Opinion
Civil Action No. 02003-CV-00342
April 7, 2004
ORDER
NOW, this 7th day of April, 2004, upon consideration of Defendant's Motion for Summary Judgment filed November 14, 2003; upon consideration of Defendant's Brief in Support of its Motion for Summary Judgment filed November 14, 2003; upon consideration of Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment; upon consideration of the pleadings, record papers, exhibits, affidavits and depositions submitted by the parties,
IT IS ORDERED that Defendant's Motion for Summary Judgment is denied.
In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Federal Home Loan Mortgage Corporation v. Scottsdale Insurance Company, 316 F.3d 431, 433 (3d Cir. 2003). Only facts that may affect the outcome of a case are "material". Moreover, all reasonable inferences from the record are drawn in favor of the non-movant. Anderson, supra.
Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof.See Watson v. Eastman Kodak Company, 235 F.3d 851, 858 (3d Cir. 2000). Plaintiff cannot avert summary judgment with speculation or by resting on the allegations in his pleadings, but rather he must present competent evidence from which a jury could reasonably find in his favor.Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Woods v. Bentsen, 889 F. Supp. 179, 184 (E.D. Pa. 1995).
Upon consideration of the pleadings, record papers and depositions the pertinent facts are as follows. Plaintiff Henry J. Weldner is a 68-year-old male who was hired on February 5, 2001 by defendant The Salvation Army to work at its Whitehall, Lehigh County, Pennsylvania Thrift Store. Plaintiff's Complaint asserts two causes of action against defendant pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621-634 ("ADEA"). Count One asserts a cause of action alleging wrongful termination based upon age. Count Two asserts a cause of action for failure to rehire based upon age.
During the course of his employment, plaintiff worked in various positions including sorter, pricer, hanger and baler/receiver. On October 26, 2001 plaintiff was advised that he was going to be laid off effective November 9, 2001 because of "budgetary reasons". Plaintiff asserts that he was given a favorable letter of recommendation when he was laid off and that nothing was ever mentioned to him that defendant thought that he could not perform any position which he had performed. Plaintiff contends that on November 27, 2001 he read about an opening at the Thrift Store in the newspaper and went to the store to see about the job opening. Moreover, plaintiff contends that there were two more advertisements in December 2001 and March 2002 for positions for which he was never contacted.
Defendant contends that plaintiff was employed as a floater (a position which had plaintiff performing different tasks depending on the needs of the store on a particular day) and that plaintiff was not able to satisfactorily perform any of the jobs available at the Thrift Store. Defendant asserts that plaintiff performed the required tasks too slowly. Defendant avers that this is the reason that plaintiff was not advised of any of the positions that became available after he was laid off.
A review of the record in this matter, in the light most favorable to plaintiff as the non-moving party, as we are required to do, reveals that there are disputes concerning material issues of fact, which preclude entry of summary judgment on behalf of defendant. These disputes include, but are not limited to: (1) what plaintiff's job title was when he was hired and when he was terminated; (2) who replaced plaintiff and the age of replacements; (3) the reason for plaintiff's termination and the reason why plaintiff was not re-hired; (4) how plaintiff performed his job responsibilities; and (5) whether he was qualified for any position with defendant. All of these issues are material disputes concerning plaintiff's claims for age discrimination. Thus, we deny Defendant's Motion for Summary Judgment.