Opinion
CIVIL ACTION NO. 02-1279
November 5, 2003
MEMORANDUM AND ORDER
Presently before this Court is Defendant's Motion for Summary Judgment. For the reasons set forth below, upon consideration of Defendant's Motion (Doc. 6) and Plaintiffs Response (Doc. 7), this Court will grant in part and deny in part Defendant's Motion.
BACKGROUND
From the evidence of record, taken in a light most favorable to the Plaintiff, the pertinent facts are as follows. Plaintiffs, Bert Ann Lukens and William Lukens, filed this action on March 13, 2002, against Defendant, Whitemarsh Valley Country Club ("Country Club"), pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), Title VII of the United States Civil Rights Act of 1964 and 1991 ("Title VII"), and the Pennsylvania Human Relations Act of 1955 ("PHRA"). Plaintiff Bert Ann Lukens alleges that after approximately thirty (30) years of service, she was unlawfully terminated because of her age. (Pl.'s Mem. at 1; Def.'s Mem. at 1).
The Plaintiffs are husband and wife.
Plaintiff Bert Ann Lukens was born on December 26, 1931, and is presently seventy-one (71) years old. Defendant hired Mrs. Lukens as a waitress around June of 1970, and she worked in this capacity for approximately fourteen (14) years. (Pl.'s Mem. at 1). In 1984, Defendant promoted Mrs. Lukens to the position of banquet manager and hostess, and she worked in this position for approximately sixteen (16) years.Id. In January of 1999, Kent Silhanek was hired as the Country Club General Manager. Soon thereafter, for the first time, Defendant alleges that Mrs. Lukens began receiving written periodic performance reviews. (Def s Mem. at 13). Mrs. Lukens claims that during the course of her employment with the Defendant, she did not receive negative performance evaluations or written or verbal warnings about any alleged deficiencies in her job performance. (Complaint ¶ 10).
On May 3, 2000, Silhanek advised Mrs. Lukens that she was being terminated for poor work performance. (Pl.'s Mem. at 1-2). At the time of Mrs. Lukens's discharge, she was sixty-eight (68) years of age. (Pl.'s Mem. at 1). Immediately following Mrs. Lukens's discharge, Defendant Country Club promoted Barbara Cunningham, a thirty-seven (37) year old waitress/assistant, to Mrs. Lukens's position. (Pl.'s Mem. at 3; Pl's Ex. A at 3).
Mrs. Lukens hired, trained, supervised, and managed Barabara Cunningham as a waitress. (Pl.'s Mem. at 3). Mrs. Lukens alleges that Mr. Silhanek promoted Ms. Cunningham to the role of her assistant several months prior to her termination without informing or discussing the promotion with her. Id. Mrs. Lukens also alleges that Ms. Cunningham earned a higher hourly wage than she did, while Ms. Cunningham her assistant. Id.
LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). An issue is "genuine" 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, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis of its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed. 2d265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case."Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-54. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53. "[I]f the opponent [of summary judgment] has exceeded the `mere scintilla' [of evidence] threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent." Big Apple BMW, Inc. v. BMW of North America. Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14.
DISCUSSION
Defendant claims that it is entitled to summary judgment on each count of the Plaintiffs' complaint. Defendant states that Mrs. Lukens has failed to, and cannot prove a prima facie case of discrimination. In addition, Defendant asserts that its firing of Mrs. Lukens was justified and for cause. This Court will discuss each of the Plaintiffs' claims in turn.
A. Age Discrimination
To establish a prima facie case of age discrimination under Title VII, the ADEA or the PHRA, the Third Circuit requires that the Plaintiff show the following: (1) the plaintiff was forty (40) years of age or older; (2) the plaintiff was discharged; (3) the plaintiff was qualified for the job; and (4) the plaintiff was replaced by a sufficiently younger person to create an inference of age discrimination. Showalterv. Univ. of Pittsburgh Med. Or., 1999 WL 673349, *2-3 (3d Cir. Aug. 31, 1999) (quoting Keller v. Orix Credit Alliance. Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en bane)).
The general test for discrimination under Title VII, the ADEA or the PHRA is as follows: (1) plaintiff is a member of a protected class; (2) who is qualified for the employment position; (3) suffered an adverse employment action; and (4) similarly situated non-protected persons were treated more favorable than plaintiff under circumstances giving rise to an inference of discrimination. Fallon v. Meissner, 2003 U.S. App. LEXIS 8277, *7 (3d Cir. Apr. 30, 2003); Fuentes v. Perskie, 32 F.3d 759, 764-65 (3d Cir. 1994).
If this Court finds that Mrs. Lukens has established a prima facie case of age discrimination, the "burden shifts to defendant to articulate some legitimate, non-discriminatory reason for the employee's rejection."Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-23 (1981) (quoting McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If the Defendant is able to meet this burden, then Plaintiff must show that Defendant's articulated non-discriminatory reason was, in fact, a pretext for discrimination by pointing to some evidence from which a jury could:
(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.Walton v. Mental Health Ass'n of S.E. Pa., 168 F.3d 661, 668 (3d Cir. 1999).
In this case, the Plaintiff is able to show all four elements required to establish a prima facie case of age discrimination. Mrs. Lukens was sixty-eight (68) years old when she was discharged; she was discharged on May 3, 2000; she was employed as banquet manager and hostess for approximately sixteen (16) years, creating an inference that she was qualified for the job; and she was replaced by a woman who was thirty-one (31) years younger than her with significantly less work experience.
Consequently, the burden is then shifted to the Defendant to state a legitimate, non-discriminatory reason for its action. The employer's burden to articulate a legitimate reason for its unfavorable employment decision is "relatively light." Fuentes, 32 F.3d at 763. This Court finds that the Defendant has met its burden of proffering a legitimate, non-discriminatory reason for discharging Mrs. Lukens, namely, "poor work performance."
To defeat summary judgment, once the Defendent has articulated a legitimate, non-discriminatory reason for the discharge, the Plaintiff must point to some evidence "direct or circumstantial, 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, 32 F.3d at 759.
There is an issue of material fact as to whether the Defendant's reason for firing Mrs. Lukens was pretextual. It should be up to the factfinder to determine if the Plaintiff was fired for poor work performance, or if that reason was a pretext for firing her because of her age. Mr. Silhanek claims that Mrs. Lukens was fired because she "continued to persist in not providing scheduling for her staff, could not accept changes in the structure and pay scale of the staff, failed to train her staff, and could not accept the assistance he provided to her." (Def.'s Mem. at 16). However, Plaintiff has presented the deposition testimony of several employees who worked under both Mrs. Lukens and her replacement, Ms. Cunningham. In sum, these witnesses testified that the management under both Mrs. Lukens and Ms. Cunningham was the same. These witnesses claim that there were scheduling problems under both Mrs. Lukens and Ms. Cunningham. Furthermore, these witnesses testified that Mr. Silhanek treated Ms. Cunningham differently and more favorably than he treated Mrs. Lukens.
Bowling Dep. at 42-43. Jennifer Gaughan Dep. at 16-17. Kelly Gaughan Dep. at 13-14. McGoldrick Dep. at 17.
Bowling Dep. at 24-25. Jennifer Gaughan Dep. at 20-22.
The evidence relating to this claim turns on the credibility of witnesses and drawing legitimate inferences from facts. It is evident to this Court that there are, at this time, disputes highly material to the resolution of this claim. Since they are factual in nature and involve evaluating the credibility of witnesses, they require jury deliberation, making summary judgment inappropriate at this time. The standard for summary judgment is not whether a plaintiff would win should a case proceed to trial, but whether the Defendant has proved that no issues of material dispute exist. Defendant has failed in proving that it is entitled to summary judgment as a matter of law, therefore this claim will proceed to trial.
B. Hostile Work Environment
To show a hostile work environment based on age discrimination, Mrs. Lukens must show: (1) that she suffered intentional discrimination because of her membership in a protected class; (2) the discrimination was pervasive and regular; (3) she was adversely affected by the discrimination; (4) the discrimination would have detrimentally affected a reasonable person of the same protected class in the same position; and (5) the existence of respondeat superior liability. Sherrod v. Philadelphia Gas Works, 2003 U.S. App. LEXIS 1428, *18 (3d Cir. Jan. 29, 2003); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1304 n. 19 (3d Cir. 1997). In determining whether an abusive working environment has been created, the Court must look at the totality of the circumstances. Faragher v. BocaRaton, 524 U.S. 775, 786 (1998);Harris v. Forklift Systems Inc., 114 S.Ct. 367, 371 (1993). Factors to be considered include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 114 So. Ct. at 371. See Williams v. Pa. State Police-Bureau of Liquor Control Enforcement 108 F. Supp.2d 460, 468 (E.D. Pa. 2000) (granting summary judgment because allegations that plaintiff received poor performance evaluations, was subject of three disciplinary complaints, one disciplinary action and had interpersonal conflicts with her supervisors and co-workers were not severe and persuasive enough to constitute a hostile work environment claim); Zysk v. FFE Minerals USA Inc., No. 00-5874, 2001 WL1736453, *15 (E.D. Pa., Dec. 14, 2001); Tumulo v. Triangle Pacific Corp., 46 F. Supp.2d410, 411 (E.D. Pa. 1999) (alleging that plaintiff was subjected to "constant questions" about his expense reports and denied reimbursement for the cost of a fax machine while younger employee was not did not support harassment claim).
Using the five (5) point analysis to evaluate hostile environment claims, it is clear to this Court that the Plaintiffs claim must fail. Assuming that Mrs. Lukens is able to satisfy the first, third, and fifth prongs of the analysis, the Plaintiff is unable to establish the second and fourth prongs needed to sustain her claim for a hostile work environment.
Under the second prong of the analysis, Plaintiff is unable to show that the discrimination was pervasive or regular. Mrs. Lukens worked as an employee at the Country Club for approximately thirty (30) years. However, she is unable to state any specific incidents of alleged discriminatory conduct in her complaint and deposition. This is not sufficient to demonstrate that the workplace was "permeated with discriminatory intimidation, ridicule and insult." Gharzouzi v. Northwestern Human Services or Pennsylvania, 225 F. Supp.2d 514, 536 (E.D. Pa. 2002). To survive summary judgment, Plaintiff cannot rely on conclusory statements. Robinson v. Natl. Med. Care, 897 F. Supp. 184, 187 (E.D. Pa. 1995). Furthermore, since Mrs. Lukens has failed to demonstrate that the alleged discriminatory treatment was pervasive or regular, she is unable to show that the discrimination would have detrimentally affected a reasonable person of the same protected class in the same position under the fourth prong of the hostile work environment analysis. Therefore, this Court finds that Mrs. Lukens is unable to establish a claim for hostile work environment, and Defendant's motion for summary judgment will be granted as to this claim.
Mrs. Lukens makes several general complaints to support her claims for hostile work environment. They are as follows: (1) Defendant subjected employees of Plaintiff s age, being sixty-eight (68) years old at the time of her unlawful termination, and being over forty (40) years old, to less favorable terms and conditions of employment than employees under age 40, who were given preferential treatment on job assignment, job duties, and hours, and greater assistance and interaction with upper level management in performing their job duties, job responsibilities, and job assignments; (2) Defendant failed to adequately train, manage, and supervise the employees and supervisors in the prevention and investigation of age discrimination, age harassment, and age hostility; and (3) Defendant failed to take prompt and effective remedial actions, in order to stop the age discrimination, age harassment, and age hostility, and in order to prevent its recurrence. Complaint ¶ 30. However, Plaintiff cannot rely on conclusory statements to defeat summary judgment. See Robinson v. Natl. Med. Care, 897 F. Supp. 184, 187 (E.D. Pa. 1995) (stating that where plaintiff "could not recall specific incidents. . . . conclusory allegations are insufficient to withstand a motion for summary judgment").
C. Punitive Damages
Punitive damages are unavailable under both the ADEA and the PHRA. See Burland v. Manorcare Health Services. Inc., 1999 U.S. Dist. LEXIS 725, *11 (E.D. Pa. Jan. 26, 1999); Lvles v. Meritor Sav. Bank, 1992 WL 16580, *4 (E.D. Pa. June 15, 1992); Hoy v. Angelone, 720 A.2d 745, 748-49 (Pa. 1998). However, punitive damages are available under Title VII. Pollard v. E. I. Du Pont De Nemours Co., 532 U.S. 843, 851 (2001). Therefore, Defendants are entitled to summary judgment on the Plaintiff s punitive damages claims under the ADEA and the PHRA. The Plaintiffs claim for punitive damages under Title VII shall remain.
D. Loss of Consortium
"A claim for loss of consortium arises from the marital relationship and is based on the loss of a spouse's services and companionship resulting from injury." Nerosav. Storecast Merchandising Corp., 2002 U.S. Dist. LEXIS 16210, *29 (citing Cleveland v. Johns-Manville Corp., 547 Pa. 402, 690 A.2d 1146, 1149 (Pa. 1997);Sprague v. Kaplan, 392 Pa. Super. 257, 572 A.2d 789 (Pa.Super. 1990)). Loss of consortium is a derivative claim. See Patterson v. American Bosch Corp., 914 F.2d 384, 387 n. 4 (3d Cir. 1990). Under Pennsylvania law, a cause of action for loss of consortium derives only from the injured spouse's right to recover in tort. Parr Const. Co. v. W.C.A.B. (Walker), 552 Pa. 400, 715 A.2d 1075, 1079 (Pa. 1998). "A spouse's right to recover under an employment discrimination statute does not support a loss of consortium claim." Nerosa, 2002 U.S. Dist. LEXIS 16210 at *30. See also Danas v. Chapman Ford Sales. Inc., 120 F. Supp.2d 478, 489 (E.D. Pa. 2000) (dismissing the loss of consortium claim which plaintiff alleged derived from spouse's ADEA and PHRA claims). Since Mrs. Lukens's claims arise under Title VII, the ADEA and the PHRA, Defendant cannot be liable to Mr. Lukens for loss of consortium. Therefore, summary judgment on this claim is granted.
CONCLUSION
Based upon the foregoing reasons, this Court will grant in part and deny in part Defendant's Motion for Summary Judgment. Judgment is entered in favor of the Defendant and against the Plaintiffs for summary judgment on Counts II, III, and V for hostile work environment, Count IV for punitive damages under the ADEA and the PHRA, and Count VI for loss of consortium. Counts I, III, and V for age discrimination and Count IV for punitive damages under Title VII remain.