The opinion of the court was delivered by: Eduardo C. Robreno, J.
Janis Stacy ("Plaintiff") brings this employment discrimination action against her former employer, Agere Systems, Inc., and its parent company, LSI Corporation (collectively, "Defendants"). Plaintiff moves for partial summary judgment on whether the Allentown Human Relations Act applies in this case. Defendants move for summary judgment on all of Plaintiff's claims of unlawful discrimination. For the reasons set forth below, the Court will grant Defendants' Motion for Summary Judgment and deny Plaintiff's Motion for Partial Summary Judgment as moot.
In 1998, Lucent Technologies, which later became Agere Systems, hired Plaintiff. Stacy Decl. ¶ 2. When she was hired, Plaintiff had a traditional masculine appearance, wore male clothing, and went by the name "Jim." Id. ¶ 3. In 2002, however, Plaintiff was diagnosed with gender identity disorder ("GID"). Id. ¶ 4. Following her diagnosis with GID, Plaintiff underwent psychological counseling and began receiving hormone therapy.
In February 2005, Plaintiff revealed to Agere Human Resources Business Partner Christine Sostarecz that she suffered from GID and would be transitioning from male to female. Stacy Dep. 104:24-11, Sept. 13, 2011. Sostarecz educated herself about GID and worked with Plaintiff to prepare a presentation to her co-workers regarding her gender transition. Sostarecz Dep. 51:5-56:24, Oct. 26, 2011. In March 2005, Plaintiff made a presentation to her co-workers, including her manager, Dave Sotak, and the director of her current workgroup, George Stasak. Stacy Dep. 110:20-111:13. Thereafter, Norm Lawrence, the director of another workgroup, invited Plaintiff to give her presentation to his workgroup. Id. at 111:16-112:9. During her presentation, Lawrence introduced Plaintiff to his group and "made the statement that yesterday he would have been considered a bigot and today knowing [Plaintiff] he is rethinking things." Id. at 113:12-25. Sostarecz observed Lawrence make the comment. Id. at 116:15-23. By mid-2005, Plaintiff transitioned her appearance at work from male to female and began using the name "Janis." Stacy Decl. ¶ 6.
Despite Agere's written policy prohibiting gender-identity discrimination, Plaintiff testified that her supervisors treated her differently after she disclosed her GID diagnosis. Pl's Resp. Ex. P-19; Sostarecz Dep. 19:4-20:16. Specifically, Plaintiff testified that Stasak "changed his behavior to [Plaintiff]" and "stopped calling [her] into his office." Stacy Dep. 43:22-24. Plaintiff further testified that on at least one occasion Stasak appeared "visibly nervous" around Plaintiff. Id. at 173:13-18. Plaintiff testified that Sotak referred to her using male pronouns. Id. at 50:7-14, 62:19-63:2, 123:21-23; Stacy Decl. ¶ 10. And Plaintiff testified that two non-supervisor co-workers made negative comments regarding her transition: one co-worker commented that Plaintiff was violating "God's will and [she] need[s] to go to religious organizations to seek counsel," and another co-worker expressed concern over which bathroom Plaintiff would use.*fn2 Stacy Dep. 118:7-123:5.
In 2006, after her return from a GID-related surgical procedure, Defendants reassigned Plaintiff to Lawrence's workgroup, and Bob Radaker became her immediate supervisor. Id. at 140:9-19. Plaintiff performed well within her new workgroup and provided valued contributions. Pl.'s Resp. Ex. P-26; Radaker Dep. 13:14-16:6, 19:7-23:11, 40:3-42:12, 51:19-52:19, Oct. 17, 2011. Nevertheless, Plaintiff complained to Lawrence that her performance was unfairly rated and she was unfairly compensated in 2005. Compl. ¶ 50; Lawrence Dep. 222:8-224:1; Garcia Dep. 187:1-12, Oct. 18, 2011. Lawrence investigated and learned that Plaintiff received the exact same performance rating in 2004, before she disclosed her GID diagnosis, and that she was in the top ten percent of the highest paid engineers in the entire company. Lawrence Dep. 227:1-229:4; Stacy Dep. 134:1-21, 136:2-137:23. Lawrence reported his findings to Plaintiff, who admitted to Lawrence that she had no other evidence of any perceived unfair treatment. Lawrence Dep. 228:2-229:24.
In 2007, Agere merged with LSI Corporation.*fn3 Stacy Decl. ¶ 2. In December 2007, Plaintiff recorded that during a meeting with Lawrence wherein she asked what she needed to do to succeed at the new company, "Norm [Lawrence] mentioned how Chris Kribel had just left the company for a better position in another company and how now that I had completed my changes and now I could start someplace fresh. He said he couldn't tell me anything wonderful as a reason to stay." Pl.'s Resp. Ex. D-48.
Following the merger, LSI engaged in a series of layoffs known as the Force Management Program ("FMP") in response to the declining economy.*fn4 Bento Aff. ¶¶ 6-8. Pursuant to the FMP, Defendants eliminated approximately 3,770 positions between April 2007 and December 2007.*fn5 Id. ¶ 11.
In December 2007 or January 2008, Vice President of Product Engineering Scott Keller instructed Lawrence to reduce his workforce by eight employees. Lawrence Dep. 18:9-20:24, 22:1-23:24. Keller instructed Lawrence to terminate four employees from his Austin, Texas, team but gave Lawrence sole discretion to select the other four employees to terminate pursuant to the FMP. Id. at 23:22-24. In making his decision, Lawrence first determined which job positions and functions would be impacted by the FMP. Id. at 30:8-21. Lawrence consulted with Human Resources Business Partner Bonnie Kline regarding the universe of employees that would be affected by the FMP. Id. Kline provided Lawrence with the universes and the members of each universe so that Lawrence could conduct a skills assessment. Id. at 30:8-31:7. Lawrence considered Defendants future needs in determining which universes would be affected by the January 2008 FMP. Id. at 35:15-36:11, 73:24-74:14.
One of Lawrence's universes was Level 12 Principle Product Engineers
in Allentown, Pennsylvania. That universe consisted of three
employees: Nancy Fang, Robert Kistler, and Plaintiff.*fn6
Lawrence Dep. 67:11-68:21. Plaintiff, as lead engineer, supported a certain product line in which Defendants decided
to no longer invest. Id. at 77:22-79:17, 78:6-16; Radaker Dep.
67:8-17, 70:7-71:5, 182:4-7.
Lawrence selected five particular skills critical for the functioning of his team moving forward: execution, teamwork, communication, technical versatility, and customer focus. Lawrence Dep. 38:10-23, 40:1-41:19. When Lawrence assessed Fang, Kistler, and Plaintiff, he ranked Plaintiff lowest of the three, specifically assessing her lower than Kistler and Fang in the critical skills of technical versatility and teamwork.*fn7 Id. at 116:4-122:21. Lawrence presented his assessment to his first-level managers, Bob Radaker, Larry Wall, James Velopolcak, and Lester Kostolanci. Id. at 104:10-106:19; Radaker Dep. 69:1-71:5. Lawrence discussed the rationale for his skills assessment of the three Level 12 Principle Product Engineers and the business needs of the organization moving forward, and most of the managers agreed with his assessment that Plaintiff was the appropriate employee to terminate.*fn8 Lawrence Dep. 109:1-122; Radaker Dep. 73:1-74:19, 77:2-16. Lawrence decided to terminate Plaintiff based on the skills assessment. Id. at 10:5-13.
On January 16, 2008, Lawrence notified Plaintiff that she was terminated pursuant to the January 2008 FMP. Stacy Dep. 165:2-24; Lawrence Dep. 161:13-162:3. Plaintiff testified that Lawrence provided as a reason for her termination that she "was being freed from [her] negative history with George [Stasak] and the corporation." Stacy Dep. ...