Matchko v. Kost Tire Distributors, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH MATCHKO,

Plaintiff, CIVIL ACTION NO. 3:17-cv-01329

v. (SAPORITO, M.J.)

KOST TIRE DISTRIBUTORS,

INC.,

Defendant.

MEMORANDUM

This is a counselled age-related employment discrimination case.

The plaintiff, Joseph Matchko, claims that the defendant, Kost Tire

Distributors, Inc., violated the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et seq., and the Pennsylvania Human Relations

Act (“PHRA”), 43 Pa. Cons. Stat. Ann. § 951 et seq. This matter was

assigned to the undersigned United States magistrate judge upon

consent of the parties. The defendant has moved for summary judgment.

(Doc. 37.) The defendant has filed its statement of material facts and a

brief in support of the motion as well as a reply brief. (Doc. 38; Doc. 39;

Doc. 48.) The plaintiff has filed a counter-statement of material facts and

a brief in opposition. (Doc. 44; Doc. 45.) For the reasons set forth below,

we will deny the motion.

I. STATEMENT OF FACTS

The defendant initially hired Matchko as a driver on September 14,

2009. During Matchko’s career, the defendant promoted him on several

occasions with corresponding increases in pay. On May 10, 2013,

Matchko was promoted to District Manager, a position which did not

previously exist and which was created for him, at the rate of $14.00 per

hour. He held that position until December 2015, at which time he was

laid-off, at the age of 73. The parties dispute the reasons for the layoff.

Matchko contends that he was informed that he was being laid-off

because of lack of work, while the defendant contends that Matchko was

laid-off because he was not performing the duties and responsibilities of

his job and because business was slow. Despite Matchko’s layoff and the

defendant’s compound explanation for his layoff of slow business and

failure to perform, it advertised for applicants to fill the District Manager

position when Matchko was laid-off. (Doc. 38-4, at 57.) Nevertheless, it

was the defendant’s expressed intention to take him back if business

improved. (Doc. 38-3, at 10; Doc. 38-4, at 57.) Matchko contends that, in

a telephone conference on July 26, 2016, with Erwin Kost, Jr., he was

informed that his employment had been terminated. The defendant has

denied this allegation.

In support of its position that Matchko was not performing his

duties and responsibilities, the defendant produced testimony that

Matchko: (1) did not provide oversight or help with customer service; (2)

failed to assist regarding the amelioration of issues; (3) did not perform

well in helping with telephone calls at the store; (4) did not give employee

training; and (5) did not have a positive impact upon sales. Matchko

disputes these allegations.

Despite the defendant’s denials that it permanently terminated

Matchko’s employment, it did not bring him back after the layoff.

Further, the defendant ultimately replaced him with another individual

who was older than forty, but younger than Matchko.

In May 2016, Matchko applied for a position with the defendant for

an assistant store manager/service manager which was advertised in an

online advertisement. He was not hired for the position, nor did the

defendant respond to his job application.

On July 27, 2017, Matchko filed his complaint in this Court alleging

a violation of the ADEA for his termination and the failure to rehire him.

He filed an amended complaint on July 27, 2018, which included two

counts alleging ADEA violations and two counts alleging PHRA

violations. The defendant’s motion for summary judgment has been

briefed by the parties and it is ripe for disposition.

II. LEGAL STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary

judgment should be granted only if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the

outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A dispute of material fact is “genuine” only if the evidence “is such

that a reasonable jury could return a verdict for the non-moving party.”

Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all

inferences “should be drawn in the light most favorable to the non-

moving party, and where the non-moving party’s evidence contradicts the

movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell

Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

The party seeking summary judgment “bears the initial

responsibility of informing the district court of the basis for its motion,”

and demonstrating the absence of a genuine dispute of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes

such a showing, the non-movant must set forth specific facts, supported

by the record, demonstrating that “the evidence presents a sufficient

disagreement to require submission to the jury.” Anderson, 477 U.S. at

251–52. Thus, in evaluating a motion for summary judgment, the Court

must first determine if the moving party has made a prima facie showing

that it is entitled to summary judgment. See Fed. R. Civ. P. 56(a); Celotex,

477 U.S. at 331. Only once that prima facie showing has been made does

the burden shift to the nonmoving party to demonstrate the existence of

a genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Celotex, 477

U.S. at 331.

Both parties may cite to “particular parts of materials in the record,

including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for the

purposes of the motion only), admissions, interrogatory answers or other

materials.” Fed. R. Civ. P. 56(c)(1)(A). “An affidavit or declaration used

to support or oppose a motion must be made on personal knowledge, set

out facts that would be admissible in evidence, and show that the affiant

or declarant is competent to testify on the matters stated.” Fed. R. Civ.

P. 56(c)(4). “Although evidence may be considered in a form which is

inadmissible at trial, the content of the evidence must be capable of

admission at trial.” Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 599

(M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d

378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary

judgment, to consider evidence that is not admissible at trial).

III. DISCUSSION

We evaluate Matchko’s age discrimination claims using the burden-

shifting framework under McDonnell-Douglas v. Green, 411 U.S. 792

(1972). See Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 192-93 (3d Cir.

2015). We note that the state PHRA is generally interpreted as being

consistent with the ADEA. See Willis v. UPMC Children’s Hosp. of

Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015); Kelly v. Drexel, 94 F.3d 102,

105 (3d Cir. 1996).

The ADEA provides that it is unlawful for an employer “to fail or

refuse to hire or to discharge any individual or otherwise discriminate

against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s age.”

29 U.S.C. § 623(a)(1). The ADEA protects those who are at least forty

years old. 29 U.S.C. § 631(a); Thomas v. Pocono Mountain Sch. Dist., No.

10-1946, 2011 WL 2471532, at *3 (M.D. Pa. June 21, 2011). To establish

a prima facie case of age discrimination, a plaintiff must show 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 infer

an inference of age discrimination.” Monaco v. Am. Gen. Assurance Co.,

357 F.3d 296, 300 (3d Cir. 2004); see also Trelenberg v. 21st Century Ins.

& Fin. Serv., Inc., No. 12-3603, 2013 WL 3914468 (E.D. Pa. July 30,

2013). To establish a prima facie case at summary judgment, “the

evidence must be sufficient to convince a reasonable factfinder to find all

of the elements of [the] prima facie case.” Duffy v. Paper Magic Grp., 265

F.3d 163, 167 (3d Cir. 2001).

The defendant seeks summary judgment on these claims on the

basis that Matchko is unable to satisfy the second and fourth prongs,

namely that he was qualified for the position of District Manager and

that he was replaced by an employee sufficiently younger or that the

defendant retained someone similarly situated to perform the functions

of District Manager. Thus, prongs one and three are not in dispute, and

Matchko has satisfied these elements of his prima facie case.

a. Qualified for the Position

As to the second prong, the defendant argues that Matchko has not

demonstrated that he was qualified for the position of District Manager.

The defendant maintains that that a District Manager is expected to

ensure that stores were training employees in sales, ensure a more

consistent customer experience throughout stores, meet weekly sales

goals, increase sales and make the stores more profitable, and address

and correct issues in stores. (Doc. 39, at 16.) The defendant concedes

that Matchko travelled to different Kost stores and identified issues

therein, but the defendant contends that Matchko, despite direction to do

so, did not follow-up and correct the issues, nor did he use his authority

as District Manager to correct the issues. (Id.) Further, the defendant

argues that Matchko did not increase sales in stores which required Ken

Kielar to assume the duties of District Manager while Matchko was

transferred to a floating manager role, where he answered telephone

calls. (Id.) These are the facts the defendant relies upon in support of its

contention that Matchko was not qualified for the position of District

Manager.

The determination of whether an employee is qualified for a

particular job for purposes of proving a prima facie case is by an objective

standard. Sempier v. Johnson & Higgins, 45 F. 3d 724, 729 (3d Cir.

1995). “[W]hile objective job qualifications should be considered in

evaluating the plaintiff's prima facie case, the question of whether an

employee possesses a subjective quality, such as leadership or

management skill, is better left to” consideration of whether the

employer’s nondiscriminatory reason for discharge is pretext. Weldon v.

Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990). Matchko points us to his

objective qualifications, i.e. Matchko performed the job of District

Manager, a job created for him, for more than two years; as of the date of

his promotion, he had been a Kost employee for five years; and Kost’s

general manager, Ken Kielar, testified that Matchko was selected as

District Manager because of his experience and his past experience at

Motorworld, “where he ran several of the dealerships there.” (Doc. 44 ¶9;

Doc. 38-4, at 10:5-17; Doc. 45, at 8.) In considering the evidence in the

light most favorable to Matchko as the nonmoving party, as we must,

Matchko had the necessary objective experience to qualify for and hold

the position of District Manager for Kost. See Jalil v. Avdel Corp., 873

F.2d 701, 707 (3d Cir. 1989) (“[t]hus, [plaintiff's] satisfactory performance

of duties over a long period of time leading to a promotion clearly

established his qualifications for the job.”); Hugh v. Butler Cty. Family

YMCA, 418 F.3d 265, 268 (3d Cir. 2005) (one’s “satisfactory performance

of duties, leading to a promotion, does establish a plaintiff's qualification

for a job”). Thus, we find that Matchko has satisfied this prong of the

prima facie case.

b. Replacement by a Younger Worker

The defendant argues that Matchko, age 73, was not replaced as

District Manager by someone sufficiently younger, nor that an employee

similarly situated was retained to perform the duties of that position.

(Doc. 39, at 17.) Kost contends that the evidence submitted showed that

after he was laid-off, Matchko’s duties were distributed among Erwin

Kost, Jr. (age 42), Ken Kieler (age 50), Dan Getter (age 53), all of whom

were existing employees of the defendant, and Erwin Kost, Sr. (age 72),

the president of Kost. Mr. Getter eventually became Matchko’s

permanent replacement in 2017.

In its brief in support of its motion for summary judgment, the

defendant contends that Matchko’s layoff was due to a reduction-in-force

where there was no replacement, requiring Matchko to show that the

defendant retained someone similarly situated to him who was

sufficiently younger. (Doc. 39, at 14.) However, in its reply brief, the

defendant asserts that in addition to Matchko’s layoff because of a

reduction-in-force, his termination was due to his failure to perform his

duties and responsibilities. (Doc. 48, at 11.) The defendant never

provided Matchko with written notice of termination. (Doc. 17 ¶33; Doc.

21 ¶33.) In either event, the defendant does not clearly articulate

whether its motion should be analyzed as a reduction-in-force case or a

typical termination case.

Where there is a discharge, evidence that the plaintiff was

ultimately replaced by a person sufficiently younger may be sufficient to

support an inference of discrimination. Simpson v. Kay Jewelers, Div. of

Sterling, Inc., 142 F.3d 639, 644 n.5 (3d Cir. 1998). Where an employee

is terminated during a reduction-in-force, the fourth element becomes

“whether the employer retained employees not within the protected

class.” Smith v. Thomas Jefferson Univ., No. 05-2834, 2006 WL 1887984,

at *3 (E.D. Pa. June 29, 2006). “In a reduction-in-force case, the persons

outside the protected class are those employees who are “similarly

situated,” that is, they work in the same area in approximately the same

position. See Anderson v. Consol. Rail Corp., 297 F.3d 242, 249–50 (3d

Cir. 2002). “A work force reduction situation occurs when business

considerations cause an employer to eliminate one or more positions

within the company.” Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th

Cir. 1990)). A reduction-in-force typically involves the layoff of many

employees at once. Bearley v. Friendly Ice Cream Corp., 322 F. Supp. 2d

563, 575 (M.D. Pa. 2004). A person is not replaced “when another

employee is assigned to perform the plaintiff’s duties in addition to other

duties, or when the work is redistributed among other existing employees

already performing related work.” Id. (“A person is replaced only when

another employee is hired or reassigned to perform the plaintiff’s

duties.”) (quoting Barnes, 896 F.2d at 1465).

Here, to the extent that the defendant is defending this action on a

reduction-in-force theory, it is undisputed that there were eleven other

employees laid-off or terminated at the time of Matchko’s layoff,

including younger employees. (Doc. 38 ¶40; Doc. 44 ¶40.) Matchko

admits that the position of District Manager remained vacant until 2017

when Dan Getter, age 53, was hired for the position. (Doc. 38 ¶¶41, 43;

Doc. 44 ¶¶41, 43.) During the approximate two-year period where the

District Manager position was vacant, several employees/officers of the

defendant filled-in to perform those duties. (Doc. 38 ¶42; Doc. 44 ¶42.)

Even though Matchko’s “duties may have been redistributed to younger

employees, such redistribution of duties among current employees does

not, without more, constitute a ‘replacement’ of a former employee.”

Scalamogna v. Steel Valley Ambulance, No. 2:13-cv-545 2015 WL

1038141 at *4 (W.D. Pa. Mar. 10, 2015). Here, the facts are in dispute

whether Matchko was laid-off as part of a company reduction-in-force or

terminated for poor performance. The summary judgment evidence does

not foreclose that Matchko’s separation from employment was

pretextual.

To the extent that the defendant is defending this action based on

a discharge, our decision is informed by the Supreme Court’s unanimous

decision in O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,

311-12 (1996) where the Court reasoned:

As the very name “prima facie case” suggests,

there must be at least a logical connection between

each element of the prima facie case and the illegal

discrimination for which it establishes a “legally

mandatory, rebuttable presumption,” [] The

element of replacement by someone under 40 fails

this requirement. . . . The fact that one person in

the protected class has lost out to another person

in the protected class is thus irrelevant, so long as

he has lost out because of his age.

(citations omitted) (emphasis in original).

The defendant argues that, even assuming Matchko established a

prima facie case, he cannot rebut the defendant’s legitimate

nondiscriminatory reasons for its decision to terminate him, namely, that

Matchko did not perform his duties and responsibilities of his job. In

support of this reason, the defendant contends that Matchko, despite

direction to do so, did not follow-up and correct the issues identified in

stores, nor did he use his authority as District Manager to correct the

issues. Further, the defendant argues that Matchko did not increase

sales in stores which required Ken Kielar to assume the duties of District

Manager while Matchko was transferred to a floating manager role,

where he answered telephone calls. Matchko disputes that his position

was changed to floating manager, but rather he filled-in during periods

of staff shortages while maintaining his role as District Manager.

Matchko must point to some evidence “from which a factfinder

could reasonably either (1) disbelieve the employer’s articulated

legitimate reasons; or (2) believe that an invidious discriminatory reason

was more likely than not a ... determinative cause of the employer’s

action.” Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir. 2000); Brewer

v. Quaker State Oil Ref. Corp., 72 F.3d 326, 331 (3d Cir. 1995).

A plaintiff can establish the first prong by “demonstrat[ing] such

weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its

actions that a reasonable factfinder could rationally find them ‘unworthy

of credence.’ ” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994) (quoting

Ezold v. Wolf, Block, Schorr & Solis–Cohen, 983 F.2d 509, 531 (3d Cir.

1992)). Here, the summary judgment evidence demonstrates that

Matchko was never disciplined nor did he receive any negative

performance evaluations during his tenure as District Manager. On the

employer’s notice of application filed with the Commonwealth of

Pennsylvania, Bureau of Unemployment Compensation, the defendant

noted that Matchko’s separation from employment was due to “lack of

work.” (Doc. 44-5, at 2.) In addition, he did not receive any written notice

informing him that his employment was terminated. To the contrary, at

the time of his layoff, it was represented to him that he would be called

back when business improved. The defendant has failed to produce any

corroborating written evidence of admonishments to Matchko concerning

his alleged deficient work performance, despite testimony that some Kost

employees took notes of the dialogue at these meetings, claiming that

they were lost with the computer on which they were stored. The

defendant’s reasons for Matchko’s separation from employment have

been inconsistent.

To satisfy the second prong, the plaintiff must point to evidence

“that proves . . . discrimination in the same way that critical facts are

generally proved—based solely on the natural probative force of the

evidence.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1111 (3d

Cir. 1997). The plaintiff can establish the second prong by showing that

the employer in the past subjected him to unlawful discriminatory

treatment, that the employer treated other, similarly situated persons

not within his class more favorably, or that the employer discriminated

against other members of his protected class. Fuentes, 32 F.3d at 765.

Here, Matchko points to certain remarks that were made to him by

employees and officers of the defendant, based on which a reasonable

factfinder could find the reasons given for his layoff/termination are not

worthy of belief. For example, Matchko points to disparaging remarks

based on his age from the defendant’s employees. Matchko references a

comment made by Erwin Kost, Sr., asking why Matchko walked “bent

over” all the time. He also references comments made by Ken Keiler that

Matchko was getting “slower and slower” and he was “not an asset

anymore.”

In considering whether stray remarks, such as the comments made

by Kost, Sr. and Keiler, are probative of discrimination, the Third Circuit

has considered the following factors: “(1) the relationship of the speaker

to the employee and within the corporate hierarchy; (2) the temporal

proximity of the statement to the adverse employment decision; and (3)

the purpose and content of the statement.” Parker v. Verizon Pa., Inc.,

309 Fed. App’x 551, 558–559 (3d Cir. 2009) (quoting Ryder v.

Westinghouse Elec. Corp., 128 F.3d 128, 133 (3d Cir. 1997)); see also

Keller, 130 F.3d at 1112. “Stray remarks by non-decisionmakers or by

decisionmakers unrelated to the decision process are rarely given great

weight, particularly if they were made temporally remote from the date

of decision.” Fuentes, 32 F.3d at 767 (quoting Ezold, 983 F.2d at 545).

Here, the summary judgment evidence does not provide the temporal

proximity of the comments to the alleged adverse action, nor does the

evidence delineate the context within which the statements were made.

Despite this, we find that genuine issues of material fact exist which

compel the court to deny the defendant’s summary judgment motion.

An appropriate order follows.

s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

U.S. Magistrate Judge

Dated: March 29, 2021