In re Olick

• Decision Date: 02 October 2008
• Docket Number: Adversary No. 07-052.,Adversary No. 07-060.,Bankruptcy No. 07-10880 (ELF).
• Citation: 398 B.R. 532
• Parties: In re Thomas W. OLICK, Debtor. Thomas W. Olick, Plaintiff, v. James Kearney, et al., Defendants.
• Court: U.S. Bankruptcy Court — Eastern District of Pennsylvania

398 B.R. 532

In re Thomas W. OLICK, Debtor.

Thomas W. Olick, Plaintiff, v. James Kearney, et al., Defendants.

Bankruptcy No. 07-10880 (ELF).

Adversary No. 07-052.

Adversary No. 07-060.

United States Bankruptcy Court, E.D. Pennsylvania.

October 2, 2008.

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Thomas W. Olick, Easton, PA, pro se.

Leslie Miller Greenspan, Thomas W. Dymek, Stradley Ronon Stevens & Young LLP, Franco A. Corrado, Morgan Lewis & Bockius LLP, Philadelphia, PA, for Defendants.

MEMORANDUM

ERIC L. FRANK, Bankruptcy Judge.

I. INTRODUCTION

In the above adversary proceedings, Plaintiff Thomas W. Olick ("the Debtor") asserts, inter alia, that Defendants Knights of Columbus ("the Knights"), James Kearney and Thomas Jenkins (collectively, "the Knights Defendants") unlawfully discriminated against him because of his age.¹ This court granted summary judgment in favor of the Knights Defendants on the Debtor's age discrimination claim by Order dated March 17, 2008.² The Debtor filed a motion for reconsideration on May 29, 2008. By Order dated June 3, 2008, the court determined that it would reconsider the merits of its decision granting summary judgment to the Knights Defendants and requested further briefing on the issue. After further briefing and oral argument, the matter is ready for decision.³

For the reasons set forth below, the court reaffirms its decision to grant summary judgment to the Knights Defendants on the Debtor's age discrimination claim.

II. LEGAL STANDARD FOR MOTION FOR SUMMARY JUDGMENT

Pursuant to Fed.R.Civ.P. 56(c),⁴ summary judgment should be granted when the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The standard for evaluating a motion for summary judgment under Fed.R.Civ.P. 56 is well established and has been stated in numerous written opinions in this district. E.g., In re Klayman, 333 B.R. 695, 698-99 (Bankr.E.D.Pa. 2005); In re Lacheen, 2005 WL 1155257, at *2 (Bankr.E.D.Pa. Apr.28, 2005); In re Lewis, 290 B.R. 541, 545 (Bankr.E.D.Pa. 2003); In re Newman, 304 B.R. 188, 192-93 (Bankr.E.D.Pa.2002).

Before granting a motion for summary judgment, a court must find that the motion alleges facts that, if proven at trial, would require a directed verdict in favor of the movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). If the movant meets this initial burden, the responding party may not rest on his or her pleadings, but must designate specific factual averments through the use of affidavits or other permissible evidentiary materials that demonstrate a triable factual dispute.⁵ Fed. R. Civ P. 56(e)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). Such evidence must be sufficient to support a factual determination in favor of the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Evidence that merely raises some metaphysical doubt regarding the validity of a material facts is insufficient. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). If the party opposing the motion believes that summary judgment is premature, Rule 56(f) requires the party to present by affidavit the reasons why the party is presently unable to submit evidence in opposition to the motion. Celotex, 477 U.S. at 326 & n. 6, 106 S.Ct. at 2554 & n. 6.

In considering the evidence submitted in support of and in opposition to a summary judgment motion, the court's role is not to weigh the evidence, but only to determine whether there is a disputed, material fact for determination at trial. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment...." Id. at 247-248, 106 S.Ct. at 2510 (emphasis in original). A dispute about a "material" fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. All reasonable inferences must be drawn in favor of the nonmoving party and against the movant. United States v. 717 S. Woodward St., 2 F.3d 529, 533 (3d Cir.1993).

III. DISCUSSION

A. The Parties' Respective Evidentiary Burdens Under the ADEA

To prevail on a claim of age discrimination under the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"),⁶ a plaintiff must prove that his or her age "actually motivated" and "had a determinative influence" on the employer's termination decision. Fasold v. Justice, 409 F.3d 178, 183-84 (3d Cir.2005) (quoting cases).⁷ The plaintiff may meet this burden by presenting either "direct evidence" or "indirect evidence" of discrimination. E.g., id.

Under the "direct evidence" approach, a plaintiff must prove that the employer "placed a substantial negative reliance [on the plaintiff's age] in reaching [its] decision to fire him." Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir.2002) (quoting Connors v. Chrysler Fin. Corp., 160 F.3d 971, 976 (3d Cir.1998) and Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 1805, 104 L.Ed.2d 268 (1989)) (internal quotations omitted). If the plaintiff meets that burden, the burden shifts to the employer to prove that it would have taken the same action regardless of the plaintiff's age. Fakete, 308 F.3d at 338.

Under the "indirect evidence" approach, there is a three (3) step burden shifting process derived from the Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).⁸

1. Step 1

To establish a prima facie age discrimination/termination case, a plaintiff must prove: "(1) that he was at least forty years old, (2) that he was fired, (3) that he was qualified for the job from which he was fired, and (4) that he `was replaced by a sufficiently younger person to create an inference of age discrimination.'" See, e.g. Tomasso v. Boeing Co., 445 F.3d 702, 706 n. 4 (3d Cir.2006) (quoting Fakete, 308 F.3d at 338); Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc); see also 29 U.S.C. § 631(a).

1. Step 2

If the plaintiff makes out a prima facie case, "the burden of production (but not the burden of persuasion) shifts to the defendant, who must then offer evidence that is sufficient, if believed, to support a finding that it had a legitimate, nondiscriminatory reason for the discharge." Keller, 130 F.3d at 1108.

3. Step 3

If the defendant satisfies its burden under step two (2), step three (3) is reached.

The plaintiff may then survive summary judgment or judgment as a matter of law by submitting 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.'

Id. (quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994)). Stated slightly differently, the plaintiff "must present sufficient evidence to allow a factfinder to conclude that the employer's non-discriminatory reason was a post hoc fabrication, or pretext." Thimons v. PNC Bank, N.A., 254 Fed.Appx. 896, 898 (3d Cir.2007) (nonprecedential) (citing Fuentes, 32 F.3d at 764); see also Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir.2005) (plaintiff's rebuttal evidence "must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons ... was either a post hoc fabrication or otherwise did not actually motivate the employment action") (quoting Fuentes, 32 F.3d at 764).

To meet the step three (3) evidentiary burden, at a minimum, 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."⁹ Fuentes, 32 F.3d at 764. One of these is sufficient; the employee does not have to prove both that the explanation is implausible and that discrimination was a motivating factor. Waldron v. SL Indus., Inc., 56 F.3d 491, 494-95 (3d Cir.1995). Where the plaintiff offers evidence "that would allow reasonable minds to conclude that the evidence of pretext is more credible than the employer's justifications, the employer's motion for summary judgment must fail." Iadimarco v. Runyon, 190 F.3d 151, 166 (3d Cir.1999).

At the same time, however, the plaintiff:

must do more than show that [the employer] was "wrong or mistaken" in deciding to lay him off. He must "present evidence contradicting the core facts put forward by the employer as the legitimate reason for its decision."

Tomasso, 445 F.3d at 706 (emphasis in original) (quoting Kautz, 412 F.3d at 467) (internal citation omitted). The plaintiff's evidence must be sufficient to convince a reasonable factfinder "not merely that the employer's proffered reason was wrong, but that it was so plainly wrong that it cannot have been the employer's real reason." Keller, 130 F.3d at 1109. The plaintiff's evidence "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,' and hence infer that the `employer did not act for [the asserted] nondiscriminatory reasons.'" Fuentes, 32 F.3d at 765 (internal citations omitted) (quoting other cases).

That a plaintiff has established a prima facie case and then gone...