                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-15-2005

Gigliotti v. PW Campbell Contr
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3192




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NOT PRECEDENTIAL

                   THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                  Case No: 04-3192

                                LOUIS J. GIGLIOTTI,

                                            Appellant

                                             v.

                        P.W. CAMPBELL CONTRACTING CO.


                  On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                            District Court No.: 02-CV-1713
                 District Judge: The Honorable Terrence F. McVerry


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 1, 2005


             Before: NYGAARD*, SMITH, and FISHER, Circuit Judges

                                 (Filed: July 15, 2005)


                             OPINION OF THE COURT


SMITH, Circuit Judge.

      Louis J. Gigliotti appeals from the judgment of the District Court granting P.W.

Campbell Contracting Company’s motion for summary judgment on his claims that he

_________ * Honorable Richard L. Nygaard assumed senior status on July 9, 2005
was discharged in violation of the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. § 623, and the Americans with Disability Act of 1990 (“ADA”),

42 U.S.C. § 12112. The District Court had jurisdiction under 28 U.S.C. § 1331.

Appellate jurisdiction exists pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a grant of summary judgment in an employment discrimination appeal. Duffy v.

Paper Magic Group, Inc., 265 F.3d 163, 166 (3d Cir. 2001).

       Gigliotti was hired in August 1999, at age 59, as a project manager for P.W.

Campbell. He worked steadily until he had knee surgery in November 2001. Although

P.W. Campbell’s management knew he was to have additional knee surgery in 2002,

James G. Caliendo, an executive vice-president and chief operating officer, contacted

Gigliotti and encouraged him to return to work. Gigliotti complied with the request on a

part-time basis in mid-December 2001. Caliendo furloughed Gigliotti, and four other

employees, on January 7, 2002 as part of a restructuring program developed to combat a

“long-term erosion of expected profits.”

       At the time of his furlough, Gigliotti was handling a single construction project.

That project was taken over by James Gerdun, vice-president of operations. Gerdun

discovered several problems with the project, including overbilling, “numerous,

unrecorded, unprocessed and unprojected subcontractor change orders” causing a loss of

$35,000, and communication problems with the customer. Thereafter, Gigliotti asked

Caliendo for a reference letter to provide a prospective employer. In a letter dated



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February 22, 2002, P.W. Campbell’s controller and HR administrator rejected the request,

explaining that the company’s policy was to provide confirmation of only the dates of a

former employee’s employment. The letter further stated

       Since your termination from P.W. Campbell, we have learned of several
       negative and costly incidents that occurred during the time you were
       employed, on projects where you were assigned as Project Manager. In
       light of your unsatisfactory performance on these projects that has just come
       to our attention, we are unwilling to provide you with a favorable reference
       or offer you employment at P.W. Campbell if the opportunity arises.

       Thereafter, Gigliotti filed a complaint in October 2002 alleging that P.W.

Campbell’s conduct was a violation of the ADEA and ADA. In resolving P.W.

Campbell’s summary judgment motion, the District Court concluded that Gigliotti had

adduced a prima facie case under both the ADEA and the ADA, and that P.W. Campbell

had proffered a legitimate non-discriminatory reason for Gigliotti’s initial furlough and

the subsequent decision, as set forth in the February 22 letter, not to rehire him. The

District Court noted that Gigliotti tried to cast doubt on P.W. Campbell’s proffered

explanations on three fronts. First, Gigliotti challenged his employer’s contention that the

company was not profitable. Second, Gigliotti argued that certain remarks uttered by

company officials indicated a bias against his age and his physical abilities, and that such

remarks were consistent with the company’s policy of retaining and hiring younger

workers. Finally, Gigliotti asserted that the reason for not rehiring him was a post hoc

fabrication and that the company had previously considered his work satisfactory.

       The District Court was not persuaded. It concluded that the evidence showed that

                                             3
the company, in fact, had problems with its profitability. The company’s owers, John and

James Campbell, had not received either all or any deferred compensation during calendar

years 2000, 2001 and 2002, as they had routinely received in the past. The Court

acknowledged that there were some stray remarks reflective of Gigliotti’s age and limited

mobility, but that those statements were not uttered by the decisionmaker and did not

indicate bias. Gigliotti’s contention that the company had a history of retaining and hiring

younger workers was insufficient to cast doubt on the company’s reason for placing

Gigliotti on furlough. The Court reasoned that it was undisputed that Gigliotti and

another project manager were furloughed because they were each administering a single

project, in contrast to the multiple projects handled by the other three project managers.

While some younger employees were hired thereafter, none of the younger hires were

employed as project managers. Although the reason for not rehiring Gigliotti was

articulated after his furlough and his work had been deemed acceptable before, the Court

reasoned that the “full magnitude” of the performance problems had not been apparent

until Gigliotti’s project was taken over by Gerdun. Thus, Gigliotti’s argument was simply

that the company had made the wrong decision. Whether the decision was wise or

prudent, as the District Court pointed out, was not enough under Fuentes v. Perskie, 32

F.3d 759, 765 (3d Cir. 1994), to defeat a summary judgment motion.

       After carefully reviewing the record, we agree with the District Court’s thoughtful

analysis. Accordingly, we will affirm the judgment of the District Court for P.W.



                                             4
Contracting Company.
