . . . to everybody [he] came in contact with," Pl.'s Opp'n. Ex. A, at 67:17-68:1, and that "[he] constantly complained about his arthritis to many of his co-workers and supervisors, including Mr. Cassidy." Id. Cassidy, however, provided conflicting testimony regarding Plaintiff's complaints. He initially stated that Plaintiff would complain about his back and his elbow. Pl.'s Opp'n. Ex. B, at 26:1-8. He later testified, however, that Plaintiff never complained about his back or elbow. Pl.'s Opp'n. Ex. B, at 46:5-10. Gallagher also provided conflicting testimony regarding the frequency of Plaintiff's complaints. See Pl.'s Opp'n. Ex. E, at 13:3-11.

Plaintiff asserts that he requested electric tools and assistance in lifting heavy objects due to the arthritis in his hands. Pl.'s Opp'n. Ex. A, 68:22-69:16, 75:13-76:5. Plaintiff further alleges that his accommodation requests were only sometimes granted, and that the auto center manager would tell other workers that they were not supposed to help Plaintiff.

Pl.'s Opp'n. Ex. A, at 74:21-75:6. Cassidy acknowledges that Plaintiff requested assistance with heavy lifting; however, Cassidy denies that Plaintiff ever directly or indirectly requested power tools. Pl.'s Opp'n. Ex. B, at 35:8-37:18.

Defendants now move for summary judgment on Plaintiff's claims that Defendants wrongfully terminated Plaintiff because of his age and his alleged disability.

Legal Standard

Summary judgment is appropriate "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 party's assertions can be supported by "particular parts of materials in the record, including depositions, documents . . . affidavits or . . . interrogatory answers." Fed. R. Civ. P. 56(c)(1)(A). Summary judgment is properly entered against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In reviewing the grant for a motion for summary judgment, we (1) resolve conflicting evidence in favor of the non-movant (2) do ...

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