United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER I.
Bissoon United States District Judge
reasons that follow, Defendant's Motion for Summary
Judgment (Doc. 29) will be granted.
has filed this lawsuit against his former employer, alleging
that he was terminated because of his age in violation of the
Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621, et seq. (Am. Compl. (Doc. 5) at
¶ 56). Plaintiff began his employment with Defendant in
1974, holding various positions within the company before
being promoted to Director of Supply Chain and Planning in
2010, the position he held until his termination in October
2014. (Def.'s Concise Stmt. of Undisputed Material Facts
(Doc. 31) at ¶¶ 9-10, 15, 17; Pl.'s Resp. to
Def.'s Concise Stmt. of Undisputed Material Facts (Doc.
39) at ¶¶ 9-10, 15, 17). As a director, Plaintiff
was a highly-placed leader, and Defendant had expectations
regarding his behavior. (Doc. 31 at ¶ 21; Doc. 39 at
¶ 21). In addition, Defendant's corporate guidelines
specified that “all [e]mployees are expected to act in
a responsible and professional manner[, and] . . . [n]o one
should be subject[ed] to bullying or abusive or harassing
behavior at work.” (Doc. 31 at ¶ 5; Doc. 39 at
human resources department (“HR”) received three
reports of inappropriate conduct by Plaintiff, in a roughly
20-month period. First, in February 2013, Tracy McFarland
reported that Plaintiff had stated he would “knock [her
subordinate's] ass out” if he ever told
Plaintiff's subordinates what to do. (Doc. 31 at ¶
29; Doc 39 at ¶ 29). HR counseled Plaintiff against
making threatening remarks, and it suggested that he consider
entering Defendant's Employee Assistance Plan
(“EAP”). (Doc. 31 at ¶ 32; Doc. 39 at ¶
received a second report, in June 2014, from Jim Borgan.
Borgan reported that Plaintiff, in response to Borgan's
comment that making coffee was a “management job,
” yelled and pointed at Borgan in front of three other
employees. (Doc. 31 at ¶¶ 33, 35; Doc. 39 at
¶¶ 33, 35). HR again counseled Plaintiff; it
ordered him to participate in the EAP; it placed a formal
note of discipline in Plaintiff's personnel file; and it
warned that further violations of Defendant's corporate
guidelines would result in more serious consequences. (Doc.
31 at ¶¶ 39, 41; Doc. 39 at ¶¶ 40, 42).
Plaintiff's supervisor, Terry Hartford, also directed him
to “[c]ontinue focus[ing] on treating co-workers with
dignity and respect.” (Doc. 31 at ¶ 42; Doc. 39 at
received a third report, in October 2014, when employee John
Trafan indicated that Plaintiff had “snapped”
during a disagreement they had had a few weeks earlier; and
Plaintiff subsequently had made threatening-comments about
him to various co-workers. (Doc. 31 at ¶ 45; Doc. 39 at
¶ 46). According to co-workers, Plaintiff said that, if
he saw Trafan in public, he would kick his ass, punch him in
the throat and crush his Adam's apple, and he would post
personal information about Trafan on the internet so that his
military friends could find Trafan and take care of
(Doc. 31 at ¶ 46; Fahr Confidential Mem. (Doc. 32-2) at
Tab 16, ATI-000001). When Plaintiff met with HR, he admitted
to having threatened to “[R]anger throat
punching” Trafan. (Doc. 31 at ¶ 51; Doc. 39 at
¶ 51). HR advised Plaintiff that his behavior was
unacceptable, and directed him to stay home until an
investigation of the incident was completed. (Doc. 31 at
¶¶ 57-58; Doc. 39 at ¶¶ 57-58).
the investigation, Danielle Fahr, HR Director, recommended
that Plaintiff's employment be terminated based on the
reports of misconduct and Plaintiff's failure to improve
despite counseling and attending the EAP. (Doc. 31 at ¶
61; Doc. 32-2 at Tab 16, ATI-000007; Fahr Dep. (Doc. 37-8) at
72:2-13, 75:14-18). Fahr's recommendation was accepted by
Hartford, HR Vice President Dan Mochnaly, and company
President Bob Wetherbee. (Doc. 31 at ¶ 61; Doc. 37-8 at
75:18-19). On October 21, 2014, Fahr notified Plaintiff that
his employment had been terminated. (Doc. 31 at ¶ 63).
Plaintiff was 60 years old. (Doc. 31 at ¶ 12; Doc. 39 at
to Fahr, Defendant scrambled to fill Plaintiff's
position, no one “per se” replaced him and his
work was redistributed so that no one-person was
overburdened. (Doc. 31 at ¶ 65). In response, Plaintiff
initially claimed that his position was filled by an
unspecified “significantly younger individual”;
and, after the record on summary judgment closed, he
attempted to identify two younger replacements, James Houser
and then Robert Wellman, both of whom allegedly were in their
early 40s. (Doc. 5 at ¶ 31; Pl.'s Aff. (Doc. 44) at
¶¶ 1-2); but see discussion infra
(rejecting Plaintiff's reliance on such evidence, which
was in contravention of a prior Court-Order).
believes that comments by other co-workers show
Defendant's preference for younger employees, (Doc. 5 at
¶¶ 18-20, 23-25),  and he claims to have been
terminated because Defendant wanted to “lower the
overall age of its workforce.” (Id. at
¶¶ 53-54). Plaintiff alleges that he received more
work than similarly-situated younger employees, and that he
occasionally was prohibited from taking half-days of vacation
so that he would be pressured to quit his job. (Id.
at ¶¶ 12-15). Plaintiff admits, however, that he
did not know what assignments were given to younger
employees, or whether they too were prevented from taking
half-day vacations. (Doc. 31 at ¶¶ 68, 74; Doc. 39
at ¶ 68; Sadowski Dep. (Doc. 32-1) at 37:16-21,
also asserts that other employees engaged in unprofessional
conduct, not resulting in termination. (Doc. 5 at ¶ 51).
However, Plaintiff admits that he does not know the details
of other employees' purported misconduct, or whether or
how they were disciplined. (Doc. 31 at ¶¶ 97-100;
Doc. 39 at ¶¶ 97-100). Further, Plaintiff does not
allege that other employees who supposedly engaged in
misconduct were treated better because they were younger.
(Doc. 31 at ¶¶ 95-96; Doc. 39 at ¶¶
contends that Defendant never criticized his behavior until
it tried to “lower the overall age of its workforce,
” and then he was terminated because of his age. (Doc.
5 at ¶¶ 53-54, 56). Defendant moves for summary
judgment, arguing that Plaintiff has failed to establish a
prima facie case of age discrimination; and that,
even if he could, Defendant had a legitimate,
non-discriminatory reason for terminating Plaintiff, which he
has not shown to be pretext. (Def.'s Mem. of Law in Supp.
of Mot. for Summ. J. (Doc. 30) at 7-22).
ADEA makes it unlawful for an employer to terminate an
individual because of his age. See 29 U.S.C. §
623(a)(1). To succeed on an ADEA claim, a plaintiff must
establish by a preponderance of the evidence that age was the
“but-for” cause of the adverse employment action.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78
(2009). Absent direct evidence of discrimination, as here, a
plaintiff may prove an ADEA claim according to the
burden-shifting framework in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 804 (1973): (1) first, the
plaintiff must state a prima facie case of
discrimination; (2) then, the burden shifts to the employer
to advance a legitimate, non-discriminatory reason for the
adverse employment action; (3) and, finally, ...