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May 10, 1988

John R. Mallon, Plaintiff,
Prudential Property & Casualty Insurance Company and Travelers Insurance Company, Defendants

The opinion of the court was delivered by: BISSELL

 This matter arises out of a complaint filed in the United States District Court for the Western District of New York on January 7, 1986 by plaintiff John R. Mallon against defendant Prudential Property and Casualty Insurance Co. ("Prupac" or "company"). On May 12, 1986, that court granted defendant's motion to transfer this action to the United States District Court for the District of New Jersey pursuant to 28 U.S.C. § 1404(a). Two amended complaints have been filed in this action adding as additional defendants Aetna Casualty and Surety Company and Travelers Insurance Company. Both of these defendants, however, have been voluntarily dismissed by plaintiff pursuant to Federal Rules of Civil Procedure 41(a)(1).

 Plaintiff's complaint arises out of his termination from employment by Prupac on January 9, 1985, at age 60. Mallon was initially hired by Prupac on March 29, 1976, when he was 52 years old. Before this, he had worked as a claims adjuster and investigator for almost twenty-five years. His first year of employment was spent as a casualty claims consultant in defendant's Linwood, New Jersey field claims office. He was then transferred at company request and expense to Prupac's newly opened Syracuse, New York field claims office, where he remained for the next seven years.

 In May 1983, at company request and expense, plaintiff again relocated, this time to the company's main office in Holmdel, New Jersey. It is undisputed that prior to this time, Prupac had been experiencing problems with the handling of claims in the Holmdel office and the office was in need of someone who could handle claims and essentially clean things up. Within several months of this move, Mallon began to experience symptoms of stress and nervousness, which he contends were brought about by the backlog of claims and increased caseload of his new position. These health problems eventually lead to plaintiff being placed on Prupac's short-term disability benefits plan for the next year. Plaintiff was thereafter terminated upon exhaustion of his short-term disability benefits.

 In his complaint, Mallon seeks injunctive and monetary relief from defendant for its violations of federal and state law arising out of the termination of his employment. Plaintiff alleges that Prupac violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. because age was a determinating factor in discharging him rather than allowing him to return to work after his disability period expired. (Count One). In addition, plaintiff contends Prupac breached its contract of employment with him causing injury to his business reputation (Counts Two and Three), made false and fraudulent representations to induce him to accept employment (Count Four), and wrongfully discharged him in violation of public policy (Count Five). *fn1" Plaintiff's complaint contains a jury demand. Presently before the Court is defendant's motion for summary judgment on all counts of the complaint.

 On a motion for summary judgment, the Court must determine whether "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue of fact is "material" only when the dispute is over facts that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986). The substantive law identifies which facts are material. Id. at 2510. The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The Court must also consider the record in the light most favorable to the party opposing the motion. Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981).

 The language of Rule 56 mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552-54, 91 L. Ed. 2d 265 (1986). Yet, the burden of demonstrating the absence of material fact issues remains with the moving party on a motion for summary judgment, regardless of which party has the burden of persuasion at trial. Therefore, if the nonmovant bears the burden of persuasion at trial, the moving party, in order to meet its burden on a summary judgment motion, must show that the evidentiary materials of record would be insufficient to carry the nonmovant's burden of proof at trial. See id. at 2555.

 I. Count One: Age Discrimination Claim

 Under the ADEA, the plaintiff-employee has the burden of proving that age was a determinative factor in defendant-employer's decision to dismiss the employee. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir. 1987) (en banc), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987). This, however, does not mean the plaintiff must show that age was the sole consideration for his termination. Rather, the employee need only prove that "age made a difference in the decision." Id.

 In a discrimination case, a plaintiff may, of course, establish his case with direct evidence that the employer acted with discriminatory motivation. Because of the inherent difficulty in acquiring direct evidence of employer motivation in employment discrimination suits, the Supreme Court has articulated a three-step method of proof that relies on presumptions and shifting burdens of going forward:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

 Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) (citations omitted); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).

 This formula, first set forth in McDonnell Douglas Corp. v. Green, permits a plaintiff to rely, in the absence of direct evidence of discrimination, on a set of assumptions about the behavior of employers to establish the employer's intent to discriminate. This rationale was explained by the Supreme Court in the context of a race discrimination case:

A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. See Teamsters v. United States, [431 U.S. 324,] 358 n. 44 [ 52 L. Ed. 2d 396, 97 S. Ct. 1843,] [(1977)]. And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting.

 If the plaintiff succeeds in proving a prima facie case of discrimination, the burden of production then shifts to the employer to produce admissible evidence of a legitimate nondiscriminatory reason for the discharge which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus. Burdine, 450 U.S. at 257. After the defendant has met this burden, the presumption drops from the case, and the plaintiff must then prove by a preponderance of the evidence that defendant's proffered reason is a pretext for discrimination, that is, that the proffered reason is merely a fabricated justification for discriminatory conduct. Id. The plaintiff may carry this burden "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. at 256.

 Finally, in addition to establishing a prima facie case by indirect proof, an ADEA plaintiff can prevail by establishing, by means of indirect proof, that the defendant employer's reasons are pretextual without presenting evidence specifically relating to age. Chipollini, 814 F.2d at 898. "Thus, when all legitimate reasons for rejecting an [employee] have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as [age]." Furnco Construction, 438 U.S. at 577 (emphasis in original).

 While the ultimate burden at trial will remain with Mallon, the burden of persuasion on summary judgment remains unalterably with Prupac as movant. The employer has the task of persuading the court that even viewing all of the facts and reasonable inferences to be drawn thereform in the light most favorable to Mallon, no reasonable jury could find the employer intentionally discriminated against the plaintiff. However, if an employee introduces "'evidence of inconsistencies and implausibilities in the employer's proffered reasons for discharge (which) reasonably could support an inference that the employer did not act for non-discriminatory reasons,'" the court may not grant an employer's motion for summary judgment. Sorba v. Pennsylvania Drilling Co., Inc., 821 F.2d 200, 203 (3d Cir. 1987), cert denied, 484 U.S. 1019, 108 S. Ct. 730, 98 L. Ed. 2d 679 (1988) (quoting Chipollini, 814 F.2d at 900).

 The plaintiff has made no attempt to establish his case with direct evidence that Prupac acted with discriminatory motivation. Instead both parties rely on the McDonnell Douglas method of proof in this case. Moreover, defendant makes no contention that Mallon has failed to establish a prima facie case under the McDonnell Douglas formula. The Court notes that it is undisputed that Mallon (1) was over 40 and thus belonged to the class of persons protected by the ADEA, (2) was employed as a casualty consultant in Prupac's Holmdel office and was qualified for that position when transferred to it from defendant's Syracuse office, (3) was discharged from the position and (4) was replaced by a younger individual, age 40, in March 1984. (See Mallon Dep at 66; Pl. App., Exh. X).

 Under McDonnell Douglas, the burden shifts to defendant to articulate some legitimate, nondiscriminatory reason for Mallon's dismissal, which plaintiff will have the ultimate burden of demonstrating is merely a pretext for discrimination. These last two steps in the McDonnell Douglas method of proof are the focus of Prupac's motion for summary judgment. The defendant states its position as follows:

Mallon cannot carry this burden [of proving defendant's proffered reasons are pretextual]. On the contrary, the undisputed facts of this case amply demonstrate that Prupac has always clearly stated its legitimate nondiscriminatory reason for his termination, that is, he exhausted the full year of short term disability benefits provided under the company's disability plan and was unable for medical reasons to return to his job as a claims consultant. Mallon has produced no indirect evidence to support an inference that this stated reason was pretextual in any way.

 (Def. Brief at 20 (footnote omitted)).

 Mallon, however, argues that the reasons for his discharge proffered by Prupac -- his short-term disability benefits ran out -- is a pretext for age discrimination because he requested to return to work almost six months before these benefits were exhausted. However, plaintiff admits that he indicated to Mr. Rizzo at Prupac that he "preferred not to return to his prior position because of the condition of the files and the nature of the work he was burdened with upon his transfer to Holmdel." (Pl. Brief at 23 (citing Rizzo Dep. at 49:8-20). Nevertheless, plaintiff contends that Prupac's response, or lack thereof, to his attempt to return to work and avoid the exhaustion of his short-term benefits unequivocally shows they had no intention of having him return to work and are thus responsible for the expiration of his disability benefits.

 The evidence of record, properly viewed in the light most favorable to the plaintiff and affording plaintiff the benefit of all reasonable inferences to be drawn from the evidence, supports the granting of defendant's motion for summary judgment. It is undisputed that plaintiff began experiencing symptoms of nervousness from the pressure of his job at defendant's Holmdel office in December 1983, about six months after he transferred. (Mallon Dep. at 70-71). Mallon's condition is set forth in a memo for the file written by Tony Rizzo, a personnel consultant at Prudential who plaintiff knew from his time in defendant's Linwood office, which states in part:

On Monday December 19, 1983, at approximately 10:00 a.m., John Mallon came to my desk wanting to discuss a problem.
He was visibly shaken, red faced, and shaking. I asked him what was wrong and he replied that he could not do his job. I asked him why and he said there was too much pressure and the volume was too much for him. He also indicated that he was no longer happy being here. I asked him what he meant by the volume being too heavy, as he had handled similar volume in previous assignments with the Company. He stated that the system in Holmdel is causing him problems. He gets the file from first report and has to handle all aspects to include collision, property damage, no fault and investigation. This is in addition to negotiating and settling the claim at the proper time. He also stated the phone never stops ringing and that he cannot get his work done. He stated that it has gotten to a point where both he and his desk are totally unorganized, and he doesn't know what to do next.
He said that he wanted to transfer back to the Syracuse office as a Casualty Adjuster in the Buffalo area. I told him that I did not think there were any openings, but that he should put his transfer request in writing. He said he would do so.
I then asked him if there was anything else that was bothering him. He replied that his wife wasn't happy here and that he was getting pressure from home.

 (Def. App., Exh. L). This account is corroborated by plaintiff's own deposition testimony, in which he describes why he had become such a "nervous wreck":

* * * *
No bills had been paid. No no-fault had been paid. Property damage claims hadn't been paid. I'm not a property damage man, but the people would call the individual who's handling the file and then I would have to get property, would you please talk to these people, they're bugging me, and they'd call, When's my car going to be fixed? I mean, just constantly.

 (Mallon Dep. at 152-53). In accordance with Mr. Rizzo's suggestion, plaintiff put in a request for a transfer back to Syracuse in December 1983. (See Def. App., Exh. M; Mallon Dep. at 156-57). In addition, plaintiff recounts that his state of mind was so poor at this time that he mentioned to his supervisor that he had been having thoughts of allowing his car to be rear-ended on the highway while driving to the office so he wouldn't have to go to work. (Id. at 157-58).

 At defendant's suggestion, plaintiff took an early Christmas vacation in 1983. After returning on January 3rd and working until the 10th of the month, plaintiff stopped working until January 30th at the direction of his physician, Dr. Kouveliotes. (Mallon Dep. at 77). Mallon then returned to work on "short time," working only until 2:00 P.M. each day. Plaintiff claims that due to the situation he encountered upon his return, he was forced to stop work and go on short-term disability. Plaintiff describes this situation as follows:

Prior to the Plaintiff's return, his supervisors, Patruno, Haarten and Byron held a meeting wherein it was decided to give the Plaintiff a specified number of files which they felt he could realistically handle. (Haarten T92, 6-7.) Since the Plaintiff was returning on "short time" he would only be working until 2:00 p.m. each day. (Haarten T91,24 to 92,1.) This seriously limited his available time to work the necessary files. After having been out of work for almost three weeks, ...

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