McGinley v. Lycoming, A Textron Company et al

Filing 53

MEMORANDUM (eo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GARY MCKINLEY,

:
:
Plaintiff,
:
:
v.
:
:
LYCOMING, A TEXTRON
:
COMPANY and UAW LOCAL 787, :
:
Defendants.
:

No. 4:10-CV-00921

Hon. John E. Jones III

MEMORANDUM
April 30, 2012
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Presently pending before the Court are the Motions for Summary Judgment
of both Defendants. (Docs. 20, 22). The Motions have been fully briefed and are
thus ripe for disposition. For the reasons fully articulated herein, we will grant both
motions in their entirety and dismiss the Plaintiff’s Complaint with prejudice.
I.

PROCEDURAL HISTORY
Plaintiff Gary McKinley (“Plaintiff” or “McKinley”) commenced the above-

captioned action by filing a Complaint against Defendant Lycoming, A Textron
Company (“Lycoming”), and Defendant UAW Local 787 (“Local 787” or “the

Union”), collectively “Defendants,” on April 30, 2010. (Doc. 1).1 Local 787 filed
its Answer and Affirmative Defenses on July 6, 2010 (Doc. 4) and Lycoming filed
a separate Answer and Affirmative Defenses on July 8, 2010. (Doc. 5).
Following a period of discovery, both Defendants filed the instant Motions
for Summary Judgment on September 1, 2011. (Docs. 20, 22). After numerous
motions to extend the briefing period were granted, the Motions have been fully
briefed and are thus ripe for the Court’s review. (Docs. 21, 25, 37, 51, 52).
II.

STANDARD OF REVIEW
Summary judgment is appropriate if the record establishes “that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c). Initially, the moving party bears the
burden of demonstrating the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by
pointing to an absence of evidence supporting an essential element as to which the
non-moving party will bear the burden of proof at trial. Id. at 325. Once the
moving party meets its burden, the burden then shifts to the non-moving party to
show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is
1

Plaintiff has exhausted his administrative remedies by filing a Complaint with the
Pennsylvania Human Relations Commission and cross-filing the same with the Equal
Employment Opportunity Commission. He was issued a Notice of Right to Sue letter, and the
instant Complaint was timely filed within ninety (90) days of receipt of said Notice.
2

“genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find
for the non-moving party, and a factual dispute is “material” only if it might affect
the outcome of the action under the governing law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986).
In opposing summary judgment, the non-moving party “may not rely merely
on allegations of denials in its own pleadings; rather, its response must . . . set out
specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). The
non-moving party “cannot rely on unsupported allegations, but must go beyond
pleadings and provide some evidence that would show that there exists a genuine
issue for trial.” Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).
Arguments made in briefs “are not evidence and cannot by themselves create a
factual dispute sufficient to defeat a summary judgment motion.” Jersey Cent.
Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985).
However, the facts and all reasonable inferences drawn therefrom must be viewed
in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of
Educ., 442 F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement
about the facts or the proper inferences that a fact finder could draw therefrom.
Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, “the
3

mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; there must be a
genuine issue of material fact to preclude summary judgment.” Anderson, 477
U.S. at 247-48.
III.

STATEMENT OF FACTS
The following facts are derived from the record and viewed in the light most

favorable to the Plaintiff in accordance with the standard of review applicable to a
motion for summary judgment. The facts stated herein will be supplemented as
necessary by additional facts throughout our analysis.
Plaintiff Gary McKinley (“Plaintiff”) is an adult individual born November
24, 1950. (Doc. 23, ¶ 1). Defendant Lycoming, A Textron Company, (“Defendant
Lycoming”) is a Pennsylvania corporation with a principal place of business in
Williamsport, Pennsylvania. (Doc. 22-1, ¶ 4). Defendant UAW Local 787
(“Defendant Union”) is a labor union with a principal place of business located in
Williamsport, Pennsylvania. (Id. ¶ 1).
Plaintiff was hired as a replacement worker during a highly contested strike
at Defendant Lycoming’s manufacturing plant on or about June 1, 1998. (Id. ¶ 6;
Doc. 23, ¶¶ 2-3). Plaintiff was initially hired as a Drafter but was promoted to
Checker A on January 31, 2005. (Doc. 23, ¶¶ 4-5). Plaintiff was a member of the
4

Defendant Union, and the relationship between the Defendant Union and
Defendant Lycoming was governed by a Collective Bargaining Agreement. (Doc.
22-1, ¶ 7, Ex. 1; Doc. 23, ¶ 7; ).
Beginning early on in his employment and continuing throughout, Plaintiff
was singled out by the other union members, all of whom were younger than him.
(Doc. 37-1, ¶ 8). In his affidavit, Plaintiff states that the younger employees were
treated favorably and got away with things, so he needed to be “on guard all day
long due to the harassment” that the younger employees subjected him to. (Doc.
37-1, ¶ 8). He states that the work environment became unbearable, with the
younger employees constantly harassing him. (Id.). He avers that he was cursed at,
made fun of, “shoulder-bumped,” given the finger, and that derogatory comments
were made to third parties about Plaintiff. (Id.).
Plaintiff complained to his supervisor that younger employees were not
receiving proper training, but when he asked management for permission to train
the employees, his request was denied. (Doc. 23, ¶ 19; Doc. 37-1, ¶ 19). Plaintiff
repeatedly states that jobs that should have been given to him were given to
younger employees and that he was denied training opportunities made available to
younger employees, although he offers no evidence to support this claim. (Doc. 371, ¶¶ 16-18). In his affidavit, Plaintiff states that “[y]ounger employees were
5

always being sent to school out West” and that he was denied this opportunity.
(Doc. 37-1, ¶ 6). Plaintiff explained that he did not present these issues to the union
as grievances because he did not believe that it would get him anywhere because
the union representatives were younger employees. (Doc. 37-1, ¶ 9).
Throughout his employment, Plaintiff kept detailed daily notes tracking the
actions of the younger union employees. The record contains hundreds of pages of
the Plaintiff’s personal notes, documenting the younger employees’ actions during
the work day. (See Doc. 23, ¶ 21; Doc. 37-1, ¶ 21). The record includes extensive
documentation, to the minute, of coworkers’ daily activities, noting, in addition to
allegedly harassing behaviors, for example: coworker belching (Doc. 24-11, p.2),
the time of day that specific coworkers would exit and enter the room (e.g., Doc.
24-11, p. 2), and observing and commenting upon particular employees’ attire.
(Doc. 24-11, p. 5). Plaintiff admits that he was keeping notes “almost from the start
of [his] employment” and that other employees did too, although not to the same
extent. (Doc. 44, Plaintiff’s Exhibit DDD, ¶ 61).
Plaintiff’s friend and former coworker, Walter Cacko, stated in his affidavit
that he “personally witnessed the harassment and hostile work environment that
Plaintiff was subjected to.” (Doc. 37-1, ¶ 29). He explained that the younger union
employees would loudly crunch paper on certain days and slam their desk drawers
6

in order to annoy others. (Cacko Aff.,¶¶ 7-8). Cacko also explained that he was
personally disliked merely for associating with the Plaintiff. (Doc. 37-1, ¶ 29). He
stated that he and Plaintiff had been to Detroit for training but that “they never
received the same training that the younger employees received,” pointing out that
the younger employees would get “play time” on the computers while he and
Plaintiff continued to work. (Doc. 37-1, ¶ 16). He also stated that he learned from
another employee that the reason that the other employees disliked Plaintiff and
treated him poorly was because “[Plaintiff] is a scab and [the other employees]
don’t like scabs.” (Doc. 37, Ex. C, ¶ 17).
Edward Bohart, Jr., another former employee of Defendant Lycoming, stated
that like Plaintiff, he kept notes of incidents at work, but was never told that he
could not do so. (Doc. 37-1, ¶ 21). In his affidavit, Bohart stated that the younger
union employees seemed to get away with things that they should not have and that
Plaintiff took the “brunt” of their behavior. (Doc. 37-1, ¶ 9).
In the summer of 2007, Defendant Lycoming discovered that Plaintiff was
keeping daily logbooks chronicling work place events. (Doc. 23, ¶ 21; Ex. F, K).
On July 23, 2007, Suzette Snyder, Defendant Lycoming’s Human Resources
Director, issued Plaintiff an Employee Discipline Record for violation of company
rules, specifically for non-productive behavior, verbally reprimanded him, and
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instructed him to cease using work time to “observe, notate, and report on coworkers’ behavior.” (Doc. 23, ¶¶ 22-24). Plaintiff continued to keep notes, and
between August 20 and 27, 2007, he submitted a series of complaints to Defendant
Lycoming’s management regarding coworkers. (Doc. 23, ¶ 25). On August 28,
2007, Plaintiff was issued a Performance Improvement Plan and Last Chance
Agreement and referred to Employee Assistance Program counseling. (Doc. 23, ¶
26). Plaintiff submits in his affidavit that these actions had nothing to do with
nonproductive behavior but were instead retaliatory actions for his complaints
about the younger union employees. (Doc. 37-1, ¶ 23-24). On September 25, 2007,
Plaintiff submitted a resignation letter and two-weeks notice, citing “other
opportunities” as the reason for his resignation. (Doc. 23, ¶¶ 27-28; Doc. 37-1, ¶¶
27-28).
Prior to his last day of work, Plaintiff submitted to Defendant Lycoming an
exit interview form, with supplemental pages attached, again documenting his
complaints. (Doc. 23, ¶ ¶ 31-33). In this document, Plaintiff does not list age
discrimination as a concern, but does state that he believes certain younger union
members were not disciplined as they should have been, that the company has
failed to adequately respond to the Plaintiff’s complaints about younger
employees’ behavior, and that supervisors and managers were not doing a
8

satisfactory or efficient job of running the department. (Doc. 23, ¶ 33). In that same
letter, Plaintiff cited “other opportunities” as the grounds for his resignation. (Doc.
23, ¶ 28). Thereafter, Plaintiff requested unemployment compensation benefits and
filed an unfair labor charge with the National Labor Relations Commission; while
both of these filings refer to harassment and a hostile work environment, Plaintiff
did not specifically cite age discrimination as the basis for his resignation. (Doc.
23, ¶¶ 33-39; Doc. 37-1 ¶¶ 33-39).
IV.

DISCUSSION
In his Complaint, Plaintiff asserts causes of action against the collective

Defendants for violation of the Age Discrimination in Employment Act (“ADEA”)
(Counts I-V) in addition supplemental state law claims for wrongful discharge
(Count VI), conspiracy (Count VII), and violation of the Pennsylvania Human
Relations Act (“PHRA”) (Count VIII). (Doc. 1). We first address Plaintiff’s ADEA
arguments with respect to each Defendant before turning to analysis of Plaintiff’s
state law claims.
A.

ADEA Claims Against Lycoming

As both Defendants point out, claims of age discrimination under the ADEA
are analyzed under the McDonnell Douglas burden-shifting framework. See Fasold
v. Justice, 409 F.3d 178, 184 (3d Cir. 2005) (applying burden-shifting analysis
9

adopted in Title VII case, McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), to ADEA claims). The Third Circuit has succinctly articulated the
McDonnell Douglas paradigm as follows:
An employee must first establish a prima facie case of
discrimination, after which the burden shifts to the
employer to articulate a legitimate, nondiscriminatory
reason for its adverse employment decision . . . . If the
employer articulates one or more such reasons, the
aggrieved employee must then proffer evidence that is
sufficient to allow a reasonable finder of fact to find by a
preponderance of the evidence that the employer’s
proffered reasons are false or pretextual.”
Id. at 184-85. See Fasold v. Justice, 409 F.3d 178, 184 (3d Cir. 2005) (applying
burden-shifting analysis adopted in Title VII case, McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), to ADEA claims). Thus, we first consider whether
Plaintiff has proven a prima facie case of age discrimination.
1.

Plaintiff’s Prima Facie Case

To establish the elements of his prima facie case, a plaintiff must prove that
he: “(1) was a member of the protected class, i.e., was over 40, (2) was qualified
for the position, (3) suffered an adverse employment decision, and (4) ultimately
was replaced by a person sufficiently younger to permit an inference of age
discrimination.” Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 300-01 (3d
Cir. 2004). If he succeeds in doing so, the burden will shift to the employer to
10

present evidence of a legitimate, nondiscriminatory reason for the adverse action.
Fasold, 409 F.3d at 184.
The Plaintiff easily meets the first two elements of the test as he has
successfully established that he is a member of a protected class and that he was
qualified for the position. Both Defendants concede that the Plaintiff is a member
of the protected class by virtue of his age; Plaintiff was born on November 24,
1950, and was forty-eight (48) years old when hired and fifty-six (56) years old
when he resigned. (Doc. 23, ¶ 1; Doc. 25, p. 10). The Plaintiff was initially hired in
June of 1998; he worked for Defendant Lycoming for nine (9) years and was
promoted to his most recent position on January 31, 2005. (Doc. 22-1, ¶¶ 5-6; Doc.
24-6, ¶¶ 5-8). Defendant Lycoming, the hiring entity, concedes that the Plaintiff
was qualified for the position, and while Defendant Union denied the same in its
Answer, it does not argue the point in its brief. (See Doc. 1, ¶ 8; Doc. 21, p. 10;
Doc. 25, p. 4 at n.5).
Plaintiff has likewise satisfied the fourth and final element by demonstrating
that he was replaced by employees younger than him. Plaintiff stated in his answer
to interrogatories, and Defendant Lycoming affirms in its statement of undisputed
material facts, that the Plaintiff was replaced by two (2) employees, Christopher
Croff and Jon Engle, who were both in their mid-forties at the time of their inter11

company transfer. (Doc. 23, ¶ 41; Doc. 24-17, ¶ 23). The Defendants contend that
Plaintiff’s replacements are over the age of forty and that they, too, are members of
the protected class, and thus argue that any potential for age discrimination liability
is negated. However, the Defendants overlook that the fourth element requires only
that the replacement is “sufficiently younger” than the plaintiff and does not
automatically bar claims where replacement workers themselves are over the age
of forty. See Monaco, 359 F.3d at 300-01. Thus the replacements’ membership in
the protected class is irrelevant so long as the replacements were “sufficiently
younger” than the Plaintiff.
The record demonstrates that the two replacements were at least ten (10)
years junior to the Plaintiff, (Doc. 23, ¶ 41, Doc. 24-17, ¶ 23), and we cannot find
as a matter of law that such a substantial age gap is “insufficient” as contended by
the Defendants on these facts. See, e.g., D’Amico v. Pulte Homes, Inc., 2009 U.S.
Dist. LEXIS 26441, *7-9 (E.D. Pa. Mar. 23, 2009) (eight year age difference
sufficiently younger); Sempier v. John & higgins, 45 F.3d 724, 729-30 (3d Cir.
1995) (ten-year age difference sufficient to support prima facie case)). Plaintiff has
presented sufficient evidence to meet the fourth element of his prima facie case.
We thus proceed to the third and most difficult element, which is whether
the Plaintiff has demonstrated that he suffered an adverse employment decision or
12

action. The Plaintiff argues in support of this element that his resignation was not
voluntarily and that he was in fact constructively discharged, forced to quit based
on increasing discrimination, thus rising to the level of an adverse employment
decision. Plaintiff also contends that Defendant Lycoming’s actions in placing him
on a Last Chance Agreement and Performance Improvement Plan, which included
a requirement that Plaintiff participate in an Employee Assistance Program, were
discriminatory in that other, younger employees who should have been so treated
were not. Finally, Plaintiff argues that Defendant Lycoming provided training to
younger employees that he was denied, and as a result, intentionally made him
ineligible for certain employment opportunities.
Plaintiff’s constructive discharge claim requires this Court to consider
whether the Plaintiff resigned as a result of age discrimination which made
employment conditions “so intolerable” that a reasonable person in his position
would likewise have resigned. See Duffy v. Paper Magic Group, 265 F.3d 165, 167
(3d Cir. 2001); see also EMPLOYMENT DISCRIMINATION, § 127.06 (2011).
Specifically, a court must consider the evidence of age discrimination and
“determine 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.” Duffy, 265 F.3d at 167. After careful study of all of the
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evidence currently before the Court, we cannot find that a genuine issue of material
fact exists with regard to whether Plaintiff was constructively discharged due to
age discrimination.
Plaintiff alleges that he was severely harassed, that “nails were placed under
his tires, a dead possum was placed in his mailbox, he was repeatedly shoulder
bumped, he was being followed to [the] men’s room to the point that he had to go
out of his way to use another restroom facility, water was intentionally spilled on
the floor next to his cubicle, there was excessive name calling, he was cussed at,
threats were made against his life, he was given the finger, his work area was
sabotaged, doors were being slammed shut in front of him, tools were being
thrown and drawers were being slammed, doors were pushed into Plaintiff, [and]
derogatory comments were being made to third parties against Plaintiff.” (Doc. 371, ¶ 8).
“Constructive discharge may occur when the employer is aware that the
employee has been subjected to a continuous pattern of harassment and the
employer does nothing to stop it.” Duffy, 265 F.3d at 168. Notwithstanding the
parade of horribles he alleged, Plaintiff has entirely failed to produce any evidence
supporting these claims other than his self-serving affidavit, which is insufficient

14

for purposes of contesting a summary judgment motion.2 See Podobnik v. U.S.
Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (“To survive summary judgment, a
party must present more than just ‘bare assertions, conclusory allegations or
suspicions’ to show the existence of a genuine issue.”); see also Kirleis v. Dickie,
McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009) (“[C]onclusory, selfserving affidavits are insufficient to withstand a motion for summary judgment.”).
The Plaintiff’s allegations with respect to Lycoming’s alleged refusal to train
the Plaintiff in areas where younger employees received training suffer from the
same flaws. Other than Plaintiff’s own self-serving affidavit, he has presented no
evidence to support that he has been denied training which resulted in the loss of
an employment opportunity.3
2

Plaintiff makes these broad and inflammatory accusations while offering no evidence,
other than his own affidavit, to substantiate them. Indeed, this lack of citation and support
extends to all aspects of Plaintiff’s case, not merely this one point. We admonish that “[j]udges
are not like pigs, hunting for truffles buried in briefs, in the universe of legal precedent, or the
record on summary judgment.” Smith v. Central Dauphin School Dist., 2007 WL 2262936, *6
(M.D. Pa. Aug. 6, 2007). It is counsel’s responsibility to the Court, and not the Court’s
independent obligation, to support Plaintiff’s allegations with evidence of record. Regardless of
this candidly sloppy, and frequently nonexistent, citation to the record, we note that we have
conducted an independent review of the hundreds of exhibits submitted and that other than one
employee’s statement that he witnessed coworkers “circle the building in their car or waiting in
the parking lot looking for [Plaintiff,]” (Doc. 37, Exhibit A, ¶ 10), the record does not indicate
that Plaintiff’s conclusory allegations are supported by testimony, affidavit, or other evidence
whatsoever.
3

Plaintiff does present the affidavit of a coworker, Mr. Edward Bohart, Jr., which states
that “I went to [a supervisor] and said that I wanted to get some basic training on the CAD
modeling and he sent me for one week to Detroit, Michigan” and that “I personally know that
Gary was denied the training.” (Doc. 37, Ex. A, ¶ ¶ 22, 24). Plaintiff also offers the affidavit of
15

Finally, we turn to the Last Change Agreement, the Performance
Improvement Plan, and the requirement that Plaintiff participate in an Employee
Assistance Program. Plaintiff, in essence, contends that these actions by Defendant
Lycoming constitute disparate discipline, which is actionable under the ADEA.
See, e.g., Miller v. Aramark Healthcare Support Servs., 555 F. Supp. 2d 463, 467,
471 (D. Del. Jan. 14, 2008). The record amply supports Plaintiff’s contention
that he was subject to discipline by Defendant Lycoming.
Specifically, the record shows that Defendant’s human resources director
issued Plaintiff an employee disciplinary record, which is the equivalent of a verbal
reprimand, on July 23, 2007. (Doc. 23, ¶ 22 (Lycoming admission of discipline);
Doc. 24-6, ¶ 25 (human resources director account of discipline); Doc. 24-13
(employee discipline record)). The record further supports that on August 28,
2007, Defendant Lycoming placed the Plaintiff on a Last Chance Agreement and
Performance Improvement Plan and required him to participate in an Employee

Walter Cacko, another employee of the Defendant, which states that “Gary and I went to Detroit
for training but we never received the same training that the younger employees got.” (Id., Ex. C,
¶ 19). Even viewing all evidence in favor of Plaintiff, this evidence alone, viewed in the context
of the entire record, does not demonstrate that the Plaintiff suffered an adverse employment
action recognized by the ADEA. Plaintiff has failed to establish that he was terminated, demoted,
denied a promotion, falling behind, or even that he was less skilled than other employees.
Plaintiff’s bare assertion that he was “denied an employment opportunity” because he was less
skilled and insufficiently trained in comparison to younger employees is thus entirely
unsupported.
16

Assistance Program. (Doc. 23, ¶ 26 (Lycoming admission of discipline); Doc. 24-6,
¶¶ 29-31 (human resources director account of last change agreement discipline);

Doc. 24-15 (last chance agreement); Doc. 24-16 (performance improvement plan)).
Accordingly, we find that the Plaintiff has proven the elements of a prima
facie case of age discrimination: that is, Plaintiff has demonstrated to this Court
that he suffered adverse employment action in the form of disciplinary action, that
he was a member of the protected age group, that he was qualified for his position,
and that his replacements were sufficiently younger than him to raise an inference
of discrimination. This of course does not end our analysis, since Defendant
Lycoming argues that its actions were unrelated to Plaintiff’s age but instead a
result of his nonproductive workplace behavior. However, this argument is most
appropriately analyzed at the second stage of the McDonnell Douglas paradigm
and is thus irrelevant to Plaintiff’s showing of a prima facie case. See Fasold, 409
F.3d at 184 (citing McDonnell Douglas, 411 U.S. 792).

2.

Defendant’s Proffered Nondiscriminatory Reasons

We thus proceed to the second step of the McDonnell Douglas framework
which queries whether the employer has proffered a legitimate, nondiscriminatory
reason for the adverse employment action. See Fasold, 409 F.3d at 184. Defendant
17

Lycoming offers two plausible reasons to support its decision to place Plaintiff on
the Last Chance Agreement and Performance Improvement Plan: first, the Plaintiff
violated company policy by engaging in nonproductive behavior during the work
day and taking actions which implicated the workplace disciplinary provisions
regarding stalking and, second, even if the Plaintiff was harassed, such behavior
was unrelated to his age and was solely based on his perceived status as a union
“scab” or “dissident.”
In support of their first argument, that the Plaintiff had been unproductive at
work and violated several workplace policies, the Defendant cites to hundreds of
pages of the Plaintiff’s personal notes, made while on the clock. These notes take
almost minute-by-minute documentation of the actions of fellow employees during
the work day. (Doc. 23, ¶ 21; Doc. 37-1, ¶ 21). The extent of this documentation
fully supports the Defendant’s purported concern that Plaintiff’s behavior was
unproductive, distracting, and bordering on stalking. The record includes extensive
documentation, to the minute, of coworkers’ daily activities, noting, in addition to
allegedly harassing behaviors, such trivial things as coworker belching (Doc. 2411, p.2 (“6:52 . . . S.B.-belching . . . 9:20 . . . S.B. belching”), the time of day that
specific coworkers would exit and enter the room (Doc. 24-11, p. 2 (“7:17-7:19 . . .
C.P. break room . . . J.S. break room . . . 9:15 . . . C.P.-out of room”), and even
18

going so far as to observe and comment upon particular employees attire. (Doc. 2411, p. 5 (“S.B. is wearing a shirt w/ the sleeves torn off (like a muscle shift) (tshirt).”).
Plaintiff admits that he was keeping notes “almost from the start of [his]
employment,” although he is unsure when the Defendant learned of it. (Doc. 44,
Plaintiff’s Exhibit DDD, ¶ 61). The Plaintiff appears to have gone beyond
documenting the behavior he found offensive and escalated to a disturbing level of
observation and recording of his coworkers’ behavior. Defendant Lycoming’s
contention that it placed Plaintiff on the Last Chance Agreement and Performance
Improvement Plan because he was unproductive at work and violating policy is
substantially supported by the record and Plaintiff’s own admissions.
Further, Defendant Lycoming, and unknowingly, the Plaintiff himself, have
presented evidence that any of the behavior directed at the Plaintiff by coworkers
was entirely unrelated to the Plaintiff’s age but instead based on his coworkers’
perception of the Plaintiff as a union breaker for crossing the picket line during a
highly contested strike. (Doc. 23, ¶ 2). Plaintiff attached a ten-page addendum to
his exit interview form, detailing the harassment that he endured from coworkers,
however not once does he refer to age discrimination. (Doc. 43, pp. 19-25). Indeed,
in Plaintiff’s Charge Against Labor Organization filed with the National Labor
19

Relations Board, he does not mention age discrimination but contends that he was
treated poorly because he “was perceived as a union dissident.” (Plaintiff’s Exhibit
WW). Specifically, Plaintiff states that the Last Chance Agreement was “in
retaliation for my complaints about safety, complaints about harassment by union
stewards and because I was perceived as a union dissident.” (Plaintiff’s Exhibit
XX). As aforestated, Walter Cacko, a coworker of Plaintiff, stated in his affidavit
that Plaintiff was treated this way because “[he] is a scab and [the other employees]
don’t like scabs.” (Plaintiff’s Exhibit C, ¶ 17). Plaintiff’s proffered evidence is
devoid of any indication, other than conclusory and unsupported allegations, that
the alleged harassment was a result of age discrimination.
Both of the Defendant’s proffered rationales demonstrate that the alleged
harassment and disciplinary action were not age related but instead related to
Plaintiff’s perceived status as a union dissident and his engagement in
nonproductive behavior during the work day. Defendant Lycoming has offered
substantial evidence to support that Plaintiff engaged in nonproductive and
borderline troubling notetaking throughout the workday, resulting in his placement
on the last chance agreement and performance improvement plan. (See Doc. 23, ¶
21; Doc. 37-1, ¶ 21; Doc. 44, Exhibit DDD, ¶ 61; Doc. 24-11 (sample of notes)).
Further, the Plaintiff’s own filings with the National Labor Relations Board,
20

statements by coworkers, and evidence presented by the Defendant indicate that
any alleged harassment by coworkers was not related to the Plaintiff’s age but
instead based on Plaintiff’s status as a union breaker. (Plaintiff’s Exhibit C, ¶ 16;
Exhibit TT; Exhibit WW; Exhibit XX). Both of these theories are legitimate
nondiscriminatory reasons for Defendant Lycoming’s actions.
Thus the burden of proof returns to the Plaintiff to demonstrate that the
Defendant’s decision was pretextual; that is, that it was merely a facade and the
true reason for his placement on the Last Chance Agreement and Performance
Improvement Plan was to discriminate against him and induce him to resign
because of his age. See Fasold, 409 F.3d at 184. The Plaintiff’s burden at this point
was articulated by the Third Circuit in Fuentes v. Peskie, 32 F.3d 759 (3d Cir.
1994):
A plaintiff who has made out a prima facie case may
defeat a motion for summary judgment by either (i)
discrediting the proffered reasons, either circumstantially
or directly, or (ii) adducing evidence, whether
circumstantial or direct, that discrimination was more
likely than not a motivating or determinative cause of the
adverse employment action.
Id. at 764. The Plaintiff provides neither circumstantial nor direct evidence
discrediting the Defendant’s proof that Plaintiff was engaged in nonproductive
behavior. Indeed, other than a conclusory assertion that the proffered rationals are
21

pretextual, Plaintiff has failed to provide any evidence which persuades this Court
that the Defendant’s actions were predicated on Plaintiff’s age.
While we are sympathetic to Plaintiff’s plight relative to his coworkers, and
if the allegations are true, certainly disapprove of their behavior, nothing in the
record establishes that the Plaintiff is entitled to judgment against Defendant
Lycoming for age discrimination. It has long been established in this Circuit that
“[t]o survive summary judgment, a party must present more than just ‘bare
assertions, conclusory allegations or suspicions’ to show the existence of a genuine
issue.” Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005); see also
Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009)
(“[C]onclusory, self-serving affidavits are insufficient to withstand a motion for
summary judgment.”). This the Plaintiff has failed to do.
While an uncomfortable work environment is unfortunate, the same cannot
in and of itself form the basis of an ADEA complaint. Indeed, as the Third Circuit
has previously held, “[e]mployees are not guaranteed stress-free environments and
discrimination laws cannot be transformed into a palliative for every workplace
grievance, real or imagined, by the simple expedient of quitting.” Connors v.
Chrysler Fin. Corp., 160 F.3d 971, 975 (3d Cir. 1998) (quoting Gray v. York
Newspapers, Inc., 957 F.2d 1070, 1083 (3d Cir. 1992)). The ADEA is not the
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proper medium for Plaintiff to air his grievances about his coworkers’ perception
of him as a union dissident and their associated dislike. Accordingly, Defendant
Lycoming’s Motion for Summary Judgment on Counts I, III, IV, and V is granted.
2.

Union Liability

The Defendant Union contends that Plaintiff’s claim against it is barred by
his failure to follow grievance procedures outlined in the Collective Bargaining
Agreement (“CBA”). The Union argues that, while the Plaintiff did complete the
first step by verbally informing a supervisor about his concerns, he failed to
present evidence demonstrating that he also complained in writing, the second
grievance requirement under the CBA. The Union thus contends that Plaintiff’s
claim must fail because he failed to exhaust all of his remedies. Regardless of this
issue, however, because we have found that no genuine issues of material fact
remain with respect to the merits of the discrimination claims, the Defendant Union
is entitled to judgment in its favor as a matter of law.
An employee may assert a claim for age discrimination against his or her
union in certain circumstances. See Slater v. Susquehanna Cnty., 613 F. Supp. 2d
653, 664, 667 (M.D. Pa. Mar. 30, 2009). In order to survive summary judgment
and establish a prima facie case of age discrimination against the Defendant Union,
Plaintiff must demonstrate that he was subjected to age discrimination, that he
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requested action by the union, and that the union ignored his request that they take
action. See id. at 664 (citing Boyer v. Johnson Matthey, Inc., 2005 U.S. Dist.
LEXIS 171, *71 (E.D. Pa. Jan. 6, 2005); Snyder v. Teamsters Local No. 249, 2005
U.S. Dist. LEXIS 19055, *10 (W.D. Pa. Sept. 2, 2005)).
As a threshold matter, we note that we have already rejected Plaintiff’s age
discrimination claim against his employer and that he is thus unable to meet the
first element of the union liability standard. However, to return to the procedural
point raised by the Defendant Union, we note that in the event that age
discrimination did in fact occur, Plaintiff has failed to demonstrate that he filed
grievances with the Defendant Union and that the Defendant Union ignored his
legitimate requests to take action. Indeed, Plaintiff stated that he assumed the
Defendant Union was conspiring against him with Defendant Lycoming and thus
opted not to file grievances. (Doc. 37-2, ¶ 10; Plaintiff’s Ex. AAA, ¶¶ 38-39).
Because the Plaintiff has failed to establish any of the elements of a union liability
claim, see Slater, 613 F. Supp. 2d at 667, the Defendant Union’s Motion for
Summary Judgment on Counts II, III, IV, and V is granted.
3.

State Law Claims

Lastly, Plaintiff has alleged several state law claims for violation of the
Pennsylvania Human Relations Act, wrongful discharge, and conspiracy. We
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briefly address each of these claims in turn.
A.

The Pennsylvania Human Relations Act

Plaintiff, in Count VII, charges the Defendants with violation of the
Pennsylvania Human Relations Act (“PHRA”). It has long been established that
“Pennsylvania courts assess PHRA [claims] in accord with [their] federal
counterparts.” Burgess-Walls v. Brown, 2011 U.S. Dist. LEXIS 94087, *7 (E.D.
Pa. Aug. 22, 2011) (citing Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996));
Goosby v. Johnson & Johnson Med. Inc., 228 F.3d 313, 317 n.3 (3d Cir. 2000)).
Therefore, because we have found that Plaintiff has failed to state a meritorious
claim under the ADEA, we likewise must conclude that Plaintiff has failed to state
a viable claim for violation of the PHRA.
B.

Wrongful Discharge

In Count VI of his Complaint, Plaintiff asserts that the Defendants actions in
creating a hostile work environment, placing him on the Last Chance Agreement,
and referring him to the Employee Assistance program forced his resignation, thus
effecting a wrongful constructive discharge. (Doc. 1, ¶¶ 61-64; Doc. 37, p. 14-15).
As a threshold matter, we note that this Court has previously rejected such a claim
as not recognized against an employee’s labor union. See Slater, 613 F. Supp. 2d at
663 (“[The] Union cannot be liable for Plaintiff’s alleged discriminatory
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termination because she was terminated by her employer, not by the union.”).
Accordingly, the wrongful discharge claim against the Defendant Union is without
merit and we review the claim only as it pertains to Defendant Lycoming.
A plaintiff who brings a wrongful discharge or wrongful termination action
in Pennsylvania, an at-will employment state, carries an exacting burden. The
Pennsylvania Superior Court has succinctly articulated the nature and requirements
of a wrongful termination action:
Historically, Pennsylvania has recognized an employer’s
unfettered right to discharge an at-will employee for any
or no reason in the absence of a contractual or statutory
prohibition. That right has been tempered with the
emergence of the common law doctrine of wrongful
dismissal whereby an employee may premise a cause of
action on either tort or contract principles.
...
. . . An essential element permitting a cause of action for
wrongful discharge is a finding of a violation of a clearly
defined mandate of public policy which “strikes at the
heart of citizen’s social right, duties, and responsibilities.
The public policy exception is a narrow one.
Since the wrongful discharge action first was recognized
[in Pennsylvania] as cognizable . . . it is now settled law
in Pennsylvania that if the discharge of an employee-atwill threatens public policy, the employee may have a
cause of action against the employer for wrongful
discharge.
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Field v. Phila. Elec. Co., 565 A.2d 1170, 1179 (Pa. Super. Ct. 1989) (emphasis
added) (quoting Geary v. U.S. Steel Corp., 319 A.2d 174 (Pa. 1974)). Thus, in
order for a plaintiff to succeed on a wrongful discharge claim under the public
policy exception, he must first demonstrate that his employment was terminated by
an act of the defendant, and second, he must overcome the strong presumption in
favor of at-will employment by demonstrating a violation of a “clearly defined
mandate of public policy.” Id. at 1179.
This exacting burden Plaintiff has failed to meet. Indeed, Plaintiff’s
arguments are markedly deficient to survive a Defendant Lycoming’s Motion for
Summary Judgment. The Plaintiff has failed to present any argument with respect
to the wrongful discharge claim individually, but instead appears to argue the claim
as an extension of the alleged PHRA violation, a cause of action we have already
dismissed. While the Plaintiff’s subpar efforts in this regard require no additional
consideration, we note only that had he actually argued the merits of the wrongful
discharge claim, we would nonetheless conclude, as we did supra with Plaintiff’s
ADEA claim, that he was neither terminated nor constructively discharged and
thus entirely fails to prove a claim for wrongful discharge under Pennsylvania law.
See id. (in addition to public policy barriers, adverse employment action, in the

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form of constructive discharge or termination, is a requisite element of a wrongful
termination action).
C.

Conspiracy

Finally, in Count VII, Plaintiff contends that the Defendant Union met with
Defendant Lycoming “at various and sundry times” over the course of his
employment for the purpose of jointly conspiring against him to “to encourage the
continuation of the problems the Plaintiff was experiencing and to force him to
resign.” (Doc. 1, ¶¶ 66-67). Plaintiff’s only argument in support of his conspiracy
claim is that because representatives of the Defendant Union were present when
Plaintiff was disciplined, it necessarily must have conspired with Defendant
Lycoming to discipline him. (Doc. 37, p. 15). Such a drastic inference is
unsupported by the record. Indeed, as Defendant Lycoming points out, the record
is entirely devoid of any evidence that the Defendant Union met or communicated
with Defendant Lycoming to discuss Plaintiff whatsoever, and Plaintiff’s bare
assertions, speculation, and suspicions are insufficient to survive summary
judgment. See Kirleis, 560 F.3d at 161; Podobnik, 409 F.3d at 594. Accordingly,
we will grant the Defendants’ Motions for Summary Judgment with respect to
Plaintiff’s conspiracy claims.
V.

CONCLUSION
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In sum, the Plaintiff has altogether failed to demonstrate that the Defendant
Union and Defendant Lycoming should be held liable for a constructive discharge
of the Plaintiff under the ADEA or the PHRA, or under the common law doctrines
of conspiracy and wrongful discharge. The Plaintiff has fallen woefully short of
even the most minimal evidentiary mark for purposes of surviving the Defendants’
collective Motions for Summary Judgment. Again, we reiterate that “[e]mployees
are not guaranteed stress-free environments and discrimination laws cannot be
transformed into a palliative for every workplace grievance, real or imagined, by
the simple expedient of quitting.” Connors, 160 F.3d at 975.
While the facts presented in the Plaintiff’s argument regarding his
coworkers’ rude deportment are unfortunate, and if true, surely frowned upon by
this Court, they do not serve to buttress his age discrimination claims against his
employer or his union. Moreover, Plaintiff’s self-serving affidavit, otherwise
unsubstantiated, is insufficient evidence to support Plaintiff’s claims and survive
summary judgment. See Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir.
2005). For all of the foregoing reasons, we find that the Plaintiff has failed to prove
the existence of a genuine issue of material fact both against his employer and
against his union, presenting no evidence attributing the alleged age discrimination

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to either Defendant. Therefore, we shall grant the Defendants’ Motions for
Summary Judgment in their entirety. An appropriate Order shall issue.

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