Colgan v. Fisher Scientific Co.

Citation747 F. Supp. 299
Decision Date29 August 1990
Docket NumberCiv. A. No. 88-2645.
PartiesJack COLGAN, Plaintiff, v. FISHER SCIENTIFIC COMPANY, Defendant.
CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

James W. Carroll, Jr., Pittsburgh, Pa., for plaintiff.

Edward N. Stoner, II, Pittsburgh, Pa., for defendant.

OPINION

D. BROOKS SMITH, J.

Plaintiff brought this age discrimination lawsuit alleging that his termination from employment in December, 1986, violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"). Defendant has filed a motion for summary judgment, contending that plaintiff's discrimination claim is barred by the statute of limitations and is ripe for summary judgment for failing to raise a genuine issue of material fact as to the allegedly pretextual nature of defendant's reason for the discharge.1

The undisputed facts of the case are as follows. Plaintiff was hired by defendant in 1958 as a laborer. Plaintiff worked for defendant continuously from that date until his termination in 1986, received numerous pay raises and during that period was promoted to the salaried position of supervisor of the machine shop and tool room. In January, 1986, defendant offered an early retirement package to plaintiff and other employees. Plaintiff declined to accept this offer.

In August, 1986, plaintiff received a performance appraisal which rated his overall performance as falling below requirements for his job description, and which appraisal stated that absent significant improvement in performance, plaintiff would be subject to demotion, reassignment or separation. This was the first job appraisal received by plaintiff during his tenure with defendant that concluded with a negative overall evaluation of his performance.

In December, 1986, defendant informed plaintiff that his job was being eliminated and that his employment was terminated. Complaint, ¶ 15. Plaintiff was 57 years old at the time of his discharge. Plaintiff was told that his separation from employment, together with the separation of twelve other employees, was part of a reduction in force implemented pursuant to the defendant's policies. Of the thirteen employees terminated, five (including plaintiff) were salaried employees allegedly chosen according to the terms of defendant's Workforce Reduction Policy for Salaried Employees. Plaintiff filed one charge with the Equal Employment Opportunity Commission alleging that defendants' action to terminate his employment during a reduction in force was intentionally discriminatory against him due to his age. That charge was filed on July 16, 1987, and this lawsuit was commenced on December 5, 1988.

In the Complaint, plaintiff alleges that defendant gave him job assignments which could not be performed single-handedly, that he was denied adequate support staff to complete assignments, that his performance appraisal was false, and that defendant failed to correct the false appraisal. Complaint, ¶ 16. In subsequent submissions, plaintiff alleges that he was replaced by, or that his duties were redistributed to, younger employees.

In its summary judgment motion, defendant asserts that the evidence of record establishes that plaintiff can not prove at trial either that he filed a timely ADEA charge or that the asserted reason for his dismissal was pretextual. Plaintiff has the burden of showing that some genuine issue of material fact exists concerning his claim of age discrimination. In that regard, plaintiff must produce sufficient evidence from which the factfinder could reasonably find for the plaintiff. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). We view the evidence in the light most favorable to the non-moving party. Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir.1983). The purpose of Rule 56 is to isolate and dispose of factually unsupported claims and defenses before the trial stage. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). With these principles in mind, we turn to the two issues raised by defendant.

I. Timeliness

Plaintiff has taken the position in this litigation that defendant's discriminatory employment decision was not his actual termination, but instead was his allegedly false August, 1986 evaluation. E.g., Affidavit of Jack Colgan, ¶ 30 (Docket # 25); Memorandum In Opposition to Defendant's Motion For Summary Judgment, dated August 14, 1989 at 10 ("While it is true that the defendant was reducing its workforce at the time Plaintiff was terminated, it is clear that the Plaintiff was fired for one reason, and one reason only, that is because of a poor evaluation received in August, 1986"). In that regard, plaintiff concedes that there was nothing discriminatory about defendant's application of the Workforce Reduction Policy for Salaried Workers, and that his case is based on the theory that, but for the August, 1986 evaluation, he would not have been selected for termination in the December, 1986 reduction in force. Transcript of July 30, 1990 Pretrial Conference at 17 (Docket # 30).2

Defendant challenges plaintiff's standing to argue that his August, 1986 evaluation was discriminatory and ultimately led to discharge in December, 1986 because plaintiff's EEOC charge was filed more than 300 days after the evaluation. Thus, Defendant urges, he is precluded from complaining that his evaluation was discriminatory. In support, defendant cites United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) and Lorance v. AT & T Technologies, 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989).

Contrary to defendant's repeated assertion that plaintiff did not file any administrative charge concerning his 1986 evaluation, we first note that plaintiff's affidavit supporting his EEOC charge clearly references the evaluation and asserts that it was "unfair." However, the affidavit explains that the evaluation was unfair because of the allegedly oppressive workload imposed upon plaintiff, and not due to any discriminatory motive. Affidavit of Edward N. Stoner II (Colgan Deposition Exhibit # 3) (Docket # 13). Notwithstanding this reference to the evaluation, we must determine whether plaintiff can maintain a lawsuit on the theory that his August evaluation is the only allegedly discriminatory decision made by defendant.

The line of cases cited by defendant holds that defendant's allegedly discriminatory conduct, not just the consequences of that conduct, must occur within the applicable limitations period in order to be actionable.3 In United Air Lines v. Evans, the plaintiff challenged her present seniority status. Years before, she had been discriminatorily dismissed by her employer. When rehired, plaintiff was given no seniority credit for her earlier service. Plaintiff sued on her present injury, i.e., her diminished seniority. The Supreme Court held that her claim was untimely, even if the past discriminatory event "might at one time have justified a valid claim against the employer." Evans, 431 U.S. at 560, 97 S.Ct. at 1890.

In Delaware State College v. Ricks, the Supreme Court held that the actionable event was the employer's denial of tenure and was not the plaintiff's resulting nondiscriminatory termination of employment. Therein, the Court emphasized:

The proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.

449 U.S. at 258, 101 S.Ct. at 504 (emphasis in the original).

Finally, in Lorance v. AT & T Technologies, the Court addressed the question of when the limitations period begins to run in a lawsuit arising out of a seniority system not alleged to be discriminatory on its face or as presently applied. The petitioners in Lorance, who filed their EEOC charges and lawsuit in 1983, were challenging the employer's present seniority system by claiming that it was the product of a 1979 modification to the collective bargaining agreement entered into with an intent to discriminate on the basis of sex. The district court granted summary judgment in favor of the employer, finding that the Title VII claims were untimely for failure to file administrative charges within the applicable limitations period. A divided panel of the Court of Appeals affirmed.

The Supreme Court observed that petitioners' claim was "wholly dependent on discriminatory conduct occurring well outside the period of limitations ..." and upheld the district court's grant of summary judgment. 490 U.S. at ___, 109 S.Ct. at 2267. Writing for the majority, Justice Scalia explained the Court's holding with the following negative example:

Indeed, a given plaintiff could in theory sue successively for not being promoted, for being demoted, for being laid off, and for not being awarded a sufficiently favorable pension, so long as these acts—even if nondiscriminatory in themselves—could be attributed to the 1979 change in seniority. Our past cases, to which we adhere today, have declined to follow an approach that has such disruptive implications.

490 U.S. at ___, 109 S.Ct. at 2269.

In this case, plaintiff admits that his termination pursuant to the terms of the defendant's written policies was nondiscriminatory in and of itself. Transcript of July 30, 1990 Pretrial Conference at 17. He challenges only defendant's motives in issuing his job appraisal; in that regard, he waited until the full effects of his poor rating were manifested during the reduction in force. Presumably, under plaintiff's theory, he would have waited an even longer period of time to file his lawsuit if defendant's economic situation had been healthier and had allowed it...

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2 cases
  • Colgan v. Fisher Scientific Co.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • June 19, 1991
    ...issue of material fact to undermine the nondiscriminatory reason advanced by Fisher to justify its actions. Colgan v. Fisher Scientific Co., 747 F.Supp. 299 (W.D.Pa.1990). We cannot say that the limitations period under the ADEA started to run on the date Colgan received his performance eva......
  • Carpenters Health and Welfare Fund v. BLDG. TECH
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • October 1, 1990

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