Baker v. Consolidated Rail Corp., Civ. A. No. 92-44J.

• Decision Date: 20 October 1993
• Docket Number: Civ. A. No. 92-44J.
• Citation: 835 F. Supp. 846
• Parties: Charles J. BAKER, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

835 F. Supp. 846

Charles J. BAKER, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.

Civ. A. No. 92-44J.

United States District Court, W.D. Pennsylvania.

October 20, 1993.

COPYRIGHT MATERIAL OMITTED

Stephen D. Wicks, Altoona, PA, for plaintiff.

Thomas H. May, Dickie, McCamey & Chilcote, P.C., Pittsburgh, PA, for defendants.

OPINION and ORDER

BROOKS SMITH, District Judge.

I. Introduction

Plaintiff Charles J. Baker ("Baker") alleges that he was constructively discharged from his job in defendant Consolidated Rail Corporation's ("Conrail") audiovisual department on the basis of his age, and subsequently replaced by a younger employee, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., as amended, and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. Plaintiff seeks damages consisting of estimated lost wages, future wages and retirement benefits. This matter is currently before the Court on defendant's Motion for Summary Judgment (Docket No. 10). Jurisdiction over plaintiff's federal claims is proper under 28 U.S.C. §§ 1331 and 1343(a)(4), and over his state law claims pursuant to the doctrine of pendent jurisdiction.

II. Background

In June of 1979, Charles Baker was hired by Conrail to work as a training specialist in that company's Altoona, Pennsylvania video studio. In November or December of 1989, Baker, then 57 years old, received a letter from Richard Sullivan, a Vice President in charge of the Resource Development Department, advising him of Conrail's new early retirement program. Baker Deposition at 18; Sweetland Deposition at 29. Although plaintiff was aware of the January 31, 1990 cut-off date for accepting early retirement, he did not attend an explanatory meeting about early retirement held in Altoona, and was not initially interested in availing himself of the program. Baker Deposition at 20.

Sometime during January 1990, before the cut-off date for accepting early retirement, David Sweetland, one of Baker's supervisors, informed plaintiff that it appeared unlikely that the Altoona video studio would continue to be funded at previous levels. Baker Deposition at 23. Horace Bothum, plaintiff's immediate supervisor, received a copy of the 1990 budget "very late" in 1989, but did not at that time discuss either the 1990 budget constraints or the early retirement program with Baker. Bothum Deposition at 38-41. Conrail had only budgeted its Altoona video studio for the first three months of 1990, and this fact was confirmed to plaintiff in another conversation with Sweetland in "late January" of that year. Baker Deposition at 29. In light of this information, plaintiff accepted early retirement on January 20, 1990, effective March 1, 1990. In late-February of 1990, the Altoona video studio was audited one last time before being closed by Conrail's Resource Development Department. Baker Deposition at 35-36; Pretrial Stipulation at ¶ 13.

In late March of 1990, Conrail's Altoona video studio was reopened under the supervision of its Information Systems Department. Pretrial Stipulation at ¶ 14. On or about March 26, 1993, plaintiff and Conrail entered into a three month contract, pursuant to which Baker would provide audiovisual consulting services for Conrail at the rate of $22.00 per hour. Baker Deposition at 37, 40, 50-51. Plaintiff did perform consulting services for Conrail from March 27, 1990 through October 9, 1990, first under the terms of the March 26, 1990 contract, and then under subsequent contract extensions. Baker Deposition at 51-52.

On September 17, 1990, during the period Baker was consulting for Conrail, defendant hired 26 year old Thomas Concannon to work in the Altoona video studio. Part of plaintiff's work as a consultant was to train Concannon in the duties of audiovisual specialist; when plaintiff had done that, Conrail terminated its consulting arrangement with him. Kabo Deposition at 16-17.

Plaintiff filed an age discrimination charge with the Pennsylvania Human Relations Commission (PHRC) on June 20, 1991, which charge was accepted for filing by the Equal Employment Opportunity Commission ("EEOC") as of the same date. On February 20, 1992, the EEOC issued its determination that Baker was not discriminatorily discharged by defendant Conrail because of his age. Pretrial Stipulation at ¶ 22. Plaintiff filed his complaint in this action on February 26, 1992.

III. Discussion

Federal Rule of Civil Procedure 56(c) requires the entry of summary judgment "... 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." "The requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986) (emphasis in original). An issue of fact is "genuine" if the evidence is such that a reasonable jury might return a verdict for the non-moving party. Anderson, 477 U.S. at 257, 106 S.Ct. at 2514; Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir.1987). The presence or absence of any plausible motive to engage in conduct is relevant to whether a genuine issue of fact exists within the meaning of Rule 56(e). Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 597, 106 S.Ct. 1348, 1361, 89 L.Ed.2d 538 (1986).

Once the moving party has satisfied its burden of identifying evidence which demonstrates the absence of a genuine issue of material fact, the non-moving party is required to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories, etc., in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). When Rule 56(e) shifts the burden of proof to the non-moving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of proving at trial. Equimark, supra 812 F.2d at 144. In determining whether an issue of material fact does exist, all inferences must be drawn in favor of the non-moving party. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir.1990), cert. denied 499 U.S. 921, 111 S.Ct. 1313, 113 L.Ed.2d 246 (1991).

Defendant's attack on plaintiff's claims is two-pronged. First, defendant contends that plaintiff's complaint was not filed with the EEOC within the 300 day statute of limitations, see 29 U.S.C. §§ 626(d), 633(b), and is therefore time-barred. Second, defendant argues that plaintiff has adduced no evidence that Conrail's employment decision was pretextual. Plaintiff disputes the alleged untimeliness of his complaint, and further suggests that the issue whether Conrail's early retirement program was pretextual vel non is irrelevant. Rather, plaintiff avers that defendant untruthfully represented the future status of the Altoona video department, which misrepresentations induced him to retire, and that this fraudulent inducement was actionable discrimination. Plaintiff's Brief in Opposition to Motion for Summary Judgment at 11.

1. Statute of Limitations

29 U.S.C. § 626(d) provides:

No civil action may be commenced under this section until 60 days after a charge alleging unlawful discrimination has been filed with the EEOC. Such a charge shall be filed —

(1) within 180 days after the alleged unlawful practice occurred; or

(2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

29 U.S.C. § 633 provides that in a case of alleged unlawful age discrimination occurring in a State which by law prohibits age discrimination in employment and has established a government agency with authority to grant or seek relief from such practices, no suit may be brought under 29 U.S.C. § 626 until 60 days after the plaintiff has first filed a charge with the state agency, and either sixty days elapses or that state agency terminates its proceedings. Because Pennsylvania does prohibit age discrimination in employment, 43 P.S. § 955(a), and has created the PHRC to administer the Pennsylvania Human Relations Act, 43 P.S. § 956, section 626(d)(2) applies, and Baker must have filed his charge with the EEOC within 300 days from Conrail's alleged unlawful practice.

The parties disagree over exactly which of Conrail's alleged actions constituted the unlawful employment practice that triggered the 300 day statute of limitations. Defendant contends that plaintiff's claim is one for a constructive discharge, precipitated by the information that the Altoona video studio's budget would be severely curtailed in 1990. Under defendant's scenario, the statute of limitations began running no later than March 1, 1990, the effective date of Baker's retirement, and plaintiff's June 20, 1991 charge filed with the PHRC was therefore untimely filed. Memorandum of Law in Support of Motion to Dismiss at 7. Plaintiff argues that the 300 day time limit did not begin to run until September 17, 1990, when Conrail hired Tom Concannon, so that his charge was filed well within the statutory limit.

"As a general rule, `the limitations period in an employment discrimination case begins to run on the date upon which the employee first learns or should have learned of the adverse employment action.'" Allen v. Diebold, Inc., 807 F.Supp. 1308, 1312 (N.D.Ohio 1992) (citations omitted). However, it is foreseeable that an ADEA plaintiff might not discern or "learn of" the discriminatory nature of an adverse employment action until months after that action, if that is when he perceives he was replaced by a younger employee....