The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FRANCIS E. ZYSK, CIVIL ACTION
Plaintiff,
v.
NO. 23-144
THERM-OMEGA-TECH, INC.,
Defendant.
MEMORANDUM
Francis E. Zysk (“Plaintiff”) filed a complaint against his employer, Therm-Omega-Tech,
Inc. (“Defendant”), asserting claims of age discrimination under the Age Discrimination in
Employment Act (“ADEA”). (See generally ECF No. 1.) Before the Court is Defendant’s Motion
for Summary Judgment (ECF No. 38.) Plaintiff opposes the Motion. (ECF No. 40.) For the reasons
set forth below, the Court denies Defendant’s Motion.
I. BACKGROUND1
Plaintiff was Defendant’s financial controller between January 4, 2021, and September 6,
2022. Plaintiff, at the time of his hiring was sixty-one (61) years old. Plaintiff’s responsibilities as
a financial controller included the oversight of “all financial and accounting related functions.”
(ECF No. 38-4 at 39.)
On or around July 20, 2022, Plaintiff informed the executive committee that he would be
taking vacation between August 22, 2022, and September 5, 2022. (ECF No. 38-4 at 35.) The week
of July 27, 2022, the Plaintiff proceeded to remind the executive committee of his plans to take
vacation. (Id.) Plaintiff reminded the executive committee, once again, of his plans to take vacation
1 The Court adopts the pagination supplied by the CM/ECF docketing system.
on August 17, 2022, during a meeting with the committee. On August 18, 2022, Plaintiff emailed
the President of Therm-Omega-Tech, James Logue, Jr., another reminder that he was going to be
taking vacation. (Id.) Mr. Logue never responded to Plaintiff’s email. (ECF No. 38 at 3-4.) Plaintiff
proceeded to take this vacation and was terminated one day after his return from vacation. (ECF
No. 38 at 6.)
On September 27, 2022, three weeks after Plaintiff’s termination, Mr. Logue attended the
annual meeting of the Advisory Board of Logue Family Holdings and gave updates regarding
Defendant’s operations. (ECF No. 38 at 7.) During this meeting, Mr. Logue informed the Board
about his decision to terminate Plaintiff. (Id.) In the Board meeting minutes, the reasons for
Plaintiff’s termination are listed as: “Didn’t understand Standard Costing,” “Showed $240,000 loss
for June, which needed to be corrected,” and “Lack of communication and bad attitude.” (ECF No.
38-21 at 5.) The meeting minutes also state that Phil Johannes, currently 43 years old, will be the
replacement for Plaintiff and that Plaintiff “is probably suing.” (ECF No. 38 at 18; ECF No. 38-
21 at 5.) In addition to the discussion of Plaintiff’s termination, the Board also discussed a “staff
meeting with mid-management,” making note that mid-management is “average age mid-30s and
taking on a lot of responsibility.” (ECF No. 38-21 at 4.) Phil Johannes, prior to his elevation to the
role of financial controller, was part of this mid-management group. (ECF No. 38-17 at 21.)
Defendant cites Plaintiff’s lack of communication regarding his vacation along with
general performance deficiencies as the reason for Plaintiff’s termination. (See generally ECF No.
38.) Plaintiff alleges that he was discriminated against because of his age, as evidenced by his
replacement by a younger individual, Phil Johannes, and the Board’s comment about mid-
management’s average age. (See generally ECF No. 40.)
II. LEGAL STANDARD
A motion for summary judgment must be denied unless the moving party is able to show
“no genuine dispute as to any material fact” and that the “movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The moving party “always bears the initial responsibility” of
identifying the portions of the record that “demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine dispute is defined as one in
which a jury could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc.,
447 U.S. 242, 248 (1986). In assessing materiality, “only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Id.
When the defendant moves for summary judgment, “the initial burden is on the defendant
to show that the plaintiff has failed to establish one or more essential elements to her case.” Hugh
v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). The summary judgment standard
requires the court to view the evidence in the light most favorable to the non-moving party,
including all justifiable inferences. Anderson, 447 U.S. at 255. However, “[t]he mere existence of
a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Id. at 248. If the court finds
that any factual issues exist that could be reasonably resolved for either party, and thus requires
the presence of a fact finder, then summary judgment must be denied. Id. at 250.
III. DISCUSSION
A. Prima Facie Case
For a Plaintiff to succeed on a claim of age discrimination, he must first establish a prima
facie case of discrimination. To meet this burden, Plaintiff must show that he was: (1) a member
of a protected class, (2) discharged, (3) qualified for the job, and (4) replaced by a sufficiently
younger person to create an inference of age discrimination. Showalter v. Univ. of Pittsburgh
Medical Ctr., 190 F.3d 231, 234 (3d Cir. 1999) (citing Keller v. Orix Credit All., Inc., 130 F.3d
1101, 1108 (3d Cir. 1997) (en banc)). Plaintiff must show that age was the “but-for” cause of the
adverse employment action. Gross v. FBL Financial Services, 557 U.S. 167, 176-78 (2009). A
plaintiff can meet their prima facie burden by providing direct and indirect evidence.
There is no dispute that Plaintiff was a member of a protected class nor that he was
discharged. The only questions that remain in dispute are whether (1) Plaintiff was qualified for
the job and whether (2) he was replaced with a sufficiently younger individual, creating an
inference of age discrimination. Addressing first whether Plaintiff was qualified for the job,
Defendant alleges that there was dissatisfaction with Plaintiff’s performance throughout his one-
and-a-half-year tenure with Defendant. (ECF No. 38 at 14.) Defendant, in support of this
contention, provides the testimony of James Logue, Jr., President of Defendant Therm-Omega-
Tech. (Id.) This testimony states that Defendant failed to manage Defendant’s finances, failed to
perform the essential duties of the position of Financial Controller and therefore was not qualified.
(Id.) Plaintiff denies these allegations, calling them “absurd.” (ECF No. 40-5 at 8.) Plaintiff alleges
that during his tenure, there were never any records—paper or electronic—memorializing
Plaintiff’s alleged failure to perform duties. Furthermore, Plaintiff alleges that he received a bonus
during his tenure. Because issues of credibility are traditionally matters for the factfinder to decide,
the Court finds it inappropriate to opine as to who is more credible on this issue. Anderson, 477
U.S at 255 (“Credibility determinations . . . are jury functions, not those of a judge[.]”) As a result,
what is presented here are facts that are material and in dispute. Therefore, there is a genuine
dispute of material fact only appropriate for a fact finder to resolve.
Next, as to whether Plaintiff was replaced by a sufficiently younger individual, creating an
inference of age discrimination, Plaintiff and Defendant both agree that the current financial
Controller of Defendant is Phillip Johannes who is currently 43 years of age. (ECF No. 38 at 18.)
Courts in this district and the Third Circuit have determined that “There is no bright line age
difference to satisfy the ‘sufficiently younger’ requirement.” Harman v. Select Rehab., LLC, 528
F. Supp. 3d 373, 386 (E.D. Pa. 2021) (citing Showalter v. Univ. of Pittsburgh Med., 190 F.3d 231,
236 (3d Cir. 1999)). As this Court recognizes that there is no bright line age difference to meet this
requirement, the Court finds that the nearly 20-year difference in age between Plaintiff and his
replacement, Phil Johannes, is sufficient to give rise to an inference of age discrimination. Plaintiff
has met the requirement of presenting a prima facie case of age discrimination.
The next prong of the analysis focuses on what kind of evidence—direct or
indirect/circumstantial—the Plaintiff uses to establish their case. When a plaintiff uses direct
evidence to support their case, and that evidence shows that age was the “but-for” cause of
Plaintiff’s termination, the analysis stops there. When a plaintiff uses circumstantial evidence to
meet their burden, the familiar McDonnell Douglas framework applies. McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). While Plaintiff relies in large part on direct evidence to substantiate
their claim, limited circumstantial evidence is also presented. As a result, the Court conducts an
analysis of Plaintiff’s direct and circumstantial evidence.
B. Direct Evidence
In order to use direct evidence to prove discrimination, that direct evidence must show that
“the decision would not have occurred without improper consideration of age.” Cellucci v. RBS
Citizens, N.A., 987 F. Supp. 2d 578, 587 (E.D. Pa. 2013) (citing Gross, 557 U.S. at 177). When
Plaintiffs provide evidence of stray comments in a Title VII case, the Court must “consider how
and if [stray comments] are related to the adverse employment decision. Farzan v. Vanguard Grp.,
Inc., 994 F.Supp.2d 637, 646 (E.D. Pa. 2014) (citing Parker v. Verizon Pa., Inc., 309 F’Appx. 551,
558-59 (3d Cir. 2009)). In making this determination there are three factors to consider: (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. Id. “The Third Circuit emphasizes the importance of context as well as temporal
proximity of allegedly discriminatory statements to adverse employment consequences.”
Glendening v. Fair Acres Geriatric Ctr., 2019 WL 5550977, at *3 (E.D. Pa. 2019) (collecting
cases).
Plaintiff alleges that a statement made during a board meeting on September 27, 2022,
three weeks after Plaintiff’s termination, was direct evidence of discriminatory animus. The
statement “Staff meeting with mid-management with all departments; average age mid-30s and
taking on a lot of responsibility[,]” was made by an unidentified member of the Board. (ECF No.
38-21 at 5.) Plaintiff alleges that one of Defendant’s directors admitted that the age of this mid-
management group was the only aspect of this group that was discussed during the meeting. (ECF
No. 40-5 at 2.) Defendant concedes that Phil Johannes, Plaintiff’s replacement, was a member of
this mid-management group prior to his elevation to Plaintiff’s role, but they allege that discussion
of the general makeup of the company does not create an inference of discrimination against
Plaintiff. (ECF No. 38 at 18.)
Applying the framework set forth in Farzan, the initial step is to identify “the relationship
of the speaker to the employee and within the corporate hierarchy.” 994 F. Supp. 2d at 646. While
the board meeting minutes do not describe the actual speaker of the statement, the statement is
listed as discussed by the Board. It is reasonable to conclude that leadership, including
decisionmakers, were present during this meeting. Defendant does not dispute that Mr. Logue, the
individual who terminated Plaintiff, was present at this meeting. (ECF No. 38 at 6.) In terms of the
relationship of those higher-ups and Plaintiff, we know that Plaintiff was a senior manager and
reported directly to the President. Furthermore, because the decision to terminate Plaintiff was
made by the President, the Court can reasonably infer that there is a singular connection, if not
more, between the members of the board meeting and the people who made the decision to
terminate Plaintiff. A reasonable fact finder could find that there was an adequate relationship to
satisfy the first prong.
Looking to the next step of the analysis, temporal proximity, the statement about mid-
management’s age occurred three weeks after Plaintiff was terminated. The suggestion of the
temporal proximity between the statement and Plaintiff’ termination is further highlighted because
Plaintiff’s termination was directly discussed in this meeting, along with his younger replacement.
While the temporal proximity does not rise to the point of presenting a clear inference of
discriminatory animus, the Court finds that a jury could conclude those comments regarding a
management group’s age, were in adequate proximity to Plaintiff’s termination. If a jury comes to
that conclusion, then a jury could find the statement to be unduly suggestive as to the subject of
age and whether or not it was a factor considered by management at the behest of the board.
Finally, looking at the purpose and content of the message, the Court is unable to draw a
clear conclusion. Taking all inferences in favor of the non-moving party, the text of the statement
on its face notes that age was being discussed at a board meeting for an undetermined reason. The
context of the statement does not provide clarity as to the basis for the comment which could
illuminate the meaning. Thus, while the reason for the statement is unclear, the Board did find age
to be a topic of discussion. Plaintiff provides testimony from a director that no other characteristics
of the mid-management group were discussed aside from age. Furthermore, Plaintiff’s termination
was discussed in this very same meeting. A reasonable fact finder could potentially find this
statement to be direct evidence of discriminatory animus because of the explicit mention of age
without any other context, explanation, or description.
While this statement is certainly not the “smoking gun” that Plaintiff asserts it to be, there
is merit to the argument that the Board of a company discussing age, particularly the age group of
an individual who would go on to replace Plaintiff, could be enough to serve as direct evidence of
discriminatory animus. As a result, Plaintiff’s direct evidence is sufficient to survive the summary
judgment stage.
C. Circumstantial Evidence
Although the Court has determined that there is enough dispute of the factual record for a
fact finder to find Plaintiff’s direct evidence as sufficient for a claim of age discrimination, the
Court nonetheless considers the circumstantial evidence under the McDonnell Douglas
framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiff has already
established their prima facie case; therefore, the burden now shifts to the Defendant to show a
“legitimate, non-discriminatory” reason for Plaintiff’s termination. Id. at 802. This is a burden that
Defendant meets. Defendant cites their legitimate reason of termination as dissatisfaction with
Plaintiff’s performance and violation of Defendant’s policies and procedures. (ECF No. 38 at 14.)
In particular, Defendant alleges that Plaintiff did not satisfactorily perform the duties of Financial
Controller and that Defendant did not get adequate approvals for a vacation that Plaintiff took prior
to his termination. (ECF No. 38 at 4.)
The burden now shifts to Plaintiff to show that Defendant’s proffered reasons are
pretextual. McDonnell Douglas Corp., 411 U.S. at 802; Tomasso v. Boeing Co., 445 F.3d 702, 706
(3d Cir. 2006). Plaintiff must “point to some evidence, direct or circumstantial, from which a
factfinder could reasonable 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.” Tomasso, 445 F.3d at 706 (citing Fuentes v.
Perskie, 32 F.3d 759 (3d Cir. 1994)). The Court finds that a reasonable fact finder could determine
that Plaintiff has met their burden. First, there are no records, electronic or paper, that indicate
Plaintiff has been deficient in his performance as Financial Controller. (ECF No. 40-5 at 8.)
Moreover, Plaintiff even received a bonus from Defendant at the end of 2021 which Plaintiff
asserts dilutes, if not extinguishes, Defendant’s argument. (Id.) Plaintiff notes that the only
evidence on the record of Plaintiff’s allegedly deficient performance is when it is stated in the
deposition of the President of the company, Mr. Logue, and in the September 27, 2022, meeting
minutes. As to Plaintiff’s alleged violation of Defendant’s policy and procedures, remarkably the
record does not confirm which policy and procedure handbook applied to Plaintiff. The lack of
official records and evidence, aside from statements made after Plaintiff’s termination, could lead
a reasonable fact finder to determine that Defendant’s proffered reasons for terminating Plaintiff
were pretextual. Therefore, this claim survives summary judgment.
IV. CONCLUSION
For the reasons discussed above, Defendant’s Motion for Summary Judgment is denied.
An appropriate order follows.
BY THE COURT:
/s/ Hon. Kelley B. Hodge
HODGE, KELLEY B., J.