The opinion of the court was delivered by: Dalzell, J.
Bradford C. Smith brings this action against the County of Chester alleging that the County discriminated against him based on his age and retaliated against him for filing complaints with the Equal Employment Opportunity Commission (EEOC) and the Pennsylvania Human Relations Commission (PHRC).
Specifically, Smith alleges that by not promoting him to be a full-time park ranger one because of his age, the County violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. (Count One) and the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq. (Count Two). Comp. ¶¶ 94-108. Smith also alleges that in retaliation for his complaint with the EEOC the County graded him as failing a weapons qualifying exam. The County also allegedly removed Smith's duty belt, failed to timely schedule him to retest for his duty belt, failed to return his duty belt after he successfully completed the test, failed to approve his annual review, and failed to provide him with one-on-one training after he did not pass his first test. Comp. ¶¶ 110-111; Pl. Reply at 7. Smith alleges that through those acts the County violated the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (Count Three) and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. (Count Four). Comp. ¶¶ 109-117.
In order to bring suit under the ADEA or the PHRA, a plaintiff must first exhaust his administrative remedies. See, e.g., Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997). Plaintiff has met the exhaustion requirement here. See Comp. Ex. 6, 10-14 (EEOC and PHRC filings and correspondence).
The County avers that "Plaintiff's claims in the instant action do not arise out of the 2003 interview and hiring process." Def. MSJ at 3 n.3. According to Smith's complaint, he applied to be a full-time Regional Park Ranger in 2003, 2005, and 2006, and he does not distinguish among these applications in his discrimination claim. Instead, incorporating paragraphs that encompass all three applications, Smith avers that the County violated the ADEA "by refusing to hire Plaintiff for the Regional Park Ranger due to his age", Comp. ¶ 95. He also claims that when he applied to be a Regional Park Ranger he was "between the ages of 53-56", Comp. ¶ 96, implying that his claim encompasses all three applications.
But in order to meet the exhaustion requirement, Smith must have first filed a complaint with the EEOC within one hundred and eighty days of the allegedly unlawful employment practice. 29 U.S.C. § 626. Smith did not file an EEOC complaint at all until 2006, and so his claim regarding any allegedly illegal conduct in 2003 is time-barred. We will thus read Smith's complaint as addressing only the 2005 and 2006 applications and the County's allegedly retaliatory conduct in 2006.
If a plaintiff has timely filed a charge with the EEOC, the Commission may issue a right-to-sue notice, and a plaintiff has ninety days from the date of receipt of that notice to file a lawsuit. See, e.g., McCray v. Corry Mfg. Co., 61 F.3d 224, 227 (3d Cir. 1995). The EEOC issued a right-to-sue notice in this case on October 25, 2011*fn1 , see Right-to-Sue Notice, Comp. Ex. 13, and Smith does not dispute that he received it in due course. He filed this action on January 11, 2012, within the ninety-day window, and the action was thus timely filed.
We exercise jurisdiction over Smith's ADEA claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over Smith's PHRA claims pursuant to 28 U.S.C. § 1367.
The County of Chester moves for summary judgment on all counts. Def. MSJ at 1.
A party moving for summary judgment bears the initial
burden of informing the district court of the basis for its argument that there is no genuine issue of material fact by "identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact", Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets this initial burden, Fed. R. Civ. P. 56 then obliges "the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324.
A factual dispute is genuine
[I]f the evidence 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 evidence on which the jury could reasonably find for the plaintiff.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law". Id. at 248.
We "must draw all reasonable inferences in favor of the nonmoving party, and [we] may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000), cited in Amour v. County of Beaver, PA, 271 F.3d 417, 420 (3d Cir. 2001)).
Smith was born on January 2, 1950, and in June of 1998 -- when he was forty-eight years old -- the County of Chester hired him as a part-time park ranger in its Parks and Recreation Department. Def. MSJ ¶¶ 3-4; Pl. Reply in Opp. ¶¶ 3-4. The part-time park ranger position involved enforcing laws and park regulations, providing assistance to visitors, and park patrol.
The County issued each ranger a duty belt, which included handcuffs and a firearm. Def. MSJ ¶ 5-6; Pl. Reply ¶ 5-6.
While Smith was working as a part-time ranger he maintained a full-time job as the owner and operator of Laurel Printing and Advertising, Inc., where he worked between sixty and seventy hours per week. Def. MSJ ¶ 9; Pl. Reply ¶ 9.
In 2000, Smith also took a job as a Deputy Waterways Conservation Officer with the Pennsylvania Fish and Boat Commission. This job required him to "complete 80 hours of patrol time and 20 hours of patrol with a full-time WCO" every year. Pl. Reply ¶ 10; see also Def. MSJ ¶ 10.
K. Owen Prusack, the superintendent at the Chester County park where Smith worked, testified that Smith "was a good employee . . . He met expectations. He did the job. I believe his evaluations probably reflected that he did that. He was middle of the road, a good employee." Prusack Dep., Pl. Reply Ex. 3 at 27:7-11. But the County points to two incidents that "put in question [Smith]'s judgment regarding his conduct and competency with firearms as well as his relationship with female officers in the Department." Def. MSJ ¶ 11.
In 2001 Smith attended a ranger meeting while wearing civilian clothes and carrying a .45 caliber gun for which he had a "carry conceal permit." Smith Dep., Pl. Reply Ex. 2 at 28:25-29:8. The gun was tucked in his pants in the small of his back, but his shirt was tucked in, so when he sat down, he took the gun out, put it on the table, untucked his shirt, and put the gun back in his pants. Id. at 29:8-12. The County investigated the incident, but Smith did not suffer any adverse employment consequences as a result. Id. at 30:11-20. Smith notes that his subsequent annual review did not mention the incident. See Pl. Reply Ex. 5, 2002 Yearly Evaluation for Bradford Smith.*fn2
The County next mentions an incident in which Smith believed he was scheduled to open the park, but when he arrived he found that a female employee was in fact scheduled to open it. Rather than leave, he accompanied her as she made her rounds. Smith Dep., Def. MSJ Ex. A at 32:13-19. The employee then complained to Prusack that "she felt sexually uncomfortable around Brad and she wanted somebody to talk to him about it."
Prusack Dep. at 27:17-21. She told Prusack that Smith made her uncomfortable with his "innuendo and maybe verbal, something verbal, nothing physical." Id. at 28:4-6. Prusack spoke to Smith, but because the female employee did not want Prusack to take any disciplinary action he did not. Id. at 28:24-29:18.
In October of 2003, the County posted job listings for two full-time Regional Park Ranger positions. Pl. Reply ¶ 12; Chester County Open Job Listing, Pl. Reply Ex. 6. Smith applied for a full-time regional park ranger position with the County through a two-stage panel interview process. Def. MSJ ¶ 12; Pl. Reply ¶ 12. Smith did not receive the position. The County instead hired Cathy Zeigler and Robert Lewis, who were both in their late thirties. Def. MSJ ¶ 13; Pl. Reply ¶ 13.
In 2005, Smith again applied for a full-time ranger position and was selected for an interview with a six-person panel. Def. MSJ ¶¶ 14-15; Pl. Reply ¶¶ 14-15. According to the County, in October of 2005 the hiring panel interviewed between six and eight people for two open positions. John Mikowychok, the Director of Parks and Recreation, described the hiring process, which had been in effect "at least since 2001". Mikowychok Dep., Pl. Ex. 11 at 27:21. As Mikowychok explained, the process involved a thirty-minute written test in which applicants responded to a hypothetical scenario involving challenges a park ranger could face. The hiring panel then reviewed those responses. Mikowychok Dep. at 26:3 - 27:2. The application also involved a panel interview process. The panel asked all candidates the same questions, ordered "randomly in a cycle", whereby "if [the panel] started off and  there's five persons interviewing, the first person asks question one and then when the next candidate came in, the second person asked question one." Id. at 28:3-7. See also Def. MSJ ¶ 17; Hesser Dep. at 78:22-79:5 (explaining that the panel asked each applicant the same twenty questions and graded the applicants on the same scale).
During the interview, the panel asked Smith why he was applying for a full-time job when he owned a printing business, and Smith recalls, "My response would have been that the printing business is going belly up, where better to put my efforts to find employment as a full-time position than something I've been doing part time for all those years." Smith Dep., Def. MSJ Ex. A, 48:1-5.
Smith did not get the job. The County hired Cathy Pavolic, who was also a part-time ranger, and John Conlow. Both were thirty-seven years old. Def. MSJ ¶¶ 14-15; Pl. Reply ¶¶ 14-15. Two members of the panel were Pavolic's direct supervisors. Def. MSJ ¶ 16; Pl. Reply ¶ 16; Smith Dep. at 49:15-19. The parties dispute the facts concerning the basis for the panel's decision, as discussed below.
On January 13, 2006, the County again sought to hire a full-time regional park ranger. Def. MSJ ¶ 18; Pl. Reply ¶ 18. Smith applied but was told the County would not interview him because "there had been 'no appreciable difference in [his] status' since his last interview." Def. MSJ ¶ 19.*fn3
In March of 2006, Smith was obliged to pass weapons qualifications tests because he carried a firearm as part of his part-time job with the County, Def. MSJ ¶ 21; Comp. ¶ 41. On March 1, 2006, Smith failed a dim light weapons qualification test. Pl. Reply ¶ 22; March 21, 2006 County of Chester Interoffice Memorandum, Pl. Reply Ex. 14.
On March 3, 2006, Smith filed a charge against the County for ADEA violations with the United States EEOC. Comp. ¶ 37; Def. MSJ ¶ 33. He cross-filed the charge with the PHRC. Comp. ¶ 38.
The next day Smith took additional weapons qualifications tests: he passed the daylight qualification test, but he failed the tactical qualification test. Id. Robert McAllister, the test administrator, allowed Smith to attempt the tactical qualification test a second time that day, and Smith again failed. See March 21, 2006 County of Chester Interoffice Memorandum, Pl. Reply Ex. 14. On March 8, 2006, Smith was offered a third chance to take the tactical qualification test, which he again failed. Id. The County thus required Smith to turn in his duty belt, his firearm, hand-cuffs, pepper spray, and baton on March 8, 2006. Pl. Reply ¶ 23; Def. MSJ ¶ 23.
McAllister concluded after Smith's third attempt that "Based on my observations and opinion, Brad has a significant deficiency in his understanding and application of the justifiable use of deadly force as it pertains to Pennsylvania law. I recommend re-training in this area before additional range attempts at qualification are made or reinstatement of carry status occurs." March 21, 2006 County of Chester Interoffice Memorandum, Pl. Reply Ex. 14.
On March 29, 2006, Smith took another "qualifying shoot" test, Pl. Reply ¶ 24, which he passed.*fn4 The County scheduled Smith's re-test of his tactical shoot for May 11, 2006, and he passed that re-test. Id. In her deposition, Pavolic testified that when she failed a weapons qualification test, she "spent time practicing with the firearms instructor" and was scheduled for a subsequent test "[m]ost likely less than a month" after she had failed. Pavolic Dep., Pl. Reply Ex. 8, 20:7-9; 21:2.
On June 8, 2006, Smith's supervisor, John Spencer, wrote a performance review of Smith, which Spencer and Smith both signed. See June 8, 2006 Review, Comp. Ex. 7. After reading the review, Mikowychok advised Spencer "to put language in there to include the emphasis on improving his firearm proficiency." Mikowychok Dep., Pl. Reply Ex. 11, 54:5-8. Spencer then submitted a revised review, dated July 5, 2006, which Spencer and Smith both signed. July 5, 2006 Review, Pl. Reply Ex. 8. That review mentioned Smith's need to improve his firearm proficiency. Id. at 2.
On August 4, 2006, the County issued a reclassification memorandum in which it explained that on July 22, 2006 the County had officially reclassified all part-time Park Rangers as "Park Technicians". Job Re-Classification Letter, Pl. Reply Ex. 17. As a result of the change, part-time rangers were to stop wearing conventional duty belts and return to the County all firearms, batons, handcuffs, and other defensive equipment. Id.
Mikowychok testified that in light of the reclassification he believed that Spencer should remove the language regarding improving firearm proficiency from Smith's performance review:
I said there's no point in keeping this requirement of him for the new year. It's now moot . . . he wouldn't have to take this training. So there's no point in keeping it in there and having him contact ready or at community ...