Opinion
CIVIL ACTION: NO. 03-CV-1561
March 31, 2004
MEMORANDUM AND ORDER
Defendant, Urban Outfitters, Inc. moves for the entry of judgment in its favor as a matter of law pursuant to Fed.R.Civ.P. 56 on all of the claims against it in this employment discrimination case. For the reasons discussed below, the motion shall be granted.
Statement of Relevant Facts
On January 2, 2001, the plaintiff, Aida Habib, began working for Urban Outfitters as the Manager of its Information Systems Department in the Philadelphia office. She continued in this position for one year — until January 14, 2002, when she was terminated for poor job performance. At the time of her termination, Ms. Habib, a female and native of Egypt, was 46 years of age. On April 12, 2002, Ms. Habib filed a complaint with the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission alleging that her termination was the result of national origin, sex and age discrimination. She received a Dismissal and Notice of Rights on December 19, 2002 and on March 13, 2003, she commenced this lawsuit alleging that the defendant company violated Title VII of the Civil Rights Act of 1964 (as amended), 42 U.S.C. § 2000e-2, et. seq., ("Title VII"), the Age Discrimination in Employment Act ("ADEA") as amended by the Older Worker's Benefit Protection Act ("OWBPA"), 29 U.S.C. § 623, 626, et. seq., the Pennsylvania Human Relations Act, 43 P.S. § 951. et. seq.("PHRA") and for intentional discrimination damages under 42 U.S.C. § 1981a. Discovery is now closed and Defendant has moved for the entry of summary judgment on all of the claims set forth against it in the plaintiff's complaint.
Standards Applicable to Rule 56 Motions
Summary judgment is appropriate where, viewing the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Michaels v. New Jersey, 222 F.3d 118, 121 (3d Cir. 2000);Jones v. School District of Philadelphia, 198 F.3d 403, 409 (3d Cir. 1999). Indeed, the standards to be applied by district courts in ruling on motions for summary judgment are clearly set forth in Fed.R.Civ.P. 56(c), which states, in pertinent part:
". . . . The judgment sought shall be rendered forthwith 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. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages."
Under this rule, a court is compelled to look beyond the bare allegations of the pleadings to determine if they have sufficient factual support to warrant their consideration at trial. Liberty Lobby, Inc. v. Dow Jones Co., 838 F.2d 1287 (D.C. Cir. 1988),cert. denied, 488 U.S. 825, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988); Aries Realty, Inc. v. AGS Columbia Associates, 751 F. Supp. 444 (S.D.N.Y. 1990). In considering a summary judgment motion, the court must view the facts in the light most favorable to the non-moving party and all reasonable inferences from the facts must be drawn in favor of that party as well. Troy Chemical Corp. v. Teamsters Union Local No. 408, 37 F.3d 123, 126 (3rd Cir. 1994);Williams v. Borough of West Chester, 891 F.2d 458, 460 (3rd Cir. 1989); U.S. v. Kensington Hospital, 760 F. Supp. 1120 (E.D.Pa. 1991).
"Material" facts are those facts that might affect the outcome of the suit under the substantive law governing the claims made. An issue of fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party" in light of the burdens of proof required by substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252, 106 S.Ct. 2505, 2510, 2512, 91 L.Ed.2d 202 (1986);The Philadelphia Musical Society, Local 77 v. American Federation of Musicians of the United States and Canada, 812 F. Supp. 509, 514 (E.D.Pa. 1992). Thus, a non-moving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial. Gleason v. Norwest Mortgage, Inc., 243 F.3d 130, 138 (3d Cir. 2001).
Discussion
As noted, Plaintiff premises this suit on Title VII, the ADEA, and the PHRA in that she claims that her national origin, gender and age were the real reasons for her termination from Defendant's employ. Specifically, Title VII provides in relevant part:
Additionally, in the fourth count of the Complaint, Ms. Habib invokes 42 U.S.C. § 1981a, which essentially permits the recovery of compensatory and punitive damages in actions instituted pursuant to, inter alia, 42 U.S.C. § 2000e-2.
(a) Employer practices
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2(a).
The pertinent portion of the ADEA/OWBPA similarly provides:
(a) Employer practices
It shall be unlawful for an employer —
(1) to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms and conditions, or privileges of employment, because of such individual's age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual's age; or
(3) to reduce the wage rate of any employee in order to comply with this chapter.29 U.S.C. § 623(a).
Likewise, the PHRA states the following, in relevant part:
It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or in the case of a fraternal corporation or association, unless based upon such membership in such association or corporation, or except where based upon applicable security regulations established by the United States or the Commonwealth of Pennsylvania:
(a) For any employer because of the race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability or the use of a guide or support animal because of the blindness, deafness or physical handicap of any individual or independent contractor, to refuse to hire or employ or contract with or to bar or to discharge from employment such individual or independent contractor, or to otherwise discriminate against such individual or independent contractor with respect to compensation, hire, tenure, terms, conditions or privileges of employment or contract, if the individual or independent contractor is the best able and most competent to perform the services required. The provision of this paragraph shall not apply, to (1) operation of the terms or conditions of any bona fide retirement or pension plan which have the effect of a minimum service requirement, (2) operation of the terms or conditions of any bona fide group or employee insurance plan, (3) age limitations placed upon entry into bona fide apprenticeship programs of two years or more approved by the State Apprenticeship and Training Council of the Department of Labor and Industry . . . Notwithstanding any provision of this clause, it shall not be an unlawful employment practice for a religious corporation or association to hire or employ on the basis of sex in those certain instances where sex is a bona fide occupational qualification because of the religious beliefs, practices, or observances of the corporation, or association.43 P.S. § 955(a). Under 29 U.S.C. § 631 and 43 P.S. § 954(h), the foregoing prohibitions apply only if an individual is age 40 or older. While the Pennsylvania courts are not bound in their interpretations of Pennsylvania law by federal interpretations of parallel provisions in Title VII or the ADEA, its courts nevertheless generally interpret the PHRA in accord with its federal counterparts and it is therefore not uncommon to address such claims collectively. See, e.g., Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir. 1996); Bailey v. Storlazzi, 729 A.2d 1206 (Pa.Super. 1999); Zekavat v. Philadelphia College of Osteopathic Medicine, Civ. A. No. 95-3684, 1997 U.S. Dist. LEXIS 3802 (E.D.Pa. March 21, 1997); Butler v. Elwyn Institute, 765 F. Supp. 243 (E.D.Pa. 1991).
As noted, the gravamen of Plaintiff's complaint is that she was treated differently than her fellow employees and was terminated because of her national origin, age and sex. Generally speaking, cases such as this one alleging but having no direct evidence of disparate treatment, (including those brought under Title VII, the ADEA and the PHRA) are all analyzed under the familiar burden-shifting framework first articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Raytheon Co. v. Hernandez, — U.S. — 124 S.Ct. 513, 517, n. 3 (2003); Dorsey v. Pittsburgh Associates, Civ. A. No. 03-1882, 2004 U.S. App. LEXIS 2249, at *4 (3d Cir. Feb. 10, 2004), citing Narin v. Lower Merion School District, 206 F.3d 323, 331 (3d Cir. 2000) and Gomez v. Allegheny Health Services, Inc., 71 F.3d 1079, 1084 (3d Cir. 1995). Indeed, McDonnell Douglas and subsequent decisions have "established an allocation of the burden of production and an order for the presentation of proof in discriminatory treatment cases." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000), quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). First, the plaintiff must establish a prima facie case by showing: (1) she is a member of a protected class, (2) she was qualified for the position, (3) she suffered an adverse employment action (4) under circumstances that give rise to an inference of unlawful discrimination. See, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 356 (3d Cir. 1999); Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1066, n. 5 (3d Cir. 1996). It should be noted that the elements of the prima facie case are not to be woodenly applied, but must rather be tailored flexibly to fit the circumstances of each type of illegal discrimination. Geraci v. Moody-Tottrup, International, Inc., 82 F.3d 578, 581 (3d Cir. 1996) citingMcDonnell Douglas, 411 U.S. at 802, n. 13, 93 S.Ct. At 1824, n. 13; Torre v. Casio, Inc., 42 F.3d 825, 830 (3d Cir. 1994).
If the plaintiff is successful in making out a prima facie case, then the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for his action. Dorsey,supra., citing McDonnell Douglas, 411 U.S. at 802. "Finally, should the defendant carry this burden, the plaintiff then must have the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination." Id., citing Jones v. School District of Philadelphia, 198 F.3d at 410. See Also: McGorrian v. E.M.S.A., Civ. A. No. 03-1132, 2003 U.S. App. LEXIS 25631 at *3, 85 Fed. Appx. 1 (Dec. 18, 2003);Showalter v. University of Pittsburgh Medical Center, 190 F.3d 231, 236 (3d Cir. 1999). When a plaintiff alleges disparate treatment, "liability depends on whether the protected trait actually motivated the employer's decision." Reeves v. Sanderson Plumbing, 530 U.S. at 141, 120 S.Ct. at 2105, quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). That is, the plaintiff's age and national origin must have "actually played a role in the employer's decisionmaking process and had a determinative influence on the outcome." Id.
To defeat a summary judgment motion based on a defendant's proffer of a non-discriminatory reason, 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. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108-1109 (3d Cir. 1997); Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).
In applying the foregoing to the case at hand, we find that the evidence adduced here reflects that Ms. Habib was born on January 7, 1956 in Egypt and that she was therefore 46 years of age when she was terminated from her job with Urban Outfitters on January 14, 2002. It is thus clear that the plaintiff has established that she was a member of a protected class within the meaning of the relevant statutes ( i.e., she is a female of Egyptian national origin and is over 40 years of age) and that she suffered an adverse employment action ( i.e., termination).
Somewhat more problematic is whether Plaintiff has adduced sufficient evidence to establish that she was qualified for the position which she held and that the decision to terminate her was based upon her gender, age and/or national origin.
In these respects, the evidence demonstrates that Ms. Habib graduated in 1979 from Alexandria University in Egypt with a degree in social work. She came to the United States that same year but as she was a new mother, did not work outside the home until 1983 when she was hired by Topaz Boutique, Incorporated in New York City to process paperwork and do inventory control. Although smaller than Urban Outfitters, Topaz was a chain of some 12-15 retail clothing stores and Plaintiff remained employed there until it went out of business in 2000. Some four years after beginning work at Topaz, the company began computerizing its operations and Plaintiff gradually assumed responsibility for all of the computer functions, including inventory and paperwork functions, inputting sales tickets, markdowns and transfers for all of the stores, and assisting the buyers. Gradually, Topaz switched from the IBM 36 system to the AS/400 system with Island Pacific software that Urban Outfitters was using. Plaintiff's only formal training with these systems came from IBM and Island Pacific representatives, some on-site and some off-site; she apparently never took any college-level or other courses in computers or computer science. Although she did not have a formal title by the time she left Topaz, Ms. Habib had one assistant whom she was supervising. In the event that a computer problem arose while Ms. Habib was at Topaz, she would call the IBM help desk since the company had never hired anyone on either a contract or other basis to assist in the operation of the computer system.
At Urban Outfitters, which presently has some 55 stores throughout the United States and several in Europe, the duties of the operations manager position included overseeing the management and supervision of the computer system's operators and ensuring that the system ran properly and that data and reports were processed timely, processing the daily polling, helping in inventory preparation for the mid-year and full year inventories, managing the daily check list, setting up new users and assisting existing users in the operation of the system, coordinating, scheduling and performing system backups, updating and downloading files to the laser vault, maintaining the printers, ensuring that all sales and related reports are processed and accurate and preparing the operations department part of the budget. It further appears that the position also required troubleshooting problems and running a "help desk" for systems operators. Although Plaintiff acknowledged that she did not have a technical background and was not a technical person, she testified that she had no problem meeting all of her job responsibilities and requirements.
In contrast however, nearly everyone with whom she worked at Urban Outfitters (Ken Kirk, Jason Breslau, James Beebe, Stacey O'Leary, Robert Young, Maria Roberts, Ning Chiu and Thomas Gould) testified that Ms. Habib did not fulfill her job duties and responsibilities in a satisfactory manner, that she was angry and defensive, that she did not have the technical background or knowledge necessary to do the job, that she did not really understand the system or how it worked and that despite their repeated efforts to teach and to train her how to do her job, she still performed even basic, simple computer functions erroneously. Nevertheless in her April, 2001 job evaluation, Ken Kirk, Plaintiff's then-supervisor, wrote that she did meet the requirements for the job and that, inter alia, while she had a "lot to learn," "need[ed] to be less defensive" and needed to "reduce her dependence on [her co-worker]," she was "progressing nicely." The Third Circuit has held that "while objective job qualifications should be considered in evaluating the plaintiff's prima facie case, the question of whether an employee possesses a subjective quality is better left to consideration of whether the employer's nondiscriminatory reason is pretext." Dorsey v. Pittsburgh, 2004 U.S. App. LEXIS at *6 quoting Sempier v. Johnson Higgins, 45 F.3d 724, 729 (3d Cir. 1995) andWeldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990). "To deny the plaintiff an opportunity to move beyond the initial stage of establishing a prima facie case because he has failed to introduce evidence showing he possesses certain subjective qualities would improperly prevent the court from examining the criteria to determine whether their use was mere pretext." Id. at *7. Thus while it is very questionable as to whether the plaintiff here was qualified for the position from which she was terminated, we shall give her the benefit of the doubt and find, that for purposes of making out a prima facie case, she had sufficient qualifications to do the job.
In examining the record for evidence to support the fourth and final element — that her termination was based upon an illegal discriminatory criterion, we find that the only evidence to support this factor comes from the testimony of the plaintiff herself. Specifically, Ms. Habib testified that the only person who discriminated against her at Urban Outfitters was Jason Breslau, who became her immediate supervisor in June, 2001. According to Ms. Habib, she felt that Mr. Breslau did not speak to her as an equal because he would sometimes repeat something that she had said and she thought that he was making fun of her accent. In addition, plaintiff testified that on September 12, 2001, the day after the terrorist attacks on the Pentagon and World Trade Center, Mr. Breslau commented to her that he was surprised that she had come to work that day because of the preceding day's events, that he would understand if she had called in and said she wasn't coming. When Plaintiff asked him if it was because she was Egyptian, he said "yes." Plaintiff further stated that, a week or two later, Mr. Breslau asked about muslims, how could they kill each other and whether it was "like that back in Egypt."
Plaintiff also believed that Mr. Breslau was discriminating against her because he told her that she had scheduled one of the other employees in the department incorrectly, had chastised her for the failure to have a report delivered properly while she was out on vacation, once blamed her for the delay in a processing report, and gave her a listing of four projects/skills to complete and/or learn within thirty days of October 29, 2001. Plaintiff testified that she believed that she had successfully completed these objectives within the time frame given and that although Mr. Breslau had informed her that her response to his 30-day objectives was adequate, she felt he was "going behind her back" by telling James Beebe that she had not met his requirements. She also believed that he had discriminated against her on the basis of her gender and her age because of his remark on an occasion when Ning Chiu was carrying a computer for delivery to another building, that he needed "somebody like that — he can move things around."
None of Plaintiff's beliefs or assertions are supported by the testimony of her co-workers or by any of the documentary evidence provided. Indeed, none of the Urban Outfitters employees and/or ex-employees who were deposed could ever recall an instance where Jason Breslau commented on Ms. Habib's ethnic background, age or gender and none could recall that he directed any comments at or about her after September 11th, although it appears that all of the said employees and former employees shared Mr. Breslau's assessment that Ms. Habib did not satisfactorily perform her job. A plaintiff's own assertion of racial animus does not give rise to an inference of unlawful discrimination.McCoy v. Starz Encore Group, Civ. A. No. 02-5125, 2004 U.S. Dist. LEXIS 2600 at *26 (E.D.Pa. Feb. 5, 2004), citing Sarullo v. U.S. Postal Service, 352 F.3d 789, (3d Cir. 2003) and Bullock v. Children's Hospital of Philadelphia, 71 F. Supp.2d 482 (E.D. Pa. 1999). Where a plaintiff relies upon his own beliefs and testimony as to his own beliefs from his deposition, and fails to present any factual evidence linking his termination to his membership in a protected class, he has failed to make out a prima facie case of discrimination.Id.
However, even giving Plaintiff the benefit of the doubt that Mr. Breslau made the comments and took the actions attributed to him, there also is no record evidence that other, male, non-Egyptian, younger employees were treated differently than she was nor is there any evidence to establish a causal nexus between the plaintiff's sex, age and national origin and the decision to terminate her employment. We thus find that the plaintiff's evidence is not sufficient to establish a prima facie showing of discrimination and that judgment in favor of the defendant is properly entered as a matter of law.
Additionally, even if we were to find that the plaintiff has made out a prima facie case of discriminatory discharge to shift the burden of production to the defendant, the evidence in this matter clearly shows that the defendant-employer in fact terminated the plaintiff because she did not have the technical background or expertise to perform the functions of her job and that Plaintiff's lack of ability was putting added stress on several of the employees whom she was supposed to be supervising and was threatening the morale of the entire department. We thus find that the defendant has sufficiently articulated a legitimate, nondiscriminatory reason for its action to return the onus to Plaintiff to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination. On this point, there is no showing that the defendant's proffered reasons were either "so plainly wrong that they could not have been the employer's real reason" or that they were "weak, incoherent, implausible, or so inconsistent that a reasonable factfinder could rationally find them unworthy of credence." Sarullo, 352 F.3d at 800, quoting Keller v. Orix Credit Co., and Jones v. School District of Philadelphia, both supra. On this basis also, we find that the defendant is entitled to the entry of judgment in its favor as a matter of law on all of the claims in Plaintiff's complaint.
An order follows.
ORDER
AND NOW, this ___ day of March, 2004, upon consideration of Defendant's Motion for Summary Judgment and Plaintiff's Response thereto, it is hereby ORDERED that the Motion is GRANTED and judgment as a matter of law is entered in favor of Defendant and against Plaintiff in no amount for the reasons set forth in the preceding Memorandum Opinion.