# PORTER v. DRAFTO CORPORATION

> District Court, W.D. Pennsylvania · November 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10417137

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** November 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10417137

## How later opinions describe it (automated extraction)

- reaffirming the application of a “slightly modified version of [McDonnell Douglas] in ADEA cases”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RICK PORTER, )
)
) 1:20-CV-00238-CCW
Plaintiff, )
)
v. )
)
)
DRAFTO CORPORATION,
)
)
)
Defendant.

MEMORANDUM OPINION
Before the Court is Defendant Drafto Corporation’s Motion for Summary Judgment. See
ECF No. 21. For the reasons that follow, Drafto’s Motion will be GRANTED.
I. Background
A. Procedural History
Plaintiff Rick Porter filed his Complaint on August 17, 2020. See ECF No. 1. In his
Complaint, Mr. Porter claims he was subjected to a hostile work environment on account of his
age, in violation of the Age Discrimination in Employment Act (ADEA) (Count I) and the
Pennsylvania Human Relations Act (Count II), and was discriminated against on the basis of age
when Drafto fired him in 2019, in violation of the ADEA (Count III) and the PHRA (Count IV).
See generally id.
Drafto filed an Answer, see ECF No. 7, and the parties proceeded into discovery. The
discovery period closed on April 30, 2021 and the Court set deadlines for filing and briefing
motions for summary judgment. See ECF Nos. 17, 20. Drafto then filed its Motion for Summary
Judgment. See ECF No. 21. In his Opposition to Drafto’s Motion, Mr. Porter withdrew his hostile
work environment claims (Counts I and II). See ECF No. 27 at 1 (“Now that discovery is complete,
Plaintiff withdraws his claims of age based hostile environment”). As such, only Mr. Porter’s
claims for age discrimination, Counts III and IV, remain. Drafto’s Motion has been fully briefed
and is ripe for disposition.
B. Relevant Material Facts
The following facts drawn from the parties’ concise statements of material fact and
responses thereto1 are undisputed, unless noted otherwise:

Drafto manufactures material handling equipment associated with overhead cranes for
industrial and commercial applications. See ECF No. 23 ¶ 9; ECF No. 29 ¶ 9. Mr. Porter began
working at Drafto in May 2006, and was assigned to the position of shop foreman of the fabrication
shop. See ECF No. 23 ¶ 19; ECF No. 29 ¶ 19. Mr. Porter was 54 years old when Drafto hired
him. See ECF No. 23 ¶ 21; ECF No. 29 ¶ 21. The duties of the shop foreman include scheduling
jobs and ordering supplies and material; managing and supervising a team of four to six
employees; and transporting product and materials between the fabrication shop and machine shop
using Drafto’s company truck. See ECF No. 23 ¶ 22; ECF No. 29 ¶ 22. Mr. Porter and Drafto
agree that the shop foreman is a management position. See ECF No. 23 ¶ 23; ECF No. 29 ¶ 23.

Mr. Porter was informed more than once by his supervisor, Mr. Bruce Wesley, that as a supervisor
he would be held to a higher standard than non-supervisory employees. See ECF No. 23 ¶ ¶¶ 24,
26–27; ECF No. 29 ¶¶ 24, 26–27. Mr. Porter had a lengthy disciplinary record at Drafto, which
Drafto contends ultimately caused Drafto to terminate Mr. Porter’s employment a few days after
an altercation with another employee on August 1, 2019. See ECF No. 23 ¶¶ 81–84; ECF No. 29
¶¶ 81–84.

1 See ECF Nos. 23 (Drafto’s Concise Statement of Material Facts), 29 (Mr. Porter’s Response to Drafto’s Concise
Statement of Material Facts), 30 (Mr. Porter’s Statement of Additional Material Facts), and 32 (Drafto’s Response to
Mr. Porter’s Statement of Additional Material Facts).
While the parties disagree about the precise facts surrounding the disciplinary incidents
Drafto documented regarding Mr. Porter, there does not appear to be any meaningful dispute that
these incidents occurred. These incidents are as follows:
Date Description of Incident
July 2010 Drafto disciplined Mr. Porter for using the company vehicle to run personal
errands. ECF No. 23 ¶ 42. Mr. Porter does not dispute that he used the
company truck for personal reasons but argues that he did so in the context
of being out on company business in the first place and that he limited his
personal use of the vehicle (buying lunch) to his allotted lunch hour. ECF
No. 29 ¶ 42.

August 2010 Drafto disciplined Mr. Porter for yelling and swearing at employees under
his supervision. ECF No. 23 ¶ 45. In the disciplinary note describing this
incident, Mr. Porter’s supervisor Mr. Wesley also describes an incident in
which Mr. Porter “hung up” on him twice, and then, when Mr. Wesley
confronted him about this inappropriate behavior, attempted to damage
company equipment. See ECF No. 24-4 at 74. Mr. Porter does not dispute
that he yelled and swore at his subordinates, or that he hung up on Mr.
Wesley, but does dispute that he attempted to damage company equipment.
ECF No. 29 ¶ 45. Mr. Porter maintains that, after the conversation with Mr.
Wesley, he simply drove away. Id.

June 2014 Drafto disciplined Mr. Porter for his “hostile attitude” and for “poorly
treating employees under his supervision.” ECF No. 23 ¶ 47. In the record
of this disciplinary action, Mr. Wesley noted this was the “sixth or eighth”
occasion on which he had spoken to Mr. Porter on this subject. Id. ¶ 48. Mr.
Porter concedes that “there were a few times that he screamed back at
employees who were screaming at him,” but maintains that “the complaints
employees brought to Wesley were not a true accounting of the actual
events” and that “Wesley … always accepted the employees’ version of
events as true and rejected Plaintiff’s.” ECF No. 29 ¶ 47.

August 2016 Drafto disciplined Mr. Porter for “talking down to employees under his
supervision and complaining in front of hourly employees about his disputes
and problems with other employees under his supervision.” ECF No. 23 ¶
51. Drafto further notes that “[a]t this time Porter also improperly used two
pieces of Drafto equipment, causing damage to both.” Id. Mr. Porter admits
that “Wesley discussed with Plaintiff that he was not to talk about any
employee to other employees.” ECF No. 29 ¶ 51. Mr. Porter denies causing
damage to company equipment, but appears to concede that he (like “all
[other] employees”) used the “big hyster”2 improperly (by “put[ting] chunks
of steel on the back…when they needed it to pick up more than it [was]
designed to lift”) and that some old chains had broken when he was using
the “little hyster” to “lift[] the edge of the scrap hopper…after it was
emptied.” Id.

Fall 2016 Drafto disciplined Mr. Porter for “lack of professionalism” when he
disclosed the salaries of employees working for him. ECF No. 23 ¶ 56. Mr.
Porter does not dispute that salary information was disclosed to his
subordinates, but contends that he did not disclose the information. ECF
No. 29 ¶ 56. Rather, Mr. Porter maintains that another employee saw a paper
listing employees’ salaries that Mr. Porter had left out on his desk, and that
this employee disclosed the salary information. Id.

April 2017 Drafto disciplined Mr. Porter for “preparing materials incorrectly on two
occasions, resulting in approximately $10,000 in additional costs to Drafto
to rework the materials.” ECF No. 23 ¶ 58. Mr. Porter does not dispute that
the incidents in question occurred; rather, he contends neither incident was
his fault. ECF No. 29 ¶ 58. For the first incident, Mr. Porter contends that
Drafto did not have equipment capable of performing the job properly at the
time; with regard to the second incident, Mr. Porter blames the error on
incorrect instructions from the engineering department and faulty drawings
from the customer. Id.

May 2017 Drafto disciplined Mr. Porter “for his poor attitude and for causing turmoil
with other Drafto employees.” ECF No. 23 ¶ 59. Mr. Porter does not
meaningfully dispute this alleged incident. ECF No. 29 ¶ 59. Indeed, Mr.
Porter admits having had a conversation with Mr. Wesley about his behavior
towards other employees around this time. ECF No. 23 ¶ 63; ECF No. 29
¶ 63.

August 2018 Drafto disciplined Mr. Porter for “initiating an altercation” with another
employee, in which Mr. Porter swore at the employee and the employee
yelled back at Mr. Porter. ECF No. 23 ¶ 64. Mr. Porter does not dispute
that the incident in question occurred, but maintains that he said “‘Get out
of my way,’ in a joking manner,” and that the other employee responded by
yelling and swearing at Mr. Porter. ECF No. 29 ¶ 64. Mr. Porter claims that
“[the employee’s] version of events were placed in the disciplinary notes”;
however, it appears to the Court that both Mr. Porter’s and the employee’s
version of events are recorded in the disciplinary note in Mr. Porter’s file.
Id. ¶ 64; see ECF No. 24-4 at 89–90. Furthermore, Mr. Wesley appears to
have drafted a separate note regarding the incident for the other employee’s

2 It is unclear to the Court exactly what pieces of equipment Mr. Porter is referring to when he mentions the “big
hyster” and the “little hyster.” That said, the Court notes that Hyster Company is a U.S. manufacturer of forklifts
and other materials handling equipment. See https://www.hyster.com/en-us/north-america/. In any event, the
precise type of equipment is not relevant to the Court’s decision on the present Motion.
file. See ECF No. 24-11 at 3 (note reflecting that employee was told his
behavior was inappropriate).

January 2019 Drafto disciplined Mr. Porter “for an altercation with maintenance man
[Mike] Pomponio about ordering lights for a Drafto vehicle.” ECF No. 23
¶ 68. Mr. Porter allegedly cursed at Mr. Pomponio. Id. Mr. Porter does not
dispute that this incident occurred, but claims that “[a]s he was walking
away, Plaintiff said, ‘Fuck it. I’ll deal with it.’ He did not say ‘fuck you’ to
Pomponio.” ECF No. 29 ¶ 68.

August 1, 2019 Drafto disciplined Mr. Porter for “a confrontation between Porter and Dan
Kantz [who held the non-management position of “assembler,” ECF No. 23
¶ 135; ECF No. 29 ¶ 135] where Porter and Kantz shouted profanities at
each other and escalated nearly to the point of blows between the two men.”
ECF No. 23 ¶ 73. Mr. Porter admits that this confrontation occurred, but
disputes that the altercation almost came to blows “between” the two men.
ECF No. 29 ¶ 73. Mr. Porter maintains that Mr. Kantz “raised his fists and
came toward Plaintiff, ready to swing. Plaintiff did not raise his fists.” Id.

In addition to the above-listed incidents, Mr. Wesley and other Drafto employees also testified that
Mr. Porter was the subject of numerous complaints and reports related to Mr. Porter’s conduct and
treatment of other employees. See ECF No. 23 ¶¶ 30–40; ECF No. 29 ¶¶ 30–40.3 Indeed, Mr.
Wesley said that Mr. Porter had “exponentially” more disciplinary incidents than any other
employee. ECF No. 23 ¶ 72; ECF No. 29 ¶ 72. Mr. Porter maintains generally that while he “did,
on occasion, respond to antagonizing conduct directed at him, he did not initiate antagonizing
conduct.” ECF No. 29 ¶ 29. Furthermore, Mr. Porter contends that his disciplinary record was, at
least in part, the result of a “personal vendetta” dating to at least 2012 that Mr. Wesley had against
him. ECF No. 23 ¶¶ 44, 97; ECF No. 29 ¶¶ 44, 97. Indeed, Mr. Porter “agreed that these behaviors

3 Mr. Porter generally concedes that Drafto accurately represents the testimony given by Mr. Wesley and the other
employees about Mr. Porter’s allegedly “rude” and “inappropriate” behavior. See ECF No. 29 ¶¶ 30–40. Mr. Porter
contends, rather, that (1) he did not instigate altercations with other employees (“Plaintiff testified that while he did,
on occasion, respond to antagonizing conduct directed at him, he did not initiate antagonizing conduct”); (2) only
two specific employees from the machine shop complained about Mr. Porter to their supervisor, Jim Peters; and (3)
Willard Dolan in fact testified that Mr. Porter was the antagonist only “[m]ost of the time” (rather than all of the
time, as implied by Drafto) and that “what he witnessed was Porter and the other individuals ‘hollering at each
other.’” Id. at ¶¶ 33, 35, and 40.
[i.e., Mr. Wesley’s alleged antagonisms towards Mr. Porter] dated well prior to any discussions
regarding retirement, or any insinuation regarding his age.” ECF No. 23 ¶ 99; ECF No. 29 ¶ 99.
In August 2016, after Mr. Wesley broached the subject, Mr. Porter informed Mr. Wesley
that Mr. Porter would be retiring in July 2017, when he would be 65 years old. ECF No. 23 ¶ 86;
ECF No. 29 ¶ 86. Mr. Porter testified that he believed Mr. Wesley was “pressuring” him to retire,

because Mr. Wesley inquired about his retirement plans on at least two to three other occasions.
ECF No. 23 ¶ 87; ECF No. 29 ¶ 87. On May 2, 2017, Mr. Wesley again asked Mr. Porter about
his retirement plans, “and [offered] him a part-time position driving the company truck.” ECF No.
23 ¶ 90; ECF No. 29 ¶ 90.4 On May 3, 2017, Mr. Porter provided a letter to Mr. Wesley “indicating
his intention to continue working until his seventieth birthday on October 2, 2021.” ECF No. 23
¶ 95; ECF No. 29 ¶ 95. The May 2017 disciplinary incident happened around this time, after
which, Mr. Wesley informed Mr. Porter that (1) Mr. Wesley had intended to fire Mr. Porter in
2016 for disciplinary reasons but did not because of Mr. Porter’s stated intention of retiring in
2017 and (2) “that since Porter had decided to continue working, he must clearly understand that

he could no longer cause problems with other Drafto employees.” ECF No. 23 ¶ 62–63; ECF No.
29 ¶ 62–63.
Neither party identifies that any other discussion regarding Mr. Porter’s retirement
occurred prior to his termination on August 5, 2019. Mr. Porter, born in 1951, was about 68 years
old when he was fired. See ECF No. 23 ¶ 18; ECF No. 29 ¶ 18. Since Mr. Porter’s termination,
Drafto has not hired or promoted anyone to Mr. Porter’s former position as fabrication shop
foreman. ECF No. 23 ¶ 137; ECF No. 29 ¶ 137. However, Drafto has distributed Mr. Porter’s
former duties to three other employees. ECF No. 23 ¶ 138; ECF No. 29 ¶ 138. First, Mr. Porter’s

4 The record here reflects that two other Drafto employees, after retiring from full-time work, returned to work for
Drafto in a part-time capacity. See ECF No. 23 ¶¶ 148–155; ECF No. 29 ¶¶ 148–155.
truck driving duties (which require the driver to have a CDL) have been filled by Mr. Pomponio.
ECF No. 23 ¶ 139; ECF No. 29 ¶ 139. Mr. Pomponio, born in 1965, is about 14 years younger
than Mr. Porter. ECF No. 23 ¶ 140; ECF No. 29 ¶ 140. Supervision of day-to-day activities in
the fabrication shop has been given to Eric Pedley, who, in addition to his role as a welder, was
promoted to “team leader” in October of 2020. ECF No. 23 ¶ 141–142; ECF No. 29 ¶ 141–142.

Mr. Pedley, born in 1963, is about 12 years younger than Mr. Porter. ECF No. 23 ¶ 143; ECF No.
29 ¶ 143. Finally, Tyler Huth, an engineering supervisor, has taken on helping “to set schedules,
attend meetings, and relay information back and forth between the fabrication sh[o]p, machine
shop, and main office.” ECF No. 23 ¶ 144; ECF No. 29 ¶ 144. Mr. Huth, born in 1987, is about
36 years younger than Mr. Porter. ECF No. 23 ¶ 147; ECF No. 29 ¶ 147.
II. Standard of Review
To prevail on a motion for summary judgment, the moving party must establish that “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 factual dispute is ‘genuine’ if the ‘evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’” Razak v. Uber Techs., Inc., 951
F.3d 137, 144 (3d Cir. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“A factual dispute is ‘material’ if it ‘might affect the outcome of the suit under the governing law.’”
Id. (quoting Anderson, 477 U.S. at 248). “Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” NAACP
v. N. Hudson Reg’l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The burden to establish that there is no genuine dispute as to any material fact “remains
with ‘the moving party regardless of which party would have the burden of persuasion at trial.’”
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996) (quoting Chipollini v.
Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987)). Furthermore, “[i]f the non-moving party
bears the burden of persuasion at trial, ‘the moving party may meet its burden on summary
judgment by showing that the nonmoving party’s evidence is insufficient to carry that burden.’”
Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (quoting Wetzel v. Tucker, 139 F.3d

380, 383 n.2 (3d Cir. 1998)).
Once the moving party has carried its initial burden, the party opposing summary judgment
“must do more than simply show that there is some metaphysical doubt as to the material
facts…Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 586–87. Thus,
while “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be
drawn in his favor,” Anderson, 477 U.S. at 255, “Rule 56(e) . . . requires the nonmoving party to
go beyond the pleadings” and point to “‘specific facts showing that there is a genuine issue for
trial.’” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (citation omitted). But, while the court

must “view the facts in the light most favorable to the non-moving party and draw all reasonable
inferences in that party’s favor . . . to prevail on a motion for summary judgment, the non-moving
party must present more than a mere scintilla of evidence; there must be evidence on which the
jury could reasonably find for the [non-movant].” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d
Cir. 2013) (internal citations omitted).
III. Discussion
As noted above, Mr. Porter has two remaining claims: discrimination on the basis of age
in violation of (1) the ADEA (Count III) and (2) the PHRA (Count IV). Drafto has moved for
summary judgment in its favor on both counts. Because the United States Court of Appeals for
the Third Circuit “has determined that the interpretation of the PHRA is identical to that of federal

anti-discrimination laws, including the ADEA,” the Court will address the claims together. Willis
v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing Connors v.
Chrysler Fin. Corp., 160 F.3d 971, 972 (3d Cir. 1998) (“There is no need to differentiate between
. . . ADEA and PHRA claims because . . . the same analysis is used for both.”)).
A. Legal Framework
“The ADEA prohibits employers from ‘discharg[ing] any individual or otherwise
discriminat[ing] against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.’” Willis, 808 F.3d at 643–44 (quoting
29 U.S.C. § 623(a)(1)). A plaintiff in an ADEA case must establish, by a preponderance of the
evidence, that age was the “but-for” cause of the complained-of adverse employment action. See
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009). To prove such claims, a plaintiff

may rely on either direct or circumstantial evidence of discrimination. Where, as here, a plaintiff
relies on circumstantial evidence, courts apply the familiar McDonnell Douglas burden-shifting
framework. See Willis, 808 F.3d at 644 (citing Keller v. Orix Credit All., Inc., 130 F.3d 1101,
1108 (3d Cir. 1997) (reaffirming the application of a “slightly modified version of [McDonnell
Douglas] in ADEA cases”)); see also, ECF No. 28 at 2 (acknowledging that “plaintiff is relying
on circumstantial evidence to prove discrimination”).
Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case
of discrimination by pointing to evidence supporting the following elements: (1) the plaintiff is at
least forty years old; (2) the plaintiff was qualified for the position in question; (3) the plaintiff
suffered an adverse employment action; and (4) the plaintiff was ultimately replaced by someone
sufficiently younger so as to support an inference of discrimination. See Willis, 808 F.3d at 644
(citing Burton, 707 F.3d at 426). “Where the plaintiff is not directly replaced, the fourth element
is satisfied if the plaintiff can provide facts which ‘if otherwise unexplained, are more likely than

not based on the consideration of impermissible factors.’” Willis, 808 F.3d at 644 (citing Pivirotto
v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)).
Producing evidence sufficient to satisfy the elements of a prima facie case creates an
“inference of unlawful discrimination,” Pivirotto, 191 F.3d at 357, which an employer must then
rebut at the next step of the McDonnell Douglas analysis by “articulat[ing] a legitimate
nondiscriminatory reason for the adverse employment action.” Jones v. Sch. Dist. of Phila., 198
F.3d 403, 412 (3d Cir. 1999) (citing Keller, 130 F.3d at 1108). To meet its burden, “the employer
must provide evidence that will allow the factfinder to determine that the decision was made for
nondiscriminatory reasons.” Willis, 808 F.3d at 644 (citing Fuentes v. Perskie, 32 F.3d 759, 763

(3d Cir. 1994)).
If the employer meets its burden at the second step, “[t]he third step in the McDonnell
Douglas analysis shifts the burden of production back to the plaintiff to provide evidence from
which a factfinder could reasonably infer that the employer's proffered justification is merely a
pretext for discrimination.” Burton, 707 F.3d at 426–27 (citing Fuentes, 32 F.3d at 764–65). To
make this showing of pretext and defeat summary judgment, a plaintiff must point to evidence that
would allow a factfinder to reasonably either: “‘(1) disbelieve the employer’s articulated
legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not
a motivating or determinative cause of the employer's action.’” Id. at 427 (quoting Fuentes, 32
F.3d at 764).
B. Mr. Porter has established a prima facie case of age discrimination
Drafto concedes that Mr. Porter can establish the first three elements of a prima facie case
of age discrimination. ECF No. 22 at 11. However, Drafto contends that Mr. Porter cannot

establish the fourth and final prong—that Mr. Porter can point to evidence (such as Drafto
replacing him with a younger employee) sufficient to support an inference of discrimination. Mr.
Porter responds that, following his termination, Drafto reassigned his duties to three other
employees, all younger than Mr. Porter. Mr. Porter also asserts that courts have found similar fact
patterns to be sufficient for purposes of establishing a prima face case of discrimination.
To satisfy the fourth element of his prima facie case of age-based discrimination—which
the Supreme Court has said “is not onerous,” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981)—Mr. Porter must make “some showing of disparate and age-based treatment, either
through more favorable treatment of younger workers, or by some other means.” Chase v. Frontier

Commc’ns. Corp., 361 F.Supp. 3d 423, 436 (M.D. Pa. 2019). Viewing the facts in the light most
favorable to Mr. Porter, the Court concludes that he has met his burden on the fourth prong of the
prima facie case. Specifically, Mr. Porter points out that after he was terminated, Drafto
distributed his duties to three employees, who are 12, 14, and 36 years younger than Mr. Porter.
Under Third Circuit precedent, this is sufficient to establish the fourth and final piece of a prima
facie case of age discrimination. See Pivirotto, 191 F.3d at 356–57 (noting that “a discharged age-
discrimination plaintiff who presented evidence that a younger employee assumed his
responsibilities when his employer decided not to replace him had met his prima facie burden.”)
(citing Torre v. Casio, Inc., 42 F.3d 825, 831 (3d Cir. 1994)).
C. Drafto has put forth a legitimate, non-discriminatory reason for terminating
Mr. Porter’s employment

Drafto has met its burden of production at step two of the McDonnell Douglas analysis by
coming forward with evidence supporting its proffered legitimate, non-discriminatory reason for
terminating Mr. Porter’s employment. “This burden is ‘relatively light’ and is satisfied if the
employer provides evidence, which, if true, would permit a conclusion that it took the adverse
employment action for a non-discriminatory reason.” Burton, 707 F.3d at 426 (quoting Tomasso
v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006)).
Here, Drafto contends that it fired Mr. Porter because of his long history of disciplinary
problems, which ultimately culminated in the August 1, 2019 altercation between Mr. Porter and
Mr. Kantz. This is sufficient for Drafto to meet its burden at the second step of the McDonnell
Douglas analysis.

D. Mr. Porter has not pointed to evidence from which a reasonable factfinder
could conclude that Drafto’s proffered reason for terminating his employment
was pretextual

Finally, at the last step of the McDonnell Douglas analysis, Mr. Porter must present
evidence that would either (1) allow a factfinder to disbelieve Drafto’s proffered legitimate
nondiscriminatory reason for taking adverse action or (2) allow a fact finder to believe that
unlawful discrimination was more likely than not the reason for the employer’s action. See Willis,
808 F.3d at 644–45.
To meet his burden under the first method, a plaintiff’s evidence “‘must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could rationally find them
“unworthy of credence.”’” Burton, 707 F.3d at 427 (quoting Fuentes, 32 F.3d at 765). Thus, “[t]o
discredit the employer’s proffered reason, however, the plaintiff cannot simply show that the
employer’s decision was wrong or mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent,
or competent.” Fuentes, 32 F.3d at 765. The second method of proving pretext, on the other hand,
requires a plaintiff “to point to evidence that would allow a factfinder to believe that an invidious

discriminatory reason was ‘more likely than not a motivating or determinative cause’ of the
employer’s action.” Willis, 808 F.3d at 645. This evidence should have “‘sufficient probative
force’ so as to allow the factfinder to ‘conclude by a preponderance of the evidence that age was
a motivating or determinative factor.’” Id. (quoting Simpson v. Kay Jewelers, 142 F.3d 639, 644–
45 (3d Cir. 1998)). Here, Mr. Porter cannot make either showing.
In short, Mr. Porter has presented no evidence—aside from his subjective belief that Mr.
Wesley’s alleged “vendetta was because Wesley wanted rid of Plaintiff because of Plaintiff’s age,”
ECF No. 29 ¶ 98—to overcome Drafto’s proffered legitimate reason. This is insufficient to survive
summary judgment. See Ekhato v. Rite Aid Corp., 529 Fed. App’x. 152, 156 (3d Cir. 2013)

(“[Plaintiff’s] subjective belief that the decision to terminate her employment was discriminatory
is insufficient” to show pretext) (citing Jones v. Sch. Dist. of Phila., 198 F.3d 403, 414 (3d Cir.
1999)). Even viewing the facts in the light most favorable to Mr. Porter, as we must, he merely
disputes immaterial details of the various disciplinary incidents recorded by Mr. Wesley—e.g. who
actually instigated an incident, whether he said “fuck it” or “fuck you”—while also (1) tacitly
conceding that those incidents occurred and (2) agreeing that, as a manager, he understood that he
would be held to a higher standard of conduct than the employees he supervised. See, e.g., ECF
No. 29 ¶¶ 64, 68. This falls well short of demonstrating either the weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions necessary for a rational factfinder to conclude
Drafto’s proffered legitimate reason is unworthy of credence or that discriminatory animus was
more likely than not the real motivation behind Drafto’s decision to fire Mr. Porter. See Burton,
707 F.3d at 427; Willis, 808 F.3d at 644–45.
Accordingly, because Mr. Porter has not pointed to evidence sufficient to raise a genuine
question of fact on the issue of pretext, Drafto’s Motion will be granted.

IV. Conclusion
For the foregoing reasons, Defendant Drafto Corporation’s Motion for Summary
Judgment will be granted.

DATED this 23rd day of November, 2021.

BY THE COURT:

/s/ Christy Criswell Wiegand
CHRISTY CRISWELL WIEGAND
United States District Judge

cc (via ECF email notification):
All Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10417137. Public record. Not legal advice.