The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bruce Leibensperger, :
Appellant :
: No. 87 C.D. 2015
v. :
: Submitted: May 11, 2016
Carpenter Technologies, Inc. :
t/a Carpenter Technology Corp. :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: September 22, 2016
Bruce Leibensperger (Appellant) appeals from the December 23, 2014
order of the Court of Common Pleas of Berks County (trial court) granting summary
judgment in favor of Carpenter Technologies, Inc. t/a Carpenter Technology Corp.
(Employer).1
1
While this appeal is not within this Court’s appellate jurisdiction under Section 762 of the
Judicial Code, 42 Pa.C.S. §762, jurisdiction was perfected pursuant to Section 704(a) of the Judicial
Code, 42 Pa.C.S. §704(a), and Pa. R.A.P. 741(a) by the absence of objection before the record was
filed here.
Facts and Procedural History
The following facts are not in dispute. Appellant was hired by Employer
in 1972. Appellant worked for Employer in numerous supervisory positions from
approximately 1973 until 1996 or 1997, when he voluntarily transferred to a
nonsupervisory role to join a newly created inventory disposition department
(department) as a “disposition coordinator.” (Employment History, Supplemental
Reproduced Record (S.R.R.) at 90b.) Jackie Berk joined the department in 2001 and
conducted roughly the same job as Appellant. Ms. Berk was hired by Employer in
1979, but, unlike Appellant, never held a supervisory role.
Appellant asked Ms. Berk on May 15, 2003, if she knew of anyone who
could refurbish an antique shotgun he found while cleaning his father-in-law’s barn.
Ms. Berk said that she knew someone and agreed to transport the firearm to the
refurbisher’s place of business. Appellant and Ms. Berk met in the parking lot owned
by Employer the next morning at around 6:50 a.m. to transfer the shotgun to Ms.
Berk’s control. Appellant took the shotgun out of his trunk and showed it to Ms.
Berk. Ms. Berk inspected the shotgun, wrapped it in a towel, and placed it in the
trunk of her personal vehicle. Two other employees observed the transfer of the
shotgun between the vehicles and reported it to Employer.
Employer has a Workplace Violence Policy (Policy), which provides, in
relevant part:
It is the policy of the Company to provide a safe and secure
work environment which is free from threats, threatening
behavior, acts of violence, or any other related activity
which is disruptive to employees. . . . Bringing a firearm or
other dangerous weapon onto [Employer] owned or leased
property is considered an intolerable offense for which an
employee will be immediately suspended with intent to
discharge.
2
(Policy at 1, Reproduced Record (R.R.) at 101a (emphasis omitted).) Employer
describes the Policy as a “zero tolerance” policy that was incorporated into training
modules used in training managers. (Affidavit of Thomas Reed at 2, S.R.R. at 101b.)
Appellant was trained on the Policy on September 13, 2000. (Trial court op. at 2.)
Employer also posted its policy on its property and on its internal computer system.
(Trial court op. at 2.)
Employer initiated an investigation into the matter. When confronted
with the allegations, Appellant told Employer that he thought Ms. Berk should not be
held responsible because she was not the person who brought the gun to work.
(Appellant’s Dep. at 42, R.R. at 90a.) After the investigation concluded, Employer
terminated Appellant effective May 19, 2003, for violating the Policy, though it
allowed him to retire with full retirement benefits. (Appellant’s Letter to Employer,
May 28, 2003, Employer’s Ex. 25, S.R.R. at 206b.) Appellant was fifty-three at the
time of his discharge. Employer suspended Ms. Berk until May 22, 2003, and gave
her a written warning. In a disciplinary letter to Ms. Berk, Employer notified Ms.
Berk that her continued employment was made contingent upon her participation in a
year-long Employee Assistance Program and that any deviation from the Policy in the
future would result in immediate discharge. (Disciplinary Memo, May 22, 2003,
S.R.R. at 204b.)
After his discharge, Appellant wrote a letter to Employer explaining his
disagreement with his termination. The letter reads, in relevant part:
I was discharged for an incident which can only be
described as an error in judgment and/or ignorance. I found
an old shotgun while cleaning out my father-in-laws [sic]
corn bin and brought it to work for a co-worker to have it
possibly restored. The gun was rusty, had no shells, [sic]
did not know the caliber and later found the firing pin was
bent for the left chamber. By definition, this gun was
‘inoperative’ and should not be considered a ‘firearm.’
3
Knowing I could not bring it into the building I worked in
(Bldg 33) but not knowing the parking lot was deemed
Carpenter property, I put the gun into my co-worker’s car -
again for the sole purpose of having it restored - if possible.
Not realizing I was doing anything wrong, I hid nothing
during the transfer from my truck to the co-worker’s car.
Even when another employee pulled into the parking lot did
I try to hide what I was doing? [sic] Why should I? I did
not think I was doing anything wrong. Several hours later,
I was confronted and asked what transpired and was told
that I was being suspended with intent to discharge. I was
dumbfounded, speechless, and deeply distraught. When
asked what had happened, I willfully told the whole story;
omitting nothing! The co-worker corroborated (my story).
Ultimately, on 5/19/03, I was discharged.
(Letter from Appellant to Employer, May 28, 2003, S.R.R. at 206b.) Employer did
not reinstate Appellant.
Instead, Appellant initiated this action in July 2006 through a Praecipe
for Writ of Summons and a subsequent Complaint filed with the Court of Common
Pleas of Delaware County on October 23, 2006.2 In his Complaint, Appellant alleged
that “[Employer] terminated [Appellant] from employment for [a] rule violation but
was not as severe in punishing the younger female employee, who had an identical
position to that of [Appellant] as part of the employment with [Employer].” (Compl.
2
Previous to this action, Appellant sought relief in the United States District Court for the
Eastern District of Pennsylvania. Appellant’s federal suit was dismissed on June 14, 2005 on the
grounds of:
lack of prosecution, due to the failure to file the complaint within ninety days of
receipt of the EEOC right to sue letter, due to failure of the plaintiff to make service
of the complaint within 120 days of the filing of the complaint and due to the
improper attempted service of the complaint on someone who was not an agent of
the defendant, all of which has been determined on the state of the current record and
without rebuttal evidence from the plaintiff.
(Federal Court Order, June 14, 2005, S.R.R. at 5b.)
4
¶ 5, S.R.R. at 210b.) Appellant also alleged that he did not violate the Policy or, in
the alternative, was not told of the rule against firearms since a firearms sale took
place at Employer’s premises in 1995.3 (Compl. ¶ 6, S.R.R. at 210b.) According to
the allegations, “[Employer] violated the Pennsylvania Human Relations Act
[(PHRA)4] and the federal Age Discrimination in Employment Act [(ADEA) 5 by]
failing to act without discrimination in punishing and terminating [Appellant].”
(Compl. ¶ 9, S.R.R. at 211b.) Appellant further alleged that Employer “committed
acts of intentional illegal discrimination against [Appellant] by reason” of sex and
age. (Compl. ¶ 10, S.R.R. at 211b.)
On November 10, 2006, Employer filed Preliminary Objections (POs) to
Appellant’s Complaint alleging, inter alia, improper venue. The Court of Common
Pleas of Delaware County granted the POs and transferred the case to the trial court.
On November 17, 2008, Employer filed an Answer and New Matter to Appellant’s
Complaint. The case stalled in discovery for four years. After the trial court issued a
Notice of Proposed Termination on October 15, 2012, Appellant filed a Statement of
3
Employer actually held two commemorative firearms sales. The first was a
th
commemorative revolver sale in 1989 commemorating Employer’s 100 year of business.
(Employer’s Memo to Staff on Revolver Sale, Employer’s Ex. 20, at ## 1-3, R.R. 138a-42a.) There
is no evidence in the record showing that the Policy was in effect at the time of the 1989 sale.
Employer then held a collectable rifle sale on December 1996. (Employer’s Memo to Staff on
Commemorative Rifle Sale, Employer’s Ex. 20, at ## 4-5, R.R. 146a.) Appellant’s Complaint and
Memorandum of Law in Response to Defendant’s Motion for Summary Judgment (Memorandum
of Law) only mentions a sale in 1995/96. (Compl. ¶ 6, S.R.R. at 210b; Memorandum of Law at 8,
R.R. at 179a.) Although evidence shows that the current Policy was enacted in 1999, the evidence
also shows that Employer had a similar workplace violence policy in place as early as 1996. See
Employer’s Memo to Staff on Commemorative Rifle Sale, Employer’s Ex. 20, at #5, R.R. at 146a
(stating: “it is against company policy to have a firearm on company premises”).
4
Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951 – 963.
5
29 U.S.C. §§ 621 – 634.
5
Intention to Proceed on November 2, 2012. The case stalled once again until, on July
11, 2014, the trial court issued a Rule to Show Cause why the case should not be
dismissed for inactivity and held a hearing on September 17, 2014 about moving the
case forward.
On October 30, 2014, Employer filed the instant Motion for Summary
Judgment (Motion). In its Motion, Employer alleged summary judgment is
appropriate because Appellant “cannot sustain his burden with respect to his claims
of age discrimination and sex discrimination. . .” (Motion ¶ 28, R.R. at 14a.)
Appellant filed an Answer to the Motion wherein he alleges that summary judgment
is not appropriate because genuine issues of material fact are at issue. (Appellant’s
Response to Motion for Summary Judgment (Answer) ¶ 20, R.R. at 168a.) Appellant
alleges that his actions were not egregious and that he did not think he violated the
Policy. (Answer ¶¶ 8, 12, R.R. at 164a-65a.) Appellant alleges that the firearm at
issue was a “non-functioning, rusty, antique gun” that could not be used for
workplace violence. (Answer ¶ 8, R.R. at 164a.) He also argues that he legitimately
thought he was not violating the Policy because Employer itself chose to distribute
functioning collectable firearms on its property in the past. (Answer ¶ 18, R.R. at
168a.)
Appellant disputes that the Policy is a “zero tolerance policy” and
identifies two comparators who received less harsh punishments for violating the
Policy. According to Appellant’s Answer and accompanying Memorandum of Law,
Ms. Berk and Appellant were involved in identical conduct, held roughly the same
position, and were treated differently based on age and sex. (Appellant’s
Memorandum of Law in Response to Defendant’s Motion for Summary Judgment
(Memorandum of Law at 4, 13, 17, R.R. at 175a, 184a, 188a.)) Appellant also
identifies two male employees that brought weapons to work and were not fired.
6
(Answer ¶ 13, R.R. at 166a; Memorandum of Law at 9, R.R. at 180a.) One of these
two men, Mr. Marko, was thirty-two years of age at the time of the incident.
(Employer’s Answer to Appellant’s Second Set of Interrogatories ¶ 3(b), S.R.R. at
237b.) Mr. Marko and the other man brought hunting bows onto the property and
were suspended with the intent to discharge. (Employer’s Exs. 30, 31, S.R.R. at
241b-46b.) Instead of having their employments terminated, Mr. Marko and the
other man were moved to the third step in Employer’s Corrective Performance
System. (Employer’s Exs. 30, 31, S.R.R. at 242b, 245b.) Appellant contends that
these facts, in addition to the fact that Appellant was replaced by a woman, give rise
to the presumption of illegal sex and age discrimination. (Memorandum of Law,
R.R. at 188a.)
Trial Court Decision
Upon review of Employer’s Motion, Appellant’s Answer, and the
evidence attached thereto, the trial court held that Employer was entitled to summary
judgment because Appellant failed to make out a prima facie case of discrimination
and that Employer’s reason for terminating Appellant was legitimate and
nondiscriminatory. According to the trial court:
It is uncontroverted that plaintiff violated the Policy
regarding firearms. Policy is a zero tolerance policy.
[Appellant] brought a shotgun to work in his vehicle which
he parked on [Employer]’s parking lot. The reason that he
did so is immaterial. [Appellant] was seen by another
employee who reported the violation. [Employer]’s reason
for terminating plaintiff for violating [Employer]’s written
Policy was a legitimate, nondiscriminating reason for his
termination that has nothing at all to do with plaintiff’s age
or gender. This reason rebuts [Appellant]’s prima facie
case of age and sex discrimination. Among plaintiff’s
claims for relief, he alleged defendant discriminated against
7
him because he was a man. This court also finds this claim
to be without merit.
Ms. Berk was not terminated because there was no
conclusive evidence that she knew about the Policy. Unlike
[Appellant], she had never been a supervisor so she had
never enforced the Policy. There was also no indication
that she had ever taken any training sessions on workplace
violence, unlike [Appellant]. . . . There is no evidence that
the gun was inoperable. Even assuming arguendo that it
was not operational, the Policy makes no distinction
between operable or inoperable firearms.
Ms. Berk is approximately eight years younger than
[Appellant]. Thus, she is not “substantially younger” than
plaintiff as he submits. Besides [Appellant]’s assertion that
defendant committed age or sex discrimination, there is no
evidence to support these claims.
[Appellant] further contends that he was discriminated
against because younger employees brought dangerous
weapons to work and were not fired. These employees
were men who brought hunting bows in their vehicles onto
defendants property. These employees were not
supervisory; they were hourly employees and punished
accordingly. These men were suspended and moved to the
third step of the Corrective Performance System. The men
were not similarly situated to [Appellant]. They were
hourly employees who were not aware that the prohibition
applied to hunting bows. Moreover, Policy expressly states
“firearms” are forbidden, but hunting bows are not
specifically designated in Policy but fall under “other
dangerous weapon.”
For these reasons, this court found that there was no
evidence to support [Appellant]’s claims of sex and age
discrimination.
(Trial court op. at 6-7.) This appeal followed.
8
Discussion
On appeal,6 Appellant contends that the trial court erred by: (1) using an
erroneous standard of review; (2) concluding that Appellant did not meet his burden
of presenting a prima facie case of discrimination; (3) holding that there was no
genuine issue of material fact as to Employer’s proffered justification for Appellant’s
termination; and (4) concluding that Employer’s nondiscriminatory justification for
Appellant’s termination was not pretext for illegal discrimination.
Standard of Review
Summary judgment is proper when, after pleadings are closed: (1) “there
is no genuine issue of any material facts as to a necessary element of the cause of
action or defense”; or (2) after the completion of relevant discovery “an adverse party
who will bear the burden of proof at trial has failed to produce evidence of facts
essential to the cause of action or defense which in a jury trial would require the
issues to be submitted to a jury.” Rule 1035.2 of the Pennsylvania Rules of Civil
Procedure, Pa. R.C.P. No. 1035.2. When considering a motion for summary
judgment, a common pleas court must examine all facts and reasonable inferences
6
“Our standard of review of the grant of summary judgment is de novo and our scope of
review is plenary.” Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011). The Pennsylvania
Supreme Court has summarized our standard of review as follows:
Summary judgment is appropriate only in those cases where the
record clearly demonstrates that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter of
law. The reviewing court must view the record in the light most
favorable to the nonmoving party, resolving all doubts as to the
existence of a genuine issue of material fact against the moving party.
Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221-22 (Pa. 2002) (internal citations
omitted).
9
deduced therefrom in a light most favorable to the non-moving party and “may only
grant summary judgment where the right to such judgment is clear and free from all
doubt.” Summers v. Certainteed Corporation, 997 A.2d 1152, 1159 (Pa. 2010)
(internal quotations omitted).
In determining whether summary judgment is appropriate for
employment discrimination cases, Pennsylvania has adopted the analytical model
established by the United States Supreme Court in McDonnell Douglas Corporation
v. Green, 411 U.S. 792, 802 (1973) applicable when there is an absence of direct
proof of discrimination. Under McDonnell Douglas:
the complainant bears the burden of establishing a [prima
facie] case by showing that: (i) he is in a protected class; (ii)
he is qualified for the position; (iii) he suffered an adverse
employment action; and (iv) he was discharged under
circumstances that gave rise to an inference of
discrimination. Once the complainant makes this initial
case, the burden then shifts to the employer to articulate
some legitimate, non-discriminatory motive for its action.
If the employer does so, the complainant is then given the
opportunity to demonstrate that the proffered reasons were
pretextual.
Spanish Council of York, Inc. v. Pennsylvania Human Relations Commission, 879
A.2d 391, 397 (Pa. Cmwlth. 2005) (citing McDonnell Douglas, 411 U.S. at 802).
Although the burden of production shifts under the McDonnell Douglas test from a
complainant to a defendant and then back again to complainant, “[t]he ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated
against the [complainant] remains at all times with the [complainant].” Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Appellant first contends that the trial court erred by not resolving all
doubts in Appellant’s favor and by requiring Appellant to prove discrimination.
10
Upon review, we see no instances where the trial court required Appellant to directly
prove discrimination or resolved doubts in favor of Employer. The trial court, by
tracking the analytical steps outlined in McDonnell Douglas, applied the correct
standard of review and concluded that Appellant did not adduce sufficient evidence to
show that the circumstances “gave rise to an inference of discrimination.” Spanish
Council of York, 879 A.2d at 397.
We also understand the trial court’s decision as holding that, even if
Appellant established a prima facie case, “[Employer]’s reason for terminating
plaintiff for violating [Employer]’s written Policy was a legitimate, nondiscriminating
reason for his termination. . . [that] rebuts [Appellant]’s prima facie case of age and
sex discrimination.” (Trial court op. at 6.) The trial court concluded that, even when
resolving doubts in Appellant’s favor, Appellant did not present probative evidence
showing that Employer’s stated reason for his termination was unworthy of credence
or pretext for a discriminatory motive, Torre v. Casio, Inc., 42 F.3d 825, 832 (3d Cir.
1994). (Trial court op. at 8 (stating “[Appellant]’s affidavit does not rise to the level
of probative evidence to prove that defendant discriminated against plaintiff”).)
Accordingly, we conclude that the trial court applied the correct standard of review.
Whether the trial court erred by concluding that no material facts were in
dispute, and that Appellant neither presented a prima facie case of discrimination nor
rebutted Employer’s justification for Appellant’s termination, are issues subject to
our de novo review. Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 903 (Pa.
2007). We shall now proceed to Appellant’s arguments in these regards.
Discrimination under the PHRA
Appellant asserts claims under the PHRA for age and sex discrimination
and claims under the federal ADEA for age discrimination. Both Acts prohibit
11
discrimination based on age, and the PHRA also prohibits discrimination based on
sex. See Section 5(a) of PHRA, 43 P.S. § 955(a) (stating: “It shall be an unlawful
discriminatory practice . . . [f]or any employer because of the . . . age, sex, . . . to
refuse . . . to discharge from employment such individual . . . if the individual or
independent contractor is the best able and most competent to perform the services
required”); Section 623(a)(1) of the ADEA, 29 U.S.C. § 623(a)(1) (stating: “It shall
be unlawful for an employer . . . 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”). “[C]laims brought
under the PHRA are analyzed under the same standards as their federal counterparts.”
Kroptavich v. Pennsylvania Power and Light Company, 795 A.2d 1048, 1055 (Pa.
Super. 2002).
Stage One of the McDonnell Douglas Analysis
The trial court concluded, and we agree, that Appellant has put forth
credible evidence satisfying the first three requirements of a prima facie case of
discrimination: that he is a member of a protected class, that he is qualified for the
position, and that he suffered an adverse employment action. (Trial court op. at 4-5.)
Appellant challenges the trial court’s conclusion that he did not present a prima facie
case of age or sex discrimination because a reasonable factfinder could not have
concluded that Appellant was discharged under circumstances that gave rise to an
inference of discrimination. (Trial court op. at 6.)
A complainant establishes that the circumstances give rise to an
inference of discrimination by demonstrating, inter alia, that the complainant was
discharged and replaced by someone outside of his protected class, Kroptavich, 795
A.2d at 1056, and “that similarly situated employees were not treated equally.”
12
Burdine, 450 U.S. at 258. Whether the circumstances raise an inference of
discrimination is not a rigid test and must be tailored to differing factual
circumstances. McDonnell Douglas, 411 U.S. at 802 n.13.
The United States Court of Appeals for the Fifth Circuit explained the
test for whether a comparator is similarly situated in employment discrimination
cases as follows:
Employees with different supervisors, who work for
different divisions of a company or who were the subject of
adverse employment actions too remote in time from that
taken against the plaintiff generally will not be deemed
similarly situated. Likewise, employees who have different
work responsibilities or who are subjected to adverse
employment action for dissimilar violations are not
similarly situated. This is because we require that an
employee who proffers a fellow employee as a comparator
demonstrate that the employment actions at issue were
taken “under nearly identical circumstances.” The
employment actions being compared will be deemed to
have been taken under nearly identical circumstances when
the employees being compared held the same job or
responsibilities, shared the same supervisor or had their
employment status determined by the same person, and
have essentially comparable violation histories. And,
critically, the plaintiff’s conduct that drew the adverse
employment decision must have been “nearly identical” to
that of the proffered comparator who allegedly drew
dissimilar employment decisions. If the “difference
between the plaintiff’s conduct and that of those alleged to
be similarly situated accounts for the difference in
treatment received from the employer,” the employees are
not similarly situated for the purposes of an employment
discrimination analysis.
Lee v. Kansas City Southern Railway Co., 574 F.3d 253, 259-60 (5th Cir. 2009)
(internal citations omitted) (emphasis in original). Whether a comparator is similarly
situated is generally a question of fact for a factfinder. Abdul-Latif v. County of
13
Lancaster, 990 F. Supp. 2d 517, 526 (E.D. Pa. 2014) (citing McDonald v. Village of
Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004).) However, summary judgment is
appropriate when “there is no evidence from which a [factfinder] could conclude the
parties were similarly situated.” Id.
Central to our resolution of this issue is our acknowledgment that the
burden on the complainant of presenting a prima facie case is minimal. Kroptavich,
795 A.2d at 1055. The purpose of the prima facie showing is simply to “eliminate[]
the most common nondiscriminatory reasons for the [complainant’s termination].”
Burdine, 450 U.S. at 254. According to the Pennsylvania Supreme Court:
in the interest of having the ultimate question of
discrimination resolved on the merits rather than for
procedural failings such as lack of specificity, given the
importance of circumstantial proof in such cases, it is
appropriate to the remedial purpose of the Act that the
prima facie case not be an onerous one.
Allegheny Housing Rehabilitation Corporation v. Pennsylvania Human Relations
Commission, 532 A.2d 315, 319 (Pa. 1987).
We agree with the trial court that Mr. Marko is not a sufficient
comparator because, unlike Appellant, he was an hourly employee who never held a
supervisory position, was not employed in the same position as Appellant and held
different responsibilities, and did not bring a firearm onto the premises. However, we
conclude that, at the time of the adverse employment action, Ms. Berk and Appellant
were similarly situated. Appellant and Ms. Berk worked for the same supervisor,
performed roughly the same job duties, and were both punished for violating the
Policy. Because the burden at this stage of the McDonnell Douglas analysis is
minimal, we conclude that Appellant adduced facts which a reasonable factfinder
14
could conclude showed Ms. Berk is a sufficient comparator and that the
circumstances raise an inference of sex or age discrimination. Hence, we move to the
next stage of the McDonnell Douglas analysis.7
Stage Two of the McDonnell Douglas Analysis
Where a prima facie is established, it “in effect creates a presumption
that the employer unlawfully discriminated against the employee.” Burdine, 450 U.S.
at 254. A “prima facie case raises an inference of discrimination only because we
presume these acts, if otherwise unexplained, are more likely than not based on the
consideration of impermissible factors.” Id. (internal quotation and citation omitted).
This inference of discrimination is rebutted if the employer proffers a legitimate,
nondiscriminatory reason for the adverse employment action. Kroptavich, 795 A.2d
at 1055.
The employer’s burden in this second part is one of
production, not persuasion, and thus involves no credibility
assessment. If the employer articulates a legitimate
business explanation, then the presumption of
discriminatory intent created by the employee’s [prima
facie] case is rebutted and the presumption simply drops out
of the picture.
Id. (internal citations and quotations omitted). “The defendant need not persuade the
court that it was actually motivated by the proffered reasons.” Burdine, 450 U.S. at
254. So long as the proffered reason for Appellant’s discharge is “legally sufficient
7
Appellant also contends that an inference of sex discrimination arises by the fact that, upon
his discharge, his position was filled by a woman named Pam. Appellant previously argued that
Pam was 15-20 years younger than him, but Employer proffered evidence showing that Pam was
the same age as Appellant. (Employer’s Response to Appellant’s Second Set of Interrogatories ¶
1(o), R.R. at 285a.) However, there is nothing in the record, other than Appellant’s contentions,
showing that Pam replaced Appellant and Employer is entitled to summary judgment on this issue.
15
to justify a judgment for the defendant” the presumption of discrimination “raised by
the prima facie case is rebutted.” Id. at 255.
Employer points to Appellant’s alleged violation of the Policy as a
legitimate nondiscriminatory justification for Appellant’s discharge. Certainly, there
can be no dispute that an employer may terminate an at will employee for violating a
policy prohibiting firearms on employer’s property. Because the burden here is one
of production, not persuasion, Employer has rebutted any presumption that it
discriminated against Appellant.
However, the matter does not end here. If an employer satisfies the
second step, the burden shifts back once more to the complainant to show, by a
preponderance of the evidence, that the employer’s proffered legitimate,
nondiscriminatory reason was pretextual. Willis v. UPMC Children’s Hospital of
Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015). Thus, we turn to the final stage of the
McDonnell Douglas analysis.
Stage Three of the McDonnell Douglas Analysis
The next stage questions whether Appellant adduced sufficient probative
evidence showing that Employer’s proffered reason for his termination was “pretext
for what, in reality, was a discriminatory motivation.” Kroptavich, 795 A.2d at 1055.
There are two ways in which a complainant can demonstrate that the employer's
legitimate, nondiscriminatory reason was pretextual. The first way to show pretext is
for the complainant to point to evidence that would allow a factfinder to
disbelieve the employer’s reason for the adverse employment action. Willis, 808 F.3d
at 644 (citation omitted). In order to raise sufficient disbelief, the complainant must
point to “weaknesses, implausibilities, inconsistencies, incoherencies, or
16
contradictions in the employer’s proffered legitimate reasons [such] that a reasonable
factfinder could rationally find them unworthy of credence and hence infer that the
proffered nondiscriminatory reason did not actually motivate the employer’s action.”
Kroptavich, 795 A.2d at 1059 (citations omitted).
The second way a complainant can establish pretext is 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 (citing Fuentes v. Perskie, 32 F.3d 759,
764 (3d Cir. 1994)). A complainant can show pretext this way by presenting
evidence “with 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.” Willis, 808 F.3d at 645 (citing Simpson v. Kay Jewelers, 142 F.3d 639, 644-
45 (3d Cir. 1998)). As the Court in Willis explained, “[p]ointing to evidence
demonstrating any of the following satisfies this second way to prove pretext: (1) the
defendant previously discriminated against the plaintiff; (2) the defendant
discriminated against others within the plaintiff's protected class; or (3) the defendant
has treated similarly situated, substantially younger individuals more favorably.” Id.
at 645 (citations omitted). If this step is satisfied, at trial the complainant must
convince the factfinder that not only was the employer's proffered reason false, but
the real reason was impermissible discrimination. Id.; see also Fuentes, 32 F.3d at
763.
In other words, a complainant may survive summary judgment and
proceed to a factfinder, even if he cannot show that the employer was motivated by
discrimination, if the complainant shows that employer’s proffered reason for the
adverse employment decision “was so plainly wrong that it cannot have been the
17
employer’s real reason.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109
(3d Cir. 1997).
In the present case, the trial court concluded that “Ms. Berk was not
terminated because there was no conclusive evidence that she knew about the
Policy,” as she had never been a supervisor or taken any training sessions on
workplace violence, unlike Appellant. Id. However, the record reveals that Ms. Berk
had been employed with Employer since 1979, that a similar Policy had been in
effect as early as 1996, which was equally applicable to all of Employer’s employees,
and that Employer posted the Policy on its property and its internal computer system.
Thus, the fact that Ms. Berk was never a supervisor and never enforced the Policy
does not support a conclusion that she was unaware of the existence of the Policy.
Additionally, Appellant testified that the firearm in this case was an
inoperable, rusty, antique shotgun that he found while cleaning out his father-in-law’s
barn and that he brought it to Ms. Berk because she knew someone who could
refurbish it. Indeed, Carl Roth, then Employer’s administrator of asset protection,
inspected the shotgun on May 16, 2003, and described it as “not functional” at that
time. (R.R. at 197a.) Hence, there is a question whether the Policy is even applicable
to this shotgun.
Moreover, the trial court recognized Appellant’s claim that other
younger employees brought “dangerous weapons to work and were not fired.” (Trial
court op. at 7.) In fact, the trial court specifically stated that these employees
“brought hunting bows in their vehicles onto [Employer’s] property.” Id. While the
trial court ultimately discounted the actions of these employees because they were
“not similarly situated to [Appellant]” and “were not aware that the prohibition
applied to hunting bows,” id., certainly a hunting bow could fall within the ambit of
18
the Policy as an “other dangerous weapon.” (R.R. at 101a.) Appellant similarly
believed that the inoperable, rusty shotgun was not prohibited under the Policy.
Furthermore, the record herein presents another issue as to the extent of
the prohibition in the Policy, i.e., whether it applies to Employer’s parking lot, its
buildings, or both. This issue arises as a result of two prior commemorative firearms
sales on Employer’s property, one in 1989 and another in 1996, both during the
course of Appellant’s employment. A predecessor to the Policy, which contained
similar language prohibiting firearms, was in effect at the time of the 1996 sale. A
memo from Employer preceding this sale reminded employees that it was against
company policy to have a firearm on company premises. However, this memo
advised employees that “[i]f you must pick up your rifle at any other time than when
you are leaving work, you must keep the rifle secured in your vehicle. Under no
circumstances may a firearm be taken into any office or mill area.” (R.R. at 146a.)
The language of this memo seems to imply, as Appellant appears to have believed,
that Employer’s parking area did not constitute a part of the property where firearms
were prohibited.
Given the disparate treatment of other employees as compared to
Appellant,8 as well as the potentially ambiguous nature of Employer’s Policy, a
8
The Dissent relies on Simpson v. Kay Jewelers, Division of Sterling, Inc., 142 F.3d 639 (3d
Cir. 1998), which is distinguishable because in that case, the complainant picked only “one valid
comparator who was allegedly treated more favorably, and completely ignore[d] a significant group
of comparators who were treated equally or less favorably than she.” Id. at 647; see Dissent op. at
4. Here, by contrast, the record establishes that, although a variety of individuals arguably violated
the Policy, Appellant was the only person who was terminated for doing so.
Perhaps more importantly, the Dissent admits that Appellant and Berk are sufficient
comparators who engaged in substantially similar conduct, but, contrary to our standard of review,
appears to view the evidence in the light most favorable to Employer to find that Employer was
justified in imposing a less severe disciplinary sanction on Berk because Berk’s conduct “was not as
egregious as Appellant’s violation.” Dissent op. at 4. However, the issue of whether Appellant and
(Footnote continued on next page…)
19
reasonable factfinder could conclude that Appellant did not violate Employer’s Policy
by bringing an inoperable gun onto Employer’s parking area and that Employer’s
(continued…)
Berk should have received the same punishment for substantially the same conduct is a factual
matter that is traditionally left to the province of the factfinder. See Dissent op. at 4-6, and compare
with Coleman v. Donahoe, 667 F.3d 835, 846-47 (7th Cir. 2012) (“Whether a comparator is
similarly situated is usually a question for the fact-finder . . . .”) (citation and internal quotation
marks omitted); Graham v. Long Island Rail Road, 230 F.3d 34, 40 (2d Cir. 2000) (“[T]he standard
for comparing conduct requires a reasonably close resemblance of the facts and circumstances of
plaintiff’s and comparator’s cases, rather than a showing that both cases are identical.”). See also
McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 283 n.11 (1976) (stating that
“precise equivalence in culpability between employees is not the ultimate question.”).
The Dissent also states that “Appellant’s admission that the different treatment was justified,
and advocacy in support of different treatment of Ms. Berk, necessarily precludes a finding that Ms.
Berk’s different treatment shows that Employer’s proffered reason for its action is
pretext.” (Dissent op. at 5) (emphasis in original). Although Appellant testified that he assumed
full responsibility for the incident and pled for Berk to keep her job after Employer informed him
that he was being suspended with the intent to terminate, Appellant also testified that he first
informed Employer that neither he nor Berk should be terminated for the incident. (R.R. at 89a-
90a.) While the alleged “unfavorable” portion of Appellant’s testimony, Dissent op. at 6 n.2, if
credited by the factfinder, may corroborate Employer’s proffered reasons for the discharge, it does
not conclusively prove that Employer’s difference in treatment was justified as a matter of law
and/or preclude Appellant from proving pretext, especially where Employer claims that it has a
“zero tolerance” Policy. Moreover, the alleged unfavorable portion of Appellant’s testimony could
be found by the factfinder to be not credible and/or deserving a little to no evidentiary weight. See
Commonwealth v. Roux, 350 A.2d 867, 870 n.3 (Pa. 1976) (“[I]t is well-settled that the finder of
fact may believe all or a part of or none of the testimony of any witness. Therefore, the finder of
fact was free to disregard [witness’s] testimony in whole or in part.”). Thus, the Majority does not
ignore what the Dissent describes as “highly probative evidence,” Dissent op. at 6 n.2; rather, the
Majority believes that the probative value of Appellant’s testimony is completely dependent upon
the factfinder’s credibility and weight determinations. Significantly, under our standard of review
from the grant of summary judgment, “the court must disregard all evidence favorable to the
moving party that the [factfinder] is not required to believe,” Reeves v. Sanderson Plumbing, 530
U.S 133, 150-51 (2000), including portions of Appellant’s testimony, Roux, 350 A.2d at 870 n.3,
and “it has long been the rule in Pennsylvania that where the testimony of the party having the
burden of proof is oral, the credibility of that testimony is always for the [factfinder].” Bremmer v.
Protected Home Mutual Life Insurance Co., 260 A.2d 785, 786 (Pa. 1970).
20
proffered reason for terminating Appellant’s employment was pretext for
discrimination.
Conclusion
Viewing the evidence in a light most favorable to Appellant, the non-
moving party, we conclude that he has put forth credible evidence satisfying the
requirements of a prima facie case of discrimination such that a reasonable factfinder
could conclude that Employer’s proffered reason for terminating Appellant’s
employment was pretextual. Because genuine issues of material fact remain to be
decided in this case, the trial court’s grant of summary judgment in Employer’s favor
was improper.
Accordingly, the order of the trial court is reversed and the matter is
remanded to the trial court for further proceedings consistent with this opinion.
________________________________
PATRICIA A. McCULLOUGH, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bruce Leibensperger, :
Appellant :
: No. 87 C.D. 2015
v. :
:
Carpenter Technologies, Inc. :
t/a Carpenter Technology Corp. :
ORDER
AND NOW, this 22nd day of September, 2016, the order of the Court
of Common Pleas of Berks County (trial court), dated December 23, 2014, is
hereby reversed. The matter is remanded to the trial court for further proceedings
consistent with this opinion.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bruce Leibensperger, :
Appellant :
:
v. : No. 87 C.D. 2015
: Submitted: May 11, 2016
Carpenter Technologies, Inc. :
t/a Carpenter Technology Corp. :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE COHN JUBELIRER FILED: September 22, 2016
I agree with the Majority’s conclusion that Bruce Leibensperger (Appellant)
met his prima facie case of sex discrimination by producing evidence showing the
disparate treatment of his co-worker Jackie Berk by Carpenter Technologies, Inc.
(Employer). However, because I believe that the evidence presented, if admissible
at trial, is not sufficient for Appellant to meet his burden of proving that
Employer’s proffered justification for its action was pretext for illegal
discrimination, I, respectfully, dissent.
Central to my disagreement with the Majority is my understanding of this
Court’s role at the pretext phase of the analytical model established by the United
States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792,
802 (1973). Under this model, the burden is on the complainant to produce
evidence with sufficient probative force showing that the employer’s proffered
reason for its action did not motivate the employer’s action, and that the
discrimination was a determinative factor. Kroptavich v. Pa. Power & Light Co.,
795 A.2d 1048, 1059 (Pa. Super. 2002). It is not for this Court to act as “arbitral
boards ruling on the strength of ‘cause’ for discharge.” Keller v. Orix Credit
Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (quoting Carson v. Bethlehem
Steel Corporation, 82 F.3d 157, 159 (7th Cir. 1996)). Our role is to determine
whether a reasonable factfinder could conclude, by a preponderance of the
evidence, that the proffered reason for the adverse employment action is false and
that the real reason for action was unlawful discrimination. Id. The United States
Court of Appeals for the Seventh Circuit aptly explains the court’s role at the
pretext phase as determining, in light of the evidence presented by the
complainant, whether a reasonable factfinder could conclude that “the employer’s
proffered reason was pretextual, meaning that it was a lie.” Ransom v. CSC
Consulting, Inc., 217 F.3d 467, 471 (7th Cir. 2000) (emphasis added).
I do not believe the Majority’s analysis complies with these principles
because it does not require Appellant to adduce evidence showing that Employer’s
proffered justification – namely, that Appellant violated Employer’s Workplace
Violence Policy (Policy) – was a lie, and did not motivate Employer’s behavior.
The Majority holds, in relevant part, as follows:
Given the disparate treatment of other employees as compared to
Appellant, as well as the potentially ambiguous nature of Employer’s
Policy, a reasonable factfinder could conclude that Appellant did not
violate Employer’s Policy by bringing an inoperable gun onto
RCJ - 2
Employer’s parking area and that Employer’s proffered reason for
terminating Appellant’s employment was pretext for discrimination.
Leibensperger v. Carpenter Tech., Inc., __ A.3d ___ (Pa. Cmwlth., 87 C.D. 2015,
filed September 22, 2016), slip op. at 20.
The evidence pointed to by the Majority to support its conclusion does not
satisfy either of the two approaches for showing that Employer’s proffered reason
is pretext for illegal discrimination: the evidence neither shows (1) that
Employer’s proffered reason is so plainly wrong “that a reasonable factfinder could
rationally find [it] ‘unworthy of credence’”; nor, (2) that the real reason for his
discharge was discrimination based on age or sex. Keller, 130 F.3d at 1109
(quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)). First, although I
agree with the Majority that Appellant and Ms. Berk are comparators for purpose
of establishing a prima facie case of sex discrimination, there is a different
standard to be used at the pretext stage. A complainant need not, “as a matter of
law, . . . produce evidence in excess of that produced in a prima facie case in order
to prevail” at the pretext stage. Kroptavich, 795 A.2d at 1059. Yet, because
evidence must be assessed in light of the different questions posed at the different
stages of the McDonnell Douglas analysis, evidence sufficient to raise an inference
of discrimination at the prima facie stage may be insufficient to show that an
employer’s proffered justification for its action is pretext for illegal discrimination.
See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 516 (1993) (explaining the
pretext stage analysis as “turn[ing] from the few generalized factors that establish a
prima facie case to [assessing] the specific proofs and rebuttals of discriminatory
motivation the parties have introduced”) (emphasis added); Kroptavich, 795 A.2d
at 1059 (stating that “inferences acceptable at the prima facie stage may not satisfy
the higher level of specificity usually required at the pretext stage”) (emphasis
RCJ - 3
added); Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 646 (3d Cir.
1998) (explaining that evidence showing more favorable treatment of a single
member of a non-protected group that satisfies a complainant’s burden at the prima
facie stage, “where the inquiry is based on a few generalized factors,” may not be
sufficient “at the pretext stage where the factual inquiry into the alleged
discriminatory motives of the employer has risen to a new level of specificity”)
(emphasis added).
Appellant has not met his burden to show that Employer’s disparate
treatment of Ms. Berk could lead a rational factfinder to conclude that Employer’s
proffered justification for its action was pretext for illegal discrimination.1 In
arguing that its decision to terminate Appellant was motivated by the Policy,
Employer acknowledges that Ms. Berk was treated differently, but contends that
this disparate treatment was justified as Ms. Berk’s violation of the Policy was not
as egregious as Appellant’s violation. The Policy states “[b]ringing a firearm or
other dangerous weapon onto [Employer] owned or leased property is considered
an intolerable offense for which an employee will be immediately suspended with
intent to discharge.” (Policy at 1, R.R. at 101a (emphasis added).) Appellant
appears to recognize this distinction. When questioned by Employer in his
deposition, Appellant stated as follows.
Q: During the meeting with [Employer’s investigator], did you make
any statements to [Employer’s investigator] about what you thought
should happen to [Ms.] Berk because of this incident?
1
The potentially disparate treatment of Mr. Marko, who allegedly brought bows onto
Employer’s parking lot, is not at issue in the pretext phase as the Majority correctly holds that
Mr. Marko is not a sufficient comparator to Appellant. Leibensperger, __ A.3d at ___, slip op. at
15.
RCJ - 4
[Appellant]: I remember in not so many words indicating when they
told me that I was being suspended with the intent to terminate, my
first thing was that it should not happen to myself and/or [Ms.] Berk.
It should not -- she should not be held accountable for this.
Q: Did you remember telling [Employer’s investigator] that you
asked that she not lose her job because you were the person
responsible for bringing the gun?
[Appellant]: Well, I did bring the gun so I was responsible for
bringing the gun.
Q: That’s not my question. I’m asking -- thank you. But what I
asked you is did you tell [Employer’s investigator] that you thought
that she should not be held responsible because she was not the person
who brought the gun to work?
[Appellant]: Yes.
(Appellant’s Dep. at 41-42, R.R. at 89a-90a.) While Employer’s decision to not
treat Ms. Berk and Appellant equally may support an inference of discrimination at
the prima facie stage of the McDonnell Douglas analysis, Appellant’s admission
that the different treatment was justified, and advocacy in support of different
treatment of Ms. Berk, necessarily precludes a finding that Ms. Berk’s different
treatment shows that Employer’s proffered reason for its action is pretext. Because
Appellant has offered no other evidence showing that Employer’s reliance on the
Policy was a cover-up for illegal discrimination, this Court must grant summary
judgment to Employer.2 See Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa.
2
The Majority states that the Dissent “appears to view the evidence in the light most
favorable to Employer to find that Employer was justified in imposing a less severe disciplinary
sanction on Berk because Berk’s conduct ‘was not as egregious as Appellant’s violation.’”
Leibensperger, __ A.3d at ___, slip op. at 20 n.8. The section of this Dissent quoted by the
Majority is a summary of Employer’s argument, not the Dissent’s conclusion that Employer’s
action was justified. It is not for this Court to make a judgment on the wisdom of Employer’s
action. The Dissent simply concludes that Appellant cannot meet his burden of proving that
(Continued…)
RCJ - 5
1996) (holding the failure of “a non-moving party [to] adduce sufficient evidence
on an issue . . . on which he bears the burden of proof” “establishes that there is no
genuine issue of material fact and the moving party is entitled to judgment as a
matter of law”).
Second, the Majority concludes that a reasonable factfinder could conclude
that Employer’s proffered justification was pretext for illegal discrimination
because the Policy was “potentially ambiguous” and because a reasonable
factfinder could conclude that Appellant did not violate the Policy by bringing an
inoperable firearm onto the parking lot. Leibensperger, __ A.3d at ___, slip op. at
19-20. This reasoning is misplaced. Whether the Policy was clear and understood
by Appellant, and whether Employer correctly applied the Policy is not relevant at
the pretext stage of the McDonnell Douglas analysis. According to the United
States Court of Appeals for the Third Circuit, to survive summary judgment at the
pretext stage, “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 only question before the
factfinder is whether the evidence shows that Employer’s proffered justification is
a lie and that the discriminatory animus motivated the action.
Employer’s articulated justification was pretext for sex discrimination based solely on evidence
that Ms. Berk was treated differently when Appellant’s deposition testimony establishes that
Appellant advocated for Ms. Berk to be treated differently based on her conduct, not her sex.
The Majority completely ignores this highly probative evidence. Our standard of review
provides no justification for ignoring Appellant’s unfavorable deposition testimony. We are to
look at the evidence in the light most favorable to the non-moving party; this does not mean that
we only look at evidence that is favorable to the non-moving party and disregard the rest.
RCJ - 6
Furthermore, even if the evidence could lend itself to prove that Employer’s
proffered justification is pretext for illegal discrimination, Appellant still falls short
of meeting his burden. The Majority concludes that because Mr. Marko and the
other man were not fired for bringing hunting bows onto Employer’s parking lot,
Appellant could have reasonably believed that the Policy did not apply to his
firearm, and that Appellant possibly did not violate the Policy. No reasonable
factfinder could conclude that Appellant did not violate the Policy from the
treatment of these men because, as the Majority notes, Mr. Marko and the other
man were, in fact, punished for violating the Policy, albeit less harshly than
Appellant was punished. Leibensperger, __ A.3d at ___, slip op. at 7 (citing
Employer’s Exs. 30, 31, S.R.R. at 242b, 245b.)
The Majority finds the evidence showing that Appellant’s firearm was not
operable particularly probative of discriminatory animus. However, the Policy
makes no distinction concerning whether or not a dangerous weapon is operable.
The intent of the Policy, noted in the Policy itself, is “to provide a safe and secure
work environment which is free from threats, threatening behavior, acts of
violence, or any other related activity which is disruptive to employees.” (Policy at
1, R.R. at 101a.) Employer’s belief that an inoperable firearm, when brandished at
another employee, is just as threatening and disruptive as an operable one, is not so
plainly wrong that a reasonable factfinder could conclude that Employer’s reliance
on the Policy to justify its action was unworthy of credence.
Finally, no reasonable factfinder could conclude that Employer’s
justification was unworthy of credence by the fact that Employer made a one-time
exception to the Policy in 1996 for the distribution of a special edition
commemorative rifle. Employer presented evidence showing that the 1996 rifle
RCJ - 7
sale was a one-time exception to the Policy.3 Employer wrote a memo to its staff
prior to the 1996 collectible rifle sale outlining when and where individuals should
pick up the pre-ordered rifle. The memo contained the following language:
Please remember that it is against company policy to have a firearm
on company premises. If you must pick up your rifle at any other
time than when you are leaving work, you must keep the rifle secured
in your vehicle. Under no circumstances may a firearm be taken into
any office or mill area. This exception to the policy will only apply to
the distribution of the Ruger rifles and will not apply under any other
circumstances.
(Employer’s Memo to Staff on Commemorative Rifle Sale, Employer’s Ex. 20, at
#5, R.R. at 146a) (emphasis added). Employer’s one-time exception to the Policy,
clearly communicated to employees as an exception, does not preclude Employer
from applying the Policy years later under very different circumstances.
In sum, I see no evidence by which a reasonable factfinder could conclude
that Employer’s proffered justification was a lie, nor that the actual motive for
discharging Appellant was age or sex. I would, therefore, affirm the Order of the
Court of Common Pleas of Berks County.
________________________________
RENÉE COHN JUBELIRER, Judge
Judges Simpson and Covey join this dissenting opinion.
3
While there is evidence of a previous commemorative revolver sale in 1989, the
Majority rightly points out that there is no evidence in the record showing that the Policy was in
effect at that time. Leibensperger, __ A.3d at ___, slip. op. at 5 n.3.
RCJ - 8