J-S14032-18

                                    2018 PA Super 99

BARBARA FERRARO                             :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                      Appellant             :
                                            :
                                            :
            v.                              :
                                            :
                                            :
TEMPLE UNIVERSITY AND TEMPLE                :    No. 2682 EDA 2017
PHYSICIANS, INC.                            :

             Appeal from the Judgment Entered July 18, 2017
   In the Court of Common Pleas of Philadelphia County Civil Division at
                     No(s): June Term, 2015 No.2478


BEFORE:    OTT, J., McLAUGHLIN, J., and RANSOM*, J.

OPINION BY RANSOM, J.:                                    FILED APRIL 26, 2018

      Appellant Barbara Ferraro appeals from the judgment entered on

July 18, 2017,   in    favor   of    Appellees   Temple   University   and   Temple

Physicians, Inc. (collectively, “Temple”), in her age discrimination and

retaliation action, relating to her dismissal from Temple’s employment. We

affirm.

      In January 2012, Ferraro, who was then sixty-two years old, was fired

from her full-time position at Temple as a manager of patient accounting.

Amended Trial Court Opinion (TCO), 7/18/17, at 1-2. According to Temple,

Ferraro was fired for taking inappropriate disciplinary action against an

employee whom she oversaw. Ferraro contends that her firing was due to

her age and in retaliation for events beginning in 2010.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S14032-18


      In 2010, Temple commenced an office-wide implementation of new

accounting software. Notes of Testimony (N.T.), 1/4/17, at 66-72, 91, 94-

97; TCO at 2. Ferraro maintains that, during the software rollout, she was

excluded from training meetings, her team was the last to be trained, and

Temple offered training to her younger peer, then-thirty-six-year-old

Tiffany Richardson, instead of Ferraro. During this time, Ferraro’s supervisor

asked her when she was going to retire.

      Appellant Ferraro also insists that Richardson, who is a single mother

with three children, received substantially better treatment than she from

2010 until her termination in 2012. N.T., 1/6/17, at 179-85, 193-94, 198-

200; TCO at 11-12.        For example, Temple allowed Richardson to have a

flexible schedule. Additionally, even though Richardson was disciplined for

her attitude and rudeness several times, she only ever received counseling

and was asked to apologize, unlike Ferraro, who was terminated after a

disciplinary action.

      Ferraro filed an internal age-discrimination complaint in 2010. TCO at

1-2; N.T., 1/4/17, at 67-68.       The subsequent investigation, conducted by

Temple    Human        Resources   employee    Carolyn    Ashburn,     found    no

discrimination against Ferraro.

      In its opinion, the trial court correctly sets forth additional facts of this

case, as follows:

      Ferraro began to oversee Diane James . . . in March of 2010,
      giving rise to the events that led to her termination in 2012. By

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J-S14032-18


      all accounts, Ms. James seemed to be an insubordinate
      employee. She received corrective actions for leaving work
      early, tardiness, and other performance issues such as failing to
      meet quota. Ms. James eventually applied for and was granted
      Family Medical Leave (“FMLA”) for herself and her son. Soon
      after, she began to clash with Ms. Ferraro over documenting her
      FMLA absences. [Temple]’s rules require an employee to inform
      her supervisor two weeks prior to an FMLA absence.           If a
      [Temple] employee’s family member also qualifies for FMLA, the
      employee must clarify, without giving substantive detail,
      whether the FMLA absence pertains to the employee or family
      member. Ms. James consistently failed to communicate this
      information to Ms. Ferraro. Ms. Ferraro kept meticulous records
      of Ms. James’s frequent and unexplained comings and goings
      because of this communication breakdown.

TCO at 3 (citations to the record omitted).

      On September 27, 2011, James sent an e-mail at 8:36 a.m. informing

Ferraro that she had a doctor’s appointment at 12:00 p.m. and would be

taking a half day of FMLA time. N.T., 1/4/17, at 187-88; Exs. P-16 & P-26.

Ferraro inquired as to whether the FMLA time was for James or her son.

James responded that it was for herself. Temple’s employees are required

to provide two weeks’ notice of doctor’s appointments. Ferraro thus inquired

further as to why James was only giving less than four hours’ notice of this

appointment.    During trial, Ferraro represented that she “never asked

[James] what was wrong with her” and did not ask James to tell her the

reasons that qualified James for FMLA.

      Ferraro contacted Richard West . . . , a manager in the absence
      management department, about how to handle the situation
      with Ms. James. Mr. West instructed Ms. Ferraro to classify
      unexplained absences as attendance incidents and, remind
      Ms. James of her responsibility to inform [Temple] of FMLA
      related absences. Ms. Ferraro followed Mr. West’s suggestions
      but Ms. James continued her insubordinate behavior. When

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J-S14032-18


      Ms. Ferraro pressed Ms. James for clarifications, Ms. James
      responded by filing a harassment claim against her in January of
      2011.

TCO at 3 (citations to the record omitted).

      Temple’s Associate Director for Human Resources, Brenna Woods,

investigated James’s complaint against Ferraro and provided a copy of her

report to Ashburn in December 2011.       N.T., 1/5/16, at 31, 35-39, 54-55.

Ashburn wrote a note on Woods’s report stating that Ferraro had brought an

age discrimination complaint in November 2010, but she later testified that

she never discussed Ferraro’s age discrimination complaint with Woods.

      Ferraro was “fired in January of 2012 for FMLA violations against

Ms. James.    [Temple]’s position is that Ms. Ferraro’s inquiries and record

keeping constituted discrimination against the FMLA rights of Ms. James, a

fireable offense. [Temple] also claims that Ms. Ferraro issued Ms. James an

improper citation.”   TCO at 3-4 (citations to the record omitted).   Ferraro

“was replaced by a women who is approximately 50 years old.” Id. at 6.

      In January 2012, Ferraro filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”) alleging discriminatory discharge based

upon her age and retaliation for having previously engaged in protected

conduct. N.T., 1/4/17, at 191-92; N.T., 1/6/17, at 201-03. The EEOC ruled

that the complaint was unsubstantiated.




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J-S14032-18



        In June 2015, Ferraro commenced this action by writ of summons. In

July 2015, Ferraro filed a complaint, alleging that Temple had violated the

Pennsylvania Human Relations Act (“PHRA”).1 Compl., 7/1/15, at 3-5 ¶¶ 22-

23, 31-32, 36. A bench trial was held in January 2017. In June 2017, the

trial court found in favor of Temple.

        After receiving Ferraro’s post-trial motions challenging the weight of

the evidence and requesting a new trial, the trial court again found in favor

of Temple in July 2017. In August 2017, Ferraro filed a notice of appeal and

a timely concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). In response, the trial court relied upon its prior opinions.

        Ferraro now presents the following issues for our review:

        1.    Did [t]he [trial c]ourt commit an error of law by ruling that
        the credibility of the proffered reason offered by [Temple] for the
        termination of [Ferraro]’s employment is not relevant to the
        determination of whether [Temple]’s reason for discharging
        [Ferraro]’s employment is a pretext?

        2.    Did the [t]rial [c]ourt commit an error of law and go
        against the weight of evidence by failing to identify [Ferraro]’s
        pretext evidence and, instead, mistakenly identify evidence of
        protected activity (and direct evidence of age discrimination) as
        pretext evidence?

        3.     Did the [t]rial [c]ourt commit an error of law and go
        against the weight of the evidence by not determining that the
        reasons offered by [Temple] for [Ferraro]’s termination were
        false.

        4.    Did the [t]rial [c]ourt commit an error of law and go
        against the weight of the evidence by failing to determine that
____________________________________________


1   43 P.S. §§ 951-963.



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J-S14032-18


      [Ferraro]’s substantially younger coworker was given preferential
      treatment and that [Ferraro] was subjected to discriminatory
      discharge because of her age?

      5.    Did the [t]rial [c]ourt commit an error of law and go
      against the weight of the evidence by finding that [Ferraro] was
      not subjected to retaliatory discharge?

Ferraro’s Brief at 4-5 (suggested answers omitted).

      Our standard for reviewing non-jury verdicts is as follows:

      Our appellate role in cases arising from non-jury trial verdicts is
      to determine whether the findings of the trial court are
      supported by competent evidence and whether the trial court
      committed error in any application of the law. The findings of
      fact of the trial judge must be given the same weight and effect
      on appeal as the verdict of a jury. We consider the evidence in a
      light most favorable to the verdict winner. We will reverse the
      trial court only if its findings of fact are not supported by
      competent evidence in the record or if its findings are premised
      on an error of law. However, where the issue concerns a
      question of law, our scope of review is plenary.

      The trial court’s conclusions of law on appeal originating from a
      non-jury trial are not binding on an appellate court because it is
      the appellate court’s duty to determine if the trial court correctly
      applied the law to the facts of the case.

Bank of N.Y. Mellon v. Bach, 159 A.3d 16, 19 (Pa. Super.) (citation

omitted), appeal denied, 170 A.3d 1019 (Pa. 2017).

                             Age Discrimination

      In an employment discrimination case, a three-part burden-shifting

framework has been developed.       Kroptavich v. Pa. Power & Light Co.,

795 A.2d 1048, 1055 (Pa. Super. 2002). First, a plaintiff bears the burden

of establishing a prima facie case of discrimination. This Court has explained

the elements of a prima facie case of age discrimination as follows:


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J-S14032-18


     [A]n 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 was replaced by someone
     substantially younger.

Id. at 1056. Here, the trial court concluded that Ferraro put forth credible

evidence satisfying the requirements of a prima facie case of discrimination:

she is a member of a protected class, she is qualified for the position, she

suffered an adverse employment action, and the twelve-year age difference

between Ferraro and her replacement “is substantial enough to raise an

inference of age discrimination.” TCO at 6.

     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. The employer’s burden
     in this second part is one of production, not persuasion, and
     thus involves no credibility assessment. 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.

Kroptavich, 795 A.2d at 1055 (emphasis added) (internal citations and

quotation marks omitted).




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J-S14032-18


       For   this step,     under    the   heading   “[Temple]’s Legitimate   Non-

discriminatory Reason for Terminating Ms. Ferraro,”2 the trial court states

that it “does not find any of [Temple]’s witnesses’ testimonies credible. . . .

However, as a matter of law, [Temple] must only submit a non-

discriminatory reason for the adverse employment action.           Therefore, the

credibility of such reason is irrelevant.” TCO at 6 & 7 n.4; see also id. at 8

n.5 (the trial court “finds the proffered reason incredible”).

       Ferraro contends that the trial court was wrong to conclude that

“credibility is not to be considered when assessing the employer’s proffered

reason for the adverse action is an error of law.”          Ferraro’s Brief at 49.

Ferraro cites to the federal court cases of Brewer v. Quaker State, 72 F.3d

326, 331 (3d Cir. 1995), and Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.

1994),3 for the principle that “[t]he way an employee shows that an

____________________________________________


2  The trial court opinion has separate headings for “Legal Framework For
Establishing Pretext” and “Plaintiff Has Not Provided Sufficient Evidence to
Show Pretext.” TCO at 8, 10.
3 Both Brewer and Fuentes were actions brought pursuant to the federal

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, not
the PHRA. However, both the PHRA and the ADEA prohibit discrimination
based on age. See Section 5(a) of PHRA, 43 P.S. § 955(a) (“It shall be an
unlawful discriminatory practice . . . [f]or any employer because of . . . age
. . . to discharge from employment such individual . . . if the individual or
independent contractor is the best able and most competent to perform the
services required”); Section 623(a)(1) of the ADEA, 29 U.S.C. § 623(a)(1)
(“It shall be unlawful for an employer . . . to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
such individual’s age”). “[C]laims brought under the PHRA are analyzed
(Footnote Continued Next Page)


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J-S14032-18


employer’s proffered reason is a pretext is to test the credibility and

plausibility of the [e]mployer’s reasons.”           Ferraro’s Brief at 49-50.      She

continues: “A fact finder can thus reject the employer’s proffered reason for

the discharge solely because the reason is not credible.” Id. at 50.

      However, for this second part of the burden-shifting framework, when

the burden is on the employer, there is no credibility assessment.

Kroptavich, 795 A.2d at 1055. Ferraro has confused the second and third

steps of the framework. “If the employer satisfies its burden of production,

the third and final part of the [burden-shifting] 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.”    Id. (emphasis added).          Thus, Ferraro’s argument that “[t]he

way an employee shows that an employer’s proffered reason is a pretext is

to test the credibility and plausibility of the [e]mployer’s reasons” relates to

this third step in the framework, whereas the trial court’s statement that

the credibility of Temple’s witnesses is irrelevant is explicitly limited to the

second step.        Compare Ferraro’s Brief at 49-50 with TCO at 7 (“The

credibility of [Temple]’s reason is not relevant for this step because the

employer’s burden is one of production, not persuasion.” (emphasis added)

(citation omitted)).     Even the federal cases cited by Ferraro relate to this
(Footnote Continued) _______________________

under the same standards as their federal counterparts.” Kroptavich, 795
A.2d at 1055.



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J-S14032-18


third step, not the second step.    Brewer, 72 F.3d at 337 (what evidence

employees can rely on to show pretext); Fuentes, 32 F.3d at 764, 766

(“factors such as the defendant’s credibility, the timing of an employee’s

dismissal, and the employer’s treatment of the employee could raise an

inference of pretext” (citation omitted)).    Hence, Ferraro’s first challenge

raised on appeal misstates the trial court’s determination and thereby is

meritless.

      Finally, as noted above, “the third and final part of the [burden-

shifting] 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.”   Kroptavich, 795 A.2d at 1055.

“[T]he 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.”   Id. (emphasis added) (citation omitted).     Thus, for the third

prong of the burden-shifting analysis to prove age discrimination, the burden

was on Ferraro to establish that Temple’s proffered reason was not pretext;

the burden was not on Temple to prove that its proffered reason was

legitimate. See id.

      For this third prong, Ferraro first contends that “the trial court ignored

the key evidence of the September 27, 2011 email and, instead, focused on

evidence from 2010 that was not pretext.” Ferraro’s Brief at 53. However,


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J-S14032-18


we are not permitted to re-weigh evidence; that is a function exclusively of

the fact-finder – in this case, the trial court. Commonwealth v. Talbert,

129 A.3d 536, 545–46 (Pa. Super. 2015). The trial court opinion referenced

“Ferraro’s inquiries” regarding FMLA, which would include the e-mail chain of

September 27, 2011.           TCO at 3.        The trial court explained that the

“inquiries” were only one of several concerns Temple expressed about

Ferraro. Id.4 The trial court did not discuss the e-mail chain specifically in

the argument section, thereby demonstrating that said e-mail chain did not

have the impact that Appellant tries to present.          The trial court made a

factual determination, supported by the record. If the trial court did not find

this e-mail chain to be “key evidence” or did not interpret it in the manner

that Ferraro wished the trial court to do, that is the trial court’s prerogative

as fact-finder, and we will not reverse on this basis. See Talbert, 129 A.3d

at 545–46.



____________________________________________


4 Woods testified that her investigation revealed serious concerns about how
Ferraro managed employees on FMLA leave, including:                  wrongly
administered disciplinary action; an improper performance write-up; a
discrepancy in Appellant’s attendance-tracking practices for employees on
FMLA; and Appellant’s refusal to accept responsibility and to modify her
management behavior. N.T., 1/6/17, at 253-56, 259-60, 269, 275, 282,
294. Woods had “concerns [about] putting [Ferraro] back in the workplace
. . . , because an uncomfortable environment had been created at that
point[.]” Id. at 282. Ferraro had not given Woods any assurance that she
would not continue to treat people differently due to FMLA use. Id. at 282,
294-95.



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J-S14032-18


      In addition, Ferraro argues that the trial court also ignored the “key

evidence” that Richardson was treated differently by Temple than she was.

Ferraro’s Brief at 55. After a thorough review of the record, the briefs of the

parties, and the applicable law, we conclude that Ferraro’s challenge merits

no relief.   The trial court opinion comprehensively discusses and properly

disposes of her contention:

      Ferraro argues that Ms. Richardson, a substantially younger
      woman, was given preferential treatment. This treatment was in
      the form of a flexible schedule and multiple disciplinary actions
      which resulted in counseling as opposed to termination. . . .

      This [trial c]ourt flatly rejects Ms. Ferraro’s arguments because
      she failed to present evidence that the alleged
      preferential treatment was in fact preferential on account
      of age. It should be noted that Ms. Richardson is a single
      mother of three. There might be a thousand reasons why a
      single parent of three might need to leave work early or come in
      late, none of which are related to the relative age difference
      between Ms. Richardson and Ms. Ferraro. The age discrimination
      complaint made against Ms. Richardson was found to be
      unsubstantiated by the EEOC. The other complaints filed against
      Ms. Richardson were for attitude and emails which some
      employees saw as rude. These complaints were resolved with a
      simple apology.

TCO at 11-12 (emphasis added) (citations to the record omitted).        Based

upon this well-reasoned analysis, we find that the trial court did not abuse

its discretion when comparing the evidence of Richardson’s treatment to

Ferraro’s.

      Ergo, we conclude that Ferraro has failed “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 (emphasis


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J-S14032-18


added).     Even where, as here, the fact-finder concluded that the reasons

offered by the employer were not credible, TCO at 7 n.4 & 8 n.5, the

employee still had to prove that the real reason for her termination or other

censure was a discriminatory one. See Kroptavich, 795 A.2d at 1055. In

other words, just because the employer’s proffered reason for the

employee’s termination is false does not automatically mean that the

employee’s suggested discriminatory reason is true nor established by

evidence.

      Although the trial court did not find Temple’s proffered reason to be

credible, it also found that Ferraro – who now, in this third step of the

framework, has the burden of proof – had still failed to establish that Temple

had discriminated against her and had terminated her employment due to

her age and not for any other legitimate reason. Kroptavich, 795 A.2d at

1055; TCO at 12-13.       Due to her failure to establish this third prong,

Ferraro’s entire age discrimination claim fails.

                                  Retaliation

      Ferraro urges this Court to find that “the trial court committed an error

of law and went against the weight of the evidence by not finding that [she]

suffered retaliatory discharge.” Ferraro’s Brief at 58. According to Ferraro,

the alleged retaliation was due to her filing of the internal age discrimination

complaint in 2010. Id.; see also TCO at 1-2; N.T., 1/4/17, at 67-68.




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      Our standard of review for a challenge to the weight of the evidence is

as follows:

      The weight of the evidence is exclusively for the finder of fact,
      who is free to believe all, none or some of the evidence and to
      determine the credibility of the witnesses.

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence.

Talbert, 129 A.3d at 545–46 (internal brackets, citations, and quotation

marks omitted; some additional formatting).

      We have not found – and the parties have not provided – any case law

from the Supreme Court of Pennsylvania or the Superior Court of

Pennsylvania on retaliation.     However, this subject has been discussed

multiple times in the Commonwealth Court and the Third Circuit. Although

we are not bound by decisions from the Commonwealth Court or from courts

in other jurisdictions, we may use them for guidance to the degree we find

them useful, persuasive, and (for other jurisdictions) not incompatible with

Pennsylvania law. Newell v. Mont. W., Inc., 154 A.3d 819, 823 & n.6 (Pa.

Super. 2017).

      In Spanish Council of York, Inc. v. Pa. Human Relations

Comm'n, 879 A.2d 391, 399 (Pa. Cmwlth. 2005), the Commonwealth Court

articulated the elements to establish a prima facie case of retaliation:

      A prima facie case of retaliation requires a complainant to show
      that: (i) she was engaged in a protected activity; (ii) her
      employer was aware of the protected activity; (iii) subsequent to
      participation in the protected activity complainant was subjected

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J-S14032-18


      to an adverse employment action; and (iv) there is a causal
      connection between participation in the protected activity and
      the adverse employment action.

In Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259 (3d Cir. 2007),

the Third Circuit analyzed how the fourth element, the “causal connection,”

can be established:

      To establish the requisite causal connection a plaintiff usually
      must prove either (1) an unusually suggestive temporal
      proximity between the protected activity and the allegedly
      retaliatory action, or (2) a pattern of antagonism coupled with
      timing to establish a causal link. In the absence of that proof
      the plaintiff must show that from the evidence gleaned from the
      record as a whole the trier of the fact should infer causation.

Id. at 267 (internal citations and quotation marks omitted).

      In the current action, the trial court found that Appellant failed to

establish the fourth element of retaliation – i.e., that there was a causal

connection    between   Appellant’s    protected   activity   of   filing   an   age

discrimination complaint and the adverse employment action.            TCO at 16;

see also Spanish, 879 A.2d at 399. According to the trial court, in order to

demonstrate that the 2010 complaint was a proximate cause of her 2012

termination, Ferraro needed to provide evidence that the two events were

connected or that her termination occurred within an unusually close

proximity to the protected activity.     TCO at 16.   The trial court concluded

that Ferraro had not provided such evidence and, consequently, failed to

establish a case of retaliation. Id.

      We agree with the trial court that there is no unusually suggestive

temporal proximity between Ferraro filing her internal age discrimination


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complaint in 2010 and her firing in 2012. Lauren W., 480 F.3d at 267; see

also N.T., 1/4/17, at 67-68; TCO at 1-2, 16.       We also give the gravest

consideration to the trial court’s finding that there was no evidence from the

record as a whole from which the trial court, as fact-finder, should have

inferred causation.   Lauren W., 480 F.3d at 267; see also Talbert, 129

A.3d at 545-46.

      Nevertheless, the trial court opinion does not analyze whether a

pattern of antagonism coupled with timing established a causal link. Lauren

W., 480 F.3d at 267; TCO at 16. Ferraro contends:

      Here, the [t]rial [c]ourt and [Temple] fail to acknowledge that
      the circumstances as a whole provide ample evidence to suggest
      that the employer had retaliatory animus.             This includes
      [Ferraro]’s pretext evidence, which can suggest that [Temple]
      had a retaliatory animus. Furthermore, there was substantial
      evidence that the individuals responsible for the adverse action
      knew of [Ferraro]’s protected conduct at the time they acted.
      Moreover, not only did the individuals know of Ms. Ferraro’s
      protected activity, but both Carolyn Ashburn and Brenna Woods
      clearly lied or intentionally misled the [t]rial [c]ourt when they
      denied conferring in December 2011 about Ms. Ferraro’s prior
      November 2010 age discrimination complaint. In fact the [t]rial
      [c]ourt tacitly acknowledged this to be true when it found that
      none of [Temple]’s witnesses were credible. These falsities
      alone demonstrate retaliatory intent, but when coupled with the
      other pretext evidence already discussed, it is clear [Ferraro]
      suffered a retaliatory discharge.

Ferraro’s Reply Brief at 10 (citations omitted).   Nonetheless, Ferraro does

not clearly indicate any particular actions that were antagonistic.         If we

accept her implication that the discussion between Ashburn and Woods –

assuming it even happened -- was antagonistic, that is still only one



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incident, which is insufficient to demonstrate a “pattern.” Lauren W., 480

F.3d at 267; N.T., 1/5/16, at 31, 35-39, 54-55.

      Finally, Ferraro generally states that “the trial court’s opinion is not

supported by competent evidence” and that “the weight of the evidence in

this case is so contrary to the [t]rial [c]ourt’s [opinion] against [her] that a

new trial is necessary to remedy the situation.” Ferraro’s Brief at 60 (citing

Lanning v. West, 803 A.2d 753, 765 (Pa. Super. 2002)).

      Questions of the weight of the evidence are solely the province of the

fact-finder – here, the trial court – who is free to believe or to disbelieve any

evidence it chooses. Talbert, 129 A.3d at 545–46. We cannot and will not

re-weigh the evidence nor re-assess the credibility of the witnesses. Id.

      Here, the trial court exercised its discretion and concluded that Ferraro

had not provided sufficient evidence to show pretext for age discrimination.

See id.; TCO at 10.     In reaching this conclusion, the trial court took into

consideration several pieces of evidence. Id. at 10-11 (citing N.T., 1/4/17,

at 94-96; N.T., 1/6/17, at 27-28; Plaintiff’s Proposed Findings of Fact ¶ 6

(citing N.T., 1/4/17, at 73-75; N.T., 1/6/17, at 57-58)). First, the trial court

considered that the inquiry from Ferraro’s supervisor about her retirement

plans occurred in 2010 – more than a year before Ferraro’s firing in January

2012. N.T., 1/4/17, at 66-72, 91, 94-97; TCO at 1-2. The trial court was

also aware that Ferraro was the last to receive training during the software

rollout.   Additionally, the trial court knew that a substantially younger




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woman was given preferential treatment. Notwithstanding the trial court’s

awareness of these facts, they did not alter its verdict.

         The trial court also held that the record is devoid of evidence showing

inconsistencies or contradictions in Temple’s employment practices, such as

a coercive retirement scheme, a pattern of giving younger but unqualified

employees promotions over older and qualified employees, or a system that

gave lighter punishments to younger employees than older employees for

the same infractions. TCO at 12 (citing Sempier v. Johnson & Higgins,

45 F.3d 724, 732 (3d Cir. 1995), Bartek v. Urban Redevelopment Auth.

of Pittsburgh, 882 F.2d 739 (3d Cir. 1989), and Leibensperger v.

Carpenter Techs., Inc., 152 A.3d 1066, 1076 (Pa. Cmwlth. 2016),

respectively).

         The trial court further observed that Temple’s actions were not facially

invidious.    TCO at 13.      The trial court’s analysis is thorough, logical, and

supported by the record, and we see no assailable reason for granting a new

trial.    See Talbert, 129 A.3d at 545-46.        Accordingly, none of Ferraro’s

claims raised on appeal merit relief.

         Judgment affirmed.




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J-S14032-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/18




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