United States District Court, W.D. Pennsylvania
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David M. Huntley, Jones, Gregg, Creehan & Gerace, Lisa M. Goodman, Pittsburgh, PA, for Plaintiff.
W. Scott Hardy, Philip K. Kontul, Thomas H. Barnard, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Pittsburgh, PA, Lerval M. Elva, Ogletree, Deakins, Nash, Smoak & Stewart, Cleveland, OH, for Defendant.
DAVID STEWART CERCONE, District Judge.
Plaintiff commenced this action seeking redress for allegedly being terminated from employment in violation of the Age Discrimination in Employment Act. Presently before the court is defendant's motion for summary judgment. For the reasons set forth below, the motion will be granted.
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, " the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir.1992). Once that burden has been met, the non-moving party must set forth " specific facts showing that there is a genuine issue for trial, " or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(a), (e)) (emphasis in Matsushita ). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In meeting its burden of proof, the " opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. The nonmoving party " must present affirmative evidence in order to defeat a properly supported motion" and cannot " simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989). Nor can the opponent " merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846 (3d Cir.1992). Likewise, mere conjecture or speculation by the party resisting summary judgment
will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n. 12 (3d Cir.1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to " turn a blind eye" to the weight of the evidence).
The record as read in the light most favorable to plaintiff establishes the background set forth below. Plaintiff was hired by AT & T Broadband, a predecessor to Comcast Cable (" defendant" or " Comcast" ), on February 28, 2000, as an outbound sales representative. He was fifty years of age at the time. Defendant dissolved the outbound sales department in late 2007 and transferred plaintiff to the customer loyalty division where he worked as a retention agent. In this position he received telephone calls from Comcast subscribers who were considering terminating their service agreements. Plaintiff's job was to address the customers' complaints and attempt to retain their business.
The customer loyalty division receives hundreds of calls from customers each day. Defendant believes that regular attendance and punctuality by its employees in this department are necessary to ensure that the calls are answered in a timely fashion. It utilizes an attendance policy in furtherance of this goal. The policy establishes specific expectations regarding attendance, including disciplinary action for excessive absenteeism.
On March 1, 2008, Comcast implemented a revised attendance policy for the Pittsburgh call center where plaintiff worked. He received a copy of the new guidelines later that month. The policy provided for a progressive discipline system based on an employee's attendance record and the accumulation of " events."
Every unscheduled absence was counted as one event. The policy defined an unscheduled absence as any time off work (full or partial day) that was taken without prior approval from the employee's supervisor or manager. An unscheduled absence included things such as personal emergencies, vacation, or illness.
Tardiness counted as one-half of an event. Tardiness was classified as any unapproved time away from job duties, such as returning late from break or leaving work early.
Unlike an unscheduled absence or tardiness, a scheduled absence did not count as an event. A scheduled absence was any time off work that was taken with prior approval from the employee's supervisor or manager. It included approved vacation days, time missed while on an approved leave of absence (such as Family and Medical Leave), jury duty, military leave, disability leave, workers' compensation leave, personal leave, and bereavement leave. Employees were permitted to take up to three days of bereavement leave for the death of an immediate family member, such as a parent, without adverse consequences.
An employee's attendance record was considered satisfactory as long as the employee did not exceed nine events during a rolling twelve month period. If an employee accumulated eight events, he would receive a notice warning informing him that he is approaching an unsatisfactory level. If nine events were amassed, then a verbal warning was issued. A written
warning was provided after ten events, a final written warning after eleven events, and a review for termination would occur after the accumulation of twelve events within the rolling twelve month period.
Plaintiff received several disciplinary notices based on his attendance record before defendant enacted its new attendance policy. Nevertheless, plaintiff and all other employees were given a " fresh start" when the new guidelines were implemented on March 1, 2008. Thus, all previous events were removed from his attendance record.
After March 1, 2008, disciplinary action was issued against plaintiff under the revised policy. His first event occurred on March 20, 2008. On this date plaintiff left work before his shift ended after learning that his father's health was failing. On March 28, 2008 plaintiff accrued another event when he left work early due to his father's death. Following his father's passing, plaintiff took three days off under Comcast's bereavement policy.
Plaintiff accumulated six more events between March 28, 2008, and October 9, 2008. After his eighth event plaintiff received a notice warning from his immediate supervisor, Jessica Erol, and signed a document known as a " responsibility agreement." By signing the responsibility agreement plaintiff acknowledged that his first event occurred on March 20, 2008, and that it would remain on his record for a rolling twelve month period. However, plaintiff disputed several of the absences recorded on his attendance record. He questioned the meaning of certain notations such as " ebl" and " bsl," and he did not recall missing work or being tardy on some of the dates on his record. Erol indicated she would investigate the events.
Plaintiff received a verbal warning and signed another responsibility agreement on October 29, 2008, after accruing another attendance violation on that day. In doing so plaintiff acknowledged he had accumulated nine events. He also acknowledged that he was aware of Comcast's attendance policy.
On or around November 4, 2008, plaintiff met with Kelly O'Toole from the human resources department. He told O'Toole that he was experiencing high levels of stress in the customer loyalty division and wanted to transfer to a new department. He also reported that he had been repeatedly subjected to ageist comments from his co-workers and prior supervisor Linn Roberts. For example, plaintiff had been called " old man" by Roberts and " old cracker" by coworker Elliot Williams. Plaintiff had heard other unidentified coworkers making comments such as " the old man must be talking to an old person" during his conversations with customers. Others, including Roberts, repeatedly asked him and made snide comments about when he would retire.
On November 13, 2008 plaintiff received another attendance-related event. He signed a responsibility agreement acknowledging he had reached ten events within the rolling twelve month period, and he received a written warning.
An additional event and responsibility agreement followed on December 5, 2008. Plaintiff acknowledged he had reached eleven and one half events and that he was receiving a final written warning. Once again, plaintiff questioned several of the events on his record while meeting with Erol. He informed her that he had requested a transfer while meeting with
O'Toole from human resources. Erol stated she would review his attendance record, research available course offerings for stress management, and help upload his resume to the company's database.
Plaintiff accrued his final event on December 31, 2008. He called off on New Year's Eve because his prescription eyeglasses had broken. He signed a responsibility agreement on January 16, 2009, stating he had reached twelve events in the rolling twelve month period. The agreement informed him that his employment had been terminated. He was fifty-nine years of age.
At the time of his termination plaintiff suspected that some of his attendance violations were due to his age based on the discriminatory comments he had heard from supervisor Roberts and his co-workers. Plaintiff filed a charge with the EEOC. The instant lawsuit followed after he received a right to sue letter.
Plaintiff contends he was treated disparately because other younger employees could challenge their recorded absences with their supervisors while plaintiff was not afforded the same opportunity. For example, two younger employees— Richard Bodner and Pete Miller— told plaintiff that their supervisors would inform them when an event was about to be placed on their records and they were able to discuss the matter with their supervisors to provide an explanation or their version of what had happened. These individuals never informed plaintiff about the outcome of these discussions, i.e., whether the notice and discussions actually resulted in an anticipated event not being recorded or being reduced in severity. In contrast, although he asked repeatedly, plaintiff alleges no one ever checked into or explained why certain absences were documented on his attendance record and remained there after he raised questions about them.
In addition, plaintiff contends Comcast administered the attendance policy in favor of younger employees. Specifically, he claims co-worker Elliot Williams left work early in 2008 to buy Christmas presents at the request of supervisor Roberts. Plaintiff asserts this absence was not marked on Williams' attendance record because he was a younger employee.
Defendant also permitted managers and supervisors to exercise discretion in administering the attendance policy when an employee was reviewed for termination. One younger employee, Tina Quinn, was reviewed for termination after she accumulated more than twelve events. Defendant decided to permit her to continue working under a " last chance agreement." The same opportunity was not extended to plaintiff.
Moreover, plaintiff argues that two of his absences— March 20th and March 28th— resulted from his father's illness and death and should have been removed from his attendance record after he brought them to his supervisor's and the department of human resources' attention. Although plaintiff admittedly had exhausted his allotted three days of bereavement leave, the human resources department previously had made exceptions for employees reaching an excessive number of absences. Plaintiff notes that the department had removed multiple events from another employee's attendance record. Specifically, on June 2, 2009, Comcast waived an absence by employee Alissa Jones on June 27, 2008, because she did not realize that she had run out of FMLA
hours. Comcast waived two additional absences by Jones on October 20, 2008, and October 25, 2008, due to a death in her family. According to plaintiff, Comcast's failure to remove the March 20th and March 28th absences from his record establishes a prima facie case of age discrimination given that the company had granted exceptions under similar circumstances to Jones.
Finally, plaintiff argues that Comcast terminated him to avoid paying retirement benefits. To be eligible for the company's stipend program, an employee had to achieve 10 years of service and be at least fifty-seven years old. At the time of his termination, plaintiff was 59 years of age and was only a little more than one year away from the ten year benchmark. Plaintiff contends defendant terminated his employment on the basis of age to avoid paying this stipend upon his retirement.
Defendant moves for summary judgment on the ground that plaintiff has not produced sufficient evidence to support a finding of age discrimination. First, there is insufficient evidence to establish discrimination based on direct evidence. Even if supervisor Roberts called plaintiff an " old man," she was not his supervisor at the time or a decision-maker with respect to plaintiff's discharge. Moreover, these alleged comments purportedly were made nearly a year before plaintiff's termination. Defendant thus asserts that the comments were remote and unrelated to any management ...