Opinion
CIVIL ACTION NO. 02-CV-0413
December 18, 2003
MEMORANDUM AND ORDER
Presently before this Court is Defendants' Motion for Summary Judgment (Doc. 12). For the reasons set forth below, upon consideration of Defendants' Motion and Plaintiff's Response (Doc. 14), this Court will grant in part and deny in part the Defendants' Motion for Summary Judgment.
BACKGROUND
From the evidence of record, taken in a light most favorable to the Plaintiff, the pertinent facts are as follows. Plaintiff Albert L. Parrillo was born on May 3, 1935, and is currently sixty-eight (68) years old. In September of 1996, when Plaintiff was sixty-one (61) years old, he was hired by the Lower Bucks County Joint Municipal Authority ("Authority) as Operations Superintendent of the Waste Water Treatment Plant. At the time of his hire, Plaintiff had over twenty (20) years of experience in the field of sanitation and had been successfully employed in comparable positions.
This position was subject to a collective bargaining agreement by and between the employer and the International Union, United Automobile, Aerospace Agricultural Implement Workers of America-UAW, Local No. 1612. After the usual period of time, Plaintiff became a dues paying member.
Defendants claim that Plaintiff had a history of employment problems, including being discharged for malfeasance and being forced to resign after allegations of sexual harassment.
The Authority is governed by a Board who hires an Executive/Managing Director. At the time of the Plaintiff's hire and termination, the Executive Director was Augustus Baur. Plaintiff claims that Mr. Baur tried to control him. For example, Plaintiff states that in late 1997 or early 1998, Mr. Baur advised Plaintiff to avoid crossing him byjoining any political factions on the Board. Further, on March 3, 1998, Plaintiff spoke at a Board meeting regarding what he believed to be the mismanagement of the Authority and the waste water sewage plant. Plaintiff claims that he wanted to bring the abuse to the attention of the Board and the public. Plaintiff was orally reprimanded by Mr. Baur on March 10, 1998, and received a written warning on April 8, 1998. Thereafter, Plaintiff was told not to address the Board without Baur's permission.
Augustus Baur died on March 6, 2003, at the age of seventy-one.
Defendants claim that Plaintiff admitted in his deposition that his presentation to the Board, in which he stated that the Wastewater Treatment Plant allowed untreated sewage to enter a river, was untrue — that the sewage was treated, but because of the high flows, some of the sewage was not 100% treated. Parrillo Dep. at 112-13.
On January 10, 1999, Plaintiff alleges that Mr. Baur threatened him with exposure of "documents" which indicate that "persons" employed by the Authority have implicated the Plaintiff in negative work activity. Pl's Brief at 3-4. Mr. Baur also threatened that this information may be released to the press. Plaintiff filed a first level grievance concerning Mr. Baur's threats with union representatives on January 29, 1999. On that same day, a letter containing statements alleging that Mr. Parrillo was engaged in sexual affairs at work was delivered to Plaintiff's residence and received by Plaintiff's wife. Plaintiff complained about the letter, and on February 11, 1999, Anna Rogers, Board member and chairperson of the employee committee of the Board, held an investigative hearing regarding Plaintiff's complaints. Thereafter, Plaintiff alleges that his office door was regularly defaced by replacing his office name sign with mocking and offensive signs. On March 30, 1999, Mr. Baur issued a written letter response denying responsibility. No disciplinary action was taken.
Defendants claim that with each incident at the Wastewater Treatment Plant, there were newspaper articles.
On March 12, 1999, Plaintiff claims that he sent a written letter to the Chairperson of the Board stating in detail all of his complaints. The employer did nothing.
In July of 1999, Plaintiff was made supervisor of the field and maintenance crews at the Plant. Plaintiff claims that when he was hired by the Authority, it had a history of poor management, including the payment of excessive overtime to the waste water sewage plant field crew. Plaintiff states that he and Anna Rogers were concerned about the abuse of overtime by employees assigned to the field crews. However, the field crews responded in a hostile manner to Plaintiff's attempts to quell the abuse of overtime. Plaintiff alleges that he orally complained numerous times to management about the harassment and the intolerable work environment created by the field workers, but nothing was done.
Anna Rogers states that the field crew manipulated the system to earn $70,000-$80,000 in overtime payments. Rogers Dep. at 45.
Plaintiff claims that the hostile behavior from the field crews included, but was not limited to, verbal abuse, profanity, insubordinate conduct, putting offensive signs on his office door, defacing his office door, placing pornographic material under his door, sending pornographic magazines to his house, and offensive ageist comments.
On July 20, 1999, Plaintiff filed another formal grievance because a Water Sewage Plant employee, Philip Smythe, was caught viewing a videotape containing surveillance of the Plaintiff. When this employee was confronted, he stated that, "we had many tapes of Parrillo." Pl's Brief at 6. Plaintiff claims that this alleged illegal taping was done with the approval of the employer and certain Board members. The grievance was met with hostility. According to the Plaintiff, members of the Township Board were apprised of the taping and came to the consensus that Smythe should be investigated. However, Mr. Baur did not investigate who was involved with the taping or how it occurred; the employer issued a response that it had no information as to the source of the tapes or the identities of those doing the taping; and Mr. Baur recommended that Smythe be reinstated. Pl's Brief at 6-7.
In or around December of 1999, Plaintiff filed charges of discrimination with the Pennsylvania Human Relations Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC") alleging age discrimination, hostile work environment, and retaliation. As a result of his work environment, the Plaintiff claims that he was subject to bouts of uncontrolled anxiety, which affected his life and his daily activities. Plaintiff states that the work environment caused him physical health problems, and he became severely depressed. Plaintiff sought medical treatment for these conditions, and upon the recommendation of his doctor, took a medical leave of absence from work from October of 1999 until January of 2000. According to the Defendants, Plaintiff returned to work in January of 2000 for three weeks, until the end of that month, and then took another disability leave until May of 2000.
Plaintiff was on medical leave at the time the charges were filed.
In Plaintiff's Complaint, he alleges that he was subjected to the following harassing and discriminatory behavior:
(1) the placement of an unauthorized video camera in his office or the ceiling of his office, and the non-consensual video taping and surveillance of the Plaintiff;
(2) the release and/or viewing of the surveillance video tapes by Defendants and others outside of the workplace, e.g. newspapers;
(3) offensive written communications were mailed to Plaintiff's home alleging that he was engaged in adulterous activities;
(4) continuous unwelcome comments about Plaintiff's age, including referring to him as an "old fart;"
(5) continuous unfounded and unwelcome accusations that Plaintiff was not performing his work duties and threats to take disciplinary action against him;
(6) continuous undermining of the Plaintiff's authority within the workplace by failing to support the Plaintiff in disciplining insubordinate employees for violations of work rules, assaultive actions towards the Plaintiff, and vandalism of the Plaintiff's property;
(7) undermining of the Plaintiffs authority within the workplace by changing his job description and effectively transferring numerous work duties to younger, less qualified employees;
(8) continuously ignoring or failing to effectively address work place collective bargaining agreement grievances related to the discrimination and hostile work environment actions filed by the Plaintiff; and
(9) failing to provide an effective remedy to the Plaintiff for the filed work place collective bargaining grievances.
Pl's Compl. at 5-6.
Plaintiff alleges that immediately upon his return to work, Defendants, by and through their agents and employees, intensified the harassment and hostility. In July of 2000, Defendants redrafted his job description, which Plaintiff claims effectively eliminated most of his previously held job duties. Plaintiff claims that the reorganization had an immediate negative impact on him, in that it embarrassed him and sent a message to the work force that he no longer had any work place authority.
In light of the job restructuring, Defendants hired two new management supervisors. Plaintiff claims that the two new management supervisors were hired to perform job duties that were previously done by the Plaintiff, both were younger, and neither had the Plaintiff's level of experience, schooling, licenses, or training in the field of waste water treatment. After the reorganization, Plaintiff went from the head of the chain of command to reporting to two newly hired persons. Plaintiff states that this reorganization effectively eliminated his job without cause and reassigned his job duties to persons considerably younger than him.
Plaintiff alleges that shortly after he filed his complaint with the PHRC/EEOC, the Authority advertised for the position of Plant Manager, however, Plaintiff was not considered for the job.
Ross Nunn and Gary Tosti were hired as the Manager and Assistant Manager of the Wastewater Treatment Plant in July of 2000. When hired, Mr. Nunn was forty (40) and Mr. Tosti was fifty-three (53).
The reorganization and continued hostility increased and exacerbated the Plaintiffs anxiety level and triggered a new depression. On the recommendation of his physician, Plaintiff took another medical leave of absence in September of 2000 until March 12, 2001. In or around October of 2000, Plaintiff filed an amended charge with the PHRC and the EEOC contending that the reorganization by Defendants was further retaliation and harassment. After this amended complaint was filed, Plaintiff was released to return to work. When Plaintiff returned to work, Defendants took further actions against him that were retaliatory, intended to humiliate him, intended to create a hostile work environment, and intended to cause him to resign.
For example, Plaintiff claims that Defendants moved his work area from a formal office to a small work area which was formerly a supply closet.
On March 21, 2001, when Plaintiff was sixty-five (65) years old, without prior notice, Defendants advised him that he was terminated. In April of 2001, after his termination, Plaintiff filed amended charges with the PHRC and the EEOC. As of the date of the complaint, all charges before the PHRC and the EEOC were still pending.
Defendants claim that Plaintiff's position as Waste Water Treatment Plant Superintendent was eliminated, and the job duties have been absorbed by others within the Authority. Defendants state that the union arbitrator upheld Plaintiff's termination as being within the scope of the Authority's discretion pursuant to the collective bargaining agreement.
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.2d 265 (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
Plaintiff brings the following claims alleging that he was discriminated against on the basis of age and subjected to a hostile work environment in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623 et seq. and the Pennsylvania Human Relations Act ("PHRA"). In addition, Plaintiff alleges that he was retaliated against and eventually unlawfully discharged and replaced with younger, less experienced employees in violation of the ADEA, the PHRA, and 42 U.S.C. § 1983.
Defendants claim that they are entitled to summary judgment on each count of the complaint. Specifically, Defendants contend that the Plaintiff's age discrimination claims must fail because he has no evidence, direct or circumstantial, that he was discriminated against due to his age, and Plaintiff has not proved that he performed his job in a satisfactory manner. In addition, Defendants contend that Plaintiff cannot establish all required elements to prove a claim of hostile work environment, and Plaintiff's retaliation claims must fail because he has no evidence to support his allegations of employer-created or supported retaliatory conduct.
In the Defendants' remaining argument, they address counts not alleged in the Plaintiff's complaint. The Plaintiff alleges seven counts, two for hostile work environment, two for age discrimination, and three for retaliation. Therefore, this Court will not address claims for the torts of emotional distress, embarrassment, loss of life's pleasures and humiliation.
I. Age Discrimination
To establish a prima facie case of age discrimination under 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. Showalter v. Univ. of Pittsburgh Med. Ctr., 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 banc)).
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 Mr. Parrillo has established a prima facie case of age discrimination, then 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 does meet all the required elements to establish a prima facie case of age discrimination. The Plaintiff was sixty-four (64) years old when his employment with the Authority was terminated; he was discharged on March 21, 2001. Plaintiff was Plant Superintendent for five years and had twenty years of experience in his field, creating an inference that he was qualified for the job. Finally, Plaintiff was replaced by Ross Nunn, who was twenty-four years younger than him and Gary Tosti, who was eleven years younger than him, and both had significantly less work experience.
There is no requirement that an ADEA plaintiff must be replaced by someone younger than forty (40). A prima facie case will be permitted if proof is shown that the favored person was younger that the Plaintiff. See Maxfield v. Sinclair Int'l et al., 766 F.2d 788, 792 (3d Cir. 1985) (holding that a replacement need not be younger than forty); Conjour v. Whitehall Township et al., 850 F. Supp. 309, 319 (E.D.Pa. 1994) ("While the fact that the plaintiff's intended replacement was himself over forty years old and only five years younger than the plaintiff does not rule out an age discrimination claim . . .")
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 Mr. Parrillo, namely, budgetary reasons and poor work performance.
To defeat summary judgment, once the Defendant has articulated a legitimate, non-discriminatory reason for the discharge, the Plaintiff must point to some evidence "direct or circumstantial, from which a fact-finder 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.
The Plaintiff has pointed to no facts from which a reasonable jury could infer that the employer's articulated legitimate reasons were pretextual. The Defendants have stated that the Plaintiff was discharged for economic reasons, namely that his job was absorbed by other employees at the Authority. It is undisputed that Plaintiff was on medical leave of absence for a substantial period of time. During his absences, the Plaintiffs job duties were taken over by other employees at the Authority. After the Plaintiff's duties were taken over by others, Defendants argue that his job position became redundant and unnecessary and has not been filled since the Plaintiff's discharge. In addition, the responsibilities that were once the Plaintiffs continue to be performed by those who took over Plaintiff's duties before his termination. The Plaintiff fails to respond to this argument and focuses all of his attention on the Defendant's other articulated reason for discharging him, poor work performance. Therefore, this Court cannot find that there are any material facts in dispute as to whether the Defendant's economic decision to phase out the Plaintiff's job was pretextual.
Furthermore, the Plaintiff may not proceed to trial with this claim because he falls short of proving that his termination was motivated by a discriminatory intent regarding his age. In fact, the most substantial evidence that the Plaintiff points to in support of his claim of age discrimination is the fact that he was replaced by two younger men. While this is arguably enough to make out a prima facie case, it alone is not sufficient to sustain this claim of age discrimination. See Conjour, 850 F. Supp. at 319. The Plaintiff claims that he was constantly subjected to ageist comments by his workforce. He was called an "old fart." Yet the Plaintiff points to no specific incidents detailing who called him an "old fart" and when. Moreover, Plaintiff is unable to show that the management of the company held the same views as his subordinates. In fact, Mr. Baur, Parrillo's recruiter and superior, was sixty-four when he recommended him to the Board for consideration and was still the Executive Director at the time of the Plaintiff's termination. Therefore, the Plaintiff has failed to show that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. Summary judgment is granted as to Counts II and VI for age discrimination.
II. Hostile Work Environment
To show a hostile work environment based on age discrimination, Mr. Parrillo must show: (1) that he suffered intentional discrimination because of his membership in a protected class; (2) the discrimination was pervasive and regular; (3) he 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. Boca Raton, 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 S.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 pervasive enough to constitute a hostile work environment claim); Zysk v. FFE Minerals USA Inc., No. 00-5874, 2001 WL 1736453, *15 (E.D. Pa., Dec. 14, 2001). Federal courts have consistently held that "`simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.'" See, Clark, 532 U.S. at 271 (quoting Faragher, 524 U.S. at 788); see also Harris v. Forklift Systems, Inc., 114 S.Ct. 367, 371 (1993) ("while psychological harm, like any other relevant factor, may be taken into account, no single factor is required."); Cardenas v. Massey, 269 F.3d 251, 261 (3d Cir. 2001) ("discrimination analysis must concentrate not on individual incidents, but on the overall scenario.").
Using the five point analysis to evaluate hostile work environment claims, it is the finding of this Court that the Plaintiff can establish the second, third, fourth and fifth elements, but fails to satisfy the first element. The Plaintiff has shown that the discrimination was pervasive and regular. He was repeatedly called names, his office door was defaced, his field crew was insubordinate, an offensive letter alleging sexual misconduct was sent to his wife, and pornography was left in his office and sent to his home. Consequently, the Plaintiff has shown that he was adversely affected by the discrimination. This is evidenced by his repeated leaves of absence from the workplace for emotional distress. In addition, it is clear to this Court that the Plaintiff made several informal and formal complaints to management about his treatment at the Authority, however, for the exception of one employee's suspension, nothing was done to quell this offensive and unacceptable behavior.
Turning now to the first prong of the hostile work environment analysis, the Plaintiff cannot establish that he suffered intentional discrimination because of his age. Plaintiff claims that he was called "the old man" and "old fart" by his subordinates, in addition to the other discriminatory conduct discussed above, however, this is not enough to show that the constant harassment endured by the Plaintiff was because he was over forty. In fact, it seems clear that the Plaintiff was treated in such a hostile manner because of his efforts to stop the abuse of overtime by the field crew. The Plaintiff stated in his deposition that the field crew's reaction to his efforts to rectify the overtime abuse was hostile. This Court in no way condones the cruelty and degradation that the Plaintiff was subjected to; unfortunately, it does not amount to a viable claim for hostile work environment. Therefore, the Defendants' motion for summary judgment is granted on Counts I and V for hostile work environment.
III. Retaliation
A. Retaliation Claims under the ADEA and PHRA
To show retaliation, Plaintiff must demonstrate that: (1) he engaged in a protected activity; (2) the Defendants took an adverse employment action after or contemporaneous with his protected activity; and (3) a causal link exists between his protected activity and the Defendants' adverse action. Weston v. Commonwealth of Pennsylvania, 251 F.3d 420 (3d Cir. 2001): Delli Santi v. CNA Ins. Co., 88 F.3d 192, 198 (3d Cir. 1996). Making an informal complaint to management about discriminatory employment practices is a protected activity. Barber v. CSX Distribution Service, 68 F.3d 694, 702 (3d Cir. 1995). See also EEOC v. L. B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) (holding that plaintiff engaging in protected activity when she informed management that she intended to file a sex discrimination charge). This Court finds that the Plaintiff engaged in a protected activity when he brought his complaints of discrimination, harassment, a hostile work environment, and retaliation to management, satisfying the first prong of the retaliation analysis.
Furthermore, this Court finds that the Plaintiff has satisfied the second prong of the retaliation analysis by showing that he suffered an adverse employment action when he was fired after or contemporaneous with his protected activity. A tangible, adverse employment action is a significant change in employment status, such as hiring, firing, failing to promote, or reassignment. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997);Tupper v. Havmond Lundy, 2001 WL 936650, *3 (E.D. Pa. Aug. 16, 2001). To constitute an adverse employment action, "the action must cause more than trivial or minor change in working condition." Tupper, 2001 WL 936650, at *3; Robinson, 120 F.3d at 1300.
In evaluating the third prong of the Plaintiff's prima facie case of retaliation, this Court finds that there is an issue of material fact as to whether there is a causal link between the Plaintiff's protected activity and the Defendants' adverse action. In this case, timing alone between the protected activity and the adverse action is not enough to establish a causal link. However, "timing plus other evidence may be an appropriate test where the temporal proximity is not so close as to be `unduly suggestive.'" Estate of Smith v. Marasco, 318 F.3d 497, 513 (3dCir. 2003) (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000)).
Six months elapsed between the Plaintiff's protected activity and the Defendants' alleged adverse action. "Even if timing alone could ever be sufficient to establish a causal link,. . . the timing of the alleged retaliatory action must be `unusually suggestive' of retaliatory motive before a causal link will be inferred." Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)).
Once the Plaintiff shows a prima facie case of discrimination, the Defendant may still make a viable claim for summary judgment by showing a legitimate reason for taking an adverse employment action against an employee. Fuentes, 32 F.3d at 764. At that point, the burden shifts back to the Plaintiff to provide evidence from which a fact-finder could reasonably either: (1) disbelieve the employer's 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. Id.
Defendants claim that Plaintiff's termination was due to budget concerns and poor work performance. Defendants, therefore, have articulated a legitimate, non-discriminatory reason for Plaintiff's termination. The burden now shifts back to the Plaintiff to show that there is sufficient evidence from which a jury could conclude that the purported reasons for the adverse employment action were in actuality a pretext for retaliation.
Under the final portion of this analysis, Plaintiff must point to "some evidence, direct or circumstantial, from which a fact-finder would 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 764. There is an issue of material fact as to whether Defendants discharged the Plaintiff because of poor work performance and budgetary constraints or if they used the budget as an excuse to phase out the Plaintiff's job in retaliation for filing multiple grievances and formal complaints. Moreover, this Court notes that the Third Circuit urges special caution in granting summary judgment to an employer when its intent is at issue, particularly in retaliation cases. Dingle v. Centimark Corp., 2002 WL 1200944, *7 (E.D. Pa. June 3, 2002) (citing Goosby v. Johnson Johnson Med. Inc., 228 F.3d 313, 321(3d Cir. 2000). Thus, the Defendant's motion for summary judgment is denied on Counts IV and VII.
B. First Amendment Retaliation under § 1983
1. Statute of Limitations
Defendants argue that the Plaintiff's claim under § 1983 is barred by the statute of limitations and should be dismissed. A § 1983 First Amendment claim has a two year statute of limitations. Thorpe v. Grillo, 2003 U.S. App. LEXIS 22551, *12 (3d Cir. Oct. 31, 2003). This Court finds that the Plaintiff's cause of action for retaliation arose within the applicable statutory period, and the claim was timely filed.
2. Plaintiff's Vicarious Liability Claims Under § 1983
Defendants argue that Plaintiff's claims against the Lower Bucks County Joint Municipal Authority should be dismissed pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1970). In order to state a claim under § 1983, a Plaintiff must show (1) violations of rights secured by the Constitution and the laws of the United States, and (2) that those violations were committed by persons acting under the color of state law. Kathryn P. v. City of Philadelphia, 1999 U.S. Dist. LEXIS 8418, *11 (E.D. Pa. May 27, 1999). Municipalities are considered "persons" within the meaning of § 1983. Monell, 436 U.S. at 689. Under Monell, a municipality may be held vicariously liable for the unconstitutional actions of its agents where that conduct was the result of a municipal "policy" or well-established "custom." See McQueen v. Philadelphia Housing Auth., 2003 U.S. Dist. LEXIS 19844, *12 (E.D. Pa. Sept. 26, 2003); Evans v. William Penn Sch. Dist., 2002 U.S. Dist. LEXIS 8819, *10 (E.D. Pa. May 14, 2002). However, a municipality may not be held liable under § 1983 solely on the basis of the existence of an employee-employer relationship with a tortfeasor. Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 403 (1997).
"A municipal policy is a `statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.'" Ramos v. City of Philadelphia, 2002 U.S. Dist. LEXIS 18311. *3-4 (E.D. Pa. Sept. 13, 2002) (quoting Monell, 436 U.S. at 690). A municipal custom is a "persistent and widespread" practice of government action that is "so permanent and well settled as to constitute a `custom or usage' with the force of law." Id. (quoting Monell, 436 U.S. at 691). "Under either approach, the plaintiff has to establish that a policymaker is responsible either for the policy or, through acquiescence, for the custom." King v. City of Philadelphia, 2002 U.S. Dist. LEXIS 10276, *46-47 (E.D. Pa. June 4, 2002).
Plaintiff claims that the Executive Director, Mr. Baur, was aware of the harassment and turned a blind eye, thus a jury could conclude that Mr. Baur, as a high policy maker, failed to protect the Plaintiff. However, there is nothing in the record to suggest that the Plaintiffs alleged harassment and hostile work environment were the result of a policy or practice of the Lower Bucks County Joint Municipal Authority; in fact, Plaintiff does not argue that the Authority's written policies or customs are unconstitutional. In addition, Plaintiff must show more than an isolated incident or a few incidents to establish a municipal custom that is sufficiently "permanent and well-settled" to virtually constitute law. King, 2002 U.S. Dist. LEXIS 10276 at *48 (quoting Robert S. v. City of Philadelphia, 2000 U.S. Dist. LEXIS 4020, *6 (E.D. Pa. Mar. 30, 2000)). While the Plaintiff claims that the actions of the field crew were condoned by Mr. Baur, the record in this case establishes that there were investigations launched by the Board when Plaintiff made his complaints. For example, the Board investigated Mr. Smythe for the videotaping incident; the Board investigated the letter sent home to Plaintiffs wife alleging sexual misconduct; and the Board tested the expectorant on Plaintiff's door for DNA evidence. The Plaintiff has not set forth sufficient evidence to show that the "named Defendants, as the decisions makers conceived and implemented a policy or practice or retaliating against employees who exercise First Amendment rights." Pl's Compl. at 13. Therefore, this Court finds that the Authority is not liable under 42 U.S.C. § 1983, and summary judgment will be granted on Count III against the Authority.
3. Liability of Mr. Baur, Executive Director, under § 1983 in his Official Capacity
"Under § 1983, official capacity suits, `generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Rinehart v. Mt. Penn Borough Mun. Auth., 2002 U.S. Dist. LEXIS 24724, *9 (E.D. Pa. Dec. 18, 2002) (quotingKentucky v. Graham, 473 U.S. 159, 165, 169 n. 14 (1985)). Since the Plaintiff has directly sued the Lower Bucks County Joint Municipal Authority under § 1983, his official capacity claim against Mr. Baur as Executive Director of the Board is unnecessary. "It is appropriate to dismiss the claims against the individual in his official capacity and, if viable, retain the claim against the real party in interest." McQueen v. Philadelphia Housing Auth., 2003 U.S. Dist. LEXIS 19844, *8 (E.D. Pa. Sept. 26, 2003). Thus summary judgment is granted with respect to Count III of the complaint to the extent that it applies to Mr. Baur in his official capacity.
In light of the fact that the Defendants fail to argue that Mr. Baur should not be held liable in his individual capacity, this Court will allow the Plaintiff's § 1983 First Amendment retaliation claim against Mr. Baur in his individual capacity to stand. Summary Judgment will be denied on Count III with respect to Mr. Baur in his individual capacity and granted with respect to the Lower Bucks County Joint Municipal Authority and Mr. Baur in his official capacity.
CONCLUSION
Based upon the foregoing reasons, this Court will grant in part and deny in part Defendants' Motion for Summary Judgment. Judgment is entered in favor of the Defendants and against the Plaintiff for summary judgment on Counts I and V for hostile work environment, Counts II and VI for age discrimination, and Count III for First Amendment retaliation as relates to the Lower Bucks County Joint Municipal Authority and Mr. Baur in his official capacity. Counts III against Mr. Baur in his individual capacity, IV and VII for retaliation shall remain.