Opinion
Civil Action No. 03-CV-4920.
August 23, 2004
MEMORANDUM ORDER
Presently before the Court is Defendant Brush Wellman, Inc.'s ("Defendant" or "Brush Wellman") Motion for Summary Judgment. (Dkt. No. 7). For the reasons that follow, Defendant's motion is GRANTED.
Factual Background
Plaintiff, Christie M. Follweiler ("Plaintiff"), filed the instant complaint on August 28, 2003, alleging unlawful discharge in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and intentional infliction of emotional distress. (Dkt. No. 1). In his Brief in Opposition to Summary Judgment, Plaintiff agreed to the dismissal of the intentional infliction of emotional distress count. (Pl. Br. at 1).
Brush Wellman, which manufactures beryllium at its plant in Reading, Pennsylvania, is the leading global supplier of high performance copper, nickel and beryllium alloys. (Def. Br. at 2). Plaintiff was continuously employed by Defendant from 1973 until April 2002 in various laborer positions. (Pl. Dep. at 10). At the time of his termination, Plaintiff was employed as a roll grinder operator. (Spotts' Dep. at 22)
Defendant utilizes a progressive system of discipline, entitled a Corrective Action Policy ("CAP"). When an employee presents performance or disciplinary issues, the first phase requires the supervisor to speak directly with the employee about the performance issues or policy violations. (Weinman Dep. at 17). According to CAP, the supervisor should place a written record of the conversation in the supervisor's file, which file differs from the file maintained by the Personnel Office. (Id. at 18). If the employee commits the same violation within the year, CAP provides for a second, informal oral communication between the supervisor and the employee, which is to be documented in the file maintained by the supervisor. If an employee commits a third violation of the same policy occurs within a twelve month period, the supervisor will make a formal verbal warning, which should be reduced to writing and forwarded to the Personnel Office for placement in the employee's personnel file. (Id. at 16-17, 20). At the next stage, the employee receives a formal written warning and is placed on probation for a year; any subsequent violations of company policies may result in suspension or termination. (Id. at 24).
Plaintiff's disciplinary record evidences that, between July 1997 and November 2001, he received informal verbal instruction six times, three verbal warnings and one written warning. Then, in November 2001, Plaintiff and his supervisors executed a written "Last Chance Agreement," which detailed Plaintiff's disciplinary history with Defendant from 1986 through 2001. (Pl. Dep. Ex.16).
Plaintiff accumulated forty-four disciplinary violations (Pl. Dep., Exhibit 16, p. 2) and two suspensions (Pl. Dep., Exs. 5,16) during the last fifteen years of his tenure at Brush Wellman. These violations included wandering around the plant; failing to operate machinery during production hours; unexcused absenteeism; arriving late and departing early; failing to wear safety shoes; failing to complete statistical charts regarding the manufactured product; reading private material while operating the inspection table; operating the inspection table without being near it; running the inspection table too rapidly (which prevents proper visual inspection of the finished product); failing to properly inspect finished products; failing to wear safety glasses; using the women's restroom; and sleeping while operating machinery. (Pl. Dep., Exs. 2-17); (Spotts Dep. at 12-13); (Pl. Dep., Ex. B).
In relevant part, the Last Chance Agreement states:
This document serves as a Final Warning concerning your continued employment at Brush Wellman. Your work habits are unacceptable and you must make dramatic and significant improvement in order to avoid termination. This final warning, accompanied by a two week, unpaid suspension, affords you one last chance to meet Brush Wellman's performance expectations. Most recently you have been observed taking breaks for longer periods than allowed, leaving your workstation unattended for long periods of time, and leaving the building early in order to more your car closer to the door. You have been repeatedly warned about such behavior in the past and prior attempts to correct you[r] behavior have failed. Please be advised that failure to meet the requirements set forth in this letter can result in further disciplinary action up to and including termination. The requirements set forth in this document will remain in effect for 36 months.
Plaintiff, who received and signed the Last Chance Agreement on November 21, 2001, understood and agreed that further violations of work or safety rules could result in suspension or termination. (Pl. Dep. at 192-3;Weinman Dep. at 69; Spotts Dep. at 26). Plaintiff was also suspended for two weeks in conjunction with the signing of the Last Chance Agreement.
On April 11, 2002, supervisors Weinman and Spotts approached Plaintiff, who was performing his duties as a roll grinder, and asked Plaintiff whether he was wearing a company t-shirt or a personal t-shirt under his button-down work shirt. (Pl. Dep. at 198-202). Plaintiff acknowledged wearing a personal t-shirt, stating that he had "forgotten" to change into the company issued shirt. Plaintiff offered to change his shirt immediately but, instead, was instructed to clock-out and go home. (Id.). Plaintiff was officially terminated from Brush Wellman on April 12, 2002. (Pl. Dep. at 210-212).
Defendant has a clearly established uniform policy designed to minimize the migration of beryllium containing materials. Employees are required to wear shoes, pants, shirts and t-shirts issued by Brush Wellman. These items must be changed daily and may not removed from the plant. Clothing is laundered daily by Brush Wellman. Employees are permitted to wear their own belts and hats, but these items may not be removed from the plant. (Def. Ex. D).
The association between beryllium and lung disease was first recognized in Europe in the 1930's. In 1943, cases of lung disease were diagnosed at the Brush Wellman plant in Ohio. In certain individuals, the inhalation of beryllium particles produces either chronic beryllium disease or acute beryllium disease, which are forms of chemical pneumonia. No known cure for beryllium disease exists. (Def. Ex. B).
For this reason, Plaintiff's argument that other employees were not disciplined for wearing baseball caps misses the mark. Moreover, Plaintiff was not disciplined for wearing a baseball cap.
Standard of Review
Summary judgment is appropriate when "there is no genuine issue of material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor."Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). The moving party bears the burden of showing that the record discloses an absence of genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 106 S.Ct. 2505, 91 L.Ed.2d. 202 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings to set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d. 538 (1986). There is a genuine issue for trial "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 249. "Such affirmative evidence — regardless of whether it is direct or circumstantial — must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Williams v. Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir. 1989).
The ADEA provides that it is "unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's age." 29 U.S.C. § 623(a)(1). The Third Circuit has held that ADEA claims are governed by a "slightly modified version" of the McDonnell Douglas burden-shifting analysis framework for the presentation of evidence in discriminatory treatment cases litigated under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1et seq. See Showalter v. University of Pittsburgh Medical Center, 190 F.3d 231, 234 (3d Cir. 1999) (citing Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) ( en banc)). This modified version requires that a plaintiff show that the employer retained "unprotected workers," rather than simply showing that the plaintiff was replaced with an unprotected worker. Id. (citing Seman v. Coplay Cement Co., 26 F.3d 428, 431 (3d Cir. 1994), abrogated on other grounds by Smith v. Borough of Wilkinsburg, 147 F.3d 272, 277 (3d Cir. 1998).
Accordingly, in order to establish a prima facie claim of age discrimination under the ADEA, a plaintiff must show, by a preponderance of the evidence, that he was (i) a member of the protected class, i.e. was 40 years of age or older, (ii) discharged, (iii) qualified for the job, and (iv) defendant retained unprotected workers. Showalter, 190 F.3d at 234-35. If the plaintiff establishes a prima facie case, then "[t]he burden of production (but not the burden of persuasion) shifts to the defendant, who must offer evidence that is sufficient, if believed, to support a finding that it had a legitimate nondiscriminatory reason for the discharge." Id. (citations omitted). If the defendant fails to satisfy this burden, defendant's summary judgment motion should be denied. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If, however, the defendant satisfies this burden, the burden of production shifts back to the plaintiff to proffer evidence 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 v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
Analysis
Defendant concedes that Plaintiff has established a prima facie case of age discrimination. Accordingly, the burden shifts to Defendant to set forth a legitimate nondiscriminatory reason for terminating Plaintiff from his position as a roll grinder. Keller, 130 F.3d at 1108. In this regard, Defendant asserts that Plaintiff was terminated as a result of repeated violations of Brush Wellman's work and safety policies and as a result of his breach of the terms of his Last Chance Agreement. (Def. Br. at 5).
Specifically, Defendant concedes Plaintiff was: (1) over 40 years of age and a member of a protected class, (2) qualified to perform the job of a roll grinder, (3) suffered an adverse employment action as a result of his discharge, and (4) replaced by a younger employee. See Showalter v. University of Pittsburgh Medical Center, 190 F.3d 231, 234 (3d Cir. 1999).
Because Defendant has articulated legitimate non-discriminatory reasons for terminating Plaintiff, the burden shifts back to Plaintiff to prove by a preponderance of the evidence that his repeated violations of Defendant's work and safety policies and his breach of the Last Chance Agreement are "merely pretext for discrimination, and not the real motivation" for his termination. In an effort to satisfy this burden, Plaintiff alleges that Defendant's "proffered reasons for the `Final Warning' and termination were false." (Pl. Br. at 9). Specifically, Plaintiff contends that "Plaintiff did not committed [sic] many of the alleged violations which are summarized by the defendant as the basis for issuing the 11/21/01 `Final Warning.'" (Id.). In support of his position, Plaintiff denies that "he was sleeping at his work station; that he took long breaks; that he took an extra 20 minutes for lunch and left [his] work station 20 minutes early at the end of the day; or that he had an attendance problem." (Id.). Stated differently, Plaintiff argues that Defendant fabricated a large portion of the documentation contained in Plaintiff's personnel file. Additionally, Plaintiff contends his personnel file does not support the issuance of the Last Chance Agreement in that his personnel file does not contain notes memorializing the verbal conversations and verbal warnings for the 1995 to November 2000 time period. (Pl. Br. at 10; Exs. B D). In Plaintiff's view, these factors establish the pretextual nature of Defendant's decision to terminate Plaintiff. (Id.).
According to Supervisor Weinman, informal communications between the employee and the supervisor are not forwarded to the Personnel Office. Only level three and four violations — formal verbal warnings and formal written warnings — are forwarded to the Personnel Office. Records of informal communications are maintained by the supervisor in his private files.
The Court finds Plaintiff's argument unpersuasive. Regardless of whether Plaintiff maintains that he did not commit each and every infraction for which he was disciplined, at the very least, Plaintiff's personnel file clearly chronicles a remarkable disciplinary record during his tenure at Brush Wellman. Indeed, the "ADEA was not intended to be a vehicle for judicial second-guessing of business decisions, nor was it intended to transform the courts into personnel managers." Healy v. New York Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir. 1988) (citing Thornbrough v. Columbus and Greenville Railroad Co., 760 F.2d 633, 647 (5th Cir. 1985)). Thus, "[t]he question is not whether the employer made the best, or even a sound business decision; it is whether the real reason is [age discrimination]." Keller, 130 F.3d at 1109 (citingCarson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996)).
At his deposition, Plaintiff did not deny committing most of the disciplinary violations; rather, Plaintiff stated he "could not recall" the specific violations. (Pl. Dep. at 95, 96, 106, 109, 117, 118, 119, 120, 123, 124, 125, 126, 127, 135, 137, 150, 151, 155, 158, 159, 163, and 178.). Ultimately, however, Plaintiff testified: "I don't deny some of these violations. I don't deny, by all means, I don't, but we have comparison here with other workers doing the same and sometimes even worse than I and not getting reprimanded or even written up." (Pl. Dep. at 128).
Moreover, Plaintiff position essentially ignores the fact that he entered into a Last Chance Agreement with Defendant on November 21, 2001, in which he specifically agreed to comply with the terms of the agreement and all other company rules. (Id. at 193). The Last Chance Agreement provided that Plaintiff would be terminated from his employment with Defendant if he violated the agreement or any other company rules, regardless of severity. In his deposition, Plaintiff contends his signature on the Last Chance agreement simply indicates that he read the agreement, and does not reflect agreement with its terms, conditions or content. Plaintiff's history with Brush Wellman, however, belies this contention. In the decade prior to his termination, Plaintiff refused to sign disciplinary notices on numerous occasions. (4/22/1991, 6/4/1991, 6/5/1991, 10/1/93, 9/3/98 and 11/10/2000; Pl. Dep., Ex. C, pps. 31, 35, 44, 67, and 74). Indeed, Plaintiff refused to "sign off as receiving the new Employee Handbook distributed to all employees on March 23 24, 1996." (Pl. Dep., Ex. 13). Therefore, it is clear that Plaintiff could have formally disputed entering into the Last Chance Agreement, as the record demonstrates his familiarity with his right to decline to sign disciplinary notices, and the procedures for challenging disciplinary action. (Pl. Ex. B., pps. 89, 95). Thus, Plaintiff's signature can only be interpreted as assent to the terms of the Last Chance Agreement. The Court finds that no reasonable fact-finder could interpret the Last Chance Agreement as anything other than what it purports to represent: a mutual agreement between an employer and an employee with a significant disciplinary history in which the employee committed to improved performance and both parties explicitly acknowledged that future violations may result in termination. I also find that no reasonable fact-finder could infer insidious motivation lurking under the surface of this termination. Indeed, the Court notes that Plaintiff acknowledged his April 11, 2002 violation of the Last Chance Agreement and company safety policies. (Pl. Br. at 36, 37).
Furthermore, Plaintiff has proffered no evidence to support his contention that Defendant treated similarly situation younger employees more favorably than Plaintiff. Although Plaintiff holds the subjective belief that other younger employees violated work rules but were not disciplined for such violations, he has not provided this Court with any evidence that Defendant actually knew of these alleged violations and chose not to discipline such employees. In his deposition, Plaintiff readily admits he is unaware of what disciplinary actions, if any, were taken against other employees. (Pl. Dep. at 123). Plaintiff also acknowledged that the discipline of employees at Brush Wellman is a private matter between the employer and the employee. (Pl. Dep. at 129-134; 248-249). Most importantly, Plaintiff has failed to set forth evidence showing that any younger employees violated the terms of a Last Chance Agreement, or any other company rules after entering into a Last Chance Agreement and were not terminated for such infractions. Indeed, Plaintiff has failed to submit any evidence from which a reasonable factfinder could infer that the Defendant's reason for terminating Plaintiff was pretext.
Plaintiff filed two affidavits, attached as Exhibits E and F to his response brief, which Defendant maintains should be striken. (Def. Reply Br. at 3). Federal Rule of Civil Procedure 56(e) provides: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein." Defendant challenges the affidavits as unsworn and not based on personal knowledge.
Although Defendant is correct about Plaintiff's non-compliance with Rule 56(e), the affidavits are of little value to Plaintiff because they do not create a genuine issue of material fact as to whether the legitimate non-discriminatory reasons proffered by Defendant are pretext. Neither Steve Kern's nor Tim McNeil's affidavits identify specific younger employees given lesser discipline for violating the terms of a Last Chance Agreement.
The Court finds that Plaintiff fails, as a matter of law, to meet his burden of production to rebut Defendant's proffered legitimate non-discriminatory reason for his termination as pretextual. Accordingly, the Court finds that no reasonable fact-finder could determine that age discrimination was more likely than not a determinative factor in Defendant's decision to terminate Plaintiff. Defendant's Motion for Summary Judgment is granted.
Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment (Dkt. No. 7) is GRANTED. An appropriate Order follows.