MCMANUS v. TEVA PHARMACEUTICALS USA, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRIAN MCMANUS, : CIVIL ACTION

Plaintiff :

:

v. :

:

TEVA PHARMACEUTICALS :

USA, INC., et al. :

Defendants : NO. 19-3890

MEMORANDUM

CAROL SANDRA MOORE WELLS

UNITED STATES MAGISTRATE JUDGE August 13, 2021

The Plaintiff, Brian McManus (“Plaintiff” or “McManus”), filed suit against his former

employer, Teva Pharmaceuticals USA, Inc. (“Defendant” or “Teva”), alleging age discrimination,

in violation of the Age Discrimination in Employment Act (“ADEA”) and the Pennsylvania

Human Relations Act (“PHRA”), retaliation under ADEA and PHRA, violations of the

Pennsylvania Wage Payment Collection Law (“WPCL”), and three state contract claims.

This case was referred by the Honorable Timothy Savage to Magistrate Judge Jacob Hart

on February 6, 2020 to conduct all proceedings. ECF Doc. No. 21. On September 25, 2020,

Defendant filed its Motion for Summary Judgment, ECF Doc. No. 27, and, on October 23, 2020,

Plaintiff filed his Response and Cross Motion for Partial Summary Judgment. ECF Doc. No 27.

On January 6, 2020, while those motions remained pending, the case was reassigned to this Court1

for all further proceedings. ECF Doc. No. 31.

A genuine issue of material fact exists regarding Plaintiff’s discrimination and retaliation

claims; therefore, Defendant’s motion for summary judgment will be denied in part. This Court

will, however, grant Defendant’s motion as to dismiss Plaintiff’s remaining state contract claims.

1 This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§§§ 1331, 1367, and 636.

Finally, Plaintiff has not produced evidence of entitlement to any alleged unpaid wages under the

WPCL; thus, Defendant’s motion is granted as to the WPCL claim as well.

I. FACTUAL AND PROCEDURAL HISTORY2

While unemployed, Plaintiff interviewed with Defendant in 2016, for the position of

Oncology Director in its Strategic Customer Group (“SCG”). Def. Br. at ¶ 2; Pl. Br. at ¶ 3. Jessica

An from Human Resources, Thomas Rainey (“Rainey”), Senior VP of Specialty Sales &

Marketing, and Fred Vitale (“Vitale”), VP of Marketing Oncology, interviewed McManus. Id.

During the interview, Plaintiff sought and received assurances of job security from Rainey. See

Plaintiff’s Exhibit A, McManus Deposition at 28:24-33:19.

On March 21, 2016, Teva offered McManus the position and furnished an official “Offer

Letter” that outlined the terms of his employment. Def. Br. at ¶ 6, see also Def. Exhibit C. The

Offer Letter documented his position, salary, bonus structure, merit increases, and benefits. Def.

Exhibit C. The letter further explained that:

The first 90 calendar days of employment with Teva are an initial

probationary period for all non-union employees. The nature of

your employment with us is and will be “at will,” as defined by

applicable law, meaning that either we or you may terminate your

employment at any time, with or without notice and with or without

cause, for any reason or no reason, without further obligation or

liability. Teva reserves the right to change or alter the terms of your

employment and/or the terms of any plans at any time without prior

notice.

Def. Exhibit C (emphasis added); see also Pl. Exhibit A.

McManus also received an Employee Confidentiality Agreement (“the Agreement”),

which included an “At-Will” clause. Def. Exhibits C and D. This document stated, in relevant

2The Court has reviewed and considered the following documents in analyzing this case: Defendant’s Brief and

Statement of Issues in Support of its Motion (“Def. Br.”), Plaintiff’s Response and Cross Motion for Partial Summary

Judgment (“Pl. Br.”), Defendant’s Reply in Support of Summary Judgment and Brief in Opposition to Plaintiff’s

Partial Motion for Summary Judgment (“Def. Reply”), and the parties attached exhibits (“Ex.”).

part:

Employment At-Will. I agree and understand that nothing in this

Agreement shall change my at-will employment status or confer any

right with respect to continuation of employment by the Company,

nor shall it interfere in any way with my right or the Company’s

right to terminate my employment at any time, with or without cause

or advance notice.

Def. Exhibit D. Plaintiff signed the Agreement and the Offer Letter. See Def. Exhibits C and D.

Plaintiff worked as Director in the SCG. Def. Br. at ¶ 2; Pl. Br. at ¶ 3. This unit was

responsible for contacting and establishing professional relationships with organizations,

developing convention strategies for the oncology business unit, and developing non-products-

based promotional resources. Def Exhibit A. As SCG Director, McManus reported directly to

Rainey who then reported to Paul Rittman (“Rittman”), the General Manager of Oncology. Pl. Br.

at ¶ 3; Def. Br. at ¶ 15-17. A year after McManus was hired, the company restructured their

departments, and laid people off. Pl. Br. at ¶ 7. Plaintiff alleges that he was expressly advised that

he would not be adversely impacted by the restructuring and reduction in force. Id.

Rittman created a “Pilot Program” which changed the role of the SCG department to an

oncology contracting organization which focused on oncology clinics. Def. Br. at ¶ 18. SCG

employees transitioned to become oncology key account managers (“OKAMs”) who were directed

to focus entirely on contracting3. Def. Br. at ¶ 22-23; McManus Dep. at 56:7-17. The SCG also

took on a new hierarchy - McManus, as the new Director of Oncology Key Account Manager4,

would report to Michael Vaupel (“Vaupel”), the Director of Oncology Contracting Strategy, who

in turn would report to Vitale. McManus Dep. at 68:13-69:24; see also Pl. Br. at ¶ 17. At first,

McManus’ job was not considered to be “at-risk,” even though there were two directors in place.

3 The Pilot Program was initially constructed to be a hybrid position – 50% or more of the employees would be devoted

to contracting and 50% or less devoted to the old SCG role. McManus Dep at 73:9-17.

4 In his new position, Plaintiff was expected to function as a “player/coach;” he served as an OKAM function and also

led other OKAMs. McManus Dep. at 58:6-23; see also Pl Br. at ¶ 17.

Vitale Dep. at 41:5-17.

Prior to this new structure, Plaintiff and Vaupel had scant personal interaction; Vaupel was

based in San Diego, California, and Plaintiff worked from Frazier, Pennsylvania. Pl. Br. at ¶ 10;

Def. Br. at ¶ 30. They did not develop a strong relationship. McManus Dep. at 65:19-66:21.

First, McManus believed that the OKAMs role should remain a combination of the former

SCG role, instead of solely contracting. Id. Second, McManus believed that Vaupel attempted to

“sidestep required legal, regulatory, and compliance steps;” Vaupel would “snap” and call Plaintiff

a “fossil that needed to get with the program.” Pl. Br. at ¶ 11-12. Third, Plaintiff testified that

Vaupel called him an “old man,” on numerous occasions. McManus Dep. at 62:10-14, 62:18-20;

see also Pl. Br. at ¶ 12. Vaupel referenced Plaintiff’s age and insulted him nearly every day. Pl.

Br. at ¶ 13. He insinuated that Plaintiff was “old fashioned,” too slow, too stuffy, and “by the

book.” Id. Notably, McManus was in his late forties at the time of these events and Vaupel, born

in 1963, was five years older than him. Def. Exhibit F5.

Plaintiff confronted Vaupel and complained to Deb Macaleer, VP of Sales, and Vitale

about the name-calling. Pl. Br. at ¶ 15-16; see also McManus Dep. at 170:20-171:2. Both advised

him to ignore Vaupel’s comments and said Plaintiff would “soon” be promoted to Senior Director6.

Pl. Br. at ¶ 16. Plaintiff remained with Teva even as he watched employees leave due to the

changing structure, because of “representations” that his job was safe. Pl. Br. at ¶ 18.

Later, Teva decided that it needed a “flatter” organization structure and determined that the

Pilot Program did not need two directors; OKAMs would report directly to Vaupel, who possessed

more oncology contracting experience. Def. Br. at ¶ 42-3; see also Vitale Dep. 99:1-5; 105:12-

21; 130:11-21. Thus, on June 28, 2018, after discussing the matter with Macaleer, Vitale, age

5 Plaintiff objects to Defendant’s Exhibit, however, this objection is overruled.

6 It should be noted that Plaintiff solely cites his own Declaration and no other evidence to support this promotion

claim.

sixty, terminated the forty-nine-year-old McManus7. McManus Dep. at 122:4-12; Vitale Dep. at

99:1-5.

Teva gave Plaintiff a termination notice which stated that he was let go “as a result of a

comprehensive restructuring that is crucial to restoring Teva’s financial security and stability.” Pl.

Exhibit 3. Vitale, however, testified that McManus was not terminated, because of restructuring,

and that “cost was never a consideration of [his,] in that decision.” Vitale Dep. 44:3-5, 99:17-25,

131:17-21. Vitale stated that Vaupel was “part of the decision” to terminate McManus. Vitale

Dep. at 100:3-18.

On August 27, 2019, Plaintiff filed this Complaint which alleges a violation of: (1) age

discrimination under ADEA and (2) PHRA; (3) breach of contract; (4) promissory estoppel; (5)

fraudulent misrepresentations and omissions; (6) a violation of Pennsylvania’s WPCL; and (7)

retaliation in violation of ADEA and (8) Title VII of the Civil Rights Act of 1964. See ECF Doc.

No. 1 - Plaintiff’s Complaint.

III. LEGAL STANDARD

A federal court shall grant a motion for summary judgment when the movant demonstrates

“that there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “A dispute is

‘genuine’ if ‘a reasonable jury could not return a verdict for the nonmoving party,’ Santini v.

Fuentes, 795 F.3d 410, 416 (3d Cir. 2015)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)), and a fact is ‘material’ where ‘its existence or nonexistence might impact the outcome

of the suit under the applicable substantive law.” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742,

752 (3d Cir. 2019)(citing Anderson, 477 U.S. at 248). Furthermore, a court “must review the facts

in the light most favorable to the non-moving party.” Id. (citing Hugh v. Butler Cty. Family YMVA,

7 Plaintiff alleges that his termination was a “last second” decision. Pl. Br. at ¶ 19. Specifically, he states that: (1) the

OKAM team was set to “go live,” days later on July 2, 2018; and (2) his company car, that was ordered and paid for

through deductions from his paycheck, was in the company lot. Id.

418 F.3d 265, 267 (3d Cir. 2005).

IV. ANALYSIS

A. Counts One and Two - Discrimination Under ADEA and PHRA

“Claims premised on direct evidence of age discrimination do not require a prima facie

case at all.” Martinez v. UPMC Susquehanna, No. 19-2866, at *8 (citing Swierkiewics v. Sorema

N.A., 534 U.S. 506, 511 (2002)). However, to prove an age discrimination case on direct evidence,

a plaintiff must produce evidence “sufficient to allow the jury to find that ‘the decision makers

placed substantial negative reliance on the plaintiff’s age in reaching their decision to fire him.’”

Fakete v. Aetna, 308 F.3d 335, 338 (3d. Cir. 2002) (citing Connors v. Chrysler Fin. Corp., 160

F.3d 971, 976 (3d Cir. 1998)). Plaintiff herein is unable to provide direct evidence. Although

Vaupel made derogatory remarks that referenced Plaintiff’s age, he cannot show that Vaupel,

Rainey or Macleer decided to terminate McManus based on his age. Vitale Dep at 99:17-25,

100:9-25. In fact, Vitale specifically testified that the decision terminate Plaintiff was to flatten

the organizational structure, removing an extra director in the process. Vitale Dep. 130:11-21.

Thus, this Court must apply the McDonnell-Douglass burden-shifting analysis.

The Supreme Court and the Third Circuit have held that the McDonnell-Douglass burden-

shifting analysis governs when a federal court must decide summary judgment motion under either

Title VII or the ADEA8. McDonnell-Douglass v. Green, 411 U.S. 792 (1973); see also Reeves v.

Sandersons Plumbing Prods., 530 U.S. 133 (2000). Under this framework, a plaintiff “relying on

circumstantial evidence must first make out a prima facie case of discrimination.” Martinez, No.

8 The Third Circuit has held that courts can analyze PHRA claims under the same legal standard as ADEA claims.

Gress v. Temple Univ. Health Sys., 784 F, App’x 100, 104 (3d Cir 2019) (citing Glanszman v. Metropolitan Mgmt.

Corp., 391 506, 509 n.2 (3d Cir, 2004)).

19-2866 at *6, 2021 U.S. App. LEXIS 2520 (3d Cir. Jan. 29, 2021); see also Reeves, 530 U.S. at

142.

If a plaintiff can successfully establish a prima facie case, the burden shifts to the defendant

to produce or articulate a legitimate, non-discriminatory reason for the adverse action. Reeves,

530 U.S. at 142. However, a defendant’s burden is “relatively light” and “is satisfied if [it]

provides evidence, which, if true, would permit a conclusion that it took the adverse employment

action for a non-discriminatory reason.” Carroll v. Guardant Health, Inc., No. 20-3183, 2021 U.S.

Dist. LEXIS 852, *24 (E.D. Pa. Jan, 5, 2021)(citing Burton b. Telefex, Inc., 707 F. 3d 417, 426 (3d

Cir. 2013)). If the defendant satisfies this requirement, the burden shifts back to the plaintiff. Id.

The only way the plaintiff can survive summary judgment is to present evidence that the proffered

reason for the termination was pretextual. Id.

Although both the ADEA discrimination and Title VII retaliation claims require a prima

facia showing, requirements for each vary slightly. Under ADEA, a plaintiff must show that: (1)

they are a member of a protected class (forty years of age or older); (2) who was discharged; (3)

they were qualified for the job at issue; and (4) the employer filled the position with a person who

was sufficiently younger to create an inference of age discrimination. Narin v. Lower Merion

Township Sch. Dist., 206 F.3d 323, 331 (3d Cir. 2000).

Here, Plaintiff was over the age of forty at the time of his termination, thus, he qualifies as

a member of a protected class. Pl. Br. at ¶ 2. Furthermore, elements two and three were satisfied;

McManus was terminated from a job he was qualified to perform when Teva let him go to create

a “flatter” organizational structure. See Vitale Dep. 130:11-21. Thus, the only element at issue

here is whether Defendant filled Plaintiff’s position with a person who was sufficiently younger.

The Third Circuit has not set a specific age-gap needed when examining a plaintiff’s

replacement. Martinez, No. 19-2866, at *8 (citing Barber v. CSX Distrib. Servs., 68 F. 3d 694, 699

(3d Cir. 1995). Instead, “any proof that the replacement is [‘]sufficiently younger[’] can satisfy

the fourth prong.” Id. Here, Defendant has produced evidence that not only was Plaintiff not

replaced at all, to flatten their organizational structure, but his direct supervisor, Vaupel, is five

years older than him. Def. Exhibit F. According to Defendant’s Reply Brief, Plaintiff failed to

depose Vaupel, the main antagonist in this ageism suit; however, that omission does not bar this

Court from considering evidence of Vaupel’s age, especially since age is the crux of the

McDonnell-Douglass analysis’ fourth element9. Vaupel’s age, a relevant issue at hand, would

foreclose Plaintiff from satisfying the fourth prong.

Other circuits, however, have held that a defendant hiring someone younger is not an

absolute requirement; instead, other evidence of discrimination is sufficient to satisfy the fourth

prong. The Second Circuit has held that plaintiff can still present a prima facia case when an

employer replaces a plaintiff with an older individual, as long as they can show other evidence of

discrimination. McCarthy v. N.Y.C. Tech. Coll., 202 F.3d 161 (2d Cir. 2000). Meanwhile, the

Eleventh Circuit held that other evidence can satisfy the fourth element even if the plaintiff was

replaced by someone older. Wright v. Southland Corp., 187 F.3d 1287 (11th Cir. 1999). Our sister

court in the Middle District of Pennsylvania has held the same. Grabosky v. Tammaz, 127 F. Supp.

2d 610 (M.D. Pa. 2000).

Although the Third Circuit has held that proof of a younger replacement satisfies the fourth

prong, it has not definitively ruled that strict adherence to the “sufficiently younger” requirement

is the sole approach; in fact, several decisions suggest that the fourth element is flexible. See Narin

9 In the alternative, even if this Court decided to bar evidence of Vaupel’s age, Plaintiff still fails to prove the fourth

element as he cannot show that he was replaced by someone younger.

v. Lower Merion Township Sch. Dist., 206 F.3d 323, 331 (3d Cir. 2000)(“we recognize that the

elements of the prima facia case are not applied rigidly…”); see also Torre v. Casio, 42 F.3d 825,

831 n.6 (3d Cr. 1994)(“This statement did not purport to create an inflexible rule. First, our later

opinion…undercuts such a reaching, since it speaks in the more flexible and permissive ‘may’

rather than the mandatory ‘must.’ Additionally, [to] create a rigid prima facie burden would be

inconsistent with Supreme Court authority requiring a contextual approach.”). Thus, this Court

will not strictly apply the fourth element, but draw on other evidence in the record to determine

whether inferences of age discrimination exist.

Plaintiff argues that, Vaupel’s participation in Teva’s decision to terminate him is sufficient

evidence to show that a discriminatory animus possibly influenced the termination decision, citing

Abramson v. William Paterson Coll., 260 F.3d 265, 286 (3d Cir. 2001). Defendant counters that

Vitale decided to terminate McManus, not Vaupel. Def. Reply at 6. This Court agrees with

Plaintiff. Vitale testified that Vaupel was “part of the decision.” Vitale Dep. at 100:14-18. Such

an answer satisfies the fourth prong, allowing Plaintiff to establish a prima facia case.

The burden now shifts to the Defendant to present a legitimate, non-discriminatory reason

for the adverse action. Reeves, 530 U.S. at 142. Defendant argues that its actions were not

pretextual but, instead, eliminating “a redundancy.” Def. Br. at 11. It asserts that there were

changes in Teva’s business and budget, which necessitated the need to “flatten” its organization,

by removing one director while keeping the older, more experienced director. Id. at 12; see also

Vitale Dep. at 99:1-5; 105:12-21; 120:11-21; 132:7-16. Defendant contends that McManus’s

position was eliminated, not because of his performance or any alleged age discrimination, but

because the program did not need two directors and Vaupel had “superior” experience with

oncology contracting, which was the group’s focus. Def. Br. at 12. Furthermore, Defendant

highlights Plaintiff’s own testimony, which conceded that he thought there would be an “overlap

or redundancy.” Def. Br. at 12-13; see also McManus Dep. at 75:6-13.

Plaintiff argues that Defendant has not presented a legitimate, non-discriminatory reason

for his termination. First, he asserts that Vaupel, as Plaintiff’s supervisor, constantly made age-

based taunts. Pl. Br. at 28-29. Second, Defendant altered the alleged reason for his termination

during litigation. At the time of his termination, Teva gave Plaintiff a letter, which stated the

release was “a result of a comprehensive restructuring that is crucial to restoring Teva’s financial

security and stability.” Pl. Br. at 29; see also Pl. Exhibit 3. However, at Vitale’s deposition, he

testified that the termination had absolutely nothing to do with financial considerations. Pl. br. at

29; see also Vitale Dep. 44:3-5, 99:17-25.

Finally, Plaintiff points to discrepancies that would lead to an inference of discrimination.

Pl. Br. at 30. First, Defendant broke company policy which traditionally allowed a direct

supervisor to terminate an employee; here, Plaintiff was terminated by Vitale and not Vaupel. Id.

Next, McManus asserts he was treated “dramatically” different than other employees. Id. He was:

(1) escorted from the building by security; and (2) was never offered other available positions, like

other similarly situated people were. Id.

This Court finds that Defendant has provided a legitimate, non-discriminatory reason for

their adverse action. Reeves, 530 U.S. at 142. Defendant has consistently argued an intent to

“flatten” the organizational structure and terminate Plaintiff’s position as part of that strategy.

Vitale Dep. 44:3-5, 99:17-25, 131:17-21. Vitale testified that Teva “didn’t need the middle layer

of manager level between Mike Vaupel and the four people who reported to him.” Vitale Dep at

99:1-9; 103.

However, this Court finds that the Defendant’s stated reason could be pretextual, which

would preclude summary judgment at this point. Specifically, Vaupel was “part of the decision.”

Vitale Dep. at 100:3-18. A supervisor who has made numerous age-discriminatory comments to

an employee and participates in the decision-making process to terminate them creates a genuine

issue of material fact sufficient to allow Plaintiff’s age discrimination case to be presented to a

jury. Thus, this Court denies Defendant’s Motion for Summary Judgment as to Count One and

Two of the Complaint. Fed. R. Civ. P. 56(c); see also Anderson v. Liberty, 477 U.S. 242, 256

(1986).

B. Counts Seven and Eight - Retaliation Under Title VII and the ADEA

This Court next addresses Counts Seven and Eight of Plaintiff’s Complaint, McManus’s

retaliation claims. 10 To establish a prima facie case of retaliation, “a plaintiff must show that: (1)

[they] engaged in a protected activity; (2) the employer took an adverse employment action against

[them]; and (3) there is a causal connection between the two.” Bartholomew v. St. Luke’s Hosp.,

No. 02-2876, 2003 U.S. LEXIS 7695, *16 (E.D. Pa. Apr. 29, 2003) (citing Goosby v. Johnson &

Johnson, 228 F. 3d 313, 323 (3d Cir. 2000); Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir.

2001).

The burden then shifts to the defendant to show a legitimate non-retaliatory reason for the

adverse action. Kargbo v. Philadelphia Corp. for Aging, 16 F. Supp. 3d 512, 531 (E.D. Pa. 2014)

(citing Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). If a defendant can provide

a legitimate, non-retaliatory reason, the burden shifts back to the plaintiff who, then, must show

that “both the employer’s proffered explanation was false, and that retaliation was the reason for

the adverse employment action.” Id. (citing Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d

10 Although the claims are not in chronological order, they arise out of the same facts, evidence, and exhibits as Counts

One and Two, above. Furthermore, the parties make similar arguments, thus, this Court will address these two issues

next.

Cir. 2006).

Defendant, the moving party, argues that even if Vaupel made derogatory age jokes, they

were “stray comments” at best. Teva cites Carilli v. Mut. Of Omaha Ins. Co., to argue that stray

remarks by non-decision makers are “inadequate to support an inference of discrimination by the

employer.” 67 F. App’x 133, 135 (3d Cir. 2003). Teva further argues that, although McManus

claims that he was terminated because he complained about Defendant’s “treatment of the Opioid

Crisis,” see Plaintiff’s Complaint at ¶ 73, he failed to show a nexus between his termination and

those complaints. Def. Br. at 14. Defendant contends that it already presented a legitimate non-

retaliatory reason for his termination and that Plaintiff failed to cite evidence that shows an

improper motive or that individuals outside of his protected class were treated more favorably. Id.

Again, Defendant cites McManus’ own testimony which expressed concerns about redundancy

when he learned that he would report to another director. Def. Br. at 14-15.

Plaintiff counters that the same record above supports his claim of retaliation: (1) Vaupel

discriminated against him between March and June of 2018; (2) he complained about his

discrimination to Vaupel, Macaleer, and Vitale; and (3) he was terminated on June 28, 2018, “a

mere [two] business days before he would have had to report to Vaupel on a regular basis.” Pl.

Br. at 31. McManus contends that Teva provided inconsistent reasons for his termination that

ranged from financial considerations to restructuring. Plaintiff further asserts that he engaged in

protected activity when he complained to Macaleer and Vitale about Vaupel’s discriminatory

remarks and was fired for that activity. Pl. Br. at 32.

For the same reasons stated infra pp. 10-11, this Court finds a genuine issue of material

fact and denies Defendant’s motion. First, Vitale testified that Vaupel was “part of the decision.”

Vitale Dep. at 100:3-18. Since Vaupel was a part of the decision, his remarks cannot be construed

as merely “stray comments.” Further, although Defendant has tried to portray Vaupel as a non-

decision-maker, even citing Carilli, 67 F. App’x 133, 135 (3d Cir. 2003), that position is

inconsistent with the facts presently before this Court. Vitale’s testimony points to Vaupel,

Plaintiff’s supervisor, as “part of the decision.” Vitale Dep. at 100:3-18. A genuine issue of

material fact exists, hence, this Court denies Defendant’s Motion for Summary Judgment in

regards to Plaintiff’s ADEA and Title IV retaliation claims.

C. Count Three - Breach of Contract Claim

McManus seeks summary judgment on his Count Three, breach of contract claim. He

argues that Teva breached its employment agreement when he was terminated. Pl. Br. at 33.

Plaintiff contends that Defendant has misinterpreted Plaintiff’s Offer Letter and that the

Agreement states, in clear terms, he can only be terminated for cause. Id. Specifically, Plaintiff

reads the Agreement to mean that his status as an “at-will” employee was only for the first 90-

calendar day probationary period. Pl. Br. at 35.

Defendant’s motion for summary judgment on this claim argues that Plaintiff remained an

at-will employee. Def. Br. at 15. Teva argues that McManus misreads the agreement to limit the

at-will employment status to only the 90-day probationary period. Def. Reply at 2. The parties’

dispute concerns an employment contract in Pennsylvania, therefore, this Court will apply

Pennsylvania law. See Edward v. Geisinger Clinic, 459 F. App’x. 125, 129 (3d Cir. 2012).

In Pennsylvania, it is presumed that employment is at-will. See Scully v. US WATS, Inc.,

238 F.3d 497, 505 (3d Cir. 2001); see also Geisinger Clinic, 459 F. App’x at 129. Thus, an

employee can be terminated without cause or reason. Roberts v. Mercy Catholic Med. Ctr., No.

16-1894, 2019 U.S. Dist. LEXIS 68443, *22 (E.D. Pa. Apr. 23, 2019) (citing Raines v. Haverford

College, 849 F. Supp. 1009, 2011 (E.D. Pa. 1994). A plaintiff can overcome the presumption that

their employment is at-will if they are able to show “either: (1) an express contract, (2) an implied

contract where circumstances around the hiring indicate that the parties did not intend the

employment to be ‘at-will,’ or (3) that the employee gave the employer some additional

consideration from which the court can infer that the parties intended to overcome the presumption

of at-will employment.” Id. (citing Veno v. Meredith, 357 Pa. Super. 85, 515 A.2d 571, 577 (Pa.

1986). Furthermore, an employee’s “subjective expectation of…guaranteed employment…based

on [an] employer practices or vague employer superlatives” does not prove an employment

contract for a definite term. Edwards, 459 F. App’x. at 129 (citing Scully, 238 F.3d at 505).

This Court disagrees with Plaintiff’s reading of the contract. The Offer Letter clearly states

that “[t]he nature of your employment with us is and will be ‘at-will.’” Def. Exhibit C (emphasis

add). It did not specifically limit the at-will relationship to the first 90 days of his employment.

The Agreement also said that it “supersedes all prior negotiations, discussions, correspondence,

communications, understandings and agreements between the parties…” Id. Thus, even if Teva

and its employees orally guaranteed the job and made assurances that McManus’ would not be

fired, the signed and dated agreement supersedes it. Plaintiff was fully aware of his status as an

“at-will” employee; he signed the Confidentiality Agreement which reiterated his at-will

employment status, without the 90-day probationary language. Def. Exhibit D. Because two

expressly written and signed agreements show Plaintiff’s “at-will” status, his breach of contract

claim, Count III, is dismissed.

D. Count Four – Promissory Estoppel

Plaintiff claims that he provided evidence that Teva made numerous verbal representations

that: (1) his position was safe, (2) he would not be terminated, and (3) he would not be subject to

restructuring. Pl. Br. at 36. He contends that he relied on these representations when he initially

accepted the position, and later, when he passed on “countless other opportunities” to work for

other companies. Id.

Pennsylvania courts have held that a plaintiff has proven promissory estoppel if they

establish that: “(1) the promisor made a promise that he should have reasonably expected to induce

action or forbearance on the part of the promise; (2) the promise actually took action or refrained

from taking action in reliance on the promise; and (3) injustice can be avoided only by enforcing

the promise.” Crouse v. Cyclops Indus., 560 Pa. 394, 745 A.2d 606, 610 (Pa. 2000). However,

“an employee may not invoke promissory estoppel against an employer for termination of an at-

will employment relationship. Yellovich v. Ahold USA, No. 14-4665, 2014 U.S. Dist. LEXIS

164922, at *11 (E.D. Pa. Nov. 2014)(citing Paul v. Lankenau Hosp., 524 Pa. 90 A.2d 346, 348

(Pa. 1990); see also Dyche v. Bonney, 277 F. App’x. 244, 246 n.1 (3d Cir. 2008)(“[U]nder the

Pennsylvania Supreme Court’s decision in Paul, [plaintiff’s] promissory estoppel theory is not a

legally cognizable cause of action in Pennsylvania.”)

As stated infra p. 14, Plaintiff was an “at-will” employee for Defendant. See Def. Exhibit

C and D. Moreover, Plaintiff cannot prove the third promissory estoppel element articulated in

Crouse. Plaintiff testified that he is currently working and has engaged in sporadic consulting

work. McManus Dep. 12:1-7. Thus, there is no injustice to be avoided. Thus, Count Four of the

Complaint must also be dismissed, and summary judgment granted in favor of Defendant.

E. Count Five - Fraudulent Misrepresentation

Count Five of Plaintiff’s Complaint alleges fraudulent misrepresentation. ECF Doc. No.

1. To prove a claim for fraudulent misrepresentation, a plaintiff must show: “(a representation;

(2) material to the transaction at hand; (3) made falsely, with knowledge of its falsity or

recklessness as to whether it is true or false; (4) with the intent of misleading another into relying

on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately

caused by the reliance.” Yellovich, No.14-4665 at *8 (citing Gibbs v. Ernst, 538 Pa. 193, 647 A.2d

882, 889 (Pa. 1994).

In fraud or misrepresentation cases, “deceit must be of an existing fact, not the breach of a

promise to do something in the future. A promise to do something in the future, which is not

subsequently complied with, does not constitute fraud.” Scaife Co. v. Rockwell-Standard Corp.,

446 Pa. 280, 285 A.2d 451, 454 (1971). Plaintiff points to his testimony that to show that there

were multiple representations or assurances made to him, however, this alone is not enough. He

fails to present evidence to show that Vitale made a knowingly false statement or spoke with

reckless disregard for the truth. In fact, the evidence before this Court shows that Vitale initially,

thought the program would grow, but due to restructuring, Teva was forced to lay people off.

Vitale Dep. at 40-44. A plaintiff cannot “avert summary judgment with speculation or by resting

on the allegations in [their] pleadings, but rather must present competent evidence from which a

jury could reasonably find in [their] favor.” O’Bryant v. City of Reading, No. 03-6635, 2004 U.S.

Dist. LEXIS 17013, at *16 (E.E. Pa. Aug. 11, 2005) (citing Ridgewood Board of Ed. v. N.E. for

M.E., 172 F.3d 238, 252 (3d Cir. 1999)). Plaintiff attempts to avoid summary judgment by

pointing solely to own assertions and nothing else to indicate fraud or an intent to mislead. No

genuine issue of material fact exists, therefore, this Court grants Defendant’s motion to dismiss

Count Five.

F. Count Six – Pennsylvania WCPL

Plaintiff asserts, in Count Six, a claim for a violation of WPCL, 43 P.S. § 260.1 et seq for

alleged unpaid wages relating to his pro rata share of the 2018 bonus. Plaintiff’s statement of

facts alleges that he was never paid but fails to further address or cite any evidence to support this

argument. Defendant argues that, under Teva’s Separation Benefits Policy, McManus was only

eligible for an incentive bonus if: a) he worked for over 1,000 hours; and b) was an active employee

on February 1, 2019. Def. Br. at 20. Plaintiff was discharged on June 2018, thus, he was not

entitled to any bonus. Def. Br. at 20-21. Defendant further asserts that Plaintiff thought he was

entitled to this pro rate share of the bonus, because it was an “industry norm;” it was not Teva’s

policy. Def. Br. at 21.

Plaintiff has not provided any evidence that a genuine issue of material fact exists as to his

bonus claim. Nor did he even address this argument in his brief. Thus, a genuine issue of material

fact does not exist and this Court hereby grants Defendant’s motion for summary judgment and

dismisses Count Six.

IV. CONCLUSION

Plaintiff, Brian McManus, alleges that his former employer, Teva Pharmaceuticals USA,

Inc., fired him, because of age discrimination and retaliation. After considering the parties

extensive briefings, this Court denies Defendant’s motion as to the discrimination and retaliation

claims (Counts One, Two, Seven and Eight). However, because there are no genuine issues of

material fact, this Court also grants Defendant’s motion for summary judgment and denies

Plaintiff’s cross-motion for partial summary judgment regarding Breach of Contract (Count

Three), Promissory Estoppel (Count Four); Fraudulent Misrepresentation (Count Five), and his

WPCL claim (Count Six).