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2002 PA Super 87
IN THE SUPERIOR COURT OF
PENNSYLVANIA POWER AND LIGHT
No. 1502 MDA 1999
Appeal from the Order Dated August 4, 1999
In the Court of Common Pleas of Lackawanna County
Civil at No. 96-CV-3503
IN THE SUPERIOR COURT OF
PENNSYLVANIA POWER AND LIGHT
No. 1559 MDA 1999
Appeal from the Order Dated August 4, 1999
In the Court of Common Pleas of Lackawanna County
Civil at No. 96-CV-3503
BEFORE: CAVANAUGH, STEVENS, and HESTER, JJ.
OPINION BY STEVENS, J.:
Filed: March 26, 2002
Appellant/Cross-Appellee, Ronald Kroptavich, appeals from an order of
the Court of Common Pleas of Lackawanna County granting summary
judgment to Appellee/Cross-Appellant, Pennsylvania Power and Light
Company ("PPL"), on both counts of Kroptavich's complaint, relating to his
dismissal from the company. We hold that the coordinate jurisdiction rule
did not bar the order entering summary judgment in favor of PPL, and we
affirm the entry of summary judgment against Kroptavich, albeit on different
On May 16, 1966, Kroptavich accepted a position with PPL as a line
crew laborer. In the ensuing years, Kroptavich earned a series of
promotions and eventually assumed the management position as one of
PPL's Multi-Crew Foremen. As a Multi-Crew Foreman, Kroptavich was
responsible for supervising workers assigned to install or maintain power
lines and equipment.
The present controversy arose from Kroptavich's acceptance of a 1994
Christmas gift of $200.00 cash from the owner of Neal-Lynn Construction, a
company routinely subcontracted by PPL to provide labor crews for various
projects. In January, 1995, when PPL supervisors asked Kroptavich whether
he had accepted any money from Neal-Lynn in contravention of PPL's
"Procurement Practices Manual" and "Standards of Integrity Policy Manual,"
Kroptavich replied that he had been given a $200.00 gift certificate but
returned it. However, at a subsequent meeting with internal auditors
investigating alleged Neal-Lynn gift-giving, Kroptavich admitted that he had,
in fact, accepted a $200.00 cash gift. In light of his admission, Kroptavich
was given the option of either termination or resignation. Kroptavich, 51
years of age at the time, chose the latter. Shortly thereafter, three existing
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PPL employees, ranging in age from 50 to 53 years of age assumed
After exhausting administrative avenues, Kroptavich filed a complaint
on or about October 17, 1996, enumerating two counts, namely, that his
forced resignation was a violation of the Pennsylvania Human Relations
Act's1 ("PHRA") prohibition on age discrimination and that PPL constructively
discharged him. Specifically, Appellant averred that younger employees who
accepted gifts were not discharged but were given oral or written reprimands
only. He further claimed that he was effectively discharged for violating
policy manual provisions without being afforded access to the manual's
After filing its answer to the complaint but prior to depositions and
discovery, PPL filed a motion for partial summary judgment in which it
argued that the PHRA both preempted Kroptavich's constructive discharge
claim as a matter of law and did not permit a jury trial. Denying PPL's
motion, the Honorable James M. Munley ruled that the PHRA did not
preempt Kroptavich's constructive discharge claim because the claim was
"based not on public policy against discrimination but rather on
1 43 Pa.S. § 951 et seq. Relevant to the present appeal, Section 955
It shall be an unlawful discriminatory practice...(a) For any
employer because of the...age...of any individual to refuse to hire
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[Kroptavich's] alleged selective treatment and denial of PP&L's appeal
process." See Order 7/14/97 at 3.
The parties thereafter conducted discovery, and Kroptavich was
deposed. At the conclusion of the discovery period, PPL filed another motion
for summary judgment, this time for the dismissal of both counts against it.
PPL argued that Kroptavich failed to establish two elements necessary to a
prima facie case of age discrimination, namely, that he remained qualified
for the job despite knowingly violating policy and that PPL replaced him with
someone significantly younger than he. PPL also argued that, assuming
arguendo a prima facie case were made, PPL met its burden of providing a
nondiscriminatory explanation for termination which Kroptavich failed to
rebut as pretextual.
Presiding over the motion was the Honorable S. John Cottone. After
receiving briefs and hearing oral argument on the matter, Judge Cottone
granted PPL's motion and entered an order dismissing Kroptavich's
complaint. Judge Cottone first found that the coordinate jurisdiction rule did
not bar his review because discovery and depositions had occurred after
Judge Munley's order and, thus, for the first time, provided the court with a
factual record upon which to rule. With regard to the count of age
discrimination under the PHRA, Judge Cottone reserved opinion as to
or employ, or to bar or to discharge from employment such
individual. 43 Pa.S. § 955.
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whether Kroptavich's conduct made him unqualified to continue at his
supervisory position. Rather, Judge Cottone based his ruling on Kroptavich's
failure to establish that he was replaced with a significantly younger worker.
An alternative basis for Judge Cottone's ruling was his finding that, assuming
a prima facie case had been made, PPL had stated a legitimate reason for
discharge which Kroptavich failed to rebut as mere pretext for
Nor could Kroptavich's denial of an appeals process defined in the
"Standards of Integrity" manual act as a basis for a constructive discharge
claim, Judge Cottone found, because one could not reasonably infer from the
manual's language that PPL intended to supplant Pennsylvania's
"employment at-will" presumption. This timely direct appeal and cross-
Kroptavich challenges the trial court's entry of summary judgment
with four questions raised for our consideration:
WHETHER THE COURT CAN OVERRULE A JUDGE OF THE
SAME COURT IN VIOLATION OF COORDINATE
WHETHER THE LOWER COURT ERRED IN GRANTING
SUMMARY JUDGMENT ON APPELLANT'S [AGE]
III. WHETHER THE CONSTRUCTIVE DISCHARGE CLAIM MUST
WHETHER THERE ARE SUBSTANTIVE DEFECTS WHICH
PRECLUDE THE USE OF CERTAIN DOCUMENTS ATTACHED
TO THE DEFENSE MOTION?
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¶10 Our scope of review of a trial court order granting summary judgment
is plenary. Weishorn v. Miles-Cutter, 721 A.2d 811 (Pa.Super. 1998). In
reviewing the order, we must examine the record in the light most favorable
to the nonmoving party and determine whether the moving party has
established that no genuine issue of material fact exists and that it is
entitled to judgment as a matter of law. Id. We will overturn a lower court's
entry of summary judgment "only if there has been an error of law or a clear
abuse of discretion." Hoffman v Brandywine Hospital, 661 A.2d 397, 399
¶11 In his first challenge against the entry of summary judgment,
Kroptavich argues that Judge Cottone revisited issues already rejected in
Judge Munley's order denying PPL's earlier motion for summary judgment,
thereby violating the coordinate jurisdiction rule. We find no such violation
of the coordinate jurisdiction rule where the motion before Judge Cottone
raised different legal issues from those raised in the motion before Judge
¶12 This Court has recognized that under the coordinate jurisdiction rule,
judges of coordinate jurisdiction sitting in the same case should not
ordinarily overrule each other's decisions. Herczeg v. Hampton Township
Municipal Authority, 766 A.2d 866 (Pa.Super. 2001). The rule is one of
"sound jurisprudence based on a policy of fostering the finality of pre-trial
applications in an effort to maintain judicial economy and efficiency."
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Commonwealth v. Starr, 541 Pa. 564, 574, 664 A.2d 1326, 1331 (1995).
This rule applies to civil cases and it falls within the "law of the case"
doctrine, which instructs that:
[A] court involved in the later phases of a litigated matter should
not reopen questions decided by another judge of the same
court or by a higher court in the earlier phases of the matter.
Among the related but distinct rules which make up the law of
the case doctrine are that:...upon transfer of a matter between
trial judges of coordinate jurisdiction, the transferee trial court
may not alter the resolution of a legal question previously
decided by the transferor trial court.
Riccio v. American Republic Ins. Co., 550 Pa. 254, 261-262, 705 A.2d
422, 425 (1997).
¶13 Here, we find that the law of the case doctrine does not apply where it
is clear that the two orders in question addressed different legal questions.
PPL's first motion for summary judgment sought judgment only on the
constructive discharge count, which, PPL argued, the PHRA count preempted
as a matter of law. Judge Munley, noting that the PHRA indeed bars review
of discrimination-based constructive discharge claims, ruled that
Kroptavich's constructive discharge claim survived preemption because it
was based not on discrimination per se but on the allegation that PPL
required Kroptavich to resign without the benefit of an internal appeal
process as outlined in PPL's policy manual.
¶14 In contrast, PPL filed its second motion for summary judgment on both
the age discrimination claim and the constructive discharge claim on the
argument that Kroptavich failed to produce facts during discovery necessary
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to each cause of action. Judge Cottone agreed that Kroptavich supported
neither claim with sufficient facts and granted summary judgment.
¶15 Thus presented with a motion completely different from that presented
earlier to Judge Munley, Judge Cottone did not reopen questions or alter
earlier decisions. His entry of summary judgment, therefore, was not at
odds with the law of the case doctrine/coordinate jurisdiction rule.
¶16 Kroptavich's second issue asks this Court to determine if Judge
Cottone erred in finding that Kroptavich failed to support his claim of age
discrimination under the PHRA with evidence sufficient to present a jury
question. Our review shows the trial court properly granted summary
judgment on the age discrimination claim.
¶17 Summary judgment is proper when, after completion of discovery
relevant to the motion, 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. Pa.R.Civ.P. 1035.2(2). In a Rule 1035.2(2) scenario,
"the record contains insufficient evidence of facts to make out a prima facie
cause of action or defense and, therefore, there is no issue to be submitted
to a jury." Pa.R.Civ.P. 1035.2(2), Note.
¶18 As noted above, a cause of action based on age discrimination in
Pennsylvania is found in the PHRA. Generally, claims brought under the
PHRA are analyzed under the same standards as their federal counterparts.
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Therefore, though not binding on our state courts, federal court
interpretations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., serve to inform this Court's interpretations of the PHRA. Connors v.
Chrysler Financial Corp., 160 F.3d 971 (3d Cir. 1998); Fairfield
Township Volunteer Fire Co. v. Commonwealth, 530 Pa. 441, 609 A.2d
804 (1992); Jaques v. Akzo International Salt, Inc., 619 A.2d 748
¶19 Established for Title VII cases, where, as here, direct evidence of
discriminatory treatment is lacking, is "an allocation of the burden of
production and an order for the presentation of proof" according to which a
court may assess a plaintiff's indirect evidence of discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Davis v. Tammac Corp.,
127 F. Supp. 2d 625 (M.D.Pa 2000). This Title VII burden-shifting
framework as developed in McDonnell Douglas is a three-part one. First,
the plaintiff bears the initial burden of establishing a prima facie case of
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133 (2000); Jacques, supra. The burden on the plaintiff of presenting a
prima facie case under McDonnell Douglas is "minimal." James v. New
York Racing Ass'n, 233 F.3d 149, 153 (2d. Cir. 2000). If the plaintiff
cannot meet this minimal burden, the employer is entitled to judgment as a
matter of law. See Pivirotto v. Innovative Systems, Inc., 191 F.3d 344,
352 n.4 (3d Cir. 1999).
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¶20 If the plaintiff does establish a prima facie case, a presumption of
discrimination arises, and the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the challenged
employment decision. Reeves, supra; Jacques, supra. The employer's
burden in this second part is one of production, not persuasion, and thus
involves no credibility assessment. Reeves, supra. 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.'" Seman v. Coplay
Cement Co., 26 F.3d 428, 432 (3d Cir. 1994) ((quoting St. Mary's Honor
Ctr. V. Hicks, 509 U.S. 502, 511 (1993)).
¶21 If the employer satisfies its burden of production, the third and final
part of the McDonnell Douglas framework gives the plaintiff the
opportunity to show that the legitimate reasons proffered by the employer
were pretexts for what, in reality, was a discriminatory motivation. See
Simpson v. Kay Jewelers, 142 F.3d 639, 644 n.5 (3d Cir. 1998). In the
pretext discrimination case, "the employer need not prove that the tendered
reason actually motivated its behavior, as throughout this burden-shifting
paradigm the ultimate burden of proving intentional discrimination always
rests with the plaintiff." Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.
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¶22 To survive PPL's motion for summary judgment, therefore, Kroptavich
first needed to establish all elements to a prima facie case. In McDonnell
Douglas, a failure-to-hire case involving race, the United States Supreme
Court held that a plaintiff could establish a prima facie case in a Title VII
action by showing "(i) that he belongs to a racial minority; (ii) that he
applied and was qualified for a job for which the employer was seeking
applicants; (iii) that, despite his qualifications, he was rejected; and (iv)
that, after his rejection, the position remained open and the employer
continued to seek applicants from persons of [the] complainant's
qualifications." McDonnell Douglas, 411 U.S. at 802 n.13.
¶23 The McDonnell Douglas prima facie inquiry has been assumed to
apply where the claim is one of age discrimination arising under the Age
Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C.S. § 621 et
seq, See O'Connor v. Consolidated Caterers Corporation, 517 U.S. 308
(1996) (assuming the application of the Title VII evidentiary framework set
forth in McDonnell Douglas to the ADEA context is correct), though in a
variant form. This variant standard provides that an age discrimination
plaintiff may make a prima facie case with evidence showing that the
plaintiff at the relevant time: (i) belonged to a protected class, i.e., was at
least 40 years of age; (ii) was qualified for the position; (iii) was dismissed
despite being qualified; and (iv) suffered dismissal under circumstances
giving rise to an inference of discrimination, such as the fact that the plaintiff
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was replaced by someone substantially younger. See O'Connor, supra. at
313; Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001); Gray
v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).
¶24 The lower court applied this particular variant prima facie standard to
Kroptavich's case. In so doing, the court held that Kroptavich's failure to
establish the fourth prong with evidence that he was replaced by a
substantially younger person precluded the inference of age discrimination,
thus requiring the dismissal of his case. While we agree that proof of
replacement by a substantially younger person may allow for the inference
of discrimination, we disagree that an inference of discrimination can be
made from no other type of evidence. Here, the crux of Kroptavich's
complaint was that PPL treated him differently than it treated similarly
situated existing employees who were younger than he, and that PPL had a
continued need for someone with his qualifications to perform his work.
Therefore, his failure to establish that he was replaced by a significantly
younger employee did not logically foreclose the inference that PPL treated
him disparately because of his age.
¶25 It is well-settled that a major purpose of the prima facie inquiry is to
eliminate the most common nondiscriminatory reasons for the plaintiff's
rejection. See Texas Dep't of Community Affairs v. Burdine, 450 U.S.
248 (1981). The McDonnell Douglas method for conducting the prima
facie inquiry provides a "sensible, orderly way to evaluate the evidence in
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light of common experience as it bears on the critical question of
discrimination," but it was "never intended to be rigid, mechanized, or
ritualistic." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577
(1978). Indeed, the Supreme Court in McDonnell Douglas acknowledged
that "facts necessarily will vary in Title VII cases, and the specification above
of the prima facie proof required from [plaintiff] is not necessarily applicable
in every respect to differing factual situations." McDonnell Douglas, at 802
¶26 Federal jurisprudence has, therefore, emphasized that the
requirements of the prima facie case are flexible, and has repeatedly
conditioned the fourth element on the particular circumstances of each case.
For example, in Torre v. Casio, Inc., 42 F.3d 825 (3d. Cir. 1994), the Third
Circuit Court reformulated the typical fourth element as stated in Gray to
eliminate the need for an age-discrimination plaintiff to prove he was
replaced where the employer was engaged in reducing its workforce. The
circuit court thus found the fourth element established by evidence that:
[y]ounger people were not transferred when Torre was
transferred, and younger people subsumed his duties.
Furthermore, younger people were retained when Torre was
terminated. These facts suffice to complete Torre's prima facie
case: given Casio's concession concerning the other three Gray
elements, if Torre's proof stopped with the facts above, he would
carry his initial burden of `offering evidence that an employment
decision was based on a discriminatory criterion illegal under the
Act.'.... The inference of age discrimination may not be
overpowering, but we cannot say that, as a matter of law, it is
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Torre, 42 F.3d at 832-833 (citation omitted).
¶27 Five years later, the Third Circuit Court revisited the fourth element in
Pivirotto, supra., a gender discrimination case, and found error with the
district court's requirement that a female plaintiff prove that her former
employer replaced her with a man. In following the United States Supreme
Court's holding in O'Connor, supra, which rejected a fourth element
requirement that a plaintiff prove replacement by someone outside of the
protected class,2 the Third Circuit adopted the following reasoning, accepted
by the vast majority of circuit courts:
[E]ven if a woman is fired and replaced by another woman, she
may have been treated differently from similarly situated male
employees.... "[W]hile the attributes of a successor employee
may have evidentiary force in a particular case, 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.'"
Pivirotto, 191 F.3d at 353-354, (quoting Cumpiano v. Banco Santander
P.R., 902 F.2d 148, 155 (1st Cir. 1990) (citations and brackets omitted)).
¶28 The decisions of the Third Circuit thus clarify that the fourth element of
the prima facie case may be satisfied with evidence unrelated to the
particular attributes of those who either replace the plaintiff or subsume the
plaintiff's duties. Were this not the case, an untenable loophole would exist
in discrimination laws permitting employers to impose double standards in
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the workplace. For example, an employer could dismiss a protected class
employee for failing to meet a standard more exacting than is applicable to
non-protected class employees, and still avoid liability simply by filling the
position with a successor from the same protected class. If left unabated,
such an employment policy would perpetuate a double standard whereby
protected class employees may always be hired, but retained only on the
condition that they perform beyond the expectations put to similarly situated
non-protected class employees. See Pivirotto, supra. Clearly, the scope
of discrimination laws, including the PHRA, must extend to prohibit such
¶29 So, the Third Circuit has recognized that a plaintiff may satisfy the
fourth element of a prima facie case without evidence that the replacement
employee possessed attributes substantially different from the protected
attributes of the plaintiff. This reasoning, adopted by the majority of circuit
courts, goes even further to clarify the minimum evidentiary threshold of the
"[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
2 To the extent that this Court in Jacques required evidence of replacement
with someone outside of the protected class, we understand O'Connor to
have since rejected this evidentiary requirement.
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Pivirotto, supra. See also Keen v. D.P.T. Business School, 2002 U.S.
Dist. Lexis 232, at *12 (E.D.Pa. January 9, 2002) (noting that fourth prong
in ADEA "failure to promote" case may be satisfied with evidence "that the
employer either ultimately filled the position with someone sufficiently
younger to permit an inference of age discrimination or continued to seek
applicants from among those having plaintiff's qualifications")(citation
omitted) (emphasis added). Indeed, this minimum threshold accords with
the seminal McDonnell Douglas, supra., where the Supreme Court held
that a plaintiff could establish the fourth element in a failure-to-hire case
with evidence that the employer continued to seek a person possessing
¶30 Therefore, to survive summary judgment on his claim of age
discrimination under the PHRA, Kroptavich first needed to establish a prima
facie case with evidence that he (i) belonged to a protected class, i.e., was
at least 40 years of age; (ii) was qualified for the position; (iii) was
dismissed despite being qualified; and (iv) suffered dismissal despite PPL's
need for someone to perform the same work after he left. We turn, then, to
the record to determine whether Kroptavich met his burden.
¶31 The parties do not dispute that Kroptavich was at least 40 years old
and that PPL continued to need someone to perform Kroptavich's managerial
duties. Thus, we find prongs (i) and (iv) satisified. PPL also argues,
however, that a prima facie case was lacking because Kroptavich was no
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longer qualified for his job when he accepted the cash gift and initially
denied doing so against PPL's written standards of integrity.
¶32 It is settled that "while objective job qualifications should be
considered in evaluating the plaintiff's prima facie case, the question of
whether an employee possesses a subjective quality...is better left to the
later stage of the McDonnell Douglas analysis." Weldon v. Kraft, 896
F.2d 793, 798 (3d Cir. 1990). The rationale for deferring review is that
"subjective evaluations `are more susceptible of abuse and more likely to
mask pretext'" and, therefore, are better suited for review at the pretext
stage. Id. (quoting Fowle v. C & C Cola , 868 F.2d 59, 64-65 (3d Cir.
¶33 Here, it would not be unreasonable to find PPL's "Standards of
Integrity" an objective job qualification of which Kroptavich dispossessed
himself through his conduct. Nonetheless, we are reluctant to make this
prima facie finding where the central claim in this case is that PPL's retention
of other similarly situated policy violators shows that Kroptavich's violation
was but a pretextual reason to discriminate against him because of his age.
Moreover, there was a subjective element to PPL's position to terminate
Kroptavich, as it was PPL's argument that Kroptavich no longer possessed
the integrity required of managers in leading subordinate employees by
example. Accordingly, we find it preferable to defer review of Kroptavich's
policy violation under the pretext stage.
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¶34 For purposes of the prima facie case prong (ii), the record shows no
dispute that Kroptavich was, by all other objective indices, qualified for his
position. We find, therefore, that he satisfied prong (ii) of the prima facie
¶35 Therefore, the evidence before us is that Kroptavich was over forty
years old, qualified for the position he held, and nonetheless terminated
despite PPL's continued need for someone to perform his job duties. Such
evidence, in our opinion,
raise[s] 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. And we are
willing to presume this largely because we know from our
experience that more often than not people do not act in a
totally arbitrary manner, without any underlying reasons,
especially in a business setting.
Pivirotto, 191 F.3d at 352 (quoting Furnco, 438 U.S. at 577). Accordingly,
we find that Kroptavich has made out a prima facie case of age
discrimination under the PHRA.
¶36 We proceed, then, to the second part of the McDonnell Douglas
framework, where PPL must articulate a legitimate, nondiscriminatory reason
for terminating Kroptavich. PPL, as noted, does not leave its employment
decision unexplained, but states that it terminated Kroptavich because he
violated PPL's written "Standards of Integrity" when he accepted a $200.00
cash gift from a contractor and initially lied to a supervisor when asked
whether he received such a gift. Kroptavich does not dispute that PPL's
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reason, as articulated, states a legitimate, nondiscriminatory basis for its
employment decision. Accordingly, PPL has met its burden of production.
¶37 Under McDonnell Douglas, therefore, the inquiry shifts the burden
back to Kroptavich to show that PPL's purportedly legitimate reason was but
a pretext for what was actually a motive to discriminate on the basis of age.
As noted above, to survive summary judgment in the pretext phase, the
plaintiff must point to some evidence from which a factfinder could
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.
Showalter v. Univ. of Pittsburgh Medical Ctr., 190 F.3d 231, 234 (3d
Cir. 1999) (citation omitted); Jacques, supra.
¶38 To discredit an employer's articulated reason, a plaintiff need not
produce evidence that necessarily leads to the conclusion that the employer
acted for discriminatory reasons, See Sempier v. Johnson & Higgins, 45
F.3d 724, 732 (3d Cir. 1995). Nor, as a matter of law, must a plaintiff
produce evidence in excess of that produced in his prima facie case in order
to prevail, Fuentes, 32 F.3d at 764, although inferences acceptable at the
prima facie stage may not satisfy the higher level of specificity usually
required at the pretext stage. Simpson, 142 F.3d at 646.
[In the pretext stage], [t]he plaintiff must, however, point to
"weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons
[such] that a reasonable factfinder could rationally find them
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`unworthy of credence'" and hence infer that the proffered
nondiscriminatory reason "did not actually motivate" the
Simpson, 142 F.3d at 644 (quoting Fuentes, 32 F.3d at 764-765).
¶39 To show that discrimination was more likely than not a cause for the
the plaintiff must point to evidence with sufficient probative force
that a factfinder could conclude by a preponderance of the
evidence that age was a motivating or determinative factor in
the employment decision.
Simpson, 142 F.3d at 644-645 (quoting Keller v. Orix Credit Alliance,
Inc., 130 F.3d 1101, 1111 (3d Cir. 1997).
¶40 Here, the minimal threshold prima facie evidence, alone, neither
undermines PPL's articulated explanation for terminating Kroptavich nor,
given the explanation, allows a reasonable factfinder to infer discrimination.
The proscribed conduct that formed the basis for Kroptavich's termination
concerned his inability to adhere to PPL's requirement that its managers
conduct their business affairs with integrity and free from the appearance of
impropriety. It had nothing to do with either his ability to perform the
particular tasks demanded by his position or PPL's continued need for such
services. Therefore, the minimal prima facie case sheds no light on the
credence of PPL's stated explanation and may not by itself allow for an
inference of discrimination.
¶41 However, Kroptavich's main contention was that similarly situated,
younger workers also violated PPL policy but were spared the sanction of
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termination that he suffered. If supported with evidence of sufficient
specificity and probative value, this claim of disparate treatment could
permit a reasonable jury to find that PPL's articulated reason was pretextual
and/or that age discrimination motivated PPL. See Pivirotto, 191 F.3d at
357; Simpson, 142 F.3d at 644 (acknowledging that disparate treatment
from that received by substantially younger, similarly situated workers
states a claim under the ADEA).
¶42 Despite reviewing the record in a light most favorable to Kroptavich as
the adverse party to the motion for summary judgment, we find that he has
failed his burden under Pa.R.C.P. 1035.2 to produce evidence sufficiently
specific or probative to require submission of his claim to a jury.
Kroptavich's evidentiary burden in the McDonnell Douglas pretext stage is
to point to triable, admissible evidence that would allow a factfinder to find
pretext and/or outright discrimination. Stanziale v. Jargowsky, 200 F.3d
101 (3d Cir. 2000). He has not met this burden.
¶43 Initially, we note that Kroptavich claims disparate treatment compared
to that received by younger workers, but he offers no evidence of the
comparator employees' respective ages. We refrain from deciding the issue
against Kroptavich on this fact alone, however, since federal jurisprudence
has recognized that even in cases where the age difference is insignificant,
"the plaintiff still may present a triable claim if [he] directs the court to
evidence that [his] employer considered [his] age to be significant."
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Bennington v. Caterpillar Incorporated, 275 F.3d 654, 659 (7th Cir
2001). Rather, our decision rests on the fact that Kroptavich's disparate
treatment claim is based on inadmissible hearsay, vague accounts, and
other anecdotal evidence which he admits he could "not verify." Moreover,
even where it is arguable that Kroptavich or his witnesses possessed
personal knowledge about more favorable treatment received by others,
there is no question that such instances involved employees who were not
management, did not accept gifts, or whose incidents occurred so remote in
time so as to predate the PPL policy in question.
¶44 Specifically, Kroptavich named three employees who violated PPL
policy but kept their jobs. When deposed about each employee, however,
Kroptavich admitted that his knowledge was based on second-hand sources
of information, would not identify the sources, and could not indicate when
the events occurred:
Let's talk about [Employee #1]. You said that there was
an allegation of this [employee] running a prostitution
ring from his computer?
His own computer, which was company property.
Now, how do you know that?
Again, when I was trying to, you know, piece things
together in my defense, you know, we had all heard
that--you know, those stories and--
Do you know whether that's a true story?
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I did not go down to Allentown and find out the facts, but
I'm just saying a lot of the individuals that have told me
that I believe.
[Employee #2] was supposed to have done what?
Supposedly, he had given out favorable contracts to
vendors in the Hazleton area.
And who told you that? Let me put it to you this way,
first of all: Do you have any personal knowledge that he,
in fact, did that?
Okay, at about the time of my dismissal, it was discussed
on the dock with a bunch of individuals from building
Can you identify who they were?
I wish I knew whether he [already took his retirement]. I
have to stand on the other. I can't give names out
because I'm afraid, especially with it being a supervisor,
that there would be retaliation. But on those, you guys
should have the facts on that.
Now, you mentioned, as well, a serviceman who worked
at a relative's beer distributorship on company time?
And who was that?
A. That was [Employee #3], I believe. Wait. [Employee #3].
And when did that happen?
I have no idea. But I do know, again, you know, it was in
the northern division.
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And who told you that?
Again, I cannot, you know, give names unless I'm forced
Kroptavich deposition, dated 3/13/98, at 125, 130, 133.
¶45 Not only does Kroptavich's testimony consist entirely of hearsay,
allusions, and other unspecific allegations, it also fails to establish that the
purported violations bore a sufficient resemblance to his own. None of the
comparator employees were involved in accepting gifts from contractors,3
Employees #1 and #3 did not hold management positions as he held, and
no time frame for the violations is given. Thus, Kroptavich's deposition
testimony is too weak and lacks the probative value needed to satisfy
Appellant's evidentiary burden in the pretext stage.
¶46 Kroptavich attempted to remedy the shortcomings of his own
deposition by including in his "Brief in Opposition to Defendant's Motion for
Summary Judgment" the affidavit of Ray Jackloski, a former PPL Foreman
who retired in 1989. In his three-page affidavit, Mr. Jackloski averred that
during his years with PPL it was common practice for foremen to accept
holiday "gift certificates, fruit baskets, sweatshirts with the contractor's logo,
wine bottles, etc." from contractors. Jackloski also stated that he was
3 Elsewhere in his deposition, Kroptavich alleged that employees in PPL's
marketing department openly accepted Hickory Farms gifts from vendors.
However, Kroptavich never alleges that the employees were management,
and he concedes that this event predated the PPL policy at issue. Kroptavich
Deposition at 70.
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familiar with Employee #1's case because it arose while he was still with
PPL. See Affidavit of Ray Jackloski dated 3/17/99.
¶47 Even assuming under the Summary Judgment standard the veracity of
Mr. Jackloski's affidavit, we find that it fails to establish "similarly situated"
evidence. Jackloski describes conduct and events, including Employee #1's
case, that occurred at least six years before Kroptavich's incident and five
years before the date on which the PPL policies at issue took effect. Any
disparate treatment that Kroptavich received relative to treatment received
by others in the mid-to-late 1980's must be viewed as a function of different
times and circumstances where different corporate rules governed employee
¶48 In fact, the record discloses only one employee arguably similarly
situated to Kroptavich for purposes of this case--another Line Crew Foreman
who received a gift certificate from Neal-Lynn during Christmas of 1994.
However, unlike Kroptavich, the other Line Crew Foreman returned the gift
to Neal-Lynn and reported the incident to supervisors without first
attempting to conceal the gift-giving. PPL auditors investigated the incident
as they did Kroptavich's, but concluded that the Line Crew Foreman had
complied with company policy. See Report on the Investigation of a
Contractor's Gift-Giving Activities to Northeast Division Employees, dated
2/9/95. On the basis of the auditors' conclusion, PPL retained the Line Crew
Foreman, who was fifty-six years old at the time.
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¶49 In a most critical sense, therefore, Kroptavich stands alone in the
record before us as the only management-level employee who violated
company policies against accepting gifts. Given this fact, there is simply no
substance to his disparate treatment claim.
¶50 Finally, Kroptavich attempts to discredit PPL's articulated reason by
arguing that the policies in question are not actually relevant to the decision
to terminate him because he was not directly involved in procuring
contractors for PPL. We have reviewed the two policies in their entirety and
note that only one, entitled "Procurement Practices," addresses solely those
employees involved in procurement. The other policy, entitled "Standards of
Integrity," which PPL also articulated as a basis for Kroptavich's termination,
requires every employee to act in ways that can "stand the test of full
disclosure," particularly because PPL is a "private company with a public
purpose." In this regard the policy states that employees "do not alibi or
cover up our mistakes or deficiencies." All employees are also prohibited
from accepting gifts "that might create or appear to create a favored
position for someone doing business with [PPL].... Gifts that are received by
an employee should be returned to the donor and may be accompanied with
a copy of this policy." See PPL "Standards of Integrity" policy manual, dated
November 1, 1993.
¶51 Even if this Court assumes that Kroptavich's practices were not
technically subject to the "Procurement Practices" policy manual, it is
- 26 -
undeniable that the "Standards of Integrity" policy manual governed all
employees, including Kroptavich. Moreover, there is no evidence before us
to suggest that PPL was unconcerned with managers who surreptitiously
took gifts against policy or who concealed their own infractions from
supervisors against policy. In short, Kroptavich fails to produce evidence
that PPL's interest in its "Standards of Integrity" policy was illusory and,
thus, used as a pretext here.
¶52 Therefore, we find Kroptavich has failed to produce sufficient evidence
to permit a reasonable factfinder to disbelieve PPL's articulated reason or to
believe that age discrimination was more likely than not the motivating or
determinative cause of PPL's employment decision. He has, thus, failed to
meet his evidentiary burden in the pretext stage of the McDonnell Douglas
framework. Accordingly, we find no error with the entry of summary
judgment below on Kroptavich's claim of age discrimination under the PHRA.
¶53 Kroptavich's third claim on appeal states that "The Constructive
Discharge Claim Must Stand." Appellant's Brief at 2, 20. The argument in
support of this claim is a bare assertion, without any citation to fact or
authority, that "this issue has already been decided by Judge Munley and,
therefore, reversing that decision [was] in violation of coordinate
jurisdiction." Appellant's Brief at 20. We have already explained why Judge
Cottone's grant of summary judgment on the constructive discharge claim
- 27 -
did not violate the coordinate jurisdiction rule, and we need not revisit this
¶54 Kroptavich also contends in his challenge to summary judgment on the
constructive discharge claim that PPL denied him recourse through an
"Ombudsman Concept," which former PPL production manager David J. Reed
told him existed at PPL before he retired in the late 1980's. Kroptavich has
proffered no evidence of record, however, that a PPL ombudsman process
existed at the time of his discharge. Moreover, Kroptavich fails to explain
how PPL denied him access to such a process, or how the denial of such a
process created such an intolerable working environment as to amount to
constructive discharge. See Kroen v. Bedway Sec. Agency, Inc., 633 A.2d
628, 633 (Pa.Super. 1993)(holding that constructive discharge of an at-will
employee may serve as a basis for recovery if the employer has made
working conditions so intolerable that an employee has been forced to
resign). Accordingly, Kroptavich may obtain no relief on this claim.
¶55 Finally, Kroptavich contends that Judge Cottone relied on exhibits not
made part of the record in accordance with Pa.R.C.P. 1035.1 et seq. We
disagree. PPL attached directly to its motion for summary judgment
Kroptavich's deposition and various PPL business records as exhibits, and
filed it as part of the certified record on February 23, 1999. Therefore,
Kroptavich's reliance on Kerns v. Methodist Hospital, 574 A.2d 1068
(Pa.Super. 1990) and Zepp v. Nationwide Insurance, 434 A.2d 112,
- 28 -
(Pa.Super. 1981), cases holding that exhibits attached to memoranda of law
rather than to the motion itself are not properly part of the record, is
unavailing since they are inapposite to the present case. We thus find PPL's
exhibits were properly made part of the certified record.
¶56 Moreover, PPL was not required, as Kroptavich implies, to support its
motion with affidavits under Pa.R.C.P. 1035.4. Rather, as noted supra., PPL
needed only to make the showing at the completion of discovery that based
on Appellant's discovery materials he would be unable at trial to establish
elements necessary to his claims. See Pa.R.C.P. 1035.2; Godlewski v.
Pars Mfg. Co., 597 A.2d 106 (Pa.Super. 1991). It is clear that the order of
summary judgment was based on Kroptavich's failure to establish all
necessary elements to his claims with his deposition and his other discovery
materials. We find no reversible error in this judgment.
¶57 For the foregoing reasons, we affirm the order of the court which
granted PPL's motion for summary judgment and dismissed Kroptavich's
case in its entirety. Having so affirmed, we need not address the issues
raised on PPL's cross-appeal.
¶58 Order affirmed.
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