Opinion
Civil Action No. 00-5196
October 4, 2002
MEMORANDUM
Plaintiff Frank J. Battistone alleges discrimination on the basis of age by his former employer, defendant Sam Jon Corporation ("Sam Jon"), in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951 et seq. Mr. Battistone also asserts a state law claim for unjust enrichment. Before the court is Sam Jon's motion for summary judgment, brought pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, the motion will be granted in part and denied in part.
Factual and Procedural Background
From 1995 to 1999, Mr. Battistone worked for Sam Jon and two companies related to Sam Jon but not named as parties in this suit (Klein-Hardt, Inc. and Anthony Home Improvement, Inc.) as a telemarketer salesman. By all accounts, Mr. Battistone was originally employed as an independent contractor and paid on a commission basis. From his initial hiring through the termination of his employment in October 1999, Mr. Battistone's relationship with Sam Jon went through a series of changes in both job description and pay structure. Mr. Battistone eventually was given responsibility for supervision of Sam Jon's telemarketing center, which involved hiring and training Sam Jon telemarketing employees. At the end of his tenure with Sam Jon, Mr. Battistone was receiving a paycheck and believed that he was considered a regular employee of Sam Jon. He alleges in this suit that Sam Jon owes him substantial sums for commissions he earned over the years. For its part, Sam Jon insists that Mr. Battistone's status as an independent contractor was still intact at the time he left the company, and that the pay Mr. Battistone received was a "draw on commissions." Mr. Battistone denies any knowledge that the checks he received were merely an advance on unearned commissions and alleges that the regular checks represented his base pay, to be supplemented (not supplanted) by commissions earned.
As will become clear in this memorandum, the parties themselves are uncertain regarding the relative roles of the various corporations related to Sam Jon. Accordingly, this memorandum's subsequent references to "Sam Jon" are intended to include that company, and Klein-Hardt, Inc., and Anthony Home Improvement, Inc., and also two other related corporations, all of which are discussed infra.
Just as the parties differ in their interpretation of Mr. Battistone's pay structure, so too is there considerable dispute regarding the circumstances of his separation from Sam Jon. Stephen Klein, a member of Sam Jon's management, avers that, in an October 1999 meeting, he (1) told Mr. Battistone that the telemarketing department (of which Battistone was the supervisor) was having problems with customer lists and complying with a client's regulations, and so was not profitable, (2) informed Mr. Battistone that he could not continue as the telemarketing supervisor, and (3) gave Mr. Battistone several options to work for corporations related to Sam Jon. Mr. Battistone admits that he was provided with some alternative employment choices, but complains that they were in an untested department with uncertain compensation. Ultimately, Mr. Battistone refused the alternative positions and left the employ of Sam Jon. The telemarketing department, according to Sam Jon, operated for only a few more weeks before shutting down for several months.
Mr. Battistone brought the instant lawsuit in October 2000, alleging that he suffered from age discrimination while at Sam Jon. The complaint notes that a member of management made derogatory comments about older people, that Battistone's eventual replacement in the telemarketing department sabotaged Battistone's sales leads, and that Battistone was humiliated in front of subordinates. On September 10, 2001, Sam Jon filed a motion for summary judgment on a number of grounds: (1) Mr. Battistone was an independent contractor of Sam Jon and thus was not an "employee" within the meaning comprehended by the ADEA; (2) Sam Jon had fewer than twenty employees during the relevant time period and therefore was not an "employer" within the meaning comprehended by the ADEA; (3) Mr. Battistone was not terminated by Sam Jon, but voluntarily quit; (4) Mr. Battistone has not established a prima facie case for discrimination and, further, cannot prove pretext; (5) Mr. Battistone's unjust enrichment claim must be dismissed because his claim is based upon an express contract; (6) Mr. Battistone's damages for back pay are limited to the time period between his termination and the telemarketing department's hiatus; (7) Mr. Battistone's claim for emotional distress damages is not permitted under the ADEA.
Sam Jon also submits that Mr. Battistone's response to the instant motion should not be considered by this court because it was filed after the expiration of the 14-day period allowed by Local Rule 7.1. Local Rule 7.1 permits a court to grant a motion as uncontested in such circumstances, but does not mandate this result; it further provides: "The Court may require or permit further briefs if appropriate." There is no compelling reason here to overlook the arguments put forth by Mr. Battistone in his reply brief.
Standard for Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The existence of a genuine issue of material fact is reflected in evidence from which a reasonable juror could find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). At the summary judgment stage, the court must view the evidence, and draw all reasonable inferences, in the light most favorable to the non-moving party. See Dici v. Commonwealth, 91 F.3d 542, 547 (3d Cir. 1996). However, the non-moving party may not defeat a motion for summary judgment by the mere assertion, not documented by record evidence, that the facts are sufficient to support his or her claims. See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993); O'Donnell v. United States, 891 F.2d 1079, 1082 (3d Cir. 1989). Where the non-moving party "bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden." Foulk v. Donjon Marine Co., Inc., 144 F.3d 252, 258 n. 5 (3d Cir. 1998) (quoting Wetzel v. Tucker, 139 F.3d 380, 383 n. 2 (3d Cir. 1998)).Analysis Battistone's Employment Status
Sam Jon asserts that Mr. Battistone was an independent contractor, and thus precluded from obtaining relief under the ADEA, which provides redress only to "employees." EEOC v. Zippo Mfg. Co., 713 F.2d 32, 35-36 (3d Cir. 1983); see 28 U.S.C. § 623(a), 630(f). In the absence of disputed material underlying facts, whether a worker is an "employee" for ADEA purposes is a question of law for the court. Cox v. Master Lock Co., 815 F. Supp. 844, 845 (E.D.Pa. 1993). However, because the parties dispute a number of material facts relevant to the determination of Mr. Battistone's employment status, this court cannot rule as a matter of law that Mr. Battistone is not an "employee" entitled to ADEA protection.
Unfortunately, the ADEA's definition of "employee" is somewhat circular: "The term `employee' means an individual employed by any employer. . . ." 29 U.S.C. § 630(f). Therefore, to determine whether Battistone was, in the eyes of the law, an "independent contractor" or an "employee" of Sam Jon, this court must rely upon the common-law agency test. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) (holding that whenever Congress does not helpfully define the term "employee," the common-law agency test is appropriate); see also Stouch v. Bros. of Order of Hermits of St. Augustine, 836 F. Supp. 1134, 1139 (E.D.Pa. 1993) (determining that, after Darden, the common-law agency test should be used rather than the so-called "hybrid standard," which had been utilized by the Zippo court). Darden set forth the relevant factors under the test as:
the hiring party's right to control the manner and means by which the product is accomplished;
the skill required;
the source of the instrumentalities and tools;
the location of the work;
the duration of the relationship between the parties;
whether the hiring party has the right to assign additional projects to the hired party;
the extent of the hired party's discretion over when and how long to work;
the method of payment;
the hired party's role in hiring and paying assistants;
whether the work is part of the regular business of the hiring party;
whether the hiring party is in business;
the provision of employee benefits; and
the tax treatment of the hired party.
Darden, 503 U.S. at 323-24 (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989)).
Mr. Battistone has introduced significant evidence that would weigh in favor of a finding of employee status under the multi-factor test in Darden: Sam Jon played a role in determining how Mr. Battistone performed his work, Klein Deposition at 57-59; all of the equipment Mr. Battistone used was owned by Sam Jon or a related corporation, id. at 58; the office space in which Mr. Battistone labored was owned by Sam Jon or a related corporation, id.; Mr. Battistone had been working for Sam Jon for five years, id. at 21; Mr. Klein, while refusing to characterize Mr. Battistone's compensation as a "salary," has acknowledged that a document stating that Battistone "started salary" in October of 1997 was "accurate" and was prepared by his bookkeeper or office manager, id. at 158-59, Exhibit S-Klein-6; and the telemarketing department was part of Sam Jon's regular business (the department accounted for twenty percent of Sam Jon's sales), Klein Deposition at 50-51.
To be sure, some of the Darden factors point toward characterizing Mr. Battistone as an independent contractor: he had some control over his hours, he never received benefits, and tax filings for him were submitted on IRS Form 1099 (which is appropriate for an independent contractor). Nonetheless, construing the facts in a light most favorable to Mr. Battistone, this court finds that Mr. Battistone has presented sufficient evidence from which a reasonable jury could determine that he was in fact an employee of Sam Jon, not an independent contractor.
Sam Jon's Employer Status
In addition to claiming that Battistone failed to show he was an ADEA "employee," Sam Jon maintains that it as a defendant does not meet the statutory definition of an ADEA "employer." At first blush, Sam Jon's argument that it lacked the requisite number of employees to bring it within the scope of ADEA sounds persuasive. However, the "single-employer" theory relied upon by Mr. Battistone defeats Sam Jon's bid for summary judgment on this issue.
While Congress provided only general guidance for determining who might qualify as a proper plaintiff "employee" under the ADEA, more specific standards aid in the determination of the companies that may properly be sued as an "employer." To be held liable under the ADEA, a corporation must be "engaged in an industry affecting commerce [and have had] twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 29 U.S.C. § 630(b). In support of its bid for summary judgment, Sam Jon has submitted payroll journals for the years relevant to this court's inquiry (1998 and 1999). The journals show that Sam Jon (exclusive of the four related corporations that are mentioned supra in footnote 1 and discussed in detail infra) had no more than fourteen employees on the payroll in any particular week during that two-year period.
To amass the requisite number of employees to qualify Sam Jon as an "employer" and thus salvage his ADEA claim, Mr. Battistone has asked this court to invoke the "single-employer" doctrine and include the employees of four entities (Anthony Home Improvement, Inc., Tri-State Capital Group, Inc., Klein-Hardt, Inc., and I.H.K., Inc.) related to Sam Jon in the tally of employees. Briefly, the single-employer doctrine allows a plaintiff to include the employees of multiple entities in the employee count if the entities are sufficiently related to one another.
As a threshold matter, Sam Jon protests that Mr. Battistone has not met the procedural prerequisites for the doctrine's application. Mr. Battistone filed administrative and civil claims against Sam Jon alone, never making claims against the other four ostensibly related entities. Accordingly, Sam Jon urges, Mr. Battistone should not be permitted to pursue the single-employer theory, as he has not exhausted his administrative remedies against any entity but Sam Jon and, therefore, cannot name any other corporation as a defendant in the instant lawsuit. While it is true that an ADEA plaintiff must generally file a complaint against a company with the EEOC before filing suit, this court finds that, given the interrelatedness of the five companies here, Mr. Battistone need not name each one of them as a defendant in this lawsuit. Because the four corporations related to Sam Jon need not be named in order for pursue Mr. Battistone's single-employer theory, there is no need to file complaints against them with the EEOC.
Even if Mr. Battistone had named the other related corporations as defendants without filing complaints against them with the EEOC, he would not necessarily be foreclosed from invoking the single-employer doctrine. Courts have established an exception to the rule requiring exhaustion of administrative remedies if the party not named in an EEOC complaint has a clear identity of interest with a party that had been named in such an action. See Schafer v. Bd. of Pub. Educ. of the Sch. Dist. of Pittsburgh, 903 F.2d 243 (3d Cir. 1990); Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir. 1977).
Courts differ on the question of whether the "single-employer" doctrine requires that a plaintiff name as defendants all entities to be included in the aggregation of employees. Several courts have either explicitly refused to countenance application of the doctrine to unnamed parties or assumed that an amended complaint naming the parties to be aggregated as defendants was necessary to proceed on the single-employer theory. Other courts have engaged in the single-employer analysis notwithstanding that some of the companies considered had not been named as defendants. This court agrees with the latter position, as best explained in Landon v. Agatha Harden, Inc., 6 F. Supp.2d 1333, 1339 n. 4 (M.D.Ala. 1998). Landon noted that when all companies to be considered have common ownership, there is no concern that one of the unnamed companies will not have had notice of the lawsuit. Id. Moreover, there appears to be no principled reason to require that the other parties be named; after all, if the single-employer analysis leads to the conclusion that the companies were sufficiently related to aggregate their number of employees, then the companies by definition were operating in such a way that they are best considered a single entity. To require a plaintiff to assert claims against all the various aliases of that one single entity seems a pointless exercise.
See, e.g., Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998) (per curiam) (explaining that the district court had refused to allow plaintiff to amend complaint to add a defendant for purposes of the "single employer" theory); Rogero v. B.M. Noone, 704 F.2d 518 (11th Cir. 1983) ("For whatever reason, . . . the county was not made party to this action and that is the omission critical to our decision."); Schwartz v. D/FD Operating Servs., L.L.C., 205 F.R.D. 166, 167-68 (D.Del. 2002) (allowing amendment to join additional defendants so that plaintiff could pursue single employer theory).
See, e.g., Torres v. Liberto Mfg. Co., No. 3-01-CV-1888-H, 2002 WL 2014426 at *3 n. 4 (N.D.Tex. Aug. 30, 2002) (noting the defendant's objection to considering unnamed parties but proceeding to single-employer analysis); Landon v. Agathat Harden, Inc., 6 F. Supp.2d 1333, 1338 (M.D.Ala. 1998) (rejecting explicitly the suggestion that plaintiff could not rely upon unnamed parties for aggregation of employees); Podsobinski v. Roizman, No. 97-4976, 1998 WL 67548 at *1 (E.D.Pa. Feb. 13, 1998) (considering unnamed parties in the single-employer analysis); Westphal v. Catch Ball Prods. Corp., 953 F. Supp. 475, 477 (S.D.N.Y. 1997) (same).
Having dispensed with the preliminary objections to Mr. Battistone's use of the single-employer doctrine, the court can now proceed to applying that doctrine. The "single-employer" (or "integrated-enterprise") test determines whether multiple entities are so interrelated that they may be treated as one employer. Swallows v. Barnes Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir. 1997). The Third Circuit has laid out the framework of the single-employer test, directing courts to consider the following four factors: (1) functional integration of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership. NLRB v. Browning-Ferris Indus., Inc., 691 F.2d 1117, 1122 (3d Cir. 1982).
While the Browning-Ferris court established the four-part test for the purpose of application to the National Labor Relations Act, the same analysis has been regularly applied by the federal courts in this district for employment discrimination actions based upon the ADEA (which is at issue in this case) and Title VII (which uses a definition of "employer" quite similar to that of the ADEA). See, e.g., Podsobinski v. Roizman, No. 97-4976, 1998 WL 67548, at *2 (E.D.Pa. Feb. 13, 1998) (Title VII); Daliessio v. DePuy, Inc., No. 96-5295, 1998 WL 24330, at *3 (E.D.Pa. Jan. 23, 1998) (ADEA and Title VII); Zarnoski v. Hearst Bus. Communications, Inc., No. 95-3854, 1996 WL 11301, at *5 (E.D.Pa. Jan. 11, 1996) (Title VII). The four Browning-Ferris factors are not to be mechanically applied, but examined in the "`totality of the circumstances.'" Zarnoski, 1996 WL 11301, at *5 (quoting Doe v. William Shapiro, Esq., P.C., 852 F. Supp. 1246, 1249 (E.D.Pa. 1994)).
This court finds the Browning-Ferris factors applicable to the resolution of the current motion, and holds that Mr. Battistone has alleged facts sufficient to classify Sam Jon and its four related entities as a "single employer." It appears from the deposition of Stephen Klein that the lines between the entities were not clearly defined, and that significant overlap amongst the companies' functions existed — the five companies shared employees, equipment, management, and ownership. Mr. Battistone has presented deposition testimony of Stephen Klein that the five corporations were all housed in the same location and that all five controlled the telemarketing room. Klein has testified that the companies shared employees. In fact, Klein claims that he considered moving Battistone to Tri-State Capital Group, Inc. or Anthony Home Improvement, Inc. — thus evincing centralized operations and labor decisions. I.H.K., Inc. was simply a shell corporation established exclusively to issue paychecks for the other corporations' workers. All five corporations are controlled in part by a member or members of the Klein family; Klein himself was president of three of the five, vice-president of a fourth, and manager of the last. Klein was not sure which corporation originally hired Mr. Battistone, but testified that Battistone worked for Klein-Hardt, Sam Jon, and Anthony Home Improvement, and that Battistone's paycheck came from I.H.K. Battistone supervised employees of Klein-Hardt, Inc. Tellingly, Klein could not say for certain for which of the companies he himself was a corporate officer. In sum, Mr. Battistone has presented ample evidence that the five entities should be treated as a "single employer" or "integrated enterprise."
For those five corporations, Stephen Klein has testified that the overall employee headcount ranged from 15 to 25 at any given time. Obviously, this raises the possibility that the five firms, considered together, had twenty employees for a period long enough to fall within the ADEA definition of "employer." However, Klein's comment does not conclusively prove that the requirement has been met. Because a court's subject-matter jurisdiction has been held to depend on determination of the "employer" issue, prudence dictates that the parties engage in further discovery on the jurisdictional issue. See Ziegler v. Anesthesia Assocs., Ltd., No. 00-4803, 2002 WL 387174, at *1 (E.D.Pa. Mar. 12, 2002) (collecting 4th, 5th, 6th, 7th, and 11th Circuit cases holding that Title VII and ADEA definition of "employer" is a jurisdictional issue); see also Daliessio v. DePuy, Inc., No. 96-5295, 1998 WL 24330, at *1 (E.D.Pa. Jan. 23, 1998); Ziegler v. Anesthesia Assocs., Ltd., No. 00-4803, 2001 WL 708911, at *2 (E.D.Pa. June 22, 2001) (both permitting plaintiff to engage in jurisdictional discovery to determine if "single-employer" test is satisfied). Accordingly, this court will deny, without prejudice, the defendant's current motion to dismiss for lack of subject-matter jurisdiction. However, if, following further jurisdictional discovery, it appears that the five entities together did not meet the ADEA definition of "employer," Sam Jon may raise this issue anew. For purposes of jurisdictional discovery, Mr. Battistone will have access to the records of Anthony Home Improvement, Inc., Tri-State Capital Group, Inc., Klein-Hardt, Inc., and I.H.K., Inc., as well as Sam Jon.
McDonnell Douglas Framework
The next ground for summary judgment that Sam Jon raises challenges Mr. Battistone's prima facie case for age discrimination. In addition, Sam Jon argues, even if the prima facie case has been adequately established, Mr. Battistone has failed to show that Sam Jon's nondiscriminatory explanation for terminating his employment was pretextual. This court finds that Mr. Battistone has marshaled sufficient evidence to survive summary judgment on both issues.
The familiar framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs ADEA cases such as this one. McDonnell Douglas and its progeny set out a three-step burden-shifting scheme: (1) the plaintiff must first show a prima facie case raising an inference of discrimination, (2) the burden of production then shifts to the defendant to advance a legitimate, nondiscriminatory reason for the alleged adverse employment action, and (3) if the employer meets its burden of production, the plaintiff must show that the nondiscriminatory reason was pretextual. Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 n. 1 (3d Cir. 2001)
Sam Jon alleges that the facts alleged by Mr. Battistone fail to present a prima facie case under McDonnell Douglas, which requires (in the ADEA context) that the plaintiff show (1) membership in a protected group, i.e., that he was over forty years of age, (2) qualification for the job in question, (3) an adverse employment action, and (4) circumstances, e.g., replacement by a younger person, supporting an inference of discrimination. Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001); Keller v. Orix Credit Alliance, 130 F.3d 1101, 1108 (3d Cir. 1997). Specifically, Sam Jon asserts that Mr. Battistone was not actually discharged, and that Mr. Battistone was not replaced by a younger employee.
Because Mr. Battistone was offered the choice to stay on with Sam Jon in a different capacity when he was removed from his existing position, Sam Jon claims that a discharge never occurred. Therefore, the defendant insists, the parting of ways of employer and employee was effected by Mr. Battistone's voluntary resignation. However, there is no question that Mr. Battistone's pay and job conditions were to change. Mr. Klein testified that Battistone's pay "would probably have to change," and that Battistone was told he would not be permitted to continue working for Sam Jon (or the other four corporations) in the same capacity. Mr. Battistone, for his part, claims that the alternative positions Klein mentioned were unacceptable, involving uncertain compensation in untested areas of the companies' business. Importantly, one need not be actually "discharged" to make out a claim under the ADEA. The text of the statute itself states that an employer may not discriminate with respect to "compensation, terms, conditions, or privileges of employment." 29 U.S.C. § 623(a)(1). The case law makes explicit that a demotion constitutes an adverse employment action under the ADEA. See Anderson v. Consol. Rail Corp., 297 F.3d 242, 249 (3d Cir. 2002); Chisholm v. Nat'l Corp. for Hous. P'ships, No. 99-3602, 2001 WL 115406, at *3 n. 4 (E.D.Pa. Jan. 31, 2001). Therefore, by showing that Sam Jon sought to at least reduce his pay and reassign him, Mr. Battistone has shown that an adverse employment action occurred, even if he was not technically "discharged."
Sam Jon also claims that the department in which Mr. Battistone worked folded soon after his departure, so that there was no replacement by a younger employee. Mr. Battistone, however, testified that he was told by Mr. Klein that Mr. Battistone "was no longer the telemarketing manager" and that "Phil Flores was going to take over the telemarketing room." There is some evidence that, for at least some time after Mr. Battistone was removed from his telemarketing position, Phil Flores (then 31 years of age) was performing functions similar to those for which Mr. Battistone had been responsible.
Mr. Battistone has satisfied the prima facie showing required to overcome a summary judgment motion. As is appropriate in the second phase of the three-step burden-shifting McDonnell Douglas framework, Sam Jon has responded by alleging that a legitimate nondiscriminatory reason motivated its decision to alter Battistone's employment status. Specifically, the telemarketing department was losing money and had failed to comply with a client's regulatory audit. Once the defendant has proffered a nondiscriminatory reason for an action, the burden of production returns to the plaintiff, who must show pretext. The Third Circuit, in expounding upon the third step in the McDonnell Douglas framework, has established two means by which a plaintiff may defeat a motion for summary judgment. Namely, the plaintiff must submit evidence "from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Mr. Battistone's submissions to this court appear to rely upon the first option mentioned by the Fuentes court.
When pursuing the first of the two Fuentes alternatives to overcome summary judgment, "the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them `unworthy of credence.'" Id. at 765 (quoting Ezold v. Wolf, Block, Schorr Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)). Mr. Battistone has pointed to certain aspects of Sam Jon's explanations that a fact-finder could find to be materially inconsistent. Telemarketing continued for some time after Mr. Battistone's departure, and several months after it was discontinued, the department was re-established as a going concern. Felipe Flores testified that after Mr. Battistone left, Flores stepped in to supervise the telemarketing operation, and continued to do so until a crucial customer list became unavailable. From Flores's testimony, read in the light most favorable to Mr. Battistone, a fact-finder could conclude that the factors precipitating the folding of the telemarketing department were not present at the time Mr. Battistone left Sam Jon. Further, a fact-finder might find evidence of pretense in Mr. Klein's statement, contrary to his assertion that the telemarketing department folded because of problems with a client's customer lists, that Battistone was discharged for "lack of performance." Accordingly, summary judgment on this issue must be denied.
Unjust Enrichment
One of the counts in the plaintiff's complaint seeks damages for unjust enrichment for the commissions that Mr. Battistone claims he earned but was not paid. In its motion for summary judgment, Sam Jon cites Pennsylvania law for the proposition that when an express contract exists between parties, no recovery may be had for unjust enrichment. See, e.g., Benefit Trust Life Ins. Co. v. Union Nat'l Bank, 776 F.2d 1174 (3d Cir. 1985); First Wis. Trust Co. v. Strausser, 653 A.2d 688, 693 n. 2 (Pa. 1995); Gee v. Eberle, 420 A.2d 1050, 1060 (Pa.Super.Ct. 1980). Mr. Battistone cites no law in his response, but states that there was no "express contract," because Klein and Battistone have different impressions of whether the latter's take home pay comprised a draw against commissions or a base salary to which commissions would be added.
Upon reading the depositions of Mr. Klein and Mr. Battistone, one quickly concludes that there was a considerable disconnect between the two men's understanding of the agreement for Battistone's pay structure. However, both parties acknowledge at least that there was an agreement (or rather a series of agreements). There is no dispute that Battistone was to receive a periodic paycheck, and that he was to receive commissions for his work. In fact, Mr. Battistone has estimated the amount of damages he should received based on the commission rate he claims was agreed upon by the parties. The only real dispute is whether, by the terms of the agreement that existed, the periodic check was to be an amount above and beyond the commissions. Mr. Battistone refers to a series of agreements that varied his take-home pay and his commission percentage over time. Because an agreement existed, with the parties differing only in their interpretations of that agreement, an action for unjust enrichment is inappropriate, and Sam Jon is entitled to summary judgment on this issue.
Limited Back Pay
Based on its assertion that the telemarketing department folded soon after Battistone left the company, Sam Jon insists that the any pay to which Mr. Battistone might be entitled should be limited to the three to four weeks in which the telemarketing department continued operations.
This court cannot conclude as a matter of law that, absent discrimination, Mr. Battistone would have inevitably been discharged from Sam Jon when the telemarketing department went on hiatus. Mr. Flores, who allegedly took over Mr. Battistone's position in the wake of the latter's departure, was still working for Klein's companies as of his April 2001 deposition. If Mr. Flores was not terminated upon the temporary cessation of telemarketing operations, there is no reason to believe Mr. Battistone would have been. Summary judgment on this issue is denied.
ADEA Emotional Distress Claims
Sam Jon correctly states, and Mr. Battistone does not cite any conflicting authority, that emotional distress damages are unavailable under the ADEA. See Rogers v. Exxon Research Eng'g Co., 550 F.2d 834, 839 (3d Cir. 1977), overruled on other grounds by Smith v. Jos. Schlitz Brewing Co., 604 F.2d 220 (3d Cir. 1979). Accordingly, summary judgment will be granted on the emotional distress claims based on the ADEA.
Conclusion
In an order accompanying this memorandum, defendant's summary judgment motion is granted on plaintiff's claim for unjust enrichment and plaintiff's claim for emotional distress damages based on the ADEA, and denied in all other respects.
ORDER
For the reasons stated in the accompanying Memorandum, Defendant Sam Jon's motion for summary judgment is GRANTED IN PART and DENIED IN PART. Defendant's motion is GRANTED with respect to (1) Plaintiff's claim for unjust enrichment and (2) Plaintiff's claim for emotional distress damages based on the ADEA. The defendant's motion for summary judgment is DENIED in all other respects.
In addition, it is hereby ORDERED that the parties engage in jurisdictional discovery to determine whether Sam Jon, Anthony Home Improvement, Inc., Tri-State Capital Group, Inc., Klein-Hardt, Inc., and I.H.K., Inc., considered together, meet the ADEA's definition of an "employer."