SULLIVAN v. WIDENER UNIVERSITY

Filing 26

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 8/1/22. 8/1/22 ENTERED AND COPIES E-MAILED.(bw)

Case 2:20-cv-05614-MMB Document 26 Filed 08/01/22 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PATRICK T. SULLIVAN
v.

CIVIL ACTION
NO. 20-5614

WIDENER UNIVERSITY
MEMORANDUM RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Baylson, J.

August 1, 2022

This civil case arises from Plaintiff Patrick T. Sullivan’s employment as Executive Director
of Campus Safety at Defendant Widener University. Sullivan alleges violations of the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”) (Count I) and the
Pennsylvania Human Relations Act (“PHRA”) (Count II). See Compl. (ECF 1) ¶¶ 42-45.
Defendant seeks summary judgment on both claims. See Mot. (ECF 12). For the following
reasons, Defendant’s Motion will be denied.
I.

Factual Background 1
A. Sullivan’s Employment History at Widener (1992-2019)
Sullivan first joined Widener in 1992 as the Commander of its Reserve Officer Training

Corps. (“ROTC”). Pl.’s Counterstatement ¶ 2. He briefly left Widener in 1995, before returning
in 1996 to serve as its Director of Campus Safety, prior to being promoted to Executive Director
of Campus Safety in 2016. See id. at ¶ 4. During his time at Widener, Sullivan contends that he
“overhauled . . . campus security, drastically improving the safety of its students,” id. at ¶ 5, and

1

Unless otherwise indicated, all facts, taken in the light most favorable to Sullivan, are
derived from Widener’s Statement of Undisputed Facts (ECF 13) (“Def.’s SUF”), Sullivan’s
related response and counterstatement (ECF 17) (respectively, “Pl.’s Resp. to Def.’s SUF” and
“Pl.’s Counterstatement”), or Widener’s response to Sullivan’s counterstatement (ECF 19)
(“Def.’s Resp. to Counterstatement”).

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was recognized as a “strong leader due to his knowledge of safety requirements related to
compliance issues, his unmatched dedication to his job, and his professionalism when working
with others,” id. at ¶ 8.
Widener has a significantly different account of Sullivan’s employment history. According
to Widener, Sullivan did not “join[],” or otherwise become its employee, until his hiring as Director
of Campus Safety in 1996. Def.’s Resp. to Counterstatement ¶¶ 2, 4. Widener disputes the extent
of Sullivan’s involvement in the overhaul of the campus security, see id. at ¶ 5, and, although
Widener acknowledges that Sullivan was recognized by one former colleague for
“professionalism, dedication, and knowledge of safety requirements,” it denies Sullivan’s position
that he was widely recognized by colleagues for these traits, see id. at ¶ 8.
B. Human Resources Complaints Brought Against Sullivan (June-August 2019)
Any concord between Widener and Sullivan disappeared beginning June 2019. Pl.’s
Counterstatement ¶ 9; Def.’s Resp. to Counterstatement ¶ 9.
According to Sullivan, on June 12, 2019, his direct supervisor, Senior Vice President
Joseph Baker, informed him that Widener’s Human Resources Director, Allison Dougherty, had
complained that he was not allowing individuals in his department to take vacation days or retire.
Pl.’s Counterstatement ¶ 9. Ten days later, Sullivan learned that additional complaints had been
filed, and, on June 30, 2019, Dougherty threatened to report Sullivan and his assistant to the
Department of Education for a policy violation. Id. at ¶¶ 11-12. Sullivan maintains that all
complaints and accusations against him were “false” and “seemingly made to push him out of his
position as Executive Director of Campus Safety.” Id. at ¶ 13.
According to Widener, Dougherty told Baker on June 12, 2019 that certain campus safety
officers were not allowed to use vacation days. See Def.’s Resp. to Counterstatement ¶ 9. Widener

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also contends that Baker notified Sullivan of complaints made by certain campus safety officers,
see id. at ¶ 11, and that it received a complaint from Dougherty accusing Sullivan and his assistant
of violating policy, id. at ¶ 12. Widener insists Sullivan was never reprimanded, given a written
warning, or received a note in his file for any of the complaints or accusations made against him.
See id. at ¶¶ 9-12. Additionally, Widener maintains that Baker informed Sullivan that “any false
accusation [against Sullivan] ‘was utterly ridiculous.’” Id. at ¶¶ 9-12 (citing Ex. B 56:7-24).
C. Notice of Sullivan’s Demotion (August 28, 2019)
On August 28, 2019, Baker informed Sullivan that Widener intended to hire a new
Executive Director of Campus Safety and would be demoting Sullivan. See Def.’s SUF ¶ 5; Pl.’s
Resp. to Def.’s SUF ¶ 5; Pl.’s Counterstatement ¶ 14; Def.’s Resp. to Pl.’s Counterstatement ¶ 14.
According to Sullivan, Baker reasoned that the demotion was because “the university [was]
moving in a new direction” and Sullivan was “getting old and . . . cannot work forever.” Pl.’s
Counterstatement ¶ 15 (quoting Resp. Br. Ex. A, 82:5-13).
Widener disputes that Baker made these statements. See Def.’s Resp. to Counterstatement
at ¶ 15. Rather, Widener maintains the decision to demote Sullivan was because it was under
“intense pressure both financially as well as operationally” and “needed more of an innovator in
that role [of Executive Director]—someone who was more proactive rather than reactive.” Id.
(citing Mot. Ex. B, 36:9-37:16 (“There were a number of examples that Pat—you know, Pat was
very strong in the day-to-day, year-to-year things, and that’s why I wanted to keep—I wanted to
keep him on. But when it came to being proactive, to planning for future years, to being innovative
in identifying both operational as well as expense efficiencies, open to change, they were not his
strengths. But what he did was—I mean, was an asset to Widener.”)). Widener further contends
that Baker told Sullivan during the meeting that his new title would “likely” be Director, instead

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of Executive Director,” and his salary and benefits would remain the same. Def.’s SUF ¶ 6.
Sullivan does not deny that Baker testified of Widener’s intent to keep Sullivan’s salary and
benefits the same, despite his title change, but asserts that neither his salary nor benefits decreased
because he retired prior to Widener having an opportunity to do so. See Pl.’s Resp. to Def.’s SUF
¶¶ 6, 11-12.
D. Sullivan’s Retirement from Widener (January 31, 2020)
One week after the August 28 meeting, Sullivan verbally informed Baker he planned to
retire. See Def.’s SUF ¶ 7; Pl.’s Resp. to Def.’s SUF ¶ 7. During the meeting, Baker told Sullivan
that he wished he would stay. See Def.’s SUF ¶ 8 (citing Mot. Ex. A (Sullivan Dep. Tr.) 84:785:4 & 86:12-23 (“I wish you’d stay.”)). However, according to Sullivan, he felt that his retirement
was involuntary, and that he would have continued his employment at Widener if he had not been
“forced out.” See Pl.’s Resp. to Def.’s SUF ¶¶ 9, 14-16. Sullivan also maintains that “the
embarrassment of being replaced was a very difficult situation.” See id. at ¶ 9.
Widener insists Sullivan’s retirement was voluntary. See Def.’s SUF ¶ 9. According to
Widener, Sullivan assisted Baker with drafting his retirement announcement to the community and
thanked Baker for throwing him a retirement party. Id. at ¶ 14. Moreover, Widener maintains
that, at Sullivan’s exit interview, in response to being asked if he would ever return to Widener,
Sullivan “chuckled and said sure if they would have me. I was treated very fairly.” Def.’s SUF ¶
16. Sullivan denies that the made these comments, and, as to the retirement letter, he states that
he “cooperated” with the letter because it was forced upon him. Pl.’s Resp. to Def.’s SUF ¶ 14.
After postponing his retirement upon Baker’s request, Sullivan retired on January 31, 2020.
See Def.’s SUF ¶ 9, Pl.’s Resp. to Def.’s SUF ¶ 9-10; Pl.’s Counterstatement ¶ 19; Def.’s Resp. to

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Pl.’s Counterstatement ¶ 19. He was replaced by an individual who was decades younger than
him. See Pl.’s Counterstatement ¶ 20; Def.’s Resp. to Pl.’s Counterstatement ¶ 20.
II.

Procedural History
Sullivan filed the instant action on November 10, 2020, alleging violations of the ADEA

(Count I) and PHRA (Count II). See Compl. ¶¶ 42-45. Widener filed an answer on March 15,
2021. See Ans. (ECF 5). Following the close of discovery, Widener moved for summary judgment
on March 11, 2022 seeking judgment in its favor on all claims. See Mot. (ECF 12). Sullivan
responded on April 11, 2022, see Resp. (ECF 17), and Widener replied on April 18, 2022, see
Reply (ECF 18).
On July 13, 2022, the Court held oral argument. The parties significantly disagreed on
several fact-related issues, for example:
•

Widener argued that Sullivan’s constructive discharge claim is based on no more
than his subjective views. Widener also asserted that Sullivan never questioned his
new responsibilities or the restructuring of the campus safety department, and his
demotion never came to fruition because he left prior to it going into effect.
Sullivan countered that he was the target of “false” complaints and accusations, and
that, if he had remained at Widener, he would have been left in a title-only position
with no job responsibilities.

•

Although the parties agreed Baker told Sullivan he “wished [Sullivan] would stay,”
they disputed if this was an isolated remark.

•

The parties disagreed whether Baker told Sullivan he was “getting old,” and “could
not work forever,” at the August 28, 2019 meeting. Widener argued that, even if
true, it was not enough to support a constructive discharge claim.

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•

Widener agreed that Sullivan’s demotion was in part because he was not strong in
being “proactive” and “innovative in identifying both operational as well as
expense efficiencies, open to change,” or “planning for future years,” but argued
that such statements, not made to Sullivan, were alone insufficient to support
constructive discharge.

•

Sullivan agreed with Widener that his salary never changed following the August
28. 2019 meeting, but Sullivan reasoned it was because he remained at Widener for
such a short period that it never needed to, or had an opportunity to, change his
salary. Widener claimed Sullivan’s title did not change because Baker never filed
the required form with human resources because Sullivan retired.

Additionally, the parties thoroughly disputed the availability of damages for Sullivan’s claims,
specifically if Sullivan could recover back pay, front pay, and liquidated damages; if Sullivan
could recover nominal damages under the PHRA; and the extent to which Sullivan mitigated
damages.
III.

Legal Standard
Summary judgment should be granted if the moving party establishes “no genuine dispute

as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P.56(a). A dispute is genuine if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see
also Conboy v. SBA, 992 F.3d 153, 160 (3d Cir. 2021). A factual dispute is material if it “might
affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. Summary
judgment is appropriate only if “the record taken as a whole could not lead a rational trier of fact

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to find for the non-moving party.” Matsushita Elec. Indus. Co., Ltd. v Zenith Radio Corp., 475
U.S. 574, 587 (1986).
In deciding a motion for summary judgment, courts must view the record “in the light most
favorable to the nonmovant, drawing reasonable inferences in its favor.”

In re Chocolate

Confectionary Antitrust Litig., 801 F.3d 383, 396 (3d Cir. 2015). The movant must identify
portions of the record that demonstrate the absence of a genuine dispute of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the nonmovant carries the burden of proof on an
issue at trial, the moving party must show “an absence of evidence to support the nonmoving
party’s case.” Id. at 325. Once the movant meets this burden, the nonmovant must set forth
specific facts—through citation to affidavits, depositions, discovery documents, or other
evidence—that demonstrate a genuine dispute. See Fed. R. Civ. P. 56(c)(1). The court’s role is
not “to weigh the evidence and determine the truth of the matter,” but “to determine whether there
is a genuine issue for trial.” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019)
(quoting Anderson, 477 U.S. at 249).
IV.

Discussion
A. Evaluating ADEA Claims at Summary Judgment
The ADEA prohibits employers from “discharg[ing] any individual or otherwise

discriminat[ing] against any individual with respect to . . . compensation, terms, conditions, or
privileges of employment, because of such individual’s age[.]” 29 U.S.C. ¶ 623(a)(1). 2 At
summary judgment, if an age discrimination plaintiff relies on circumstantial evidence, courts
employ a three-part burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S.

2

The PHRA is to be interpreted as identical to the ADEA. See Fogleman v. Mercy Hosp.,
Inc., 283 F.3d 561, 567 (3d Cir. 2002).
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792, 802-05 (1973); see also Martinez v. UPMC Susquehanna, 986 F.3d 261, 265-66 (3d Cir.
2021). First, the plaintiff must establish a prima facie case of age discrimination. See Martinez,
986 F.3d at 265 (citing Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir.
2015)). To establish a prima facie ADEA case, a plaintiff must show: (1) he is at least forty, (2)
he is qualified for the job, (3) he suffered an adverse employment action, and (4) he was replaced
by (or passed over in favor of) someone else “who was sufficiently younger so as to support an
inference of a discriminatory motive.” Id. at 266 (citing Willis, 808 F.3d at 644).
Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to offer
a “legitimate, nondiscriminatory explanation for its action.” Martinez, 808 F.3d at 265; see Kargbo
v. Phila. Corp. for Aging, 16 F. Supp. 3d 512, 522 (E.D. Pa. 2014) (Baylson, J.). The defendant
need not “prove” its nondiscriminatory explanation “was the actual reason for the adverse
employment action. Willis, 808 F.3d at 644. “Instead, [it] must provide evidence that will allow
the factfinder to determine the decision was made for nondiscriminatory reasons.” Id.
Once the defendant satisfies its burden, the plaintiff must show the “nondiscriminatory”
reasons were pretext for discrimination. Martinez, 986 F.3d at 265 (citing Willis, 808 F.3d at 644).
To survive summary judgment, the plaintiff
must submit evidence which: (1) casts sufficient doubt upon each of
the legitimate reasons proffered by the defendant so that a finder
could reasonably conclude that each reason was a fabrication; or (2)
allows the factfinder to infer that discrimination was more likely
than not a motivating or determinative cause of the adverse
employment action.
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994); see also Sterner v. Siemans Med. Sols. USA,
Inc., 706 F. App’x 772, 774 (3d Cir. 2017) (NPO) (the non-moving party must show “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate explanation for its actions that a reasonable factfinder could rationally find them

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‘unworthy of credence,’” and “the plaintiff must present ‘evidence with sufficient probative force’
. . . to allow the factfinder to ‘conclude by a preponderance of the evidence that age was a
motivating or determinative factor’”) (quoting Fuentes, 32 F.3d at 765 and Willis, 808 F.3d at
645).
B. Constructive Discharge
Widener seeks summary judgment on the theory Sullivan cannot establish a prima facie
case because he did not suffer an adverse employment action in the form of a constructive
discharge. See Mot. 10-13.
In evaluating constructive discharge claims, the Third Circuit applies an objective test that
asks “whether a reasonable jury could find that the [employer] permitted conditions so unpleasant
or difficult that a reasonable person would have felt compelled to resign,” or retire. Duffy v. Paper
Magic Grp., Inc., 265 F.3d 163, 166 (3d Cir. 2001) (quoting Connors v. Chrysler Financial Corp.,
160 F.3d 971, 975 (3d Cir. 1998)); see also Pa. State Police v. Suders, 542 U.S. 129, 141 (2004).
Lebofsky v. City of Phila., 394 F. App’x. 935, 939 (3d Cir. 2010) (NPO). “[T]hus an employee’s
subjective perceptions of unfairness or harshness do not govern a claim of constructive discharge.”
Mandel v. M & Q Packaging Corp., 706 F.3d 157, 169 (3d Cir. 2013) (citing Gray v. York
Newspapers, Inc., 957 F.2d 1070, 1083 (3d Cir. 1992)).
Several factors may be relevant to a finding of constructive discharge, to include whether
the employee was “threatened with discharge, encouraged to resign, demoted, subject to reduced
pay or benefits, involuntarily transferred to a less desirable position, subject to altered job
responsibilities, or given unsatisfactory job evaluations.” Mandel, 706 F.3d at 169-70 (citing
Colwell v. Rite Aid Corp., 602 F.3d 495, 503 (3d Cir. 2010); see Clowes v. Allegheny Valley
Hosp., 991 F.2d 1159, 1161-62 (3d Cir. 1993). Additionally, “a reasonable employee will usually

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explore . . . alternative avenues [such as requesting a transfer to another position, advising the
employer that he felt compelled to resign or retire, or filing a grievance] thoroughly before coming
to the conclusion that resignation is the only option.” Clowes v. Allegheny Valley Hosp., 991 F.2d
1159, 1161 (3d Cir. 1993). These factors are not an “absolute requirement for recovery,” and the
absence of any factor is not itself dispositive. Duffy, 265 F.3d at 168. Similarly, although an
employee relying on a single discriminatory incident has a difficult road to establish an employer’s
liability, “the Third Circuit has declined to ‘state as a broad proposition of law that a single nontrivial incident of discrimination can never be egregious enough to compel a reasonable person to
resign.’” Samuel v. Target Realty, LLC, No. 19-2203, 2021 WL 4778858, at *12 (E.D. Pa. Oct.
13, 2021) (Goldberg, J.) (quoting Levendos v. Stern Ent., 860 F.2d 1227, 1232 (3d Cir. 1988)).
1. Parties’ Arguments
Widener argues that there is no evidence to support Sullivan’s constructive discharge
theory. Widener points to a lack of evidence concerning (1) “general policies” to force Sullivan
into retirement; (2) “systemic unlawfulness” in connection with Dougherty’s complaints against
Sullivan, particularly given that Sullivan was never reprimanded for Dougherty’s complaints and
Baker testified that her accusation concerning the untimely warnings was “utterly ridiculous”; and
(3) not being offered benefits consistent with a voluntary early retirement program. Mot. 11-13.
Widener also argues that Baker’s so-called comments about Sullivan “getting old” and not being
able to work forever, and Widener “going in [a] new direction,” alone cannot support constructive
discharge. Id. at 13. Additionally, Widener insists that Sullivan voluntarily retired, and was even
encouraged him to stay at Widener, which together cannot amount to the type of intolerable
conditions supporting liability under a constructive discharge theory. Id. at 13-14.

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Sullivan counters that summary judgment would be improper because (1) there is a genuine
issue of material fact as to whether Baker’s made the “getting old” and “cannot work forever”
comments at the August 28, 2019 meeting, see Resp. 14; (2) if Baker did make these comments,
they are probative of discrimination, see id. at 15 (citing Ryder v. Westinghouse Elec. Corp., 128
F.3d 128, 133 (3d Cir. 1997); and (3) pretext is a factual issue regarding intent that a factfinder
must decide, see id. (citing Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989). Sullivan also
contends that his notice of demotion amounted to an involuntary transfer to a less desirable position
with altered job responsibilities and under the supervision of his much younger and less
experienced replacement, and he suffered numerous false complaints and accusations prior to
August 28, 2019. See id. at 8.
2. Analysis
Genuine disputes of material fact exist to preclude summary judgment as to whether
Sullivan suffered an adverse employment action in the form of constructive discharge. Viewing
the facts in the light most favorable to Sullivan, as the Court must do at summary judgment, a
reasonable jury could conclude that Sullivan felt compelled to retire.
First, in the months prior to the August 28, 2019 meeting, Sullivan was notified that he was
the subject of multiple human-resources-related complaints and accusations related to his job
performance. See supra Section I(C) (citing Pl.’s Counterstatement ¶¶ 9-12). Sullivan maintains
that these complaints and accusations were false, and that he had never received a similar
complaint in his over two decades at Widener.

See id.; see also Def.’s Resp. to Pl.’s

Counterstatement ¶¶ 9-12. Although Baker told Sullivan that at least of one of the accusations
was “utterly ridiculous,” and Widener stated that Sullivan never received a reprimand, warning, or
notation in his file for any of the complaints or accusations, see Def.’s Resp. to Pl.’s
Counterstatement ¶¶ 9-12, a dispute remains as to what complaints and accusations were false and
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how they affected Widener’s evaluation of Sullivan’s job performance in the months immediately
preceding his notice of demotion. A reasonable jury, on this record, could conclude that Sullivan
was subject to numerous false complaints and accusations that had a negative impact on Widener’s
evaluation of his job performance during the period immediately preceding its decision to demote
Sullivan. See Clowes, 991 F.2d at 1162 (noting that an unsatisfactory job evaluation can suggest
constructive discharge); cf. Durando v. Trustees of the Univ. of Pa., No. 21-756, 2022 WL
2953686, at *3-5 (E.D. Pa. July 26, 2022) (Beetlestone, J.) (denying summary judgment on
constructive discharge in the context of various retaliation claims, given the “facts paint the picture
of a rapidly deteriorating environment,” to include multiple criticisms of plaintiff’s job
performance).
Second, Sullivan testified that, at the August 28, 2019 meeting between him and Baker, in
the context of informing Sullivan of the demotion, Baker told Sullivan that he was “getting old”
and “could not work much longer,” and that Widener was “moving in a new direction.” See supra
Section I(C) (citing Pl.’s Counterstatement ¶ 15). Baker adamantly disputes that he made these
statements. See Def.’s Resp. to Pl.’s Counterstatement ¶ 15. But taking these statements as true,
which the Court must do at summary judgment, a reasonable jury could find that Baker encouraged
Sullivan to retire. See Clowes, 991 F.2d at 1162 (citing an employer encouraging resignation as
suggestive of constructive discharge); cf. Angelopoulos v. HDR Eng’g, Inc., No. 19-01578, 2021
WL 3056205, at *3-4, 11 (W.D. Pa. July 20, 2021) (denying summary judgment as to constructive
discharge in part on the ground that he was never subjected to “age-based comments”); Jacoby v.
Arkema Inc., No. 06-2339, 2007 WL 2955593, at *14 (E.D. Pa. Oct. 9, 2007) (Yohn, J.) (granting
summary judgment on plaintiff’s ADEA and PHRA claims on the ground that there was no
genuine dispute of material fact as to constructive discharge, finding, inter alia, that the employer

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never told plaintiff that “he was too old to do his job”). That Baker told Sullivan, a week after the
August 28, 2019 meeting at which time Sullivan informed Baker of his intent to retire, that he
wished Sullivan would stay or that Sullivan assisted with drafting his retirement letter—facts
neither party disputes—do not nullify the effect of Baker’s August 28, 2019 statements on
Sullivan’s decision that he had no choice but to retire. See, e.g., Reply Br. 5; see supra Section
I(C) (citing Def.’s SUF ¶ 5).
Widener’s suggestion that Sullivan never experienced a reduction in pay or benefits, nor
had his title changed, and therefore could not argue that he was involuntarily transferred to a new
position, is not persuasive at summary judgment. This argument is potentially common to any
constructive discharge claim where an employee feels compelled to retire after being given a notice
of demotion but leaves prior to any paperwork effectuating the change is filed. These is potentially
common to any constructive discharge claim where an employee feels compelled to retire after
“being forced out,” and they do not, without more, support granting summary judgment in the
favor of an ADEA defendant. See Resp. 10.
Additionally, while the test for constructive discharge is objective and does not account for
Sullivan’s “embarrassment” at being demoted, see Mandel, 706 F.3d at 169, the fabricated
complaints and accusations, as well as Baker’s August 28, 2019 statements, if true, amount to a
work environment so intolerable that a reasonable person would feel compelled to resign. Contrary
to the court’s finding in Abror that plaintiff’s experience—to include feelings of anxiety and
crying, an increased workload, poor evaluations, lack of updated equipment, and a failure to
complete assignments—was not so intolerable that a reasonable person would be compelled to
resign, this record suggests that Sullivan’s experience was far from the “ordinary work experience

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for millions of average citizen.” Abror v. Dep’t of Labor & Indus. Off. of Vocational
Rehabilitation, No. 17-2221, 2019 WL 2716087, at *5 (M.D. Pa. June 28, 2019).
To be sure, a reasonable jury could conclude that the facts do not support Sullivan’s account
of the events leading to his retirement—for example, by finding that Baker never told Sullivan that
He was “getting old.” But if a jury credited Sullivan’s version of events based on this record, then
Widener “permitted conditions so unpleasant or difficult that a reasonable person would have felt
compelled to [retire]” and Sullivan suffered an adverse employment action in the form of
constructive discharge. Duffy, 265 F.3d at 167 (internal quotations omitted). Thus, there are
genuine disputes of material fact for a jury to resolve, hereby precluding summary judgment.
C. Damages
Widener argues summary judgment is proper on the ground that Sullivan has no damages.
According to Widener, neither Sullivan’s salary nor benefits were ever reduced, and Sullivan did
not make a satisfactory attempt to mitigate damages, nor is there evidence of a willful violation
supporting an award of liquidated damages.
For claims arising under the ADEA, the question of monetary liability arises after
resolution on the question of fault. See Caufield v. Ctr. Area Sch. Dist., 133 F. App’x 4, 10 (3d
Cir. 2005) (citing Anastasio v. Schering Corp., 838 F.2d 701, 709 (3d Cir. 1988)). Additionally,
“[w]hether or not a claimant has met his duty to mitigate damages is a determination of fact.”
Booker v. Taylor Milk Co., Inc., 64 F.3d 860, 864 (3d Cir. 1995); see also Caufield, 133 F. App’x
at 9-10 (emphasizing that mitigation is not an essential element of an ADEA or PHRA claim, and
a failure to mitigate damages “has no bearing on whether or not a claim for discrimination can be
proven”); Giedgowd v. Cafaro Grp., LLC, No. 20-6184, 2021 WL 4963533, at *10 (E.D. Pa. Oct.
26, 2021) (Kearney, J.) (“[W]hether a plaintiff has met the duty to mitigate damages is a question

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of fact, and therefore properly reserved for the jury where there is a genuine dispute of material
over plaintiff’s mitigation efforts.”) (quoting Ngai v. Urban Outfitters, Inc., No. 19-1480, 2021
WL 1175155, at *20 (E.D. Pa. Mar. 29, 2021) (Beetlestone, J.)). Likewise, as discussed in supra
Section IV(B)(2), there are genuine disputes of material fact as to the extent of Widener’s
participation in the so-called false complaints and accusations brought against Sullivan in the
months immediately preceding his notice of demotion, and as to whether Baker actively
encouraged Sullivan to retire by making comments during the August 28, 2019 meeting about
Sullivan’s age. Likewise, the availability of liquidated damages is a question of fact for a jury and
premature to support a finding of summary judgment. See Clark v. France Compressors Products,
Div. of Garlock, Inc., 694 F. Supp. 112, 116-17 (E.D. Pa. 1988) (Kelly, J.); Zulauf v. Stockton
Uni., No. 15-3526, 2017 WL 700111, at *11 (D.N.J. Feb. 22, 2017).
V.

Conclusion
For the foregoing reasons, Defendant’s motion for summary judgment is denied. An

appropriate order follows.

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