                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-17-2004

Evans v. PA Power Light Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2534




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-2534




                         JOHN J. EVANS; MICHAEL BATH;
                        MARK LINDSEY; JOHN SORENSEN,
                                                  Appellants

                                          v.

                  PENNSYLVANIA POWER & LIGHT COMPANY




                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          D.C. Civil Action No. 00-cv-01753
                            (Honorable Thomas I. Vanaskie)


                                Argued April 19, 2004

        Before: SCIRICA, Chief Judge, GARTH and BRIGHT*, Circuit Judges

                                 (Filed May 17, 2004)

PETER G. LOFTUS, ESQUIRE (ARGUED)
The Loftus Law Firm, P.C.
P.O. Box V, 1207 North Abington Road
Waverly, Pennsylvania 18471
      Attorney for Appellants


   *The Honorable Myron H. Bright, United States Circuit Judge for the Eighth Judicial
Circuit, sitting by designation.
DANIEL R. HALEM, ESQUIRE (ARGUED)
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
      Attorney for Appellee




                                 OPINION OF THE COURT


SCIRICA, Chief Judge.

          In this employment discrimination action, appellants appeal a grant of summary

judgment in favor of appellee. For the reasons stated, we will affirm.

                                               I.

          Appellants John Evans, Mark Lindsey, Michael Bath and John Sorensen were

employed by appellee Pennsylvania Power & Light Co. (PP&L) until their termination in

July of 1996. At the time of the incident described, appellants worked as Nuclear Plant

Operators (NPOs) at the Susquehanna Steam Electric Station, a two unit boiling water

nuclear reactor located in Berwick, Pennsylvania. As part of their duties, NPOs were

required to perform two “rounds” during each twelve hour shift, in which they would

record measurements, perform tests, and inspect equipment throughout the plant. While

performing the rounds, NPOs recorded their actions and the test results on a “rounds

sheet.”

          Among the tasks specified on the rounds sheet was testing an alarm panel in the

basement of the E-Diesel generator building. In the event the power plant lost its source

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of outside power, five diesel generators, including the E-Diesel generator, would serve as

alternate sources of electricity for the equipment that cools the nuclear core of the reactor

and prevents meltdown. The alarm was designed to signal problems with the auxiliary

systems necessary for the E-Diesel generator to operate, including heating, ventilation, air

conditioning, and emergency service water valves. Upon performing the alarm test, the

NPO would place a check mark on the rounds sheet to indicate that he had successfully

completed the test and that the alarm was functioning properly. Performance of the test

was also recorded by the computer system consisting of two computers, one for each of

the plant’s two reactor units.

       In July of 1996, PP&L became aware that numerous NPOs failed to perform the

alarm test during their rounds although they marked on their rounds sheet that they had

performed the test. Engineer Michael Adelizzi reviewed the computer data covering the

period of January 1996 to July 1996 to ascertain the times each NPO had performed or

failed to perform the alarm test. He also conducted a test that confirmed the reliability of

the computer data. Finally, PP&L conducted individual interviews with the NPOs,

questioning them about their alleged failure to perform the alarm test.

       After reviewing the interviews, computer records, and rounds sheets, PP&L

decided to discipline nineteen NPOs whose “recorded” alarm testing was not reflected on

the computer records. The method of punishment for this error varied according to the

frequency and consistency of the errors. Eight of the NPOs had missed the test once or



                                              3
twice, while performing it correctly otherwise. PP&L determined that their behavior was

attributable to human error and that a written warning was the most appropriate form of

discipline. Five NPOs had never performed the test or performed it consistently after an

initial failure to perform it. Concluding that this conduct constituted a reckless disregard

of their duties, these NPOs were subject to a one-day suspension. Finally, six NPOs had

missed the alarm test in a sporadic, unexplainable pattern. PP&L concluded that these

NPOs were aware of the requirement to perform the test, so their failure to perform the

test demonstrated a willful disregard of their job duties and deliberate falsification of the

rounds sheets. These six NPOs were terminated. Two of the terminated NPOs were

under 40 years of age, while four of the NPOs, the appellants, were over 40 years of age.

       Upon their dismissal, the appellants’ union filed a grievance contending that PP&L

did not have just cause to terminate the NPOs. The union contended that PP&L failed to

properly train appellants and notify them of their duty to perform the alarm tests, and it

also argued that the omissions were not done voluntarily, knowingly, or deliberately. In

an opinion dated April 30, 1998, the arbitrator held that PP&L had just cause to terminate

the appellants. The union did not challenge this conclusion.

       On October 3, 2000, appellants brought suit in federal court alleging their

terminations violated the Age Discrimination in Employment Act of 1967 (ADEA), 29

U.S.C. § 621, et seq., and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann.

§ 951, et seq. In the suit, appellants reiterated their contention that the alarm test failures



                                               4
resulted from computer error and PP&L’s failure to train them and communicate to them

how the test was to be performed. They further asserted that PP&L used the alarm test as

a pretext to (1) terminate older employees and avoid laying off seven younger Auxiliary

System Operators (ASOs) 1 slated for discharge, and (2) shift the focus away from an error

in senior management regarding a circuit breaker misalignment in the E-Diesel generator.

The District Court granted summary judgment in favor of PP&L in a memorandum

opinion dated M ay 7, 2003. Appellants filed this timely appeal.

                                             II.

       We exercise plenary review over the District Court’s grant of summary judgment.

Simpson v. Kay Jewelers, 142 F.3d 639, 643 (3d Cir. 1998). In determining whether

summary judgment was properly granted, we must use the same standard applied by the

district court and take the facts in the light most favorable to the nonmoving party. Doe v.

County of Centre, 242 F.3d 437, 446 (3d Cir. 2001). We have jurisdiction under 28

U.S.C. § 1291.

                                             III.

                                             A.

       Appellants claim that the District Court erred in granting summary judgment to

PP&L for failure to establish a prima facie case and, alternatively, for failing to establish




   1
    ASOs may be promoted to NPO positions after receiving classroom instruction and
on-the-job training.

                                              5
pretextual reasons behind the termination.

       Under the ADEA, employers are prohibited from discriminating against

individuals in hiring, termination, compensation, or conditions of employment on the

basis of their age. 29 U.S.C. § 623(a)(1). To survive a motion for summary judgment in

an ADEA case, a plaintiff must first establish a prima facie case of age discrimination.

Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc). The

elements of a prima facie case of age discrimination are: (1) the plaintiff is over 40 years

of age; (2) the plaintiff is qualified for the position in question; (3) the plaintiff suffered

an adverse employment decision; and (4) the plaintiff was replaced by a sufficiently

younger person to create an inference of job discrimination. Keller, 130 F.3d at 1108.

This Court has recently taken a more flexible approach to the fourth prong. In Pivirotto v.

Innovative Systems, Inc., we stated that “a complainant can satisfy the fourth prong of her

prima [facie] case simply by showing that, as here, the employer had a continued need for

someone to perform the same work after the complainant left.” 191 F.3d 344, 354 (3d

Cir. 1999) (quotations omitted).

       Once the plaintiff has established a prima facie case of age discrimination, the

burden shifts to the employer to produce evidence of a legitimate, nondiscriminatory

reason for the adverse action. Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509,

522 (3d Cir. 1992). The plaintiff then has the burden to provide sufficient evidence from

which a factfinder could reasonably either (1) reject the employer’s nondiscriminatory



                                                6
explanation for its decision, or (2) believe that an invidious discriminatory reason was

more likely than not a motivating cause of the employee’s discharge. Fuentes v. Perskie,

32 F.3d 759, 763-64 (3d Cir. 1994).

                                              B.

       PP&L stipulates that appellants have satisfied the first three prongs of the prima

facie case, but it claims, and the District Court found, that appellants failed to establish

the fourth prong. PP&L did not hire new employees to cover appellants’ shifts, but it

inserted other workers into these spots. Ken Hillman, a Senior Nuclear Plant Specialist

for PP&L who was responsible for staffing appellants’ positions, testified by affidavit

that PP&L regularly maintains on its staff extra NPOs and Plant Control Operators to

provide coverage for absences due to vacations, illness, or training. Because of this,

Hillman testified, PP&L was able to rely on existing staff to cover appellants’ shifts.

       As in Pivirotto, we believe appellants have satisfied the fourth prong requirement,

for PP&L “had a continued need for someone to perform the same work after the

complainant[s] left.” 191 F.3d at 354. Although it is not free from doubt, appellants have

demonstrated a prima facie case of age discrimination.

                                              C.

       While appellants may have made the required prima facie showing for age

discrimination, they cannot survive summary judgment due to their failure to sufficiently

cast doubt on PP&L’s stated reasons for termination.



                                               7
       PP&L has presented a legitimate, non-discriminatory basis for the termination of

appellants’ employment, namely that appellants failed to perform the alarm tests essential

to the safety of the nuclear power plant and the public and that they falsely represented

having completed the tests, showing a willful disregard of their duties as NPOs. PP&L

produced evidence that each appellant admitted to not having always performed the alarm

test. Furthermore, it investigated the reasons appellants subsequently gave for not having

consistently performed the test. PP&L found those reasons were invalid, concluded that

appellants intentionally entered false information on the records sheets, and terminated

their employment.

       This is not an ordinary matter involving an employee’s failure to perform certain

duties. The proper performance of appellants’ duties were essential to the operation of a

nuclear power plant. Any disregard of testing responsibilities could have a profound

impact on public safety. PP&L categorized the offending employees according to their

level of culpability.

       Since PP&L presented valid, nondiscriminatory reasons for the terminations,

appellants were obligated to present evidence from which a reasonable factfinder could

conclude that PP&L’s articulated reasons were false, or that discrimination was more

likely than not a motivating cause of PP&L’s actions. Fuentes, 32 F.3d at 764.

Specifically, appellants must “demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proferred legitimate



                                             8
reasons for its action that a reasonable factfinder could rationally find them unworthy of

credence.” Id. at 765 (quotations omitted).

       Appellants claim PP&L falsely manufactured the “test button problem” in order to

distract attention from an alleged incident involving a “misalignment of the circuit on the

E-Diesel,” and to also provide a reason to terminate them and replace them with younger

ASOs. Appellants claim their theory is strengthened because of problems with the plant’s

computer system and a lack of training in performing the alarm test. In addition,

appellant Mark Lindsey asserts in his affidavit that an unnamed member of PP&L’s

Board of Directors told him in the spring of 1993 “that the overall concern for the

Operations Department was age.”

       These representations are not sufficient for a reasonable factfinder to discount

PP&L’s motives or reasons for terminating appellants’ employment. Appellants’ claims

are mere conjecture or are not supported by evidence. For instance, appellants allege

PP&L brought back seven displaced ASO’s to fill their positions, six of whom were

under 40 years of age,2 but they present no supporting documentary evidence such as

personnel records, third-party evidence, or testimony of those who allegedly replaced




   2
    Lindsey asserted that “[t]he employees who were brought back to ASO positions were
Tim Ebert (late 20’s); Dave Evans (32); Mark Haile (38); Mike Krebs (33); Ron Dalmas
(35); Gordon Shellenberger (32) and Glenn Miller (45).” However, the personnel records
of these individuals demonstrate that only Ebert was an ASO at the time of the alleged
incident. Furthermore, Ebert was not promoted to the NPO classification until nearly
three years after appellants’ termination.

                                              9
them. This unsupported allegation does not meet the requirements of Fed. R. Civ. P.

56(e). Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990).

       Several of appellants’ assertions are contradicted by the record. Instead of

revealing computer “problems,” as appellants claim, Adelizzi’s engineering report

verified the accuracy of the two computers.3 Although appellants allege the

circumstances of the termination imply selective discrimination on the basis of age, two

of the six terminated NPOs were less than forty years of age. Furthermore, PP&L

grouped the offending employees into three categories, based entirely on levels of

misfeasance and relative culpability having no connection to age.

       Finally, Lindsey’s allegation regarding the unnamed PP&L board member’s age-

related statement is not sufficient to overcome summary judgment. Appellants have not

shown a connection between the board member and the 1996 incident. Furthermore, the

alleged statement was made in 1993, well before the alarm test investigation. See Ezold,

983 F.2d at 545 (“Stray remarks by non-decision makers or by decisionmakers unrelated

to the decision process are rarely given great weight, particularly if they were made

temporally remote from the date of decision.”).

       In summary, appellants did not produce direct or circumstantial evidence from

which a reasonable factfinder could conclude that PP&L’s stated reasons for firing




   3
    Adelizzi found that the computer failed to register an alarm only when the test and
reset buttons are pushed almost simultaneously, a highly unlikely occurrence.

                                            10
appellants were false or that age was a motivating factor in the termination decision.

Therefore the District Court properly granted summary judgment in favor of PP&L.

                                            IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            11
