Novak v. Posten Taxi Inc et al

Filing 83

MEMORANDUM and ORDER granting dft Posten's 50 Motion for Summary Judgment; and granting 72 Katorkas's Motion to Dismiss the complaint; Clerk of Court is directed to CLOSE case.Signed by Honorable James M. Munley on 11/04/09 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOSEPH NOVAK, Plaintiff : No. 3:08cv912 : : (Judge Munley) : V. : : POSTEN TAXI, INC., : BILL COOK, JOHN KATORKAS, and : BO KELLER, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court is Defendant Posten Taxi's motion for summary judgment (D o c . 50) and Defendant John Katorkas's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 72). Having been fully briefed, the m a tte rs are ripe for disposition. B a c k g ro u n d T h is case arises from Plaintiff Joseph Novak's employment with Defendant P o s te n Taxi. Plaintiff worked for the defendant on a part-time basis for about twelve ye a rs . (Defendant's Statement of Undisputed Material Facts (Doc. 51) (hereinafter "D e fe n d a n t's Statement") at ¶ 1).1 Defendant terminated this employment in April Plaintiff did not file the counterstatement of material facts with citations to the record required by the local rules. See L.R. 56.1. That rule establishes that "[a]ll material set forth in the statement [of material facts] required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." Id. Because the plaintiff is proceeding pro se, the court will not simply deem the facts alleged by the defendant as admitted, but will consider the case file and the
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2005. (Id. at ¶ 2). Defendant frequently reprimanded plaintiff for his behavior to w a rd s customers during his employment with the company. (Id. at ¶ 4). At some tim e in April 2005, defendant dispatched plaintiff to pick up customers and take them to the W ilk e s -B a rre Scranton International Airport. (Id. at ¶ 6). Plaintiff's passengers w o rk e d for Blue Cross/Blue Shield. (Id.). W h e n he found out his fares' employer, p la in tiff confronted them about the insurer's rates and new charges he had received o n his most recent bill from the company. (Id. at ¶¶ 7-8). One of the passengers to o k offense at plaintiff's tone. (Id. at ¶ 9). She called Defendant Posten Taxi as s o o n as she arrived at her destination to complain about plaintiff's conduct, c o n te n d in g that plaintiff had been belligerent. (Id. at ¶¶ 10-11). After receiving this c a ll, defendant ordered plaintiff to return to Posten's office immediately. (Id. at ¶ 12). W h e n plaintiff arrived at the office, defendant terminated his employment. (Id. at ¶ 1 4 ). Defendant's stated reason for this termination was plaintiff's belligerence to w a rd s his passenger. (Id.). In his deposition2 , plaintiff testified that he engaged in a "discussion" with this

record submitted to the court in determining whether a dispute about a material fact exists. The plaintiff argues that the court should throw out his deposition in this case. He contends that the transcription is not accurate, since "[a]nybody can change a persons so called testimony to paper and say and put down other wrong so called testimony to paper and say and put down other wrong so called testimony. Otherwise judge defense is trying to alter everything I really said and wrote down what they wanted the jury and his honor to read and hear so you's [sic] would fall for it hook line and sinker." (Motion to deny all summary judgments on behalf of Posten Taxi Inc. (Doc. 55) at ¶ II). Defendant does not point to specific inaccuracies in this transcript, however, nor does he offer any alternative version of the events here in question. As such, plaintiff fails to cite to any evidence of record to counter the statement of material facts offer in support of defendant's motion. 2
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passenger during the ride to the airport about the insurance coverage provided by B lu e Cross/Blue Shield. (Plaintiff's Deposition (hereinafter "Plaintiff's Dep.") (Doc. 5 1 -2 ) at 51-2). Plaintiff had a bill from Blue Cross/Blue Shield in his pocket when he p ic k e d up the passengers; his payments had gone up by fifteen dollars. (Id. at 54). He wanted to know "why . . . the Blue Cross and Blue Shield keep going up so high, b e c a u s e the people can't, you know, afford to pay for it." (Id.). The passenger e xp la in e d to plaintiff that "we got medical expenses" and, in any case, "if you want s o m e th in g in this world and you want the best coverage, you got to pay for it." (Id. at 5 5 ). At this point, plaintiff insists, "she got smart." (Id.). He responded by informing th e passenger that "Ma'am, . . . if you didn't have customers like me, my wife and o th e r people, you wouldn't have a job." (Id.). After plaintiff made this comment, the p a s s e n g e r "didn't say another word." (Id.). Plaintiff contends that he spoke to this p a s s e n g e r "[i]n a nice way. Not screaming. Nice. And when she started to scream b a c k at me ­ . . . I didn't say another word all the way to the airport." (Id. at 57). Despite this attempt at cordiality, plaintiff admits that this passenger called his s u p e rvis o r and complained that plaintiff "was very belligerent." (Id. At 52). W h e n he re tu rn e d to Defendant's office after dropping off this fare, his supervisor informed h im that he had been fired because he had been "belligerent." (Id. at 62). P la in tiff contends that his termination was motivated by defendant's desire to e lim in a te employees older than forty. (Defendant's Statement at ¶ 18). He alleges th a t Posten's insurance company wrote it a letter advising Posten to fire its older

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drivers. (Id.). Posten denies that it ever received such a letter, and no such d o c u m e n t has been produced in this litigation.3 (Id.). John Katorkas, Posten Taxi m a n a g e r, submitted an affidavit averring that the company had never received any s u c h letter. (See Doc. 36). Plainitiff admitted at his deposition that he had never s e e n such a letter, though he insists that it exists.4 (Defendant's Statement at ¶ 18). P la in tiff also testified that he was aware that defendant employed many workers o ld e r than forty, including some as old as seventy.5 (Id. at ¶ 19). O n May 12, 2008, plaintiff filed a complaint in this court, along with a motion to p ro c e e d in forma pauperis. (Docs. 1, 2). The court granted the in forma pauperis

The court previously addressed this issue when plaintiff raised it during discovery. On September 21, 2008, the plaintiff wrote the court to request that defendant provide the name of the defendant's insurance company and provide him with this letter. (See Doc. 21). The defendant repeated this request on November 20, 2008. (See Doc. 23). On November 25, 2008, the court ordered the defendant to provide plaintiff with this letter if it existed and to submit a status report on the matter. (See Doc. 24). The defendant submitted a status report to the court on November 25, 2008, averring that Posten Taxi "does not have in its possession the alleged letter." (See Doc. 25). At his deposition, plaintiff was asked if he had "a copy of that letter with you today? A. I've been trying­there's a court order on that telling your clients to give it up. Q. When did you first see that letter? A. I didn't see the letter. Q. You never saw the letter? A. No." (Plaintiff's Dep. at 96). Still, plaintiff claims that he is aware of others who saw and read such a letter. Such claims are, however, hearsay, and plaintiff has not offered for the record any admissible and competent evidence about the existence of such a letter. See FED . R. EVID. 801(c) (defining hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."); FED. R. EVID. 802 (establishing that "[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by act of Congress."). Plaintiff testified in his deposition that the company employed dispatchers aged from 30 to older than 70. (Plaintiff's Dep. at 95). He also admitted that employees of "various ages" worked for the defendant, and that before the appearance of the alleged letter, "there was no discrimination about age in regard to filling the position." (Id.). 4
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motion. (Doc. 4). Plaintiff alleges that defendant violated his right to be free of e m p lo ym e n t discrimination on the basis of his age pursuant to the Age D is c rim in a tio n in Employment Act ("ADEA"), 29 U.S.C. § 621, and retaliated against h im for complaining about this discrimination. After a discovery period, Defendant P o s te n Taxi filed the instant motion. Later, after being served with the complaint, D e fe n d a n t Katorkas filed his motion to dismiss. The parties briefed the issues, b rin g in g the case to its present posture. J u r is d ic tio n B e c a u s e plaintiff brings this case pursuant to the Age Discrimination in E m p lo ym e n t Act, 29 U.S.C. § 621, this court has jurisdiction pursuant to pursuant to 2 8 U.S.C. § 1332. ("The district courts shall have original jurisdiction of all civil a c tio n s arising under the Constitution, laws, or treaties of the United States."). Legal Standard D e fe n d a n t Posten Taxi seeks summary judgment on the claims against it. Granting summary judgment is proper if the pleadings, depositions, answers to in te rro g a to rie s , and admissions on file, together with the affidavits, if any, show that th e re is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1 9 9 7 ) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence o f some alleged factual dispute between the parties will not defeat an otherwise p ro p e rly supported motion for summary judgment; the requirement is that there be 5

no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 4 7 -4 8 (1986) (emphasis in original). In considering a motion for summary judgment, the court must examine the fa c ts in the light most favorable to the party opposing the motion. International Raw M a te ria ls , Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The b u rd e n is on the moving party to demonstrate that the evidence is such that a re a s o n a b le jury could not return a verdict for the non-moving party. Anderson, 477 U .S . at 248 (1986). A fact is material when it might affect the outcome of the suit u n d e r the governing law. Id. W h e re the non-moving party will bear the burden of p ro o f at trial, the party moving for summary judgment may meet its burden by s h o w in g that the evidentiary materials of record, if reduced to admissible evidence, w o u ld be insufficient to carry the non-movant's burden of proof at trial. Celotex v. C a tre tt, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the b u rd e n shifts to the nonmoving party, who must go beyond its pleadings, and d e s ig n a te specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. D e fe n d a n t Katorkas seeks to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). W h e n a defendant files a motion to dismiss pursuant to F ED. R. CIV. P. 12(b)(6), this court must "accept all factual allegations as true, c o n s tru e the complaint in the light most favorable to the plaintiff, and determine w h e th e r, under any reasonable reading of the complaint, the plaintiff may be entitled 6

to relief." McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche H o ld in g s Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)). A plaintiff's complaint must contain "a short and plain statement of the claim s h o w in g that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). The Supreme C o u rt has confirmed that although FED. R. CIV. P. 8(a)(2) does not require " `detailed fa c tu a l allegations'," it does require plaintiff to plead sufficient facts to " `give the d e fe n d a n t fair notice of what the . . . claim is and the grounds upon which it rests[.]' " Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Neither mere "labels and conclusions" nor "a fo rm u la ic recitation of the elements of a cause of action" are sufficient to withstand a m o tio n under FED. R. CIV. P. 12(b)(6). A valid pleading under "[Rule 8] requires a `s h o w in g ,' rather than a blanket assertion, of entitlement to relief." Phillips v. County o f Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (citing Twombly, 550 U.S. at 556 n .3 ). As a threshold matter, the plain statement of the facts forming the grounds of th e plaintiff's complaint must "possess enough heft to `sho[w] that the pleader is e n title d to relief.' " Id. (citing Twombly, 550 U.S. at 557) (alteration in original). In o rd e r to state a valid claim and survive a motion to dismiss, the "complaint's `factual a lle g a tio n s must be enough to raise a right to relief above the speculative level.' " Phillips, 515 F.3d at 232 (quoting Twombly, 550 U.S. at 556 n.3). In addition to the facts pled in the complaint, the court may also consider

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"matters of public record, orders, exhibits attached to the complaint and items a p p e a rin g in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 3 8 F.3d 1380, 1384 n. 2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. U rs u lin e Acad. of W ilm in g to n , Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing M o rs e v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). D is c u s s io n I. Defendant Posten Taxi's Motion A. ADEA T h is case centers on the Age Discrimination in Employment Act. The ADEA p ro h ib its "discrimination against an individual over age 40 with respect to `c o m p e n s a tio n , terms, conditions, or privileges of employment, because of an in d ivid u a l's age.'" Billet v. Cigna Corp., 940 F.2d 812, 816 (3d Cir. 1991 (quoting 29 U .S .C . § 623(a)). To recover under the act, "`a plaintiff must prove by a p re p o n d e ra n c e of the evidence that age was the determinative factor in the e m p lo ye r's decision' at issue." Id. (quoting Bartek v. Urban Redevelopment A u th o rity of Pittsburgh, 882 F.2d 739, 742 (3d Cir. 1989)). A plaintiff may prove age discrimination by supplying "direct evidence" of such ille g a l activity. See Glanzman v. Metro Mgt. Corp., 391 F.3d 506, 512 (3d Cir. 2004) (holding that in age discrimination cases, "if direct evidence is used, the proponent of th e evidence must satisfy the test laid out in Price W a te rh o u s e [ v. Hopkins, 490 U.S. 8

228 (1989)] in order to prove a violation of the ADEA [citations omitted].). "To be `d ire c t' for purposes of the Price W a te rh o u s e test, evidence must be sufficient to a llo w the jury to find that the decision makers placed a substantial negative reliance o n the plaintiff's age in reaching their decision. [citations omitted] ." Id. In other w o rd s , a plaintiff "must produce evidence of discriminatory attitudes about age that w e re causally related to the decision to fire her." Id. No direct evidence exists in this case by which a jury could conclude that P o s te n Taxi or its decision-making employees held discriminatory attitudes about a g e which were causally related to the company's decision to fire plaintiff and any la te r decisions not to hire him. As related above, Plaintiff testified at his deposition th a t defendant terminated him because of his "belligerence" towards a fare. W h ile p la in tiff contends that a letter from Posten's insurance company mandated that the c o m p a n y fire all older employees, no evidence of record other than plaintiff's in a d m is s a b le hearsay indicates that such a letter exists. The court therefore cannot c re d it plaintiff's claims on this matter. Plaintiff cites to no other evidence that in d ic a te s the company placed a substantial negative reliance on his age in making h irin g and firing decisions about him. Plaintiff cannot prevail on the direct evidence s ta n d a rd . Plaintiff could still theoretically convince a jury that he is the victim of age d is c rim in a tio n . Lacking direct evidence of discrimination, a plaintiff seeking recovery u n d e r the ADEA must first make out a prima facie case by "showing (1) he is within

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the protected age class, i.e. over forty; (2) that he was qualified for the position at is s u e ; (3) he was dismissed despite being qualified; and (4) he was replaced by a p e rs o n sufficiently younger to permit an inference of age discrimination." Armbruster v. Unisys Corp., 32 F.3d 768 (3d Cir. 1994).6 Once the plaintiff establishes this p rim a facie case, "the defendant has the burden of producing evidence that it had `a le g itim a te , nondiscriminatory reason for the discharge.'" Fakete v. Aetna, Inc., 308 F .3 d 335, 338 (3d Cir. 2002). If the defendant produces such evidence, the burden s h ifts back to the plaintiff, who must provide "evidence `from which a factfinder could re a s o n a b ly either (1) disbelieve the employer's articulated legitimate reasons[,] or (2) b e lie ve that an invidious discriminatory reason was more likely than not a motivating o r determinative cause of the employer's action.'" Id. (quoting Fuentes v. Perskie, 32 F .3 d 759, 763 (3d Cir. 1994)). D e fe n d a n t argues that plaintiff cannot make out a prima facie case of d is c rim in a tio n because he was not qualified for the position at issue and he has fa ile d to show that he was replaced by a person sufficiently younger than he to allow a n inference of age discrimination. Defendant does not explain why plaintiff was not q u a lifie d for the position of taxi driver, and the evidence indicates that he was

The court notes that the United States Supreme Court has found that the mere fact that an employee was replaced by another person within the protected class does not necessarily mean that a plaintiff cannot make out a prima facie case for age discrimination, since "the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class." O'Connor, 517 U.S. at 313. 10

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performing the position at the time of his firing. As such, the court finds that plaintiff h a s met his burden to show he was qualified for the position from which he was te rm in a te d . Plaintiff has not met his burden, however, to demonstrate that he was re p la c e d by a person sufficiently younger to permit an inference of age d is c rim in a tio n . In fact, he has not offered any evidence at all about who replaced h im . As such, the court finds that plaintiff has failed to meet his prima facie burden. Summary judgment is therefore appropriate on plaintiff's age discrimination claim. E v e n if plaintiff could meet his prima facie burden, defendant has offered le g itim a te non-discriminatory reasons for its decision to terminate him. Defendant's s ta te d reason for firing the plaintiff was his belligerent attitude towards his fare in 2 0 0 5 ; the passenger called Posten to complain of plaintiff's conduct. Firing a driver fo r mistreating a passenger and eliciting a verbal complaint certainly constitutes a le g itim a te , non-discriminatory reason for the adverse employment action. The b u rd e n , therefore, lies with the plaintiff to prove that defendant's stated reason for e n d in g his employment was not the real reason. Plaintiff does not dispute that he e n g a g e d in the verbal disagreement which led to his firing. Instead, he relies on his c la im that the company's actual motive for his firing came from a mandate from its in s u re r to fire older workers. Plaintiff, however, has not provided any admissible e vid e n c e of this demand. Moreover, plaintiff's claim that the company sought s ys te m a tic a lly to exclude older workers is undermined by his admission that the c o m p a n y employed many older workers, both before and after his termination. As

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such, a reasonable jury could not conclude that the stated reason for plaintiff's firing w a s mere pretext designed to mask a discriminatory motive. Summary judgment is a p p ro p ria te on this claim, and the court will grant defendant's motion on this point. B . Retaliation P la in tiff also raised a claim for retaliation in his initial complaint, though he has n e ve r articulated what actions he took to precipitate retaliation from his employer. T h e law provides that to establish a prima facie case of retaliation the plaintiff must d e m o n s tra te that (1) he was engaged in protected activity; (2) the employer took an a d ve rs e employment action after or contemporaneous with the employee's protected a c tivity ; and (3) a causal link exists between the protected activity and the discharge. Abramson v. W illia m Paterson College of New Jersey, 260 F.3d 265, 286 (3d Cir. 2 0 0 1 ). If an employee can prove that he engaged in such protected activity, a b u rd e n shifting analysis similar to that described above applies; the employer must d e m o n s tra te a legitimate, non-discriminatory reason for its employment decision, a n d then the burden remains with the plaintiff to prove that the defendant's reasons a re pretext for its real motive. See, e.g., Krouse v. American Sterilizer Co.,126 F.3d 4 9 4 , 500-01 (3d Cir. 1997). For the reasons explained above, defendant has offered le g itim a te , non-discriminatory reasons for its employment decision. Plaintiff has not o ffe re d any evidence by which a jury could concluded that the stated reasons were n o t the real reasons for defendant's decision. As such, summary judgment is a p p ro p ria te for the defendant on this claim as well. The court will grant defendant's

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motion. II. Defendant Katorkas's Motion D e fe n d a n t Katorkas's motion contends that he is not mentioned anywhere in th e complaint and therefore cannot be liable. He seeks dismissal of the case against h im on those grounds. Plaintiff responds that the complaint contains numerous a lle g a tio n s against Defendant Katorkas. In his brief, plaintiff alleges that he went to D e fe n d a n t Posten Taxi to fill out "an application for my job back when they were a d ve rtis in g for drivers and dispatchers several times an [sic] he said he'd call me but h e never did that's the kind of liar he is." (Defendant's Brief in Opposition (Doc. 72) a t ¶ III). The complaint contains such allegations, though it does not specifically n a m e defendant. (See Doc. 1). The court concludes that these allegations are in te n d e d to name Defendant Katorkas, as the caption names "John and Bow, m a n a g e rs ."7 Still, these are the only allegations raised in the complaint against D e fe n d a n t Katorkas. Even if plaintiff could prove that he submitted an application to D e fe n d a n t Katorkas and received a promise of a phone call from that defendant, he c o u ld not prevail on his employment discrimination claims. Moreover, as explained

The plaintiff used a shorthand symbol for the word "and," and misspelled Bo and "Bow." The Clerk's office interpreted his handwritten filing as naming "John T. Bow" as a defendant. The court has corrected the caption to name the proper parties. This problem created delays in service in this case, as the Clerk's office issued summons for Posten Taxi and John T. Bow. Plaintiff has still not served Defendants Cook and Keller, despite orders from the court to do so. The court charges this failure to serve the complaint to the plaintiff and will not delay disposition of the matter further. In any case, the evidence of record indicates that summary judgment is appropriate for the defendants. 13

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above, no evidence exists in this case by which a jury could conclude that plaintiff s h o u ld prevail on his age discrimination and retaliation claims. As such, granting D e fe n d a n t Katorkas's motion to dismiss is appropriate at this point. C o n c lu s io n F o r the reasons stated above, the court will grant Defendant Posten Taxi's m o tio n for summary judgment and Defendant Katorkas's motion to dismiss. An a p p ro p ria te order follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOSEPH NOVAK, Plaintiff : No. 3:08cv912 : : (Judge Munley) : V. : : POSTEN TAXI, INC., : BILL COOK, : JOHN KATORKAS, and : BO KELLER, : Defendants : :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ORDER
AN D NOW, to wit, this 4th day of November 2009, Defendant Posten Taxi's m o tio n for summary judgment (Doc. 50) is hereby GRANTED. Defendant K a to rk a s 's motion to dismiss the complaint (Doc. 72) is hereby GRANTED. The C le rk of Court is directed to CLOSE the case. BY THE COURT:

s / James M. Munley JUDGE JAMES M. MUNLEY U n ite d States District Court

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