                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-2003

Szczesny v. GE Co
Precedential or Non-Precedential: Non-Precedential

Docket 02-1331




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                                                                 NOT PRECEDENTIAL

                     IN THE UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                             ________________________

                                      NO. 02-1331
                                ________________________

                                     DANIEL J. SZCZESNY,
                                          Appellant
                                              v.

                            GENERAL ELECTRIC COMPANY
                              _________________________

                       On Appeal from the United States District Court
                           for the Western District of Pennsylvania
                                    D.C. Civil No. 99-256
                       (District Judge: Honorable Sean J. McLaughlin)
                                __________________________

                           Argued February 24, 2003
  Before: BECKER, Chief Judge,* SCIRICA, Circuit Judge,** and SHADUR,*** District
                                     Judge

                           (Filed:     May 19, 2003              )

JOHN R. ORIE, JR., ESQUIRE
MARJORIE E. CRIST, ESQUIRE (Argued)
ORIE & ZIVIC
25 th Floor Lawyers Building
428 Forbes Avenue
Pittsburgh, PA 15219



  *
      Judge Becker completed his term as Chief Judge on May 4, 2003.
  **
       Judge Scirica began his term as Chief Judge on May 4, 2003.
  ***
     The Honorable Milton I. Shadur, United States District Judge for the Northern
District of Illinois, sitting by designation.
Attorneys for Appellant

ROGER H. TAFT, ESQUIRE (Argued)
MATTHEW W. McCULLOUGH
MacDonald, Illig, Jones & Britton LLP
100 State street, Suite 700
Erie, PA 16507-1498

Attorneys for the Appellee

                             _____________________________

                                OPINION OF THE COURT
                             _____________________________

BECKER, Circuit Judge.

      This is an appeal by Daniel Szczesny from the District Court’s grant of summary

judgment in favor of defendant General Electric Company (“GE”). Szczesny claims that

his termination from employment by GE violated the Age Discrimination in Employment

Act, the Pennsylvania Human Relations Act, the Americans with Disabilities Act, and

ERISA. We agree with the District Court that there is no genuine issue of material fact,

hence we affirm.

                                           I.

      GE employed Szczesny for twenty years, during most of which time he was a

model employee. He started working as a factory worker and steadily rose through the

ranks of the company earning positive evaluations, commendations and certificates of

achievement. In 1995, two years before his termination, he accepted a position in the

Customer Training Department, where he reported to James Terrill, the Manager of

                                            2
Customer Training. Terrill planned to retire in July 1996, and Szczesny was slated to

replace him at that time. When Szczesny did replace Terrill, his duties included

providing CD-ROM training programs to railroad customers under existing contracts,

interfacing with third party contractors who were developing CD-ROM training materials

for GE, and marketing training programs to new and existing customers. Szczesny

reported directly to John Park, who had selected him for the position.

      According to evidence adduced by GE, soon after Szczesny took over as Manager

of Customer Training, “management of the Customer Training Department deteriorated

and became virtually nonexistent by the end of the year.” He missed work with

increasing frequency, sometimes for several days at a time, without advising others where

he was and without appointing a designee to act in his place in accordance with GE

policy. (A121-22, 156, 173-76, 180-81.) He also failed to establish schedules and to

hold production meetings regarding the CD-ROM interactive training devices and other

training materials that were promised to the railroad customers, and according to GE, he

failed to require outside suppliers to comply with delivery deadlines regarding the CD-

ROM training programs. (A157-58, 190-91.) Other training instructors were forced to

field inquiries and telephone calls because his telephone mailbox was often full, (A157-

59, 174-79), and he failed to respond to email messages or notes left on his chair. (A159,

174-78, 413, 419-20.)

      These failures caused the training instructors, as a group, to request a meeting with


                                            3
Park about Szczesny and the department. (A121-26.) They informed Park about

Szczesny’s absences, the trainers’ inability to reach him for responses to their questions,

and the difficulties of dealing with customers and contractors without an effective

manager. (A137-38.) On January 13, 1997, approximately six months after Szczesny

became a Learning Center manager, Park met with him regarding his job performance

problems. (A349-51.) During this meeting, he discussed Szczesny’s absenteeism and his

coworkers’ inability to contact him. He also addressed customer complaints, Szczesny’s

failure to provide information and schedules that Park had requested prior to Christmas,

and the fact that the Customer Training Department class brochure, which normally came

out in November or December, remained incomplete. (A350-51.) Szczesny replied that

he was having some personal problems related to stress on the job and to his son, who

was allegedly depressed and considering dropping out of college. (A341-43, 346-47.)

He also told Park that he was having some work-related problems with Marlene Korn,

who was Manager of the Learning Center.

       Following his meeting with Park, Szczesny told him that he wanted a less stressful

position and requested that Park replace him as Manager of Customer Training. (A348,

357-58.) Park informed Szczesny that he had found for him a position in the Engineering

Budget Group, where he would work on engineering budgets and forecasts under Jeff

Woford. With Szczesny’s consent, Park reassigned him to the position of Cost Analyst

without requiring him to complete the normal interview process.


                                             4
       In March 1997, Park prepared an Annual Accomplishment Summary and

Development Review regarding Szczesny’s job performance during the prior year as part

of the annual GE performance review. He met with Szczesny in April to discuss that

appraisal. Park gave Szczesny an overall rating of “Below” and told Szczesny that he

was unhappy with his performance as Manager of Customer Training. Park also noted

that Szczesny had moved to an “individual contributor role” that was better suited to his

basic skills and that Szczesny had to “reestablish credibility as a valuable team member in

the Engineering Administration organization.” (A429.) Szczesny admitted that he

understood Park’s concern about his job performance as Manager of Customer Training

and did not dispute the appraisal. (A370.) Park also told Szczesny that he was being

placed on monitored performance status as a result of his “Below” rating, (A371), and

provided Szczesny with a letter memorializing that designation. The letter advised

Szczesny that he was expected to show immediate and sustained improvement in each of

several areas or be subject to termination from employment. (A372, 430.)

       During this time Szczesny began counseling sessions with Fred McKinney, Ph.D.,

and attended a total of four such sessions between March and May 1997. (A1109-1110.)

During the initial session, Szczesny told McKinney: that he had taken a new position

eight months before as Manager of Customer Training; that this position had placed “lots

of pressure” upon him “not to screw up”; that he “started to put things off”; that he

“didn’t succeed as well in the past”; and that he had requested a job transfer one month


                                             5
earlier. (A1111-12.) Szczesny also told McKinney that he had had a conflict with Korn,

his Manager at the Learning Center. Upon the completion of his fourth counseling

session in May, McKinney stated that Szczesny was “doing well” and terminated the

counseling sessions. Between that session and his termination in September 1997,

Szczesny did not seek or receive any other counseling services. (A1116-17.)

       In February 1997, Szczesny began his new position as Cost Analyst in the

Engineering Administration Group. He was added to a group that already possessed one

full-time Cost Analyst, Melanie Conover, who was performing the same duties as

Szczesny and who had been working in that position for at least six months before

Szczesny arrived. (A270, 289-90, 365-66.) Unlike Szczesny, Conover was a contract

worker rather than a GE employee. (A289.) Both Szczesny and Conover reported to

Woford, who in turn reported to Park. In this position Szczesny was responsible for

entering data regarding actual project expenses and inputting revisions to the

department’s annual budget. In late April, Woford went to another company and

Conover was transferred to a different manager, meaning that Szczesny dealt directly

with various department sections in preparing the department budget. During the time

that Szczesny held this job, Park had two or three further discussions with Sheflin,

Szczesny’s new boss, about Szczesny’s still-unsatisfactory performance. (A245-51.)

Park also had closed door sessions with Szczesny himself, (A273), who admitted that

Park complained to him that he was excessively absent and unreachable. (A344, 395.)


                                             6
      Finally, in September 1997, Park went to Szczesny’s office because he needed a

report for Sheflin. Szczesny was not in his office, and Park and Szczesny’s secretary

were unable to reach him by phone. (A247-48.) Park left a note attached to Szczesny’s

computer screen requesting him to call Park, at home if necessary. (A247-48.) Szczesny

never called Park, and when Park arrived at work the next day, he went to Szczesny’s

office and found the note where he had left it. (A248, 276-78.) He confronted Szczesny

as to where he’d been the prior afternoon, and Szczesny claimed that he had gone home

because his computer was down but that he had returned to the office that evening to do

some work. (A247-48, 276-78.) Because the note had not been touched, however, Park

concluded that Szczesny had not actually returned to work.

      Two days later, Park met with Szczesny and told him that his employment was

being terminated. (A396-98.) Park provided him with a written notice of termination

which identified specific examples of his allegedly substandard work performance.

(A396-98, 433-34.) Szczesny was fully vested in the GE Pension Plan at the time of his

termination. (A301-02; 455-56.) In his EEOC Discharge Intake Questionnaire, Szczesny

admitted that Park told him that the reason for his discharge was “poor performance,” and

further admitted the accuracy of several of the specific performance problems identified

by Park in his termination notice. (A400-02, 436.)

      Needless to say, Szczesny’s account of what happened is very different.

Szczesny argues that he was terminated as part of GE’s “totem poling” scheme in which


                                            7
older workers were systematically replaced with younger workers. In his estimation,

being placed on “monitored performance status” was equivalent to an employment death

sentence. (Blue Br. 10-11) (A544-63). As Szczesny explains:

       [T]he record contains material evidence of the following: (1) a
       pattern and practice of totem poling older workers and using the
       monitored performance framework to support said effort; (2) the use
       of totem poling and monitored performance on Appellant; (3)
       Appellee’s representation to EEO authorities of terminated older
       workers, including Appellant as having “resigned”; (4) a record that
       supports Appellant as being a successful employee up to a year or so
       within his termination; (5) accusations immediately preceding his
       termination of subjective performance problems after a successful
       eighteen year work history; (6) contradictory action of recognizing
       Appellant needed a less stressful position, yet placing him on
       monitored performance of his old Learning Center position after he
       was moved to the Cost Analyst position; (7) stripping a merit pay
       increase from Appellant; (8) failures to follow the monitored
       performance guidelines and failure to meet with Appellant during
       this program for three prescheduled meetings to determine his
       progress; (9) transferring Appellant to a more stressful position, not
       training him and requiring him to absorb the job duties of co-
       workers; and, (10) taking the extreme disciplinary action against a
       20 year veteran worker of termination on the basis of a missed phone
       call relative to a questionable note the circumstances of which are
       founded wholly upon hearsay.




(Blue Brief at 21-22.) He concludes that “the record in the case on appeal is replete with

material factual disputes which are highly relevant to the resolution of whether

Appellee’s articulated reasoning were [sic] legitimate or pretextual.” (Id.)

       GE responds that most of Szczesny’s accusations, even if true, are not evidence of


                                             8
pretext. For example, most of Szczesny’s performance awards were given in the 1980s,

the most recent being in 1987. (A508-09.) Even the more recent positive evaluations,

like those in 1995 and 1996, were from earlier assignments where he worked in lower-

level, non-managerial positions. (A429.) GE points out that when Park gave Szczesny

his 1997 Performance Appraisal, he did not dispute the negative feedback. (A370.) He

also admitted that he had been informed that GE customers were complaining about

delays in receiving CD-ROM materials, and that he did not take any steps to rectify the

delays. (A332-40.) Finally, in his EEOC Discharge Intake Questionnaire, Szczesny

admitted the accuracy of the specific performance problems identified by Park in his

1997 termination notice. (A400-02, 436.)

                           III. Analysis

A. Did Szczesny’s Termination Violate the ADEA or PHRA?

      We employ a four-part test for establishing a prima facie case of age

discrimination under the ADEA and PHRA: the terminated employee (1) must be 40

years old or older; (2) must have been discharged; (3) must have been qualified for the

job; and (4) must have been replaced by a significantly younger person to create an

inference of age discrimination. Showalter v. Univ. of Pitt. Med. Ctr., 190 F.3d 231 (3d

Cir. 1999). If these four elements are shown, the burden of production shifts to the

defendant to demonstrate a legitimate non-discriminatory business reason for terminating

the employee, at which point the burden of production shifts back to the employee to


                                            9
submit evidence from which a reasonable factfinder could either: (1) disbelieve the

employer’s articulated legitimate reason; or (2) believe that an invidious discriminatory

reason was more likely than not a motivating or determinative cause of the employer’s

action. McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).

       Suffice it to say that Szczesny has not submitted evidence from which a reasonable

factfinder could either : (1) disbelieve the employer’s articulated legitimate reason; or (2)

believe that an invidious discriminatory reason was more likely than not a motivating or

determinative cause of the employer’s action. Most importantly, the evidence supporting

what might be his strongest claim – totem poling – is purely conclusory; it simply lacks

evidentiary foundation. We have examined the record, and also find that his other eight

allegations are either not supported by the record or are insufficient to meet his burden. It

is sad when a long-time employee is discharged, but his longevity in the company does

not immunize him from justified adverse employment action, which is the case here

B. Did Szczesny’s Termination Violate the ADA?

       To make out a claim under the ADA, Szczesny has the burden of showing: (1) that

he was a member of a protected class or disabled within the meaning of the ADA; (2) that

he was qualified for the position; (3) that he was dismissed despite being qualified; and

(4) that he was ultimately replaced by a non-disabled person. Walton, 168 F.3d 661, 668

(3d Cir. 1999).

       According to Szczesny, the record demonstrates that he suffered from high blood


                                             10
pressure, hypertension, depression, extreme stress and anxiety, and alcoholism. (Blue

Brief at 24.) Hypertension and cardiovascular conditions are recognized disabilities

under EEOC regulations, see 29 C.F.R. § 1630.2(h), as is depression. See Sarko v. Penn-

Del Directory Co., 968 F.Supp. 1026, 1035 (E.D.Pa. 1997). Although alcoholism is not

a per se disability under our extant jurisprudence, courts have found it a disability if it

rises to the level of substantially limiting a major life activity. Hinnershitz v. Ortep of

Pa., Inc., 1998 U.S. Dist. LEXIS 20264 (E.D. Pa. 1998). Szczesny argues that GE “not

only failed to place Appellant in a less stressful position upon his request, it did the

opposite by purposefully transferring him to a high stress position requiring odd hours

and 60 to 80 hours of work each week. Moreover, it made the position more stressful by

failing to train Appellant and taking away co-workers and making Appellant absorb the

removed co-worker’s job duties.” (Blue Brief at 26-27.) Szczesny concludes that there

are material facts that should have been left for the jury to deliberate regarding the

contention that Szczesny was disabled at the time of his termination, and therefore that

summary judgment was improper.

       GE vigorously disputes the notion that it set Szczesny up to fail or withdrew

manpower support. When Szczesny expressed to Park concern about his ability to

perform his Cost Analyst job without help, Park responded that Conover was available to

help him, and that Szczesny also could call upon the two contract workers from the

Productivity Measurements Group. (A390-91.) From July 1997 until Szczesny’s


                                              11
termination, Conover answered all of his questions, but he never asked her for help doing

the work itself, nor did he request any assistance from the contract workers in the

Productivity Measurements Group. He also never returned to Park to ask for more help.

(A392-94.)

       More fundamentally, however, GE alleges that it knew of no disability at the time

it terminated Szczesny. In general, according to Jones v. United Parcel Service, 234 F.3d

402, 406 (3d Cir. 2000), “[i]t is . . . an axiom of any ADA claim that the plaintff be

disabiled and that the employer be aware of the disability.” See also Rinehimer v.

Cemcolift, Inc. 292 F.3d 375, 380 (3d Cir. 2002) (“[T]o establish discrimination because

of a disability, an employer must know of the disability.”). The record is devoid of any

evidence that Szczesny suffered from alcoholism; indeed, Szczesny denied that his job

performance issues were caused by alcohol consumption and further denied that he had

any problem with excessive drinking. (A698-700, 787-78.) Regarding the depression,

McKinney (his therapist) found that he was doing well and terminated his visits after only

four sessions. (A375-76, 381-82.) Szczesny admitted that he did not seek further

sessions from McKinney or anyone else. In short, we are satisfied that the record is clear

and unequivocal that Szczesny was not discharged because of a disability.

C. Did Szczesny’s Discharge Violate ERISA?

       Szczesny argues that GE terminated him with the purpose of interfering with his

right to benefits, an action prohibited by Section 510 of ERISA, 29 U.S.C. § 1140.


                                             12
Hazen Paper Co. v. Biggins, 507 U.S. 604, 612 (1993). As we stated in Dewitt v. Penn-

Del Directory Corp., 106 F.3d 514, 522-23 (3d Cir. 1997), “to recover under section 510,

the employee must show that the employer made a conscious decision to interfere with

the employee’s attainment of pension eligibility or additional benefits.” Mere proof of an

“incidental loss” of benefits resulting from an employee’s discharge from employment

does not constitute a violation of Section 510. Dewitt, 106 F.3d at 522.

       It is uncontested that Szczesny’s pension rights had vested at the time of his

dismissal; as such, his termination did not deprive him of his pension, but rather of only

the ability to contribute additional money to it. That, GE states, is precisely the type of

incidental loss to which Section 510 does not speak. We agree. Moreover, GE submits

that there is nothing in the record indicating GE’s specific intent to harvest Szczesny’s

pension funds. Szczesny’s only evidence is the alleged totem polling scheme, which, as

we have noted, is ephemeral.

       For the foregoing reasons, the judgment of the District Court will be affirmed.




                                             13
TO THE CLERK:

    Please file the foregoing opinion.



                                         _______________________________
                                                    Circuit Judge




                                          14
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