Zysk v. Fee Minerals Usa Inc.

• Citation: 225 F.Supp.2d 482
• Decision Date: 14 December 2001
• Docket Number: Civ. A. No. 00-5874.
• Parties: Manfred ZYSK, Plaintiff, v. FFE MINERALS USA INC., f/i/a FFEM-USA, formerly known as Fuller Mineral Processing, Inc., F.L. Smidth, Inc., successor by name change to and f/i/a as Fuller Company and Smidth & Co., successor by name change to and f/i/a as F.L. Smidth & Co., Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

225 F.Supp.2d 482

Manfred ZYSK, Plaintiff, v. FFE MINERALS USA INC., f/i/a FFEM-USA, formerly known as Fuller Mineral Processing, Inc., F.L. Smidth, Inc., successor by name change to and f/i/a as Fuller Company and Smidth & Co., successor by name change to and f/i/a as F.L. Smidth & Co., Defendant.

Civ. A. No. 00-5874.

United States District Court, E.D. Pennsylvania.

December 14, 2001.

COPYRIGHT MATERIAL OMITTED

Donald P. Russo, Bethlehem, PA, Vanessa M. Nenni, Bethlehem, PA, for Plaintiff.

Jennifer L. Craighead, Barley, Snyder, Senft and Cohen, Lancaster, PA, for Defendants.

OPINION and ORDER

VAN ANTWERPEN, District Judge.

Plaintiff Manfred Zysk ("Plaintiff") sued his employer, FFE Minerals USA, Inc., which has gone by a variety of other names ("Defendant")¹, alleging that he was discriminatorily discharged after being harassed, denied promotion and demoted based on his age, in violation of the Age Discrimination in Employment Act of 1967, 29 USC § 621 et. seq. ("ADEA") and the Pennsylvania Human Relations Act, 43 P.S. § 951 et. seq. ("PHRA"). Plaintiff further alleges that he was subsequently retaliated against with unfavorable referrals in violation of the ADEA and PHRA after he filed an ADEA charge against Defendant with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff also alleges a breach of an implied employment contract in violation of Pennsylvania common law based on his discharge. Though Plaintiff does not dispute that he was an at-will employee of Defendant, he proffers that he gave additional consideration creating an implied contract of employment for "a reasonable period of years" by relocating himself and his family across the country after he was induced to leave another job by Defendant. Defendant moved for summary judgment on all counts.

We now find that Plaintiff has created triable issues of fact under the Third Circuit's lenient standard in discrimination cases regarding some of his ADEA discrimination claims. However, he has failed to present evidence sufficient to overcome summary judgment on the retaliation issue, merely restating his complaint in this regard. Moreover, applying Pennsylvania law, we find that Plaintiff's PHRA claims are time-barred and his breach of contract claim is insufficient as a matter of law, given Pennsylvania's strong presumption in favor of at-will employment and the fact that Plaintiff was employed at Defendant for over two years after his move to Pennsylvania.

To avoid redundancy, rather than setting forth a separate discussion of the facts, we will discuss the relevant details of Plaintiff's case below in connection with our legal determinations.

I. INTRODUCTION

Our decision takes into account Plaintiff's Complaint and Demand for Jury Trial, filed on November 17, 2000 ("Complaint"), Defendants' Answer to Complaint with Affirmative Defenses, filed on February 7, 2001 ("Answer"), Defendants' Motion for Summary Judgment, Brief and Exhibits, filed on November 5, 2001 ("SJ Mot."), Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment and Appendix, filed on November 20 and 21, 2001, respectively ("Opp. to SJ"), and the parties' appearances with documentation at a hearing and oral argument before us on November 29, 2001 ("Hearing Docs.").

II. DISCUSSION

A. Statement of Jurisdiction

We have original, subject matter jurisdiction over ADEA claims under 28 USC § 1331. We consider Plaintiff's Pennsylvania common law contract claim and his PHRA claims by exercising our supplemental jurisdiction under 28 USC § 1367(a), since all of his claims arise from the same actions by Defendant.

B. Summary Judgment Standard

The court shall render 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." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S.Ct. 2505, 91 L.Ed.2d 202. All inferences must be drawn, and all doubts resolved, in favor of the non-moving party—in this case, Plaintiff. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.1985), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985). On a motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and would support a favorable jury finding. Id. at 321 n. 3, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (quoting Fed. R.Civ.P. 56(e)); Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202; see First Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir.1987). The party opposing summary judgment may not rest upon mere allegations or denials, but must set forth specific facts, presenting affirmative evidence showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202.

In discrimination and retaliation cases, proof at summary judgment follows a well-established "burden-shifting" approach first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once a plaintiff has established a prima facie case of discrimination or retaliation, the defendant must rebut an inference of wrongdoing with evidence of a legitimate, non-discriminatory, non-retaliatory reason for the action taken. Delli Santi v. CNA Ins. Co., 88 F.3d 192, 199 (3rd Cir.1996); Weston v. Commonwealth of Pennsylvania, 251 F.3d 420, 432 (3rd Cir.2001). If a defendant successfully meets its burden in a discrimination or retaliation case, then in order to avoid summary judgment, Plaintiff must present evidence of pretext, or cover-up, or show that discrimination played a role in the employer's decision-making and had a determinative effect on the outcome. Fuentes v. Perskie, 32 F.3d 759, 764 (3rd Cir.1994); Weston, 251 F.3d at 432.

Notwithstanding the non-moving party's burden, the Third Circuit urges special caution about granting summary judgment to an employer when its intent is at issue, particularly in discrimination and retaliation cases. Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313, 321 (3rd Cir. 2000).

C. Timeliness Issues

Defendant argues that Plaintiff's discrimination and retaliation claims under the ADEA and the PHRA are untimely. Defendant is correct as to Plaintiff's PHRA claims, but we find Plaintiff's ADEA claims timely for the reasons set forth below.

1. Undisputed Facts

The timeline of the case is largely undisputed. On July 24, 1997, Defendant notified Plaintiff of its decision to discharge him, and on July 31, 1997, he was discharged. Plaintiff, through his original counsel, Robert Trotner, began corresponding with Defendant's in-house counsel on about August 15, 1997. On September 4, 1997, Trotner alleged to Defendant that Plaintiff was discharged discriminatorily, requesting a meeting to discuss the matter. On September 12, 1997, Defendant responded to the September 4 letter, urging Plaintiff through counsel to proceed as he saw fit with his discrimination charges. Similar correspondence continued through October 1997.

On April 6, 1998, 256 days after Plaintiff was notified of his discharge,² the EEOC received a nine-page "Complaint" of discrimination from Mr. Trotner, with a verification signed by Plaintiff. On April 29, 1998, the EEOC informed Plaintiff that his charge had been received and docketed (i.e., assigned a Charge Number). On May 7, 1998, the EEOC advised Plaintiff (then Charging Party) through Mr. Trotner that before proceeding with an investigation, the agency required additional documentation from Plaintiff within 33 days. The May 7 letter also stated,

Please note additionally that if the Respondent named in the charge [i.e., Defendant] is located within the Commonwealth of Pennsylvania and the most recent violation is within 180 days of the date the charge was received by EEOC, the Charging Party must complete the enclosed form from the Pennsylvania Human Relations Commission ("PHRC") to indicate his/her interest in preserving Pennsylvania state rights.

On August 4, 1998, the EEOC advised Mr. Trotner that he had ten days to submit information or the EEOC would dismiss Plaintiff's charge for failure to cooperate. The August 4 letter referred to correspondence with Mr. Trotner on May 13, 1998 in which Mr. Trotner notified the EEOC of his intention to file a private discrimination suit. On August 20, 1998, Mr. Trotner FAX'ed extensive documentation to the EEOC, on the basis of which, the EEOC sent Plaintiff draft charges on September 17 and September 25, 1998. On October 28, 1998, the Plaintiff FAX'ed the EEOC investigator handling his case a letter complaining about his attorney's (i.e., Mr. Trotner's) unresponsiveness. Plaintiff had been unsuccessfully attempting to contact his attorney to amend and submit a signed EEOC Charge before the October 28 "deadline" evidently set by the EEOC investigator. Plaintiff requested additional time to perfect the EEOC Charge and suggested that he would likely seek new counsel.

Plaintiff finally signed and dated the official EEOC Charge of Discrimination on November 7, 1998. The EEOC Charge was date-stamped November 10, 1998. The EEOC mailed Defendan...