9. Eugene Stanley
Eugene Stanley testified that although he had not made a formal application for reemployment at MCII subsequent to being laid off, he had informal discussions with Bob DiGiovanni of MCII. Stanley Dep. at 55-56. DiGiovanni told him that although there was some consideration given to trying to rehire Stanley as a consultant on several large projects, "it never went anywhere." Id. at 56. Once again, plaintiff has failed to submit any evidence to show that there was a position open for which Stanley qualified and was not hired. His failure to rehire claim fails.
10. Stephen Safka
Stephen Safka told people with whom he had worked at MCII that he would accept a job offer with MCII if it were commensurate with what he had done before. This information was sufficient, under Fowle, to give MCII a reason to consider him for appropriate job openings. That having been said, there is no evidence which would support a finding that there was an opening for which Safka was qualified but not considered. Safka Dep. at 22-23. Indeed, Safka testified that he worked for MCI as a consultant in January and February of 1990. Id. at 23. A prima facie case as to Safka has not been established.
In sum, in addition to the jurisdictional impediment, no claimant has established a prima facie case of failure to rehire. MCII's motion for summary judgment is granted as to the failure to rehire claims.
C. Individual Claims of Retaliation
Because the basis of plaintiff's retaliation claim is the alleged refusal of MCII to rehire certain employees, this claim is derivative of the refusal to rehire claims. Moreover, this claim is limited in scope to Joseph Gleitman, Peter Wu, George Doss, and Calvin Gum. Answer to Defendant's Second Set of Interrogatories No. 2, Def. Exh. C. A claimant may make a prima facie showing of retaliation generally by demonstrating that (1) he or she engaged in protected activity; (2) he or she was discharged subsequent to or contemporaneously with such activity; and (3) a causal link exists between the protected activity and the discharge. Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 107 L. Ed. 2d 745, 110 S. Ct. 725 (1990). Where, as here, the retaliation alleged is not discharge but, rather, retaliatory failure to rehire, the second element of a prima facie case should be that the claimant was not rehired subsequent to or contemporaneously with the protected activity. Thus, if these claimants cannot establish a prima facie case of failure to rehire, i.e. they have not brought forth evidence showing that sufficient "application" was made or that there was a position open for which they were qualified and, jurisdictional impediments aside, they a fortiori cannot establish a prima facie case of retaliatory failure to rehire.
The court need look no further than the failure to rehire claims of Gleitman, Wu, Doss, and Gum, none of which has been established. As a result, their retaliation claims must likewise fail.
Defendant's motion for summary judgment is granted as to all the layoff, failure to rehire, and retaliation claims now before the court. An appropriate order will issue.
MARYANNE TRUMP BARRY, U.S.D.J.
July 30, 1993
ORDER - August 2, 1993, Filed
This matter being opened to the Court on defendant MCII's motion for summary judgment on the layoff claims brought on behalf of thirty-four of the thirty-nine claimants and on all the failure to rehire and retaliation claims; and
For the reasons expressed in this Court's opinion of even date,
IT IS on this 30th day of July, 1993
ORDERED that defendant's motion for summary judgment be and hereby is granted.
MARYANNE TRUMP BARRY, U.S.D.J.