J-S62029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ELIZABETH S. KNAPPENBERGER                       IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

NEXTIER BANK

                            Appellee                  No. 751 WDA 2015


                   Appeal from the Order Dated April 23, 2015
                 In the Court of Common Pleas of Butler County
                    Civil Division at No(s): A.D. NO. 13-11170


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                      FILED NOVEMBER 16, 2015

        Elizabeth S. Knappenberger (“Appellant”) appeals from the order

entered in the Butler County Court of Common Pleas, which granted

summary judgment in favor of NexTier Bank (“Appellee”) and dismissed

Appellant’s age discrimination complaint against Appellee. We affirm.

        On December 18, 2013, Appellant filed a complaint against Appellee

claiming wrongful termination under The Pennsylvania Human Rights Act

(“PHRA”)1 on the basis of hostile work environment and retaliation claims.2
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   On August 22, 2013, the Pennsylvania Human Relations Commission
(“PHRC”) closed Appellant’s case because it was unable to conclude the
information obtained established a statutory violation, but it advised
Appellant of her right to pursue her complaint in the appropriate Court of
Common Pleas.
J-S62029-15



Appellant averred Appellee hired her on May 7, 2012, that Appellant showed

her manager her driver’s license “evidencing her age” of 55 years old on

June 6, 2012,3 and that Appellee terminated her employment on August 28,

2012 because of her age. Appellant’s Complaint, filed December 18, 2013.

        On March 18, 2015, Appellee filed a motion for summary judgment

alleging Appellant had not made a prima facie showing of her discrimination

claim, and even if she had, Appellee had legitimate, non-discriminatory

reasons for terminating her employment that Appellant failed to establish

were pretexts for discriminatory motivation.         On March 20, 2015, the trial

court ordered both parties to file briefs. On April 14, 2015, Appellant filed a

brief in opposition to Appellee’s motion for summary judgment, and Appellee

filed a reply brief on April 22, 2015. On April 24, 2015, the court granted

Appellee’s motion for summary judgment.

        On May 11, 2015, Appellant timely filed a notice of appeal.      On May

14, 2015, the trial court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and she

timely complied on May 28, 2015.4
                       _______________________
(Footnote Continued)
2
    Appellant later dropped the retaliation claim.
3
 Appellant’s date of birth is June 6, 1958, so she would have turned 54 in
2012.
4
 On June 2, 2015, the trial court adopted its Opinion and Order of April 23,
2015, which granted Appellee’s summary judgment motion, as its Pa.R.A.P.
1925(a) opinion.



                                            -2-
J-S62029-15



      Appellant raises the following issue for our review:

         WHETHER THE [TRIAL] COURT ERRED WHEN IT
         DETERMINED THAT APPELLANT HAD FAILED TO PRODUCE
         SUFFICIENT RECORD EVIDENCE TO MEET HER BURDEN
         ON THE ISSUE OF WHETHER THE APPELLEE’S PROFFERED
         REASON FOR HER TERMINATION WAS A PRETEXT FOR
         AGE DISCRIMINATION?

Appellant’s Brief at 3.

      Our standard of review of an order granting or denying a summary

judgment motion is well established:

         We view the record in the light most favorable to the
         nonmoving party, and all doubts as to the existence of a
         genuine issue of material fact must be resolved against the
         moving party. Only where there is no genuine issue as to
         any material fact and it is clear that the moving party is
         entitled to a judgment as a matter of law will summary
         judgment be entered. Our scope of review of a trial
         court’s order granting or denying summary judgment is
         plenary, and our standard of review is clear: the trial
         court’s order will be reversed only where it is established
         that the court committed an error of law or abused its
         discretion.
Kozel v. Kozel, 97 A.3d 767, 772 (Pa.Super.2014) (quoting Daley v. A.W.

Chesterton, Inc., 37 A.3d 1175, 1179 (Pa.2012)).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Marilyn J.

Horan, we conclude Appellant’s issue merits no relief.         The trial court’s

memorandum       opinion,   which   grants   Appellee’s   motion   for   summary




                                      -3-
J-S62029-15


judgment, comprehensively discusses and properly disposes of the question

presented. (See Trial Court Opinion, filed April 24, 2015,5 at 2-12) (finding:

summary judgement was proper where Appellant established prima facie

discrimination claim; Appellee articulated legitimate non-discriminatory

reason for terminating Appellant’s employment of poor job performance and

complaint directed to bank president; Appellant failed to establish Appellee’s

reasons were pretexts for discriminatory motivation; and whether Appellant

was rude to customers, whether other employees were rude to customers,

and whether coworkers made ageist remarks were not issues of material fact

because Appellee based termination decision on customer complaint, not

truth of complaint, and coworkers who allegedly made ageist remarks were

not part of the decision-making process regarding Appellant’s termination).6

Accordingly, we affirm on the basis of the trial court’s opinion.

____________________________________________


5
    The opinion is dated April 23, 2015.
6
  The trial court did not address Appellant’s concern that Ms. Newell, one of
the people who allegedly made ageist remarks, was a decision maker
because she filled out Appellant’s performance evaluation. See Staub v.
Proctor Hosp., 562 U.S. 411, 422, 131 S. Ct. 1186, 1194, 179 L. Ed. 2d
144 (2011) (“We therefore hold that if a supervisor performs an act
motivated by antimilitary animus that is intended by the supervisor to cause
an adverse employment action, and if that act is a proximate cause of the
ultimate employment action, then the employer is liable under USERRA.”).
In her response to Appellee’s motion for summary judgment, Appellant
states that Ms. Newell was born in 1965 and supervised two other tellers
who both are more than one decade older than Appellant, yet Appellant does
not allege Ms. Newell treated these tellers in a discriminatory manner or
gave them negative performance reviews. Although Ms. Newell filled out
(Footnote Continued Next Page)


                                           -4-
J-S62029-15


      Order affirmed


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




                       _______________________
(Footnote Continued)

Appellant’s performance evaluation, the ultimate decision-maker was the
bank’s president, Margarete Irvine Weir. In an affidavit, she stated that she
made the decision to fire Appellant based on her “terrible skills as a teller,”
which were largely brought to her attention by a customer, Rick, who said
Appellant often got very confused during transactions. After one transaction
took over 20 minutes, Rick told all of his employees not to go to Appellant,
but to make sure to wait for another teller so that she would not make a
mistake. Rick also told Weir that he would joke about how bad a teller
Appellant was with other customers.         As her reason for terminating
Appellant’s employment, Weir stated:        “I felt that having the bank’s
customers actually avoiding being served by [Appellant] was embarrassing,
and put the bank in danger of losing those customers.” Affidavit of Margaret
Irvine Weir, dated March 13, 2015. Appellant does not allege that Ms.
Newell’s alleged bias against Appellant influenced Ms. Weir’s ultimate
decision. To the contrary, the unrebutted evidence in Appellee’s motion for
summary judgment is that Ms. Newell played no part in the decision to
terminate Appellant. Given this record, there is no basis on which a
factfinder could conclude that Ms. Newell was a decision-maker for purposes
of the PHRA.



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        IN THE COURT OF COMMON PLEAS OF BUTLER COUNTY, PENNSYLVANIA



 ELIZABETH S. KNAPPENBERGER,
                                                              AD No. 13-1~170
                        Plaintiff,

vs.

 NEXTIER BANK,

                       Defendant.



Attorney for Plaintiff:
Attorney for Defendant:

HORAN, J.

                                     MEMORANDUM OPINION

        Before this Court for disposition is the Defendant's Motion for Summary Judgment.

Upon consideration of Defendant's Motion and Brief in Support; Plaintiff's Opposition and Brief

in Opposition; the relevant pleadings, and for the following reasons, Defendant's Motion is

granted.

                                           Background

       This case arises from Plaintiff's employment termination by Defendant, NexTier Bank.

Plaintiff alleges that, when she commenced employment with Defendant on May 7, 2012, as a

teller/associate at the bank's Zelienople, Pennsylvania branch, she was 53 years old. Plaintiff

alleges that she was subsequently terminated from this position on August 28, 2012, because of

her age and in retaliation for engaging in a protected activity.




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         On December 18, 2013, Plaintiff filed her Complaint against Defendant, alleging one

 count for Wrongful Termination and one count for Retaliation. On January 1, 2014, Defendant

 filed its Answer and New Matter to the Complaint. On January 31, 2014, Plaintiff filed her Reply

 to New Matter.

        On March 18, 2015, Defendant filed its Motion for Summary Judgment and Brief in

Support. Defendant argues that Plaintiff fails to establish a prima facie case of age

discrimination under the burden-shifting framework developed for Title VII claims in

McDonnellDouglas Corp.           v. Green, 411 U.S. 792 (1973). Defendant additionally argues
that, even if Plaintiff is able to establish a prima facie case of age discrimination, the Defendant

has come forth with a legitimate, non-discriminatory reason for her termination. Defendant

argues that Plaintiff fails to set forth sufficient evidence to raise any question of fact that this

legitimate reason was a pretext for an age-discriminatory termination. Defendant also asserts

that Plaintiff has not produced evidence to support her Retaliation claim.

        On April 14, 2015, Plaintiff filed her Opposition and Brief in Opposition to Defendant's

Motion for Summary Judgment. Plaintiff argues that she has set forth sufficient evidence to

raise a genuine issue of material fact regarding her ability to establish a prime facie age

discrimination claim. Plaintiff further argues that she has brought forth sufficient evidence to

raise a question of fact regarding the issue of pretext. Plaintiff concedes that she has not set

forth sufficient evidence to support a claim for retaliation, and consents to dismissal of that

Count II claim.

                                             Discussion

       Pennsylvania Rule of Civil Procedure 1035.2 provides that, after the close of pleadings

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 and within a reasonable time,


        .. . any party may move for summary judgment         in whole or in part as a
        matter of law
        (1) whenever there is no genuine issue of any material fact as to a necessary
        element   of the cause of action or defense which could be established by
        additional discovery or expert report, or

        (2) if, after the completion of discovery relevant to the motion, including the
        production of expert reports, 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.   When deciding a motion for summary judgment, the Court must accept as

true all well-pleaded facts contained in the pleadings of the non-moving party, as well as all

reasonable inferences to be drawn therefrom.        Herczeg v. Hampton Township Municipal

Authority, 766 A.2d 866, 871 (Pa. Super. 2001). It is not the Court's function to decide any

issue of fact; rather, the Court's purpose is solely to determine whether, in light of the

evidentiary record, there is a genuine issue of material fact to be tried. Henry v. First

Federal Savings& Loan Ass'n. of Greene County, 459 A.2d 772, 733 (Pa. Super. 1983).

All doubts as to the existence of any genuine issues of material fact must be resolved against

the party moving for summary judgment and in favor of the non-moving party. Herczeg,

supra, 766 A.2d at 871. The non-moving party may not rest upon averments in its pleadings,

but must demonstrate that there is a genuine issue for trial. Davis v. Resources for Human

Development, Inc., 770 A.2d 353, 357. (Pa. Super. 2001).

       In her Opposition to Defendant's Motion for Summary Judgment, Plaintiff has consented

to the dismissal of her Count II, Retaliation claim. As such, said claim is dismissed.



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        With regard to Plaintiff's Wrongful Termination claim, based upon age discrimination,

said claims are based upon the Pennsylvania Human Relations Act (''PHRA''). Kroptavich v.

Pennsylvania Power& Light Co., 795 A.2d 1048, 1055 (Pa. Super. 2002). Claims brought

under the PHRA are analyzed under the same standards as their federal counterparts. Id.

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 state court

interpretations of the PHRA. Id. Thus, Pennsylvania employs the three-part, burden-shifting

framework as set forth in McDonnell Douglas Corp. v. Green, supra. Under said

framework, the plaintiff bears the initial burden of establishing a prima facie case of

discrimination. Kroptavich, 795 A.2d at 1055. However, the plaintiff's burden, to present a

prima facie case, is "minimal." Id. If the plaintiff cannot meet this minimal burden, the

employer is entitled to judgment as a matter of law. Id. 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. Id. The employer's burden is one of production, not persuasion, and thus involves no

credibility assessment. Id. 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. Therefore, if the employer satisfies its

burden of production, the third and final part of the McDonnell Douglas test 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. Id. In the pretext discrimination

case, the employer need not prove that the proffered reason actually motivated its behavior,

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 because throughout this burden-shifting paradigm, the ultimate burden of proving intentional

 discrimination always rests with the plaintiff. Id.

         Thus, to survive a motion for summary judgment in an age discrimination case, the

 Plaintiff must first establish all elements of a prims facie age discrimination claim by showing

 that the plaintiff (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 was replaced by someone substantially younger, id. at 1056, or that she suffered

dismissal despite the defendant's need for someone to perform the same work after plaintiff

left. Id. at 1058.

        In the present case, Defendant argues that Plaintiff fails to establish a prima facie

discrimination claim, because she fails to bring forth evidence to establish the second and

fourth prongs of the McDonnellDouglastest, i.e., that she was qualified for the position and

that she was dismissed under circumstances giving rise to an inference of discrimination.

Defendant argues that Plaintiff performed her job poorly, as noted in her 90-day performance

evaluation. In addition, Defendant argues that the bank's President, Ms. Weir, received a call

from a commercial customer, who complained that Plaintiff was inefficient and inaccurate.

Plaintiff argues that Defendant's position impermissibly requires her to establish pretext at the

prime facie stage, citing Davenport v, Riverview Gardens Sch. Dist., 30 F.3d 940 (8th Cir.

1994). In that case, the court noted that a plaintiff may establish the second element of her

prims facie case by demonstrating that she met the minimum qualifications for the position. Id




                                                   5


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 at 944 ( citing Hase v. MissouriDiv. of Employmentsec; 972 F.2d 893, 896 (8th

 Cir.1992)).   In addition, the court stated,

         Second, by requiring plaintiff to disprove the alleged conduct violations in order
         to establish his prima facie case, the district court essentially required plaintiff, at
         the outset, to disprove defendant's alleged business reasons for its adverse
         employment action-in other words, to prove pretext and the ultimate issue of
         intentional discrimination. The prima facie burden is not so onerous. See Johnson
          v. Arkansas State Police/ 10 F.3d 547, 551 (8th Cir.1993) (threshold of proof
        necessary to make a prima facie case is minimal and district court improperly
        conflated prima facie case with ultimate issue). Third, taken to its logical
        extreme, the district court's reasoning could have ended the inquiry prematurely,
        thus denying plaintiff the opportunity to show that, even if these incidents did
        occur, defendant unlawfully responded by treating plaintiff differently from
        others who were similarly situated, on account of his race.

Id. Here, Plaintiff testified that she had two weeks of initial teller training with simulated

transactions, and one week of observation prior to working with actual customers in the bank.

Knappenberger Depa. pp. 20- 25. Plaintiff testified that she completed the training satisfactorily

and received a certificate.   Id at 27. Thus, Plaintiff has produced evidence to give rise to a

question of fact that she objectively satisfied the second prong of the prima facie test.

        With regard to the fourth prong of the prima facie test, whereby a Plaintiff must

demonstrate that she was dismissed under circumstances that give rise to an inference of

discrimination, a plaintiff may demonstrate such by showing that she was replaced by someone

substantially younger, or that she suffered dismissal despite the defendant's need for someone

to perform the same work after she left. Kroptavich
                                                  , supra. Defendant argues that Plaintiff

has not set forth any evidence to suggest that any of the incidents she complained of had

anything to do with age discrimination as it relates to her job. Defendant argues that the

alleged remarks by Ms. Newell, that Plaintiff "was too old to have babies," and the alleged



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 remarks by Plaintiff's co-worker, Courtney Zahn, that Ms. Zahn "hate[s] old people," that "53 is

 really old," and that Ms. Zahn "wantled] Elizabeth gone," are irrelevant to Plaintiff's

 discrimination claim, because neither Ms. Newell nor Ms. Zahn were involved with the decision

 to terminate Plaintiff. Defendant additionally argues that any statements made by either Ms.

 Newell or Ms. Zahn are stray remarks that, as a matter of law, do not constitute discrimination

 based upon age. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1988). Plaintiff

 argues that she has produced evidence that she was replaced by someone substantially

 younger than herself. Given the minimal requirements for establishing a prima facie, Plaintiff's

evidence, that she was replaced by someone twenty eight years younger than herself, is

sufficient to give rise to a question of fact concerning the fourth prong of the test As such,

viewing the evidence in a light most favorable to Plaintiff for purposes of the current motion,

and resolving all question of fact in her favor, Plaintiff has sufficiently established questions of

material fact regarding the issue of her burden to prove a prime facie case of age

discrimination. Kroptavich,795 A.2d at 1055.

       The burden next shifts to the Defendant to articulate a legitimate, nondiscriminatory

reason for the challenged employment decision. Id. As stated above, the employer's burden in

this second part is one of production, not persuasion, and involves no credibility assessment.

Id. If the employer articulates a legitimate business explanation, then the presumption of

discriminatory intent, created by the employee's prima tack: case, is rebutted, and the

presumption simply drops out of the picture. In this case, Defendant has produced evidence

that Plaintiff was terminated due to poor job performance and a customer complaint directed to




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  the bank's President. These are legitimate business explanations. Therefore, the Defendant

 has produced evidence to rebut the presumption of discriminatory intent.

         The third and final part of the McDonnellDouglastest 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. Kroptavich,795 A.2d at 1055. In the pretext

 discrimination case, the employer need not prove that the proffered reason actually motivated

 its behavior, because throughout this burden-shifting paradigm, the ultimate burden of proving

 intentional discrimination always rests with the plaintiff. Id. 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. Id. at 1059. In other words, "because the factflnder may infer

from the combination of the plaintiff's prima facie case and its own rejection of the employer's

proffered non-discriminatory reasons that the employer unlawfully discriminated against the

plaintiff and was merely trying to conceal its illegal act with the articulated reasons," a plaintiff,

who has made out a prima facie case, may defeat a motion for summary judgment by either (i)

discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence,

whether circumstantial or direct, that discrimination was more likely than not a motivating or

determinative cause of the adverse employment action. Fuentes v. Perskle, 32 F.3d 759, 764

(3d Cir. 1994). To discredit the employer's proffered reason, 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,

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 shrewd, prudent, or competent. Id. The plaintiff must demonstrate such weaknesses,

 implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered

 legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy

 of credence, and hence infer that the employer did not act for the asserted non-discriminatory

 reasons. Id. In order to survive summary judgment by adducing evidence that discrimination

 was more likely than not a motivating or determinative cause of the adverse employment

 action, a plaintiff may show that the employer, in the past, had subjected her to unlawful

 discriminatory treatment, that the employer treated other, similarly situated persons not of her

 protected class more favorably, or that the employer has discriminated against other members

of her protected class or other protected categories of persons. Id. at 765.

        Defendant argues that there is no evidence that its reasons for terminating Ms.

Knappenberger are so weak, incoherent, implausible, or inconsistent that they lack credibility.

Additionally, Defendant argues that Plaintiff has not adduced sufficient evidence from which a

reasonable fact-finder could conclude, by a preponderance of the evidence, that unlawful age

discrimination was a "but for" cause of her termination. Defendant argues that Plaintiff was

terminated because of a substantlal customer complaint, lodged directly with the bank's

President, and because of a poor 90-day performance evaluation. Finally, Defendant argues

that neither of the individuals who allegedly made the ageist remarks participated in the

decision to terminate Plaintiff. Plaintiff argues that she has never been rude to a customer,

and, even if she had been rude to a customer, she was treated differently from other, younger

workers by being terminated for said rudeness. Plaintiff argues that the two substantially

younger workers frequently sent and received text messages while serving customers, and that

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  Plaintiff reported these actions to Human Resources.    Plaintiff argues that said behavior is

 unquestionably rude, yet there is no indication that either individual was disciplined or that the

 Plaintiff's complaint against her co-workers was even investigated.     Additionally, Plaintiff argues

 that she was rated as commendable in the area of Communication with Customers and

 Community on her performance evaluation just days prior to the customer complaint. Thus,

 this rating indicates that she was not consistently rude to customers. With regard to her

 performance evaluation, Plaintiff points out that her low scores were based upon her inability to

 balance her drawer, which Plaintiff avers happened only once, when she was informed by Ms.

 Creese that she did not need to balance her drawer. Plaintiff argues that, because Ms. Creese

 was the head teller, she was aware that it was necessary for tellers to balance their drawers on

Saturday. Plaintiff asserts that Ms. Creese was the individual to whom Ms. Zahn directed the

comment that Ms. Zahn "wanted Plaintiff gone." Plaintiff additionally argues that it was Ms.

Creese and Ms. Zahn who checked her drawer the Monday after she did not balance it, and who

discovered it was out of balance. Thus, Plaintiff argues that an inference can be drawn that Ms.

Creese and Ms. Zahn set her up in an effort to have Plaintiff fired. Finally, Plaintiff argues that,

prior to her termination, Ms. Newell and other bank employees exchanged emails in which they

postulated that Plaintiff was going to sue the bank.

       With regard to summary judgment and the pretext phase, Plaintiff argues that her

evidence discredits the Defendant's proffered legitimate reasons for the termination, because,

younger tellers, who texted while waiting on customers, and were, therefore, acting rudely

toward the customers, were not fired. Plaintiff has not proffered evidence that the Defendant

received any customer complaints regarding said behavior. As such, Plaintiff has not produced


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  evidence to demonstrate that she was treated differently from younger workers in similar

 situations.   Plaintiff has not presented evidence to establish any question that the Defendant's

 proffered legitimate reasons for her termination were riddled with such weaknesses,

 implausibilities, inconsistencies, incoherencies, or contradictions that a reasonable factfinder

 could rationally find them unworthy of credence. Therefore, Plaintiff has not produced

 sufficient evidence to give rise to a material question of fact on the pretext issue, to discredit

 the Defendant's legitimate reasons for her termination.

        With regard to whether Plaintiff has adduced evidence, circumstantial or direct, that

 discrimination was more likely than not a motivating or determinative cause of Defendant's

 adverse employment action, Plaintiff testified that, on at least three occasions, her supervisor,

 Ms. Newell, made age-related remarks, to the effect that Plaintiff "was too old to have babies"

and was "too old to go to a tractor pull." Plaintiff also alleges a conspiracy between Ms. Creese

and Ms. Zahn to have her fired. However, Defendant has produced evidence that neither Ms.

Newell, Ms. Zahn, nor Ms. Creese participated in the decision to terminate Plaintiff's

employment. See Affidavit of Maria Smathers, Margaret Weir. Plaintiff has not produced any

evidence to the contrary. In Brewer v. QuakerState Oil Ref. Corp., 72 F.3d 326, 333 (3d

Cir. 1995), the court held that stray remarks by non-decisionmakers are rarely given great

weight. Id. at 333. Further, the court in Walden v. Georgia-Pac. Corp., 126 F.3d 506 (3d

Cir. 1997) made it clear that "Our cases distinguish between discriminatory comments made by

individuals within and those by individuals outside the chain of decisionmakers who have the

authority to discharge. We have generally held that comments by those individuals outside of

the decisionmaking chain are stray remarks, which, standing alone, are inadequate to support

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an inference of discrimination." Id. at 521. In the present case, the alleged statements

constitute stray remarks by non-decisionmakers, and, by themselves, fail to raise any question

of fact regarding the decisionmakers' proffered legitimate reasons to terminate Plaintiff.

Consequently, she has failed to adduce sufficient evidence to raise a material question of fact

regarding the issue of pretext. As such, Defendant's Motion for Summary Judgment is granted.

       This Court notes that Defendant filed its Bri~f in Reply to Plaintiff's Brief in Opposition on

April 22, 2015. However, said filing occurred after the scheduled submission date and after this

Court had made its preliminary ruling on the present Motion. Consequently, this Court has not

reviewed the Defendant's Brief in Reply, and said Brief has had no bearing on this Court's

decision.

       In light of the above, this Court enters the following Order:




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       IN THE COURT OF COMMON PLEAS OF BUTLERCOUNTY, PENNSYLVANIA



ELIZABETH S. KNAPPENBERGER,
                                                             AD No. 13-11170
                       Plaintiff,

vs.

NEXTIER BANK,

                       Defendant.



Attorney for Plaintiff:                                      Neal A. Sanders
Attorney for Defendant:                                      Christianc. Antkowiak

HORAN, J,                                                    DATE: April 23, 2015

                                       ORDER OF COURT

       AND NOW, this 23rd day of April, 2015, as regards Plaintiff's Count II, Retaliation, claim,

said claim is dismissed. Further, upon consideration of Defendant's Motion for Summary

Judgment and Brief in Support; Plaintiff's Opposition and Brief in Opposition; the relevant

pleadings, and for the foregoing reasons, Defendant's Motion for Summary Judgment, as

regards Plaintiff's Count I, Age Discrimination, claim, is granted. Judgment is entered in favor

of the Defendant and against the Plaintiff, on said claim.

                                                     BY THE COURT,




aim

5/6/15 Judgment entered at CP 15-20776 as per Memorandum Opinion and Order of Co rt.
                                                13
