Lescavage v. Correctional Institution Vocational Education Association, PSEA/NEA

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM J. LESCAVAGE, :

On behalf of himself and others

similarly situated, :

Plaintiffs : CIVIL ACTION NO. 3:19-278

v. : (JUDGE MANNION)

CORRECTIONAL INSTITUTION :

VOCATIONAL EDUCATION

ASSOCIATION, PSEA/DEA; :

CHARLES WALTERS; CAROLYN

FUNKHOUSER, :

Defendants :

MEMORANDUM

Pending before the court is the report of United States Magistrate

Judge Martin C. Carlson which recommends that the defendants’ motion for

summary judgment be granted. (Doc. 63). The plaintiff has filed objections

to the report. (Doc. 64). Defendants have filed a brief in support of the report

(Doc. 65) to which plaintiff has filed a reply (Doc. 66). Upon review of the

record, including the defendants’ motion for summary judgment and related

materials, Judge Carlson’s report and recommendation, and the plaintiff’s

objections and related materials, the plaintiff’s objections will be

OVERRULED, and the report and recommendation of Judge Carlson will be

ADOPTED IN ITS ENTIRETY as the decision of the court.

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. '636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.

2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, Asatisfy

itself that there is no clear error on the face of the record in order to accept

the recommendation.@ Fed. R. Civ. P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469

(M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.

1987) (explaining judges should give some review to every report and

recommendation)). Nevertheless, whether timely objections are made or not,

the district court may accept, not accept, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge. 28 U.S.C.

'636(b)(1); Local Rule 72.31.

The plaintiff brought the instant action setting forth claims pursuant to

the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §623, and

the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.C.S. §951, alleging

that the defendants discriminated against him and others similarly situated

based upon their age. Relatedly, the plaintiff sets forth a state law claim for

breach of the duty of fair representation. As to these claims, the plaintiff

alleges that the Correctional Institution Vocational Education Association

(“CIVEA”) discriminated when it negotiated a collective bargaining

agreement (“CBA”) that did not include an annual lump sum payment which

was included in a prior CBA. Rather, the new CBA gave annual step

increases to employees at lower steps and general pay raises to employees

like plaintiff who had reached the maximum step allowed by the pay

schedule. The plaintiff alleges that this ultimately led to him and others over

the age of forty (40), who were at the maximum step, receiving less of a pay

raise than those who were at lower steps and received a step increase.

The defendants filed a motion for summary judgment arguing, among

other things, that the CBA at issue was not negotiated based upon age, but

upon the desire of a majority of members to have annual step increases.

Moreover, defendants argue that, despite the plaintiff’s claims, a majority of

union members over forty (40) years of age actually benefitted from the CBA

at issue.

Having reviewed the undisputed facts of record as presented by the

parties, Judge Carlson determined that the plaintiff cannot establish a claim

under either the ADEA or the PHRA and that the defendants are entitled to

judgment as a matter of law as to those claims. Specifically, as to the

disparate treatment claim, Judge Carlson found that the plaintiff had not set

forth sufficient evidence to establish a prima facie case of age discrimination

because he had not demonstrated an inference of discrimination based on

age. Moreover, even if the plaintiff had established a prima facie case of age

discrimination, Judge Carlson concluded that the defendants proffered a

legitimate nondiscriminatory reason for removing the lump sum payments

from the CBA, i.e., obtaining step increases for a greater number of union

members rather than retaining lump sum payments for a smaller number of

members. Judge Carlson found that the plaintiff failed to set forth evidence

that the defendants’ proffered reason was pretext for age discrimination.

With respect to the disparate impact claim, Judge Carlson noted the

plaintiff’s burden was heavier than for his disparate treatment claim. Even

assuming plaintiff could set forth a prima facie claim, Judge Carlson

determined that the defendants have shown they relied on reasonable

factors other than age (“RFOA”) in making their decision to forego the lump

sum payments, those being increasing salary earnings for members who

were not at the top level of the pay schedule and providing annual step

increases to the majority of members who voted in favor of them.

Finally, in light of his recommendation that summary judgment be

entered in favor of the defendants on the ADEA and parallel PHRA claims,

Judge Carlson recommends that the court decline to exercise supplemental

jurisdiction over the ancillary state law fair representation claim.

The plaintiff takes issue with a number of Judge Carlson’s findings

having set forth eight pages of “deficiencies and errors” in his objections.

Substantively, however, the plaintiff has briefed four arguments mainly

related to his disparate impact claim. Initially, the plaintiff argues that Judge

Carlson misinterprets and misapplies the “bottom line” defense rejected by

the Third Circuit in Karlo v. Pittsburgh Glass Works, 849 F.3d 61 (3d Cir.

2017), and that he disregarded the Third Circuit’s recognition that disparate

impact claims of a sub-group of protected persons are cognizable. The

plaintiff argues that the sub-group of fifty-nine (59) bargaining unit members

aged forty (40) and over to which he belongs has been adversely affected

by the elimination of the one-time cash payment. Given Karlo, the plaintiff

argues that it is irrelevant that the majority of the entire pool of CIVEA

members who benefited from the elimination of the annual lump sum were

also over forty (40).

Relatedly, the plaintiff argues that Judge Carlson failed to apply the

correct standard and legal test for the RFOA defense under the ADEA. Here,

the plaintiff argues that the report incorrectly concluded that the most

important issue for the majority of the bargaining unit members was annual

increases in step movement. In so arguing, the plaintiff provides that Judge

Carlson relied upon the results of a 2014 CIVEA survey of bargaining unit

members to find that they wanted annual step increases and that the

defendants merely accommodated that want in eliminating the annual one-

time lump sum payment for fifty-nine (59) members all over age forty (40).

The plaintiff argues that the record belies any notion that a majority of the

bargaining unit prioritized step movements when only 12% of the unit

responded to the survey, and of that 12%, only twenty-four (24) of the forty-

four (44) survey respondents noted step movement as a priority. The plaintiff

argues that twenty-four (24) out of 359 members does not justify any

assertion that a majority of the bargaining unit viewed step movement as a

priority.

In this same vein, the plaintiff argues that Judge Carlson erred in failing

to conclude that the defendants did not meet their burden of proof for their

RFOA defense. Citing to Meacham v. Knolls Atomic Power Lab., 554 U.S.

84 (2008), the plaintiff argues that when a plaintiff isolates and identifies a

specific employment practice that is alleged to cause a significant disparate

impact on older workers, the employer must prove, not just articulate, the

reasonableness of a non-age factor.

In considering these objections, the court has reviewed Judge

Carlson’s report as it pertains to the plaintiff’s disparate impact claim and

agrees with the standard relied upon, as well as his analysis of the claim and

his conclusion that summary judgment should be granted in favor of the

defendants. In coming to that conclusion, Judge Carlson recognized and

adhered to the Third Circuit’s opinion in Karlo. Citing to Karlo, Judge Carlson

noted the heavy burden a plaintiff bears in establishing a disparate impact

prima facie case. Looking at the facts of this particular case, Judge Carlson

found that, even assuming the plaintiff had met his prima facie burden, as

per Karlo, the defendants may and did, in fact, show that the challenged

practice, i.e., the elimination of the annual lump sum, was based on a

reasonable factor other than age (“RFOA defense”). As discussed by Judge

Carlson, the defendants provided that “the negotiations for the [collective

bargaining agreement] were driven by the intent to increase salary earnings

of the members who were not at the top level of the pay schedule, and to

overall achieve the stated goal of many members, which was annual step

increases.” Further, it was to allow for quicker step movement of lower-step

employees. Citing to the Supreme Court case of Smith v. City of Jackson,

Miss., 544 U.S. 228 (2005), and the case of Governor v. Mifflin School

District, 623 F.Supp. 734 (E.D.Pa. 1985), which had a very similar factual

background to the case at hand, Judge Carlson found that the defendants

had shown that they relied on a RFOA in eliminating the annual one-time

payment so as to defeat the plaintiff’s claim of disparate impact under the

ADEA. The court agrees with Judge Carlson’s report on this basis and the

plaintiff’s objections in this regard will be overruled.

The plaintiff next argues that the report fails to apply the correct

standard for determining causation under the ADEA. Here, the plaintiff

argues that Judge Carlson erroneously found that “the evidence must be a

sufficient basis for a reasonable jury to conclude that age was the

determinative, but-for cause of the [adverse employment action].” (Doc. 63,

p. 13). The plaintiff argues that, at summary judgment, a plaintiff need not

meet the ”but-for” evidentiary burden, but simply meet the Perskie1 standard

1 Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994).

of evidence of pretext. Citing to Burrage v. United States, 571 U.S. 204

(2014), the plaintiff argues that he need not show age was “the” but-for cause

of the adverse action. Rather, he need only show that age was “a” but-for

cause given that there can be more than one “but-for” cause.

Initially, courts have been inconsistent as to whether “but-for” cause

means a sole cause. See DiBenedetto v. AT&T Servcs., Inc., 2022 WL

1682420, *4 fn.5 (N.D.Ga. 2022) (comparing cases). The plaintiff here relies

on Burrage which addresses “but-for” causation in relation to the Controlled

Substances Act and did not involve an ADEA claim. See Burrage, 571 U.S.

at 210. In the ADEA context, the Third Circuit has suggested that “but-for”

causation requires a single cause. See Gross v. FBL Fin. Servs., Inc., 557

U.S. 167, 176 (2009). Regardless, however, the plaintiff hasn’t shown that

age was either “the” but-for cause or “a” but-for cause. In fact, as the record

demonstrates, it was the plaintiff’s seniority or placement on the salary

schedule which led to the loss of the lump sum payment, not his age.

Finally, citing to Reeves v. Sanderson Plumbing Product, Inc., 530 U.S.

133 (2000), the plaintiff argues that the report fails to correctly apply the

pretext prong of the McDonnell Douglas burden-shifting framework. In this

regard, the plaintiff argues that, at the pretext stage, his burden is only one

of production, not of persuasion and involves no credibility assessment. The

plaintiff argues he can meet his burden by discrediting the proffered reasons,

either circumstantially or directly, or adducing evidence, whether

circumstantial or direct, that discrimination was more likely than not a

motivating or determinative cause of the adverse employment action.

The plaintiff argues that under the first factor, he expressly set forth at

least four indicia of pretext, but that Judge Carlson failed to rely on his

evidence in rejecting these indicia of pretext. Further, the plaintiff argues that

contrary to Judge Carlson’s conclusion, there is sufficient evidence at this

stage of the proceedings from which a jury might reasonably conclude that

the defendants did not eliminate the lump sum out of the benign intentions

they have proclaimed and are cited by Judge Carlson.

In considering this final contention, the court agrees with Judge

Carlson’s assessment that the plaintiff has failed to make it past the prima

facie case, such that discussion of pretext is unnecessary. In any event, the

court has reviewed the report in relation to the pretext analysis and agrees

with Judge Carlson’s assessment. As such, the court will overrule the

plaintiff’s objections on this basis.

Considering the foregoing, an appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: March 13, 2024

19-278-02