Olick v. Kearney et al

The Debtor originally asserted other claims against another defendant, Aetna Life	1
Insurance Co. (“Aetna”). The Debtor and Aetna have reached a settlement. See In re Olick, 2008 WL
3837759, at *4 (Bankr. E.D. Pa. Aug. 12, 2008).
See Adv. No. 07-060, Docket Entry No. 242. In his Complaint, see Adv. No. 07-052,	2
Docket Entry No. 1, the Debtor also asserts a retaliation claim, i.e., he contends that the Knights
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UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF PENNSYLVANIA
IN RE:
THOMAS W. OLICK, 	: 	Chapter 13
Debtor. 	:
: 	Bky. No. 07-10880 (ELF)
:
:
THOMAS W. OLICK, 	:
:
Plaintiff, 	:
: 	Adv. No. 07-052
v. 	:
:
JAMES KEARNEY, et al., 	: 	Adv. No. 07-060
:
Defendants. 	:
:
M E M O R A N D U M
I. INTRODUCTION
In the above adversary proceedings, Plaintiff Thomas W. Olick (“the Debtor”) asserts,
inter alia, that Defendants Knights of Columbus (“the Knights”), James Kearney and Thomas
Jenkins (collectively, “the Knights Defendants”) unlawfully discriminated against him because of
his age. 	This court granted summary judgment in favor of the Knights Defendants on the1
Debtor’s age discrimination claim by Order dated March 17, 2008. 	The Debtor filed a motion2
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retaliated against him for asserting age discrimination claims in state court. The retaliation claim
survived the Knights Defendants’ Motion for Summary Judgment.
A detailed recitation of the procedural history of these proceedings and related litigation	3
is set forth in In re Olick, 2008 WL 3837759, at *1-4. It is unnecessary to review that history for
purposes of this Memorandum regarding the age discrimination claim.
Fed. R. Bankr. P. 56 makes Fed. R. Civ. P. 56 applicable to adversary proceedings in	4
bankruptcy court.
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for reconsideration on May 29, 2008. By Order dated June 3, 2008, the court determined that it
would reconsider the merits of its decision granting summary judgment to the Knights
Defendants and requested further briefing on the issue. After further briefing and oral argument,
the matter is ready for decision. 3
For the reasons set forth below, the court reaffirms its decision to grant summary
judgment to the Knights Defendants on the Debtor’s age discrimination claim.
II. LEGAL STANDARD FOR MOTION FOR SUMMARY JUDGMENT
Pursuant to Fed. R. Civ. P. 56(c), summary judgment should be granted when the4
“pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c). The standard for evaluating a motion for summary judgment under
Fed. R. Civ. P. 56 is well established and has been stated in numerous written opinions in this
district. E.g., In re Klayman, 333 B.R. 695, 698-99 (Bankr. E.D. Pa. 2005); In re Lacheen, 2005
WL 1155257, at *2 (Bankr. E.D. Pa. Apr. 28, 2005); In re Lewis, 290 B.R. 541, 545 (Bankr. E.D.
Pa. 2003); In re Newman, 304 B.R. 188, 192-93 (Bankr. E.D. Pa. 2002).
Before granting a motion for summary judgment, a court must find that the motion
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The parties’ respective burdens of proof also play a role in determining the merits of a	5
summary judgment motion:
[W]here the movant is the defendant, or the party without the burden of proof on the
underlying claim, the movant still has the initial burden of showing the court the absence
of a genuine issue of material fact, but . . . this does not require the movant to support the
motion with affidavits or other materials that negated the opponent’s claim. In contrast,
where . . . “the party moving for summary judgment is the plaintiff, or the party who
bears the burden of proof at trial, the standard is more stringent.” National State Bank v.
Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir.1992).
In re Newman, 304 B.R. at 193 (quoting Adams v. Consolidated Rail Corp., 1994 WL 383633, *1-*2
(E.D. Pa. July 22, 1994)).
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alleges facts that, if proven at trial, would require a directed verdict in favor of the movant. See
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant meets this
initial burden, the responding party may not rest on his or her pleadings, but must designate
specific factual averments through the use of affidavits or other permissible evidentiary materials
that demonstrate a triable factual dispute. 	Fed. R. Civ P. 56(e)(2); Celotex Corp. v. Catrett, 4775
U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-50, 106 S. Ct. 2505, 2510-11 (1986). Such evidence must be sufficient to support a factual
determination in favor of the nonmoving party. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.
Evidence that merely raises some metaphysical doubt regarding the validity of a material facts is
insufficient. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct.
1348, 1356 (1986). If the party opposing the motion believes that summary judgment is
premature, Rule 56(f) requires the party to present by affidavit the reasons why the party is
presently unable to submit evidence in opposition to the motion. Celotex, 477 U.S. at 326 & n.6,
106 S. Ct. at 2554 & n.6.
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The relevant provision is 29 U.S.C. §623(a)(1), which provides:	6
(a) Employer practices. It shall be unlawful for an employer–
(1) to fail or refuse to hire or 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.
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In considering the evidence submitted in support of and in opposition to a summary
judgment motion, the court’s role is not to weigh the evidence, but only to determine whether
there is a disputed, material fact for determination at trial. Anderson, 477 U.S. at 249-50, 106 S.
Ct. at 2510-11. “[T]he mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary judgment . . . .”
Id. at 247–248, 106 S. Ct. at 2510 (emphasis in original). A dispute about a “material” fact is
“genuine” only if the evidence is such that a reasonable jury could return a verdict for the non-
moving party. Id. at 248, 106 S. Ct. at 2510. All reasonable inferences must be drawn in favor
of the nonmoving party and against the movant. United States v.717 S. Woodward St., 2 F.3d
529, 533 (3d Cir. 1993).
III. DISCUSSION
A. 	The Parties’ Respective Evidentiary Burdens Under the ADEA
To prevail on a claim of age discrimination under the federal Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), a plaintiff must prove that his or her age6
“actually motivated” and “had a determinative influence” on the employer’s termination
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In addition to the ADEA, the Debtor also asserted age discrimination claims under	7
certain provisions of the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. Ann. §§46a-51,
46a-60 and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. C.S.A. §§951, 955(a).
Presumably, the Debtor raised these claims because: (1) the Knights’ management office is in
Connecticut and (2) at all relevant times, the Debtor resided and worked in Pennsylvania. In my analysis,
I will refer only to federal case law because the courts in both Connecticut and Pennsylvania construe
their respective anti-discrimination statutes consistently with their federal counterparts. See Kelly v.
Drexel Univ., 94. F.3d 102, 105 (1996); Kroptavich v. Pennsylvania Power & Light Co., 795 A.2d 1048,
1055 (Pa. Super. Ct. 2002); Santos v. Brooks Pharmacy, 2008 WL 185534, at *2 (D. Conn. Jan 18,
2008); Jacobs v. General Elec. Co., 880 A.2d 151, 156 (Conn. 2005); Levy v. Comm’n on Human Rights
and Opportunities, 671 A.2d 349, 355 (Conn. 1996); Kliger v. St. Luke’s Found., Inc., 2008 WL 496133,
at *9 (Conn. Super. Ct. Jan. 31, 2008) (unpublished).
I will refer to this process as “the McDonnell Douglas Analysis.”	8
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decision. Fasold v. Justice, 409 F.3d 178, 183-84 (3d Cir. 2005) (quoting cases). 	The plaintiff7
may meet this burden by presenting either “direct evidence” or “indirect evidence” of
discrimination. E.g., id.
Under the “direct evidence” approach, a plaintiff must prove that the employer “placed a
substantial negative reliance [on the plaintiff’s age] in reaching [its] decision to fire him.” Fakete
v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir. 2002) (quoting Conners v. Chrysler Fin. Corp., 160
F.3d 971, 976 (3d Cir. 1998) and Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S. Ct.
1775, 1805 (1989)) (internal quotations omitted). If the plaintiff meets that burden, the burden
shifts to the employer to prove that it would have taken the same action regardless of the
plaintiff’s age. Fakete, 308 F.3d at 338.
Under the “indirect evidence” approach, there is a three (3) step burden shifting process
derived from the Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817 (1973).8
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1. Step 1
To establish a prima facie age discrimination/termination case, a plaintiff must prove:
“(1) that he was at least forty years old, (2) that he was fired, (3) that he was qualified for the job
from which he was fired, and (4) that he ‘was replaced by a sufficiently younger person to create
an inference of age discrimination.’” See, e.g. Tomasso v. Boeing Co., 445 F.3d 702, 706 n.4
(3d Cir. 2006) (quoting Fakete, 308 F.3d at 338); Keller v. Orix Credit Alliance, Inc., 130 F.3d
1101, 1108 (3d Cir. 1997) (en banc); see also 29 U.S.C. §631(a).
2. Step 2
If the plaintiff makes out a prima facie case, “the burden of production (but not the
burden of persuasion) shifts to the defendant, who must then offer evidence that is sufficient, if
believed, to support a finding that it had a legitimate, nondiscriminatory reason for the
discharge.” Keller, 130 F.3d at 1108.
3. Step 3
If the defendant satisfies its burden under step two (2), step three (3) is reached.
The plaintiff may then survive summary judgment or judgment as a matter of law
by submitting evidence ‘from which a factfinder could reasonably either (1)
disbelieve the employer’s articulated legitimate reasons; or (2) believe that an
invidious discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action.’
Id. (quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)). Stated slightly differently, the
plaintiff “must present sufficient evidence to allow a factfinder to conclude that the employer’s
non-discriminatory reason was a post hoc fabrication, or pretext.” Thimons v. PNC Bank, N.A.,
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For example, “the plaintiff may show that the employer has previously discriminated	9
against her, that the employer has discriminated against other persons within the plaintiff’s protected
class or within another protected class, or that the employer has treated more favorably similarly situated
persons not within the protected class.” Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. 1998)
(citing Fuentes, 32 F.3d at 765).
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254 Fed. Appx. 896, 898 (3d Cir. 2007) (nonprecedential) (citing Fuentes, 32 F.3d at 764); see
also Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005) (plaintiff’s rebuttal evidence
“must allow a factfinder reasonably to infer that each of the employer’s proffered
non-discriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually
motivate the employment action”) (quoting Fuentes, 32 F.3d at 764).
To meet the step three (3) evidentiary burden, at a minimum, the plaintiff must “point to
some evidence, direct or circumstantial, from which a factfinder could reasonably either (1)
disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or determinative cause of the
employer’s action.” 	Fuentes, 32 F.3d at 764. One of these is sufficient; the employee does not9
have to prove both that the explanation is implausible and that discrimination was a motivating
factor. Waldron v. SL Indus., Inc., 56 F.3d 491, 494-95 (3d Cir. 1995). Where the plaintiff
offers evidence “that would allow reasonable minds to conclude that the evidence of pretext is
more credible than the employer’s justifications, the employer’s motion for summary judgment
must fail.” Iadimarco v. Runyon, 190 F.3d 151, 166 (3d Cir. 1999).
At the same time, however, the plaintiff:
must do more than show that [the employer] was “wrong or mistaken” in deciding
to lay him off. He must “present evidence contradicting the core facts put forward
by the employer as the legitimate reason for its decision.”
Tomasso, 445 F.3d at 706 (emphasis in original) (quoting Kautz, 412 F.3d at 467) (internal
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citation omitted). The plaintiff’s evidence must be sufficient to convince a reasonable factfinder
“not merely that the employer’s proffered reason was wrong, but that it was so plainly wrong that
it cannot have been the employer’s real reason.” Keller, 130 F.3d at 1109. The plaintiff’s
evidence “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them ‘unworthy of credence,’ and hence infer that the ‘employer
did not act for [the asserted] non-discriminatory reasons.’” Fuentes, 32 F.3d at 765 (internal
citations omitted) (quoting other cases).
That a plaintiff has established a prima facie case and then gone on to produce some step
three (3) evidence in an attempt to contradict an employer’s stated rationale for its action does
not necessarily or automatically lead to a determination that the plaintiff has succeeded in
establishing a triable issue of fact with respect to discriminatory motive. See, e.g., Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148, 120 S. Ct. 2097, 2109 (2000) (“[c]ertainly,
there will be instances where, although the plaintiff has established a prima facie case and set
forth sufficient evidence to reject the defendants’s explanation, no rational factfinder could
conclude that the action was discriminatory”). If the contradictory evidence is “weak,” Reeves,
530 U.S. at 148, 120 S.Ct. at 2109, and does not permit the inference that the articulated reason
for the adverse action was pretextual, the plaintiff may need to satisfy the ultimate burden of
proof through some additional evidence of a discriminatory intent. 	On the other hand, where a
plaintiff produces evidence that contrasts markedly with the employer’s stated rationale for its
employment action, those contradictions may well be so stark as to be sufficient, alone, to create
a triable issue of material fact and to permit a reasonable factfinder to infer a discriminatory
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motive. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 2749 (1993)
(“[t]he factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief
is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie
case, suffice to show intentional discrimination” without additional proof of discrimination).
4.
Throughout this burden shifting process, “the ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the plaintiff remains at all times with
the plaintiff.” Reeves, 530 U.S. at 143, 120 S. Ct. at 2106 (quoting Tex. Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093 (U.S. 1981)); Barber v. CSX Distrib.
Servs., 68 F.3d 694, 698 (3d Cir.1995); accord Marra v. Philadelphia Hous. Auth., 497 F.3d 286,
300 n.11 (3d Cir. 2007).
5.
In applying the burden shifting principles set forth above, I am mindful of the procedural
posture of this proceeding. We are at summary judgment. At summary judgment, the
nonmoving party (here, the Debtor) is entitled to all reasonable inferences that may be drawn
from the record and it is not the court’s function to weigh the evidence.
As explained below, the Debtor has produced some evidence challenging the Knights
Defendants’ explanation for his termination. In this setting, the Knights Defendants’ Motion for
Summary Judgment can be granted only if I conclude that the Debtor’s evidence is insufficient as
a matter of law to permit a reasonable factfinder to conclude that the Knights’ explanation is
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Compare Williams v. Dover Downs, Inc., 2008 WL 2879795 (3d Cir. 2008)	10
(nonprecedential) (employer’s inconsistent explanations for dismissal insufficient to permit reasonable
factfinder to find employer’s explanation offered in court unworthy of credence); Dooley v. Roche Lab
Inc., 275 Fed Appx. 162 (3d Cir. 2008) (nonprecedential) (“irregularities” in hiring process combined
with “raw numerical comparisons” held insufficient to overcome employer’s explanation at summary
judgment stage); English v. PNC Bank, 221 Fed. Appx. 105 (3d Cir. 2007) (nonprecedential) (evidence
of inconsistency in employer’s discipline of employees who committed infractions similar to the plaintiff
merely cast doubt on proportionality of punishment and did not demonstrate illegal motive); Marione v.
Metro. Life Ins. Co., 188 Fed. Appx. 141 (3d Cir. 2006) (nonprecedential) (evidence that younger, lower
ranked employees were retained insufficient to defeat summary judgment on pretext issue in light of
employer’s explanations for retention of the other employees); Harding v. Careerbuilder, LLC, 168 Fed.
Appx. 535 (3d Cir. 2006) (nonprecedential) (evidence that younger employer had worse quantitative
sales performance before replacing plaintiff insufficient to defeat summary judgment on pretext issue
because evidence did not reflect comparative revenue performance and comparability of replacement’s
prior position); Kautz, 412 F.3d at 469-73 (2-1 decision) (plaintiff’s challenge to methodology employed
to evaluate performance and argument that it was skewed against older employees insufficient to defeat
summary judgment on pretext issue); Simpson, 142 F.3d at 647-49 (evidence of more favorable
treatment received by one employee and challenge to methodology employed to evaluate performance
insufficient to defeat summary judgment on pretext issue), with Williams v. St. Joan of Arc Church, 226
Fed. Appx. 180 (3d Cir. 2007) (2-1 decision) (nonprecedential) (employer’s comments regarding the
plaintiff’s age and conflicting evidence regarding need to consolidate office positions sufficient to permit
finding of pretext and defeat summary judgment); Tomasso, 445 F.3d at 707-709 (2-1 decision)
(plaintiff’s dispute of facts underlying negative review leading to layoff sufficient to permit finding of
pretext and defeat summary judgment); Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005) (2-1 decision)
(same as Tomasso); Benjamin v. E.I. Du Pont de Nemours and Co., 75 Fed. Appx. 65 (3d Cir. 2003)
(nonprecedential) (plaintiff’s positive performance reviews that contradicted the proffered basis for
employer’s adverse action was sufficient to permit a finding of pretext and defeat summary judgment).
This is intended to be an illustrative compilation, not a comprehensive one.
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unworthy of credence and therefore, is a post hoc fabrication or pretext. See Sheridan v. E.I. Du
Pont de Nemours Co., 100 F.3d 1061, 1071-72 (3d Cir. 1996) (en banc).
Whether a plaintiff’s evidence of pretext is sufficient to defeat a motion for summary
judgment is an issue that arises frequently in employment discrimination cases. There reported
cases on the issue are legion. In the note below, I have cited a representative sampling of the
appellate decisions in this Circuit. 	At a minimum, the cautionary principle that may be drawn10
from the case law is that there may be a fine line between (improperly) weighing the plaintiff’s
pretext evidence on summary judgment and determining that the evidence is insufficient as a
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The Debtor also asserted that he was terminated to reduce his pension rights. In the	11
March 17, 2008 bench opinion on summary judgment, I concluded that the latter theory was preempted
by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§1001 et seq.
See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S. Ct. 478 (1990); Wood v. Prudential Ins. Co.
of Amer., 207 F.3d 674 (3d Cir. 2000).
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matter of law to permit a reasonable factfinder to draw an inference that the employer’s
explanation for its conduct was a post hoc fabrication or pretext.
With the foregoing principles in mind, I next evaluate the Knights’ Summary Judgment
Motion and the Debtor’s opposition thereto.
B. 	Reconsideration of the Prior Determination that the Debtor Failed to Produce
Sufficient Evidence to Create A Triable Issue of Fact With Respect to the 4 	Prong ofth
the Step 1 prima facie Test
1.
In June 1995, the Knights entered into a contact with the Debtor, through which the
Knights authorized the Debtor to sell its insurance products to members of five (5) Knights of
Columbus “councils.” Under the contract, the Debtor acted as a “field agent” for the Knights, a
position he maintains made him a Knights “employee.” In late 2005 or early 2006 (the parties
dispute the date), the Knights terminated its contract with the Debtor.
The Debtor asserts that the Knights terminated his employment because of his age. He
claims that the Knights Defendants first reduced his territory or interfered with his efforts to
write insurance policies for customers, thereby lowering his production to justify the action he
says they later took – replacing him with younger, less experienced agents who would not object
to what the Debtor claims are the Defendants’ illegal sales activities. See Compl., Adv. No.
07-52, Count I. 11
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Hereafter, I will use the term the “Knights Exhibit,” when I refer to an exhibit the	12
Knights Defendants submitted in support of their Motion for Summary Judgment.
In his Memorandum in response to the Knights Defendants’ Motion for Summary	13
Judgment, the Debtor also claimed he was replaced by two (2) other individuals: William Shaffer and
Bruce Micciulla. See Debtor’s Brief in Opp. at 12. The Knights Defendants dispute that the age
difference between the Debtor and Shaffer is sufficient to create an inference of discrimination. They
also dispute that there is any evidence that Micciulla replaced the Debtor or assumed his responsibilities.
Because I find that the Debtor has produced sufficient evidence to defeat the Knights Defendants’
Motion for Summary Judgment as to step 1 of the McDonnell Douglas Analysis based on the evidence
regarding the age difference between the Debtor and Jenkins, see text, infra, I need not resolve the issues
relating to Shaffer and Micciulla.
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The Knights Defendants contend that the Debtor was terminated for poor job
performance, specifically, the Debtor’s failure “to produce an acceptable volume of business to
justify continuance of his contract.” Adv. No. 07-60, Docket Entry No. 118, (Exhibit 48 to
Knights’ Motion for Summary Judgment).12
2.
In this proceeding, the Debtor has invoked the “indirect evidence” approach, requiring the
application of the McDonnell Douglas Analysis. The Debtor contends that he has made out a
prima facie case because: (1) in November 2005, he was 56 years old and therefore within the
protected class under the ADEA; (2) he was terminated from employment by the Knights; (3) he
was qualified for his position as field agent, as evidenced by his having held the position for
more than ten (10) years; and (4) he was replaced by Thomas Jenkins, an individual he contends
was sufficiently younger to create an inference of discrimination. 13
In their Motion for Summary Judgment, the Knights Defendants assert, as a threshold
matter, that they are entitled to summary judgment because the record conclusively demonstrates
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that the Debtor was an independent contractor, not an employee and therefore was not covered by
the ADEA. Further, the Knights Defendants assert that they are entitled to judgment because the
Debtor lacks evidence with respect to at least two (2) of the four (4) prongs of the step 1 test for a
prima facie case under the ADEA. Specifically, they contend that summary judgment record
establishes that the Debtor: (1) was not qualified for the field agent position; and (2) was not
replaced by someone sufficiently younger to create an inference of age discrimination.
On March 17, 2008, I granted the Knights Defendants’ Motion for Summary Judgment on
the ADEA claim because I concluded that the Debtor had not established a prima facie case. In
my bench opinion, I based the decision on only one ground: that the Debtor had not produced
sufficient evidence at the summary judgment stage to create a triable issue of fact as to whether
he was replaced by an individual sufficiently younger in age to create an inference of
discrimination (i.e., the fourth prong of the established test for a prima facie case under step 1 of
the McDonnell Douglas Analysis). This made it unnecessary to consider the Knights
Defendants’ other arguments.
In evaluating whether the Debtor satisfied the fourth prong of the prima facie test, I found
that the age difference between the Debtor and Jenkins was only seven (7) years. I then reasoned
that, absent some other evidence of age-based discrimination, the seven (7) year age difference
was insufficient to create an inference of discrimination. See Mock v. Univ. of Pittsburgh, 2007
WL 2253602, at *12 (W.D. Pa. Aug. 3, 2007) (no prima facie case made out based on seven (7)
year age difference in absence of additional evidence of discrimination).
3.
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The Debtor’s birth date is March 10, 1949. Jenkins’ birth date is July 15, 1957. See	14
Knights Exhibit 43.
In their submissions to the court, the Knights Defendants made the same arithmetic error,	15
not once but twice. See Knights Memo of Law in Support of Motion for Summary Judgment at 74
(referring to the Debtor and Jenkins as having a “minimal age difference of seven years and four
months”) (emphasis added) (Adv. No. 07-060, Docket Entry No. 110); Knights Reply Memorandum in
Support of Motion for Summary Judgment at 16 (Adv. No. 07-060, Docket Entry No. 161).
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My initial decision regarding the fourth prong under step 1 of the McDonnell Douglas
Analysis was based on a faulty factual premise. The age difference between the Debtor and
Jenkins is eight (8) years and four (4) months, 	not seven (7) years.14 	15
After the Debtor pointed out this mistake in his motion for reconsideration, I concluded
that it was appropriate to reconsider the issue:
[w]hile one (1) additional year is not a large difference, it makes the issue
sufficiently closer to warrant further review. Compare Angelico v. Agilent
Technologies, 2006 WL 2854377 (E.D. Pa. Oct. 3, 2006) (7 year age difference
between 53 year old plaintiff and 46 year old replacement insufficient to create
inference of age discrimination) (citing Narin v. Lower Merion Sch. Dist., 206
F.3d 323 (3d Cir. 2000) (same result in case involving comparison of 56 year old
plaintiff to 49 year old employee) with Tarshis v. Riese Organization, 211 F.3d
30, 38 (2d Cir. 2000) (inference of age discrimination found in case involving 8
year difference between 67 year old plaintiff and 59 year old replacement).
Order dated June 3, 2008, at n.2 (Adv. No. 07-060, Docket Entry No. 287).
Upon reconsideration, I find that the Debtor has produced evidence sufficient to permit a
reasonable factfinder to find that the Debtor was replaced by a sufficiently younger person to
support an inference of discrimination. I reach this result for two (2) reasons.
First, I am guided by the Court of Appeals’ instruction that the task of establishing a
prima facie case under the ADEA is not intended to be onerous. Sempier v. Johnson & Higgins,
45 F.3d 724, 728 (3d Cir. 1995); accord Rouse v. II-VI Inc., 2008 WL 2914796, at *12 (W.D. Pa.
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July 24, 2008). Indeed, the consequence of making out a prima facie case is simply that it shifts
the burden of production to the employer to articulate a legitimate, nondiscriminatory reason for
the adverse action it took. To the extent there may be any uncertainty as to the adequacy of the
age difference, I will give the Debtor the benefit of the doubt.
Second, I am influenced by my review of Barber v. CXS Distribution Services, 68 F.3d at
699, a case not cited by any party until after entry of the March 17, 2008 Order granting the
Knights Defendants’ Motion for Summary Judgment. In Barber, the Court of Appeals of this
Circuit found that an eight (8) year age difference made out a prima facie case:
That difference, together with the undisputed existence of the remaining elements
of [the plaintiff’s] prima facie case, were clearly sufficient to shift the burden of
production to the defendants and require them to articulate a legitimate,
nondiscriminatory motivation for their failure to promote Barber.
Id. at 699.
C. 	The Debtor Has Produced Sufficient Evidence to Create A Triable Issue of Fact With
Respect to the Remaining Prongs of the prima facie Test
Having found the age difference between the Debtor and Jenkins sufficient to permit a
factfinder to make an inference of discrimination at trial, I must now consider the Knights
Defendants’ two (2) other arguments that I did not reach in my earlier decision: (1) that the
Debtor may not maintain an ADEA action because he was not a Knights employee and (2) that
the Debtor was not qualified to be a Knights field agent. Bearing in mind that on summary
judgment, the Debtor’s burden is to present evidence that would support a finding in his favor on
these issues at trial, I conclude that the Debtor has presented sufficient evidence to preclude
summary judgment.
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1.
“The ADEA protects only individuals who are ‘employees.’” Cox v. Master Lock Co.,
815 F.Supp. 844, 845 (E.D. Pa. 1993) (citing EEOC v. Zippo Mfg. Co., 713 F.2d 32, 33 (3d Cir.
1983), aff’d, 14 F.3d. 46 (3d Cir. 1993) (Table), overruled on other grounds by Nationwide Mut.
Ins. Co. v. Darden, 503 U.S. 318, 112 S. Ct. 1344 (1992)). However, the ADEA does not define
the term “employee.” It states only that an employee is “an individual employed by any
employer.” 29 U.S.C. §630(f).
In Darden, a case decided under ERISA (another federal statute that does not define the
term “employee”), the Supreme Court held that courts should determine who qualifies as an
“employee” by applying the common law of agency. 503 U.S. at 322-323, 112 S. Ct. at 1348.
This requires consideration of several factors:
1. 	the hiring party’s right to control the manner and means by which the work
is accomplished;
2. 	the skill required;
3. 	the source of the instrumentalities and tools;
4. 	the location of the work;
5. 	the duration of the relationship of the parties;
6. 	whether the hiring party has the right to assign additional projects to the
hired
party;
7. 	the extent of the hired party’s discretion over when and how long to work;
8. 	the method of payment;
9. 	the hired party’s role in hiring and paying assistants;
10. 	whether the work is part of the regular business of the hiring party;
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The Knights Defendants also suggest I need look no further than ¶4 of the parties’	16
contract to find that the Debtor was an independent contractor. They rely on Cahill v. State Farm Mut.
Auto. Ins. Co., 2001 WL 515926, at *2 (E.D. Pa. May 14, 2001) for the legal proposition that, where the
relevant documentation clearly illustrates that a plaintiff was an independent contractor, the court need
not apply the Darden factors. Knights Memo of Law in Support of Motion for Summary Judgment, at 72
n.47. I do not read Cahill so broadly. In that case, which also involved an insurance agent, the plaintiff
did not allege in his complaint that he was employee. Also, he conceded at his deposition that he was not
an employee and that the parties’ intent in entering into their contract was to make him an independent
contractor. Here, in both adversary complaints, the Debtor regularly refers to the parties’ contract as an
employment contract and has never conceded that he was an independent contractor.
-17-
11. 	whether the hiring party is in business;
12. 	the provision of employee benefits; and
13. 	the tax treatment of the hired party.
Id. at 323-24, 112 S. Ct. at 1348. Courts have employed the Darden test to determine whether an
ADEA plaintiff was an employee. See Alba v. Housing Auth., 400 F.Supp. 2d 685, 693 (M.D.
Pa. 2005); Cox, 815 F.Supp. at 846.
In their Motion for Summary Judgment, the Knights Defendants assert that the Debtor
was not an employee because the parties’ contract states that he was an independent contractor.
The Knights Defendants refer to the following provision in the contract:
Nothing contained in this Agreement shall be construed to create the relationship
of employer and employee between the [Knights] and the Field Agent, between
the [Knights] and the General Agent, or between the General Agent and the Field
Agent.
Knights Exhibit 2, at ¶4.
The Knights Defendants argue that the Debtor has no evidence to refute his status as an
independent contractor and that record “is replete” with evidence establishing that the Debtor
was an independent contractor. Knights Memo of Law in Support of Motion for Summary
Judgment, at 72.16
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I am aware that a number of courts have found insurance agents to be independent
contractors and not employees. E.g., Weary v. Cochran, 377 F.3d 522 (6th Cir. 2004) (2-1 decision);
Barnhart v. New York Life Ins. Co., 141 F.3d 1310 (9th Cir. 1998); United States EEOC v. Catholic
Knights Ins. Soc., 915 F.Supp. 25 (N.D. Ill. 1996). However, those determinations were factual ones
based on the record made in those cases and not a determination, as a matter of law, that an insurance
agent cannot be an employee.
Finally, I observe that the plaintiff in Darden was an insurance agent.
See Knights Exhibit 2, at ¶5(a).	17
-18-
I disagree with the Knights Defendants’ characterization of the record. I find that there is
evidence in the record, some of it in the parties’ contract itself, that is sufficient to create a
genuine issue of material fact concerning the Debtor’s status as a Knights employee.
Specifically, I refer to: (1) the requirement that the Debtor “devote his full time and entire energy
and attention” to selling the Knights’ insurance products exclusively and that the Debtor engage
in no other “occupation or business”; 	(2) the Knights’ provision of health and welfare benefits17
to the Debtor; (3) the parties’ longstanding relationship.
At this stage, it is unnecessary to review comprehensively the evidence, pro and con, as to
whether the Debtor was a Knights employee or an independent contractor. The court’s role is
limited to deciding whether there is sufficient evidence to permit a reasonable factfinder to
conclude that the Debtor was a Knights employee and therefore, within the class of individuals
entitled to invoke the remedies made available under the ADEA. I am satisfied that the Debtor
has met that burden. See Jenkins v. Southern Farm Bureau Cas., 307 F.3d 741 (8th Cir. 2002);
Battistone v. Sam Jon Corp., 2002 WL 32345692 (E.D. Pa. Oct. 4, 2002).
2.
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-19-
The Knights Defendants’ argument that the Debtor was not qualified to be a field agent
need not detain me long. The Knights Defendants contend that the Debtor was not qualified
because he breached his contractual obligation to work exclusively for the Knights:
During his tenure with the Knights, Plaintiff sold insurance policies for other
insurance companies, and sold many of those policies to members of the Knights
and their families. Certainly, this behavior is contrary to that which is expected of
a “qualified” field agent, both pursuant to the Field Agent Contract and in
accordance with common sense.
Knights Memo of Law in Support of Motion for Summary Judgment at 73.
I fail to see how the Debtor’s alleged breach of his promise to work exclusively for the
Knights made him “unqualified” to work in the position that he held for more than ten (10) years.
The argument improperly conflates the concepts of job qualification and breach of contract.
Given the principle that all reasonable inferences from the record should be made in favor of the
nonmoving party, the Debtor’s lengthy tenure as a Knights field agent is some evidence that he
was qualified for the position. See Sempier, 45 F.3d at 729; see also Makky v. Chertoff, 2008
WL 3091785, *9 (3d Cir. Aug. 7, 2008) (issue of job qualification “involves inquiry only into the
bare minimum requirement necessary to perform the job at issue”). The Knights have come
forward with no evidence to contradict that factual inference (other than the “breach of contract”
theory that I reject). Therefore, the Knights have not established the absence of a disputed triable
issue of fact issue regarding the Debtor’s qualifications for the field agent position.
3.
The above discussion demonstrates that the Debtor has come forward with evidence to
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-20-
create triable issues of fact with respect to all four (4) prongs of the prima facie test under step 1
of the “indirect method” of proving age discrimination under the ADEA (i.e., the McDonnell
Douglas Analysis). There is competent evidence that: (1) the Debtor is in the protected class; (2)
he was terminated from “employment” as a field agent, (3) that he was qualified for the position
and (4) he was replaced by a sufficiently younger person to create an inference of age
discrimination. Therefore, I reach step 2 in the analysis and next consider whether the Knights
Defendants have articulated a legitimate, nondiscriminatory reason for terminating the Debtor’s
status as a field agent.
D. 	The Knights Defendants Have Satisfied Their Step 2 Burden of Producing Evidence in
Support of the Articulated Nondiscriminatory Reason for their Employment Action
1.
In Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981),
the Supreme Court described the defendant’s burden in step 2 as follows:
The burden that shifts to the defendant, therefore, is to rebut the presumption of
discrimination by producing evidence that the plaintiff was rejected, or someone
else was preferred, for a legitimate, nondiscriminatory reason. The defendant need
not persuade the court that it was actually motivated by the proffered reasons. It is
sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it
discriminated against the plaintiff. To accomplish this, the defendant must clearly
set forth, through the introduction of admissible evidence, the reasons for the
plaintiff’s rejection. The explanation provided must be legally sufficient to justify
a judgment for the defendant.
450 U.S. at 254-255, 101 S. Ct. at 1094 (footnote and citation omitted) (emphasis added). The
Court added that “[a]n articulation not admitted into evidence will not suffice. Thus, the
defendant cannot meet its burden merely through an answer to the complaint or by argument of
counsel.” 450 U.S. at 255 n.9, 101 S. Ct. at 1095 n.9.
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-21-
The Knights Defendants contend that they terminated the Debtor’s field agent contract
due to poor job performance. Specifically, they assert that the Debtor failed “to produce an
acceptable volume of business.” Knights Exhibit 48. In support of this assertion, the Knights
Defendants submitted:
1. 	the affidavit of Thomas Smith, Executive Vice President of Agencies and
Marketing for the Knights, in which Mr. Smith states that “[f]or five of the
last 6 years that [the Debtor] was a Field Agent, his insurance sales were
substandard,” that his “application count was consistently low and he seldom
earned enough first year commission to maintain minimum commission
standards.” See Knights Exhibit 29 (Declaration of Thomas Smith ¶4);
2. 	five (5) letters from the Debtor to Knights representatives, sent intemittently
between sometime in 2000 and January 31, 2005, the majority of which
appear to have been sent by the Debtor to explain the reasons why, despite
his failure to meet undescribed sales standards, the Knights should not
reduce his benefits or expense allowances. See Knights Exhibit 30;
3. 	a document titled “Field Agents Recorded Business Report Year-To-Date as
of 12-31-05,” which ranked the Debtor at 1,181 on a listing of 1,237 agents.
See Knights Exhibit 32; see also Knights Exhibit 33 (document titled “Field
Agents Recorded Business Statistics Year to Date as of 12-31-05,” which
ranked the Debtor at 1,129 on the listing of 1,237 agents); and
4. 	a document titled “Council Addition or Deletion” bearing the effective date
of 5/1/05 that purports to delete councils 345, 2522, 4050,4282, 4754
representing 664 members from the Debtor’s territory “due to unacceptable
production from agent T. Olick.” See Knights Exhibit 44.
Based on the evidence referenced above, I conclude that the evidence the Knights
Defendants submitted satisfies its minimal evidentiary burden in step 2 of the McDonnell
Douglas Analysis. The evidence is sufficient to permit a reasonable factfinder to conclude that
the Debtor’s termination was based on a legitimate nondiscriminatory reason, here, the Debtor’s
alleged poor job performance.
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I mention this not because the Knights Defendants were obliged to produce such	18
evidence to satisfy the step 2 burden, but because one would reasonably expect that Knights management
would consider such information in making the decision to terminate the Debtor as a field agent and this
type of evidence is within their control to produce. While the Knights Defendants did submit some
evidence of this nature in the form of Exhibits 32 and 33, those Exhibits were deeply flawed, at least in
the manner in which they were presented in support of the Motion for Summary Judgment.
Exhibits 32 and 33 are reports that purport to rank the performance of Knights field
agents on a nationwide basis. Both of the reports post-date the September 8, 2005 Notice of Intent To
Terminate (Knights Exhibit 48). The initial steps in the process leading to the Knights’ adverse action at
issue must have taken place prior to September 8, 2005. Therefore, at least some of the data in the
reports (i.e., the data relating to sales from September 8, 2005 to December 31, 2005) could not have
played any role in the Knights Defendants’ decision to terminate the Debtor. Further, the reports are not
accompanied by a supporting affidavit that explains, inter alia, (1) the meaning of the terms used (e.g.,
“net premium,” “gross volume,” “net volume,” equalizer, “quota”) data; (2) how the Knights Defendants
used the data; and (3) the rationale of the ranking system. These inadequacies rob Exhibits 32 and 33 of
-22-
2.
Before proceeding to consider step 3 of the McDonnell Douglas Analysis (the Debtor’s
evidence of pretext), I pause to make an observation regarding the evidence that the Knights
offered.
The Notice of Intent to Terminate dated September 8, 2005, see Knights Exhibit 48,
stated that the Debtor “failed to produce an acceptable volume of business” and also stated that
the Debtor “has been previously made aware of the standards that exist in the Agency, and has
not responded” (the reference to the Debtor’s “lack of response” presumably referring to his
failure to improve his performance).
In light of this explanation for its decision to terminate the Debtor as a field agent, the
evidence that the supporting evidence that the Knights Defendants produced seems
conspicuously anemic. The Knights did not produce any written policy statements establishing
objective performance standards or sales data for its field agents for the period prior to
September 8, 2005. 	Nor did they produce any written “warnings” given to the Debtor prior to18
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much of their probative value.
The Knights Defendants directed my attention to Mr. Olick’s December 21, 2006	19
Deposition at 259, 12-24 (Knights Exhibit 1). They contend that the Debtor conceded that Mr. Kearney
had spoken to him about his “poor production.” However, on the referenced page the Debtor asserts that
the Notice of Intent to Terminate came “out of the blue.” Id. at line 7. The Debtor states that Mr.
Kearney told him that “it’s nice that you are selling a lot of insurance, but you’re not producing enough
policies.” Id. at lines 18-22. 	The Debtor contended that his production was “within the Knights’ of
Columbus guidelines,” that Mr. Kearney accepted that answer, and that the Debtor assumed “it was
good.” Id. at 260, 1-7.
This is exemplified by the five (5) letters comprising Knights Exhibit 30. It is possible	20
to infer from the letters, which were sent in 2000, 2001, 2002, 2003 and 2004 respectively, that there
were chronic “issues” regarding the sufficiency of the Debtor’s sales output. Yet, the specific contents of
the letters were the Debtor’s asserted justifications for what he would characterize as mere apparent
shortfalls in his performance.
-23-
September 8, 2005 regarding his alleged poor production or deposition testimony or affidavits
concerning verbal warnings given to the Debtor. 19
In short, while the evidence the Knights Defendants produced sufficed to satisfy the
minimal burden of production set forth in Burdine, the evidence was all indirect and
circumstantial.20
E. 	The Debtor Has Not Met His Step 3 Burden
1.
I now reach the crux of the matter. As in many employment discrimination cases, the real
battleground is step 3 of the McDonnell Douglas Analysis.
As stated in Part III.A.3 above, to defeat a summary judgment motion, a plaintiff who has
made a prima facie showing of discrimination must point to evidence that is sufficient to create a
triable issue of material fact concerning whether: (1) the employer’s proffered explanation is
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All together, the Debtor had four (4) opportunities to argue that his ADEA claim should	21
survive summary judgment: (1) his initial response to the Knights Defendants’ motion for summary
judgment, filed October 9, 2007 (“the Debtor’s Initial MSJ Response”), see Adv. No. 07-060, Docket
Entry No. 157; (2) what he titled a “Sur Reply” to the Motion for Summary Judgment, filed November 8,
2007 (“the Debtor’s Supplemental MSJ Response”), see Adv. No. 07-060, Docket Entry No. 186; (3) an
initial memorandum authorized by the court’s reconsideration order of June 3, 2008, filed on June 25,
2008 (“the Debtor’s Initial Reconsideration Memo”), see Adv. No. 07-060, Docket Entry No. 297; and
(4) a second memorandum (titled “Supplemental Brief in Support of an Inference of Age
Discrimination”), as authorized by the court’s Order of July 7, 2008 and filed on August 12, 2008 (“the
Debtor’s Second Reconsideration Memo”), see Adv. No. 07-060, Docket Entry No. 320.
I note that by Order dated December 20, 2007 on the Knights’ Defendants Motion to
Strike the Debtor’s Supplemental MSJ Response, I ruled that the documents that the Debtor attached to
that supplemental response as exhibits 20, 21, 24 and 26 and the first page of exhibit 25 were stricken
and would not be considered part of the record on the Knights Defendants’ summary judgment motion.
See Order, Adv. No. 07-060, Docket Entry No. 224.
-24-
worthy of credence; or (2) an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer’s action. Fuentes, 32 F.3d at 764.
I have carefully reviewed the Debtor’s four (4) memoranda and the evidence he has
marshaled in opposition to the Knights Defendants’ Motion for Summary Judgment and in
support of a pretext argument under step three (3) of the McDonnell Douglas Analysis. 	Based21
on that review, I conclude that the Debtor has not produced adequate evidence to permit a
reasonable factfinder to discredit the core facts underlying the Knights Defendants’ articulated
rationale for the adverse action: poor production over an extended period of time. He has not
proffered sufficient evidence to demonstrate “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions,” see Fuentes, 32 F.3d at 765, in the Knights Defendants’
explanation of its action to permit a reasonable factfinder to find them unworthy of credence and
justify an inference that the Defendants acted for unlawful discriminatory reasons.
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“Bob O’K” appears to be Bob O’Keefe, an individual who bears the title “Agency Vice	22
President.” See Exhibit 6 to Debtor’s Second Reconsideration Memo; see also Knights Exhibit 46. Mr.
O’Keefe’s precise role in the Knights’ hierarchy has not been explained, but it is obvious that he has
managerial authority of some sort.
“T.O.” presumably refers to Thomas Olick, the Debtor.	23
-25-
2.
To contradict the Knights Defendants’ contention that his production was sub-par, the
Debtor produced:
1. 	a Knights Field Agents Recorded Business Report dated February 29, 1996)
(“the Feb. 1996 Report”) (similar to the reports referred to in n.18, supra). See
Exhibit 21 to Debtor’s Second Reconsideration Memo. The Feb. 1996 Report
appears to rank the Debtor first nationally among Knights field agents.
2. 	a Knights Field Agents Recorded Business Report dated December 31, 2001
(“the Dec. 2001 Report”). See Exhibit 15 to Debtor’s Second Reconsideration
Memo. The Dec. 2001 Report appears to rank the Debtor 461 	nationallyst
among 1,126 Knights field agents.
3. 	a document titled “Field Agents Recorded Business Report Year-To-Date as
of 2/28/03" (“the Feb. 2003 Report”). See Exhibit 3 to Debtor’s Second
Reconsideration Memo. The Feb. 2003 Report appears to rank the Debtor
fourth nationally among Knights field agents. It also includes a handwritten
notation dated “3/5,” stating “Tom – Great work. Keep it up - I’m proud of
you” signed by “Bob O’K.”22
4. 	a series of three (3) documents that appear related to each other by virtue of
their subject matter, the Debtor’s termination.
a. 	The first is a handwritten memo addressed to, inter alia, B. O’Keefe.
The handwriting in the first paragraph is difficult for me to decipher.
The part I can decipher says, “Need . . . explanation from GA.” The
second paragraph appears to read: “What happens when we fwd T.O.23
a copy of a termination dated 11/1 on 2/17?” See Exhibit 5 to
Debtor’s Second Reconsideration Memorandum.
b. 	The next document purports to be an email from Robert O’Keefe to
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It states:	24
I need from you in writing a full and complete explanation on
the circumstances leading up to Mr. Olick’s termination. In
preparing this, consider the following questions:
1. If he was, as you said yesterday, gone Nov. 1, why did you wait
till January to terminate him?
2. How should we interpret your January 1 termination if he was
really gone in November? Was it not truthful?
3. What do you think will happen when Olick receives a copy of a
termination effective Nov. 1 which is sent out from here Feb. 17?
These are just a few things to address. You should obviously make
reference to any other aspects surrounding the matter. Make sure
your explanation of the circumstances surrounding Mr. Olick’s
departure are full, complete and truthful. This is a very serious
matter, Jim, what with a law suit hanging over our heads. I’m
counting on you to treat it that way.
Let me hear from you ASAP but no later than Wed., 2/22/06.
See Exhibit 6 to Debtor’s Second Reconsideration Memo.
It states:	25
Bob, answers to your Feb. 17 	emails on the Olick termination	th
are as follows: (1) I did not say Olick was gone Nov. 1 , Jim	st
Lee informed me during our conversation that Olick resigned
Nov. 1 , which I have no documentation on that subject, (2)	st
I terminated Olick Jan. 1 2006 as not to have any low	st
producers of his nature into 2006. When I found out from the
Agency Dept. that Olick resigned in Nov. 2005 [as per Jim Lee],
I thought it would be appropriate to adjust the termination notice
effective Nov. 2005, (3) I do not think anything should happen
since the facts from the Agency Dept. state that Olick resigned,
unknown to myself, Nov. 2005. The only other aspect that should
be addressed is the fact that Olick should not get one penny from
the KofC. I would be very pleased to participate in any court
proceedings to prove Olick has no basis in attempting to extort
-26-
James Kearney, dated 2/17/06 with the subject “Olick Termination.” 24
See Exhibit 6 to Debtor’s Second Reconsideration Memorandum.
c. 	The third document purports to be an email from DJKMAG@aol.com
to Robert O’Keefe dated 2/22/06. 	See Exhibit 7 to Debtor’s Second25
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money from the KofC. Fraternally, Jim Kearney.
See Exhibit 7 to Debtor’s Second Reconsideration Memo.
If so, the evidence is of limited probative value on the issue of overall job performance.	26
To employ a sports analogy from baseball, it does not matter if your team is in first place on June 1 .	st
What matters is the team’s place in the standings at the end of the season.
-27-
Reconsideration Memorandum.
This evidence is not sufficiently probative on the issue of pretext to permit the Debtor to
survive summary judgment.
Starting with the “Reports” that the Debtor produced to contradict the Knights assertion
that his job performance was poor (i.e., documents 1, 2 and 3 above), for several reasons, these
Reports do not provide a basis for a reasonable factfinder to conclude that Knights Defendants’
explanation for terminating the Debtor was pretextual.
First, the Debtor has failed to put forward any accompanying foundational evidence that
would permit a factfinder to understand the meaning of the data or place it in an appropriate
context. See n.18, supra. For instance, what time period is covered by the reports? Are they
annual reports? Are the Feb. 2003 and Feb. 1996 Reports interim reports that cover only the first
two (2) months of the calendar year? 	Aside from the comparative ranking, how are sales26
standards and goals set and measured? . How many other field agents are truly “comparable” to
the Debtor for purposes of assessing the claim that he was treated differently based on his age?
What adverse actions, if any, were taken against comparable field agents?
Second, viewed individually or collectively, the “Reports” do not plainly refute the
representation in the Thomas Smith Declaration (Knights Exhibit 29) that the Debtor’s sales
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In addition to the flaws described in the text above, I consider the Debtor’s	27
proffered evidence concerning his job performance as of February 1996 (i.e., document 1 above),
almost ten years before the Knights sent the Debtor the Notice to Terminate, far too remote in
time from the relevant events to have any probative value to a reasonable factfinder.
-28-
performance was substandard for five (5) of the previous six (6) years. See also n.26, supra. 27
Moving on to the fourth group of documents (Exhibits 5, 6, and 7 to the Debtor’s Second
Reconsideration Memorandum), these documents also lack supporting affidavits, deposition
testimony or other foundational evidence needed to put them in context. Exhibit 5, in particular,
is not entirely readable. However, at most, (and without foundational evidence to better explain
their meaning), these documents merely appear to memorialize the confusion that existed within
the Knights’ management as to the effective date of his separation from the Knights and whether
the Debtor was terminated or resigned. This evidence simply is not inconsistent with the Knights
Defendants core position that the Debtor was terminated due to inadequate sales production.
The Debtor’s next basis for claiming pretext is grounded in his interpretation of Knights
Exhibit 32, which is a “Field Agents Recorded Business Report as of December 31, 2005" (“the
Dec. 2005 Report”). The Knights Defendants point to the Dec. 2005 Report to support its
contention that the Debtor’s work was sub-par because the report ranked the Debtor 1,181 	outst
1,231 field agents nationally. I have already found the Dec. 2005 Report to be of limited utility.
See n.18 supra. In any event, the Debtor responds to it by pointing out that it also showed that:
(1) on a national basis, less than 10% of the field agents met their quotas in 2005 and (2) only
one (1) of the fourteen (14) agents in the Debtor’s cohort (i.e., those working in Defendant
Kearney’s agency) met their quotas in 2004 and only five (5) of the fourteen (14) produced
enough business to qualify for additional benefits from the Knights. The Debtor contends that
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Knights Exhibit 9; see n.12, supra.	28
Fuentes, 32 F.3d at 765	29 	(internal citations omitted).
-29-
“using the criteria stated in [Thomas] Smith’s declaration, 	10 out of 14 agents working for28
Kearney should have been terminated.” Debtor’s Initial MSJ Response at 14.
The Debtor’s suggestion that the Dec. 2005 Report and Smith Declaration, taken together,
demonstrate that he was treated differently than comparable employees, thereby creating the
inference that he was victimized by unlawful age discrimination, imbues the Dec. 2005 Report
with far more meaning than a rational factfinder may accord it. First, as stated earlier, the
meaning of the document is obscure. See n.18 supra. Additionally, there is nothing in the record
regarding whether any of the field agents on the Dec. 2005 Report (either inside or outside the
Kearney agency) with the Debtor’s sales rank or lower were retained or terminated by the
Knights, their ages, their length of service, their production levels over time (as opposed to in
2005 alone) or the number, size and nature of their assigned territories. See Evans v. Pa. Power
& Light Co., 98 Fed. Appx. 151, 156 (3d Cir. 2004) (nonprecedential). 	In short, the Debtor has
not placed the limited information that can reasonably be derived from the Report in a context to
give it meaning in proving pretext under step 3 of the McDonnell Douglas Analysis. He has not
developed the record, as he must, to meet his burden of showing the “weaknesses,
implausibilities, inconsistencies, incoherencies or contradictions” of the Knights Defendants’
explanation for his termination, to describe how the Knights set and measure sales standards and
goals.29
Finally, the Debtor also bases his pretext argument, in part, on the fact that prior to the
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I recognize that the Knights Defendants’ action in removing councils from the Debtor	30
itself may have contributed to his allegedly poor production and thereby made inevitable, or at least
substantially contributed to, the subsequent termination decision. But that is all the more reason why the
Debtor was obliged to develop the record to contradict the reasons given by the Knights Defendants for
taking the councils from the Debtor in the first place.
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termination of his contract, the Knights reduced the number of “councils” assigned to him, in
effect, reducing his sales territory. From the Debtor’s perspective, the Knights’ action was
motivated by an unlawful discriminatory intent, see text accompanying n.11, supra, and also,
explains his allegedly poor production, later used as the justification for his termination. The
Knights Defendants counter that the Debtor lost these councils due to poor production.
The Debtor’s theory with respect to the “councils” issue necessitated the development of
the record in the same manner as described above in connection with the Knights Defendants’ act
of sending the Notice of Intent to Terminate of September 8, 2005. In other words, to defeat
summary judgment, the Debtor was obliged to develop evidence that would place the Knights
Defendants’ conduct in some larger context from which a reasonable factfinder could infer that
the Knights Defendants’ explanation for reducing his territory (i.e., poor production) was itself a
pretext. But again, the Debtor has failed to generate the kind of evidence that would permit a
reasonable factfinder to draw an inference at trial that the Knights’ conduct was not motivated
by the Debtor’s poor production. 	He simply asks the court to accept his interpretation of30
Knights Defendants’ motivation without concrete, supporting evidence. This is inadequate to
defeat summary judgment. See, e.g., Howell v. PPL Services Corp., 232 Fed. Appx. 111 (3d
Cir. 2007) (affirming grant of summary judgment where district court found that “[t]he evidence
produced by the plaintiff consists largely, if not totally, of his own understanding of events”).
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That the Debtor is acting pro se cannot affect the application of the legal principles	31
discussed above. While a pro se litigant may be entitled to be treated “gently,” he is not entitled to
“special treatment.” Lockhart v. Sullivan, 925 F.2d 214, 216 (7th Cir. 1991).
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3.
I recognize that proving discrimination can be a difficult task because, frequently, it is
dependent on circumstantial evidence that must be procured from the adverse party (e.g.,
employment information regarding comparable employees) before it is organized logically to
demonstrate the flaws in the employer’s articulated nondiscriminatory justification for its
conduct. See generally Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1071 (3d Cir.
1996), cert. denied, 521 U.S. 1129, 117 S. Ct. 2532 (1997) (“Cases charging discrimination are
uniquely difficult to prove and often depend upon circumstantial evidence”). Nevertheless, the
Debtor bore the burden of developing a record from which a rational factfinder could find that
the Knights Defendants’ reason for his termination was a pretext masking unlawful
discrimination. 31
In this case, although the evidence presented by the Knights Defendants in support of its
explanation may have been less than compelling (to be generous), the Debtor nonetheless failed
to counter it with evidence sufficient to create a triable issue as to whether the Knights
Defendants’ explanation has weaknesses, implausibilities, inconsistencies, incoherencies and
contradictions that make it unworthy of credence. The entry of summary judgment against the
Debtor’s is appropriate because his contention, that the Knights Defendants fabricated their
stated reason for his termination, “is a thesis totally devoid of data to substantiate it.” Kautz, 412
F.3d at 472.
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V.
For the reasons set forth above, I conclude that the Knights Defendants are entitled to
summary judgment in their favor on the Debtor’s age discrimination claim. An appropriate
Order will be entered.
Date: 	October 2, 2008
ERIC L. FRANK
U.S. BANKRUPTCY JUDGE
cc: 	Thomas W. Olick
4014 Crestview Avenue
Easton, PA 18045
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