Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
5-17-2004
Evans v. PA Power Light Co
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2534
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2534
JOHN J. EVANS; MICHAEL BATH;
MARK LINDSEY; JOHN SORENSEN,
Appellants
v.
PENNSYLVANIA POWER & LIGHT COMPANY
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 00-cv-01753
(Honorable Thomas I. Vanaskie)
Argued April 19, 2004
Before: SCIRICA, Chief Judge, GARTH and BRIGHT*, Circuit Judges
(Filed May 17, 2004)
PETER G. LOFTUS, ESQUIRE (ARGUED)
The Loftus Law Firm, P.C.
P.O. Box V, 1207 North Abington Road
Waverly, Pennsylvania 18471
Attorney for Appellants
*The Honorable Myron H. Bright, United States Circuit Judge for the Eighth Judicial
Circuit, sitting by designation.
DANIEL R. HALEM, ESQUIRE (ARGUED)
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Attorney for Appellee
OPINION OF THE COURT
SCIRICA, Chief Judge.
In this employment discrimination action, appellants appeal a grant of summary
judgment in favor of appellee. For the reasons stated, we will affirm.
I.
Appellants John Evans, Mark Lindsey, Michael Bath and John Sorensen were
employed by appellee Pennsylvania Power & Light Co. (PP&L) until their termination in
July of 1996. At the time of the incident described, appellants worked as Nuclear Plant
Operators (NPOs) at the Susquehanna Steam Electric Station, a two unit boiling water
nuclear reactor located in Berwick, Pennsylvania. As part of their duties, NPOs were
required to perform two “rounds” during each twelve hour shift, in which they would
record measurements, perform tests, and inspect equipment throughout the plant. While
performing the rounds, NPOs recorded their actions and the test results on a “rounds
sheet.”
Among the tasks specified on the rounds sheet was testing an alarm panel in the
basement of the E-Diesel generator building. In the event the power plant lost its source
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of outside power, five diesel generators, including the E-Diesel generator, would serve as
alternate sources of electricity for the equipment that cools the nuclear core of the reactor
and prevents meltdown. The alarm was designed to signal problems with the auxiliary
systems necessary for the E-Diesel generator to operate, including heating, ventilation, air
conditioning, and emergency service water valves. Upon performing the alarm test, the
NPO would place a check mark on the rounds sheet to indicate that he had successfully
completed the test and that the alarm was functioning properly. Performance of the test
was also recorded by the computer system consisting of two computers, one for each of
the plant’s two reactor units.
In July of 1996, PP&L became aware that numerous NPOs failed to perform the
alarm test during their rounds although they marked on their rounds sheet that they had
performed the test. Engineer Michael Adelizzi reviewed the computer data covering the
period of January 1996 to July 1996 to ascertain the times each NPO had performed or
failed to perform the alarm test. He also conducted a test that confirmed the reliability of
the computer data. Finally, PP&L conducted individual interviews with the NPOs,
questioning them about their alleged failure to perform the alarm test.
After reviewing the interviews, computer records, and rounds sheets, PP&L
decided to discipline nineteen NPOs whose “recorded” alarm testing was not reflected on
the computer records. The method of punishment for this error varied according to the
frequency and consistency of the errors. Eight of the NPOs had missed the test once or
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twice, while performing it correctly otherwise. PP&L determined that their behavior was
attributable to human error and that a written warning was the most appropriate form of
discipline. Five NPOs had never performed the test or performed it consistently after an
initial failure to perform it. Concluding that this conduct constituted a reckless disregard
of their duties, these NPOs were subject to a one-day suspension. Finally, six NPOs had
missed the alarm test in a sporadic, unexplainable pattern. PP&L concluded that these
NPOs were aware of the requirement to perform the test, so their failure to perform the
test demonstrated a willful disregard of their job duties and deliberate falsification of the
rounds sheets. These six NPOs were terminated. Two of the terminated NPOs were
under 40 years of age, while four of the NPOs, the appellants, were over 40 years of age.
Upon their dismissal, the appellants’ union filed a grievance contending that PP&L
did not have just cause to terminate the NPOs. The union contended that PP&L failed to
properly train appellants and notify them of their duty to perform the alarm tests, and it
also argued that the omissions were not done voluntarily, knowingly, or deliberately. In
an opinion dated April 30, 1998, the arbitrator held that PP&L had just cause to terminate
the appellants. The union did not challenge this conclusion.
On October 3, 2000, appellants brought suit in federal court alleging their
terminations violated the Age Discrimination in Employment Act of 1967 (ADEA), 29
U.S.C. § 621, et seq., and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann.
§ 951, et seq. In the suit, appellants reiterated their contention that the alarm test failures
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resulted from computer error and PP&L’s failure to train them and communicate to them
how the test was to be performed. They further asserted that PP&L used the alarm test as
a pretext to (1) terminate older employees and avoid laying off seven younger Auxiliary
System Operators (ASOs) 1 slated for discharge, and (2) shift the focus away from an error
in senior management regarding a circuit breaker misalignment in the E-Diesel generator.
The District Court granted summary judgment in favor of PP&L in a memorandum
opinion dated M ay 7, 2003. Appellants filed this timely appeal.
II.
We exercise plenary review over the District Court’s grant of summary judgment.
Simpson v. Kay Jewelers, 142 F.3d 639, 643 (3d Cir. 1998). In determining whether
summary judgment was properly granted, we must use the same standard applied by the
district court and take the facts in the light most favorable to the nonmoving party. Doe v.
County of Centre, 242 F.3d 437, 446 (3d Cir. 2001). We have jurisdiction under 28
U.S.C. § 1291.
III.
A.
Appellants claim that the District Court erred in granting summary judgment to
PP&L for failure to establish a prima facie case and, alternatively, for failing to establish
1
ASOs may be promoted to NPO positions after receiving classroom instruction and
on-the-job training.
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pretextual reasons behind the termination.
Under the ADEA, employers are prohibited from discriminating against
individuals in hiring, termination, compensation, or conditions of employment on the
basis of their age. 29 U.S.C. § 623(a)(1). To survive a motion for summary judgment in
an ADEA case, a plaintiff must first establish a prima facie case of age discrimination.
Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc). The
elements of a prima facie case of age discrimination are: (1) the plaintiff is over 40 years
of age; (2) the plaintiff is qualified for the position in question; (3) the plaintiff suffered
an adverse employment decision; and (4) the plaintiff was replaced by a sufficiently
younger person to create an inference of job discrimination. Keller, 130 F.3d at 1108.
This Court has recently taken a more flexible approach to the fourth prong. In Pivirotto v.
Innovative Systems, Inc., we stated that “a complainant can satisfy the fourth prong of her
prima [facie] case simply by showing that, as here, the employer had a continued need for
someone to perform the same work after the complainant left.” 191 F.3d 344, 354 (3d
Cir. 1999) (quotations omitted).
Once the plaintiff has established a prima facie case of age discrimination, the
burden shifts to the employer to produce evidence of a legitimate, nondiscriminatory
reason for the adverse action. Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509,
522 (3d Cir. 1992). The plaintiff then has the burden to provide sufficient evidence from
which a factfinder could reasonably either (1) reject the employer’s nondiscriminatory
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explanation for its decision, or (2) believe that an invidious discriminatory reason was
more likely than not a motivating cause of the employee’s discharge. Fuentes v. Perskie,
32 F.3d 759, 763-64 (3d Cir. 1994).
B.
PP&L stipulates that appellants have satisfied the first three prongs of the prima
facie case, but it claims, and the District Court found, that appellants failed to establish
the fourth prong. PP&L did not hire new employees to cover appellants’ shifts, but it
inserted other workers into these spots. Ken Hillman, a Senior Nuclear Plant Specialist
for PP&L who was responsible for staffing appellants’ positions, testified by affidavit
that PP&L regularly maintains on its staff extra NPOs and Plant Control Operators to
provide coverage for absences due to vacations, illness, or training. Because of this,
Hillman testified, PP&L was able to rely on existing staff to cover appellants’ shifts.
As in Pivirotto, we believe appellants have satisfied the fourth prong requirement,
for PP&L “had a continued need for someone to perform the same work after the
complainant[s] left.” 191 F.3d at 354. Although it is not free from doubt, appellants have
demonstrated a prima facie case of age discrimination.
C.
While appellants may have made the required prima facie showing for age
discrimination, they cannot survive summary judgment due to their failure to sufficiently
cast doubt on PP&L’s stated reasons for termination.
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PP&L has presented a legitimate, non-discriminatory basis for the termination of
appellants’ employment, namely that appellants failed to perform the alarm tests essential
to the safety of the nuclear power plant and the public and that they falsely represented
having completed the tests, showing a willful disregard of their duties as NPOs. PP&L
produced evidence that each appellant admitted to not having always performed the alarm
test. Furthermore, it investigated the reasons appellants subsequently gave for not having
consistently performed the test. PP&L found those reasons were invalid, concluded that
appellants intentionally entered false information on the records sheets, and terminated
their employment.
This is not an ordinary matter involving an employee’s failure to perform certain
duties. The proper performance of appellants’ duties were essential to the operation of a
nuclear power plant. Any disregard of testing responsibilities could have a profound
impact on public safety. PP&L categorized the offending employees according to their
level of culpability.
Since PP&L presented valid, nondiscriminatory reasons for the terminations,
appellants were obligated to present evidence from which a reasonable factfinder could
conclude that PP&L’s articulated reasons were false, or that discrimination was more
likely than not a motivating cause of PP&L’s actions. Fuentes, 32 F.3d at 764.
Specifically, appellants must “demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proferred legitimate
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reasons for its action that a reasonable factfinder could rationally find them unworthy of
credence.” Id. at 765 (quotations omitted).
Appellants claim PP&L falsely manufactured the “test button problem” in order to
distract attention from an alleged incident involving a “misalignment of the circuit on the
E-Diesel,” and to also provide a reason to terminate them and replace them with younger
ASOs. Appellants claim their theory is strengthened because of problems with the plant’s
computer system and a lack of training in performing the alarm test. In addition,
appellant Mark Lindsey asserts in his affidavit that an unnamed member of PP&L’s
Board of Directors told him in the spring of 1993 “that the overall concern for the
Operations Department was age.”
These representations are not sufficient for a reasonable factfinder to discount
PP&L’s motives or reasons for terminating appellants’ employment. Appellants’ claims
are mere conjecture or are not supported by evidence. For instance, appellants allege
PP&L brought back seven displaced ASO’s to fill their positions, six of whom were
under 40 years of age,2 but they present no supporting documentary evidence such as
personnel records, third-party evidence, or testimony of those who allegedly replaced
2
Lindsey asserted that “[t]he employees who were brought back to ASO positions were
Tim Ebert (late 20’s); Dave Evans (32); Mark Haile (38); Mike Krebs (33); Ron Dalmas
(35); Gordon Shellenberger (32) and Glenn Miller (45).” However, the personnel records
of these individuals demonstrate that only Ebert was an ASO at the time of the alleged
incident. Furthermore, Ebert was not promoted to the NPO classification until nearly
three years after appellants’ termination.
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them. This unsupported allegation does not meet the requirements of Fed. R. Civ. P.
56(e). Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990).
Several of appellants’ assertions are contradicted by the record. Instead of
revealing computer “problems,” as appellants claim, Adelizzi’s engineering report
verified the accuracy of the two computers.3 Although appellants allege the
circumstances of the termination imply selective discrimination on the basis of age, two
of the six terminated NPOs were less than forty years of age. Furthermore, PP&L
grouped the offending employees into three categories, based entirely on levels of
misfeasance and relative culpability having no connection to age.
Finally, Lindsey’s allegation regarding the unnamed PP&L board member’s age-
related statement is not sufficient to overcome summary judgment. Appellants have not
shown a connection between the board member and the 1996 incident. Furthermore, the
alleged statement was made in 1993, well before the alarm test investigation. See Ezold,
983 F.2d at 545 (“Stray remarks by non-decision makers or by decisionmakers unrelated
to the decision process are rarely given great weight, particularly if they were made
temporally remote from the date of decision.”).
In summary, appellants did not produce direct or circumstantial evidence from
which a reasonable factfinder could conclude that PP&L’s stated reasons for firing
3
Adelizzi found that the computer failed to register an alarm only when the test and
reset buttons are pushed almost simultaneously, a highly unlikely occurrence.
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appellants were false or that age was a motivating factor in the termination decision.
Therefore the District Court properly granted summary judgment in favor of PP&L.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
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