Bullock v. Balis & Co., Inc., Civil Action No. 99-748 (E.D. Pa. 12/19/2000)

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EDGAR Q. BULLOCK, III., Plaintiff, v. BALIS & CO., INC., a/k/a GUY CARPENTER & CO., INC. Defendants.

Civil Action No. 99-748.

United States District Court, E.D. Pennsylvania.

December 19, 2000.

MEMORANDUM AND ORDER

JAMES McGIRR KELLY, Judge.

Presently before the Court is a Motion for Summary Judgment filed by the Defendant, Balis & Co., Inc., a/k/a Guy Carpenter & Co., Inc. ("Balis"). The Plaintiff, Edgar Q. Bullock, III ("Bullock") filed suit in this Court alleging age and disability discrimination. Balis now seeks summary judgment in its favor pursuant to Federal Rule of Civil Procedure 56 because, among other things, it believes Bullock was unqualified for his job and was fired for a legitimate non-discriminatory reason. For the following reasons, Balis's motion is granted in part and denied in part.

I. BACKGROUND

Relying on the parties' stipulations of fact, and otherwise accepting as true the evidence of the nonmoving party and all reasonable inferences that can be drawn therefrom, the facts of the case are as follows. Bullock began working at Balis as a broker trainee on May 1, 1979, and was promptly promoted to treaty broker. Bullock received two more promotions, first to Assistant Secretary and then to Assistant Vice President. Bullock continued in this position for another ten years, until his termination on March 31, 1997. Bullock had worked as a treaty broker at Balis for nearly eighteen years.

Bullock's employment record at Balis was far from spotless. Among other noteworthy problems, Bullock: (1) persisted in scheduling golf outings on business trips despite his supervisor's repeated requests that he not do so; (2) had his secretary prepare a professional memorandum that exceeded her scope of expertise; (3) failed to meet project deadlines; (4) intentionally delayed paying his company credit card in order to earn the interest on Balis's expense reimbursement; (5) regularly left work early whenever his supervisor was out of town; (6) would read the newspaper while at work; (7) took a vacation while one of his clients was going out of business; and (8) failed to bring in as much new business as his colleagues. Bullock had received several poor evaluations and was earning a salary that placed him at the low end of the pay scale for similarly situated employees at Balis.

On September 23, 1996, Donald Johnston, Bullock's supervisor, sent Bullock a letter informing him that his job was in jeopardy. On February 27, 1997, Johnston sent the President, William Fox, a memorandum questioning whether Bullock should remain at Balis. On March 17, 1997, Bullock requested a transfer to a brokering team not supervised by Johnston. Fox met with Bullock to discuss his transfer request and told him that a transfer was not possible because no other supervisor wanted to work with Bullock. Bullock asked Fox for a second chance, and Fox gave Bullock the weekend to reconsider his future at Balis.

After the weekend, on March 24, 1997, Bullock and Fox met a second time. Among the many reasons Bullock offered for his poor performance,¹ he stated that he might suffer from Attention Deficit Disorder ("ADD").² Bullock believed he might suffer from ADD because his son had just been diagnosed with the condition. Bullock had not yet been diagnosed with it himself. Bullock requested a year of continued employment during which he could seek treatment and, as a result, improve his work performance.

Johnston and Fox then met outside the presence of Bullock to discuss his future at Balis. They decided to fire him. They later told Bullock that, pursuant to his contractual right to six months notice, he could remain at Balis for six more months and receive salary and benefits for six months thereafter. They also informed Bullock that, during his final six months of employment, Johnston could reinstate Bullock if his performance dramatically improved. A few days later, however, Fox changed his mind; he apparently believed Bullock would not improve his performance and it would be unproductive to have a terminated employee remain in the work environment. On March 31, 1997, Fox told Bullock that he could not return to work. His salary and benefits package would not be altered.

Bullock was 49 when Balis fired him. Balis did not replace Bullock or fill his position; instead, his superiors distributed his accounts to other employees. These employees included: (1) Charles Tull, age 53 at the time of Bullock's termination; (2) David Thomas, age 38; (3) John Paven, age 37; and (4) James Gardner, age 33. Balis also suggests that Johnston, age 59, and James Baxendale, age 57, assumed many of Bullock's responsibilities.

After pursuing administrative remedies, Bullock filed suit against Balis on February 12, 1999. Bullock's Complaint originally contained five Counts. Counts I and II alleged age and disability discrimination, respectively. Counts III, IV and V alleged violations of Pennsylvania law and intentional infliction of emotional distress.

During a March 23, 2000 deposition of Bullock, it came to light that Bullock had lied on his job application and résumé. The résumé Bullock had given to Balis while originally seeking a job there implied that he was currently employed. He also stated on his job application that he was leaving his former employer because of a "lack of career development," and left the "date terminated" section of the application blank. In fact, Bullock's previous employer had fired him, but Bullock was too scared to inform his potential new employer. The job application stated that "any false answer or statements made by me on this application, or any supplement thereto, will be grounds for immediate discharge." Balis did not discover these falsehoods until after it had fired Bullock.

Balis filed a Motion to Dismiss on April 19, 1999. By Order of July 22, 1999, the Court dismissed Counts III, IV and V of Bullock's Complaint. Counts I and II, however, remained in effect. Balis then filed this Motion for Summary Judgment on the remaining Counts of Bullock's Complaint on July 18, 2000, which the Court will now consider.

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 56, a court must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The movant bears the initial burden of showing the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant fails to meet this burden under Rule 56(c), its motion must be denied.

If the movant adequately supports its motion, however, the burden shifts to the nonmoving party to defend the motion. To satisfy this burden, the nonmovant must go beyond the mere pleadings by presenting evidence through affidavits, depositions or admissions on file to show that a genuine issue of fact for trial does exist. Id. at 324; Fed.R.Civ.P. 56(e). An issue is considered genuine when, in light of the nonmovant's burden of proof at trial, the nonmovant produces evidence such that a reasonable jury could return a verdict against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When deciding whether a genuine issue of fact exists, the court is to believe the evidence of the nonmovant, and must draw all reasonable inferences in the light most favorable to the nonmovant. Id. at 255. Moreover, a court must not consider the credibility or weight of the evidence presented, even if the quantity of the moving party's evidence far outweighs that of the nonmovant. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Nonetheless, a party opposing summary judgment must do more than rest upon mere allegations, general denials, or vague statements. Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir. 1992).

If the nonmoving party meets this burden, the motion must be denied. If the nonmoving party fails to satisfy its burden, however, the court must enter summary judgment against it on any issue on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.

III. DISCUSSION

A. What Evidence the Court May Consider

Before turning to the merits of Balis's Motion for Summary Judgment, the Court must first determine, as a threshold matter, what evidence it may consider. After Bullock and Balis filed, respectively, their Response and Reply to the instant Motion for Summary Judgment, Bullock also filed a Sur-reply. Bullock filed the Sur-reply without seeking leave of the Court, in direct violation of the Court's standing order that parties may not file sur-replies without prior express leave from the Court. Because leave was neither requested nor granted, the Court will not consider evidence presented in Bullock's Sur-reply to the extent that it was not already presented in Bullock's Response. For similar reasons the Court will not consider any response by Balis to Bullock's improper Sur-reply.

B. The Employment Discrimination Burden Shifting Scheme

Bullock's two remaining claims allege age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 629 et seq., and disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. In those claims, Bullock alleges that Balis subjected him to intentionally disparate treatment because of his age and perceived disability. The complicated McDonnell Douglas scheme of shifting burdens of production and proof controls the analysis of individual disparate treatment claims brought under the ADA or ADEA. See generally McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973); see also Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2106-09 (2000).

Under the general burden-shifting scheme in an...