Ferraro, B. v. Temple University , 185 A.3d 396 ( 2018 )

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2018 PA Super 99BARBARA FERRARO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TEMPLE UNIVERSITY AND TEMPLE : No. 2682 EDA 2017
PHYSICIANS, INC. :
Appeal from the Judgment Entered July 18, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): June Term, 2015 No.2478
BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM*, J.
OPINION BY RANSOM, J.: FILED APRIL 26, 2018
Appellant Barbara Ferraro appeals from the judgment entered on
July 18, 2017, in favor of Appellees Temple University and Temple
Physicians, Inc. (collectively, “Temple”), in her age discrimination and
retaliation action, relating to her dismissal from Temple’s employment. We
affirm.
In January 2012, Ferraro, who was then sixty-two years old, was fired
from her full-time position at Temple as a manager of patient accounting.
Amended Trial Court Opinion (TCO), 7/18/17, at 1-2. According to Temple,
Ferraro was fired for taking inappropriate disciplinary action against an
employee whom she oversaw. Ferraro contends that her firing was due to
her age and in retaliation for events beginning in 2010.
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* Retired Senior Judge assigned to the Superior Court.
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In 2010, Temple commenced an office-wide implementation of new
accounting software. Notes of Testimony (N.T.), 1/4/17, at 66-72, 91, 94-
97; TCO at 2. Ferraro maintains that, during the software rollout, she was
excluded from training meetings, her team was the last to be trained, and
Temple offered training to her younger peer, then-thirty-six-year-old
Tiffany Richardson, instead of Ferraro. During this time, Ferraro’s supervisor
asked her when she was going to retire.
Appellant Ferraro also insists that Richardson, who is a single mother
with three children, received substantially better treatment than she from
2010 until her termination in 2012. N.T., 1/6/17, at 179-85, 193-94, 198-
200; TCO at 11-12. For example, Temple allowed Richardson to have a
flexible schedule. Additionally, even though Richardson was disciplined for
her attitude and rudeness several times, she only ever received counseling
and was asked to apologize, unlike Ferraro, who was terminated after a
disciplinary action.
Ferraro filed an internal age-discrimination complaint in 2010. TCO at
1-2; N.T., 1/4/17, at 67-68. The subsequent investigation, conducted by
Temple Human Resources employee Carolyn Ashburn, found no
discrimination against Ferraro.
In its opinion, the trial court correctly sets forth additional facts of this
case, as follows:
Ferraro began to oversee Diane James . . . in March of 2010,
giving rise to the events that led to her termination in 2012. By
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all accounts, Ms. James seemed to be an insubordinate
employee. She received corrective actions for leaving work
early, tardiness, and other performance issues such as failing to
meet quota. Ms. James eventually applied for and was granted
Family Medical Leave (“FMLA”) for herself and her son. Soon
after, she began to clash with Ms. Ferraro over documenting her
FMLA absences. [Temple]’s rules require an employee to inform
her supervisor two weeks prior to an FMLA absence. If a
[Temple] employee’s family member also qualifies for FMLA, the
employee must clarify, without giving substantive detail,
whether the FMLA absence pertains to the employee or family
member. Ms. James consistently failed to communicate this
information to Ms. Ferraro. Ms. Ferraro kept meticulous records
of Ms. James’s frequent and unexplained comings and goings
because of this communication breakdown.
TCO at 3 (citations to the record omitted).
On September 27, 2011, James sent an e-mail at 8:36 a.m. informing
Ferraro that she had a doctor’s appointment at 12:00 p.m. and would be
taking a half day of FMLA time. N.T., 1/4/17, at 187-88; Exs. P-16 & P-26.
Ferraro inquired as to whether the FMLA time was for James or her son.
James responded that it was for herself. Temple’s employees are required
to provide two weeks’ notice of doctor’s appointments. Ferraro thus inquired
further as to why James was only giving less than four hours’ notice of this
appointment. During trial, Ferraro represented that she “never asked
[James] what was wrong with her” and did not ask James to tell her the
reasons that qualified James for FMLA.
Ferraro contacted Richard West . . . , a manager in the absence
management department, about how to handle the situation
with Ms. James. Mr. West instructed Ms. Ferraro to classify
unexplained absences as attendance incidents and, remind
Ms. James of her responsibility to inform [Temple] of FMLA
related absences. Ms. Ferraro followed Mr. West’s suggestions
but Ms. James continued her insubordinate behavior. When
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Ms. Ferraro pressed Ms. James for clarifications, Ms. James
responded by filing a harassment claim against her in January of
2011.
TCO at 3 (citations to the record omitted).
Temple’s Associate Director for Human Resources, Brenna Woods,
investigated James’s complaint against Ferraro and provided a copy of her
report to Ashburn in December 2011. N.T., 1/5/16, at 31, 35-39, 54-55.
Ashburn wrote a note on Woods’s report stating that Ferraro had brought an
age discrimination complaint in November 2010, but she later testified that
she never discussed Ferraro’s age discrimination complaint with Woods.
Ferraro was “fired in January of 2012 for FMLA violations against
Ms. James. [Temple]’s position is that Ms. Ferraro’s inquiries and record
keeping constituted discrimination against the FMLA rights of Ms. James, a
fireable offense. [Temple] also claims that Ms. Ferraro issued Ms. James an
improper citation.” TCO at 3-4 (citations to the record omitted). Ferraro
“was replaced by a women who is approximately 50 years old.” Id. at 6.
In January 2012, Ferraro filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”) alleging discriminatory discharge based
upon her age and retaliation for having previously engaged in protected
conduct. N.T., 1/4/17, at 191-92; N.T., 1/6/17, at 201-03. The EEOC ruled
that the complaint was unsubstantiated.
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In June 2015, Ferraro commenced this action by writ of summons. In
July 2015, Ferraro filed a complaint, alleging that Temple had violated the
Pennsylvania Human Relations Act (“PHRA”).1 Compl., 7/1/15, at 3-5 ¶¶ 22-
23, 31-32, 36. A bench trial was held in January 2017. In June 2017, the
trial court found in favor of Temple.
After receiving Ferraro’s post-trial motions challenging the weight of
the evidence and requesting a new trial, the trial court again found in favor
of Temple in July 2017. In August 2017, Ferraro filed a notice of appeal and
a timely concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). In response, the trial court relied upon its prior opinions.
Ferraro now presents the following issues for our review:
1. Did [t]he [trial c]ourt commit an error of law by ruling that
the credibility of the proffered reason offered by [Temple] for the
termination of [Ferraro]’s employment is not relevant to the
determination of whether [Temple]’s reason for discharging
[Ferraro]’s employment is a pretext?
2. Did the [t]rial [c]ourt commit an error of law and go
against the weight of evidence by failing to identify [Ferraro]’s
pretext evidence and, instead, mistakenly identify evidence of
protected activity (and direct evidence of age discrimination) as
pretext evidence?
3. Did the [t]rial [c]ourt commit an error of law and go
against the weight of the evidence by not determining that the
reasons offered by [Temple] for [Ferraro]’s termination were
false.
4. Did the [t]rial [c]ourt commit an error of law and go
against the weight of the evidence by failing to determine that
____________________________________________
1 43 P.S. §§ 951-963.
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[Ferraro]’s substantially younger coworker was given preferential
treatment and that [Ferraro] was subjected to discriminatory
discharge because of her age?
5. Did the [t]rial [c]ourt commit an error of law and go
against the weight of the evidence by finding that [Ferraro] was
not subjected to retaliatory discharge?
Ferraro’s Brief at 4-5 (suggested answers omitted).
Our standard for reviewing non-jury verdicts is as follows:
Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in any application of the law. The findings of
fact of the trial judge must be given the same weight and effect
on appeal as the verdict of a jury. We consider the evidence in a
light most favorable to the verdict winner. We will reverse the
trial court only if its findings of fact are not supported by
competent evidence in the record or if its findings are premised
on an error of law. However, where the issue concerns a
question of law, our scope of review is plenary.
The trial court’s conclusions of law on appeal originating from a
non-jury trial are not binding on an appellate court because it is
the appellate court’s duty to determine if the trial court correctly
applied the law to the facts of the case.
Bank of N.Y. Mellon v. Bach, 159 A.3d 16, 19 (Pa. Super.) (citation
omitted), appeal denied, 170 A.3d 1019 (Pa. 2017).
Age Discrimination
In an employment discrimination case, a three-part burden-shifting
framework has been developed. Kroptavich v. Pa. Power & Light Co.,
795 A.2d 1048, 1055 (Pa. Super. 2002). First, a plaintiff bears the burden
of establishing a prima facie case of discrimination. This Court has explained
the elements of a prima facie case of age discrimination as follows:
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[A]n age discrimination plaintiff may make a prima facie case
with evidence showing that the plaintiff at the relevant time:
(i) belonged to a protected class, i.e., was at least 40 years of
age; (ii) was qualified for the position; (iii) was dismissed
despite being qualified; and (iv) suffered dismissal under
circumstances giving rise to an inference of discrimination, such
as the fact that the plaintiff was replaced by someone
substantially younger.
Id. at 1056. Here, the trial court concluded that Ferraro put forth credible
evidence satisfying the requirements of a prima facie case of discrimination:
she is a member of a protected class, she is qualified for the position, she
suffered an adverse employment action, and the twelve-year age difference
between Ferraro and her replacement “is substantial enough to raise an
inference of age discrimination.” TCO at 6.
If the plaintiff does establish a prima facie case, a presumption
of discrimination arises, and the burden of production shifts to
the employer to articulate a legitimate, nondiscriminatory reason
for the challenged employment decision. The employer’s burden
in this second part is one of production, not persuasion, and
thus involves no credibility assessment. If the employer
articulates a legitimate business explanation, then the
presumption of discriminatory intent created by the employee’s
prima facie case is rebutted and the presumption simply drops
out of the picture.
Kroptavich, 795 A.2d at 1055 (emphasis added) (internal citations and
quotation marks omitted).
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For this step, under the heading “[Temple]’s Legitimate Non-
discriminatory Reason for Terminating Ms. Ferraro,”2 the trial court states
that it “does not find any of [Temple]’s witnesses’ testimonies credible. . . .
However, as a matter of law, [Temple] must only submit a non-
discriminatory reason for the adverse employment action. Therefore, the
credibility of such reason is irrelevant.” TCO at 6 & 7 n.4; see also id. at 8
n.5 (the trial court “finds the proffered reason incredible”).
Ferraro contends that the trial court was wrong to conclude that
“credibility is not to be considered when assessing the employer’s proffered
reason for the adverse action is an error of law.” Ferraro’s Brief at 49.
Ferraro cites to the federal court cases of Brewer v. Quaker State, 72 F.3d
326, 331 (3d Cir. 1995), and Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.
1994),3 for the principle that “[t]he way an employee shows that an
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2 The trial court opinion has separate headings for “Legal Framework For
Establishing Pretext” and “Plaintiff Has Not Provided Sufficient Evidence to
Show Pretext.” TCO at 8, 10.
3 Both Brewer and Fuentes were actions brought pursuant to the federal
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, not
the PHRA. However, both the PHRA and the ADEA prohibit discrimination
based on age. See Section 5(a) of PHRA, 43 P.S. § 955(a) (“It shall be an
unlawful discriminatory practice . . . [f]or any employer because of . . . age
. . . to discharge from employment such individual . . . if the individual or
independent contractor is the best able and most competent to perform the
services required”); Section 623(a)(1) of the ADEA, 29 U.S.C. § 623(a)(1)
(“It shall be unlawful for an employer . . . to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
such individual’s age”). “[C]laims brought under the PHRA are analyzed
(Footnote Continued Next Page)
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employer’s proffered reason is a pretext is to test the credibility and
plausibility of the [e]mployer’s reasons.” Ferraro’s Brief at 49-50. She
continues: “A fact finder can thus reject the employer’s proffered reason for
the discharge solely because the reason is not credible.” Id. at 50.
However, for this second part of the burden-shifting framework, when
the burden is on the employer, there is no credibility assessment.
Kroptavich, 795 A.2d at 1055. Ferraro has confused the second and third
steps of the framework. “If the employer satisfies its burden of production,
the third and final part of the [burden-shifting] framework gives the
plaintiff the opportunity to show that the legitimate reasons proffered by the
employer were pretexts for what, in reality, was a discriminatory
motivation.” Id. (emphasis added). Thus, Ferraro’s argument that “[t]he
way an employee shows that an employer’s proffered reason is a pretext is
to test the credibility and plausibility of the [e]mployer’s reasons” relates to
this third step in the framework, whereas the trial court’s statement that
the credibility of Temple’s witnesses is irrelevant is explicitly limited to the
second step. Compare Ferraro’s Brief at 49-50 with TCO at 7 (“The
credibility of [Temple]’s reason is not relevant for this step because the
employer’s burden is one of production, not persuasion.” (emphasis added)
(citation omitted)). Even the federal cases cited by Ferraro relate to this
(Footnote Continued) _______________________
under the same standards as their federal counterparts.” Kroptavich, 795
A.2d at 1055.
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third step, not the second step. Brewer, 72 F.3d at 337 (what evidence
employees can rely on to show pretext); Fuentes, 32 F.3d at 764, 766(“factors such as the defendant’s credibility, the timing of an employee’s
dismissal, and the employer’s treatment of the employee could raise an
inference of pretext” (citation omitted)). Hence, Ferraro’s first challenge
raised on appeal misstates the trial court’s determination and thereby is
meritless.
Finally, as noted above, “the third and final part of the [burden-
shifting] framework gives the plaintiff the opportunity to show that the
legitimate reasons proffered by the employer were pretexts for what, in
reality, was a discriminatory motivation.” Kroptavich, 795 A.2d at 1055.
“[T]he employer need not prove that the tendered reason actually motivated
its behavior, as throughout this burden-shifting paradigm the ultimate
burden of proving intentional discrimination always rests with the
plaintiff.” Id. (emphasis added) (citation omitted). Thus, for the third
prong of the burden-shifting analysis to prove age discrimination, the burden
was on Ferraro to establish that Temple’s proffered reason was not pretext;
the burden was not on Temple to prove that its proffered reason was
legitimate. See id.For this third prong, Ferraro first contends that “the trial court ignored
the key evidence of the September 27, 2011 email and, instead, focused on
evidence from 2010 that was not pretext.” Ferraro’s Brief at 53. However,
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we are not permitted to re-weigh evidence; that is a function exclusively of
the fact-finder – in this case, the trial court. Commonwealth v. Talbert,
129 A.3d 536, 545–46 (Pa. Super. 2015). The trial court opinion referenced
“Ferraro’s inquiries” regarding FMLA, which would include the e-mail chain of
September 27, 2011. TCO at 3. The trial court explained that the
“inquiries” were only one of several concerns Temple expressed about
Ferraro. Id.4 The trial court did not discuss the e-mail chain specifically in
the argument section, thereby demonstrating that said e-mail chain did not
have the impact that Appellant tries to present. The trial court made a
factual determination, supported by the record. If the trial court did not find
this e-mail chain to be “key evidence” or did not interpret it in the manner
that Ferraro wished the trial court to do, that is the trial court’s prerogative
as fact-finder, and we will not reverse on this basis. See Talbert, 129 A.3d
at 545–46.
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4 Woods testified that her investigation revealed serious concerns about how
Ferraro managed employees on FMLA leave, including: wrongly
administered disciplinary action; an improper performance write-up; a
discrepancy in Appellant’s attendance-tracking practices for employees on
FMLA; and Appellant’s refusal to accept responsibility and to modify her
management behavior. N.T., 1/6/17, at 253-56, 259-60, 269, 275, 282,
294. Woods had “concerns [about] putting [Ferraro] back in the workplace
. . . , because an uncomfortable environment had been created at that
point[.]” Id. at 282. Ferraro had not given Woods any assurance that she
would not continue to treat people differently due to FMLA use. Id. at 282,
294-95.
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In addition, Ferraro argues that the trial court also ignored the “key
evidence” that Richardson was treated differently by Temple than she was.
Ferraro’s Brief at 55. After a thorough review of the record, the briefs of the
parties, and the applicable law, we conclude that Ferraro’s challenge merits
no relief. The trial court opinion comprehensively discusses and properly
disposes of her contention:
Ferraro argues that Ms. Richardson, a substantially younger
woman, was given preferential treatment. This treatment was in
the form of a flexible schedule and multiple disciplinary actions
which resulted in counseling as opposed to termination. . . .
This [trial c]ourt flatly rejects Ms. Ferraro’s arguments because
she failed to present evidence that the alleged
preferential treatment was in fact preferential on account
of age. It should be noted that Ms. Richardson is a single
mother of three. There might be a thousand reasons why a
single parent of three might need to leave work early or come in
late, none of which are related to the relative age difference
between Ms. Richardson and Ms. Ferraro. The age discrimination
complaint made against Ms. Richardson was found to be
unsubstantiated by the EEOC. The other complaints filed against
Ms. Richardson were for attitude and emails which some
employees saw as rude. These complaints were resolved with a
simple apology.
TCO at 11-12 (emphasis added) (citations to the record omitted). Based
upon this well-reasoned analysis, we find that the trial court did not abuse
its discretion when comparing the evidence of Richardson’s treatment to
Ferraro’s.
Ergo, we conclude that Ferraro has failed “to show that the legitimate
reasons proffered by the employer were pretexts for what, in reality, was
a discriminatory motivation.” Kroptavich, 795 A.2d at 1055 (emphasis
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added). Even where, as here, the fact-finder concluded that the reasons
offered by the employer were not credible, TCO at 7 n.4 & 8 n.5, the
employee still had to prove that the real reason for her termination or other
censure was a discriminatory one. See Kroptavich, 795 A.2d at 1055. In
other words, just because the employer’s proffered reason for the
employee’s termination is false does not automatically mean that the
employee’s suggested discriminatory reason is true nor established by
evidence.
Although the trial court did not find Temple’s proffered reason to be
credible, it also found that Ferraro – who now, in this third step of the
framework, has the burden of proof – had still failed to establish that Temple
had discriminated against her and had terminated her employment due to
her age and not for any other legitimate reason. Kroptavich, 795 A.2d at
1055; TCO at 12-13. Due to her failure to establish this third prong,
Ferraro’s entire age discrimination claim fails.
Retaliation
Ferraro urges this Court to find that “the trial court committed an error
of law and went against the weight of the evidence by not finding that [she]
suffered retaliatory discharge.” Ferraro’s Brief at 58. According to Ferraro,
the alleged retaliation was due to her filing of the internal age discrimination
complaint in 2010. Id.; see also TCO at 1-2; N.T., 1/4/17, at 67-68.
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Our standard of review for a challenge to the weight of the evidence is
as follows:
The weight of the evidence is exclusively for the finder of fact,
who is free to believe all, none or some of the evidence and to
determine the credibility of the witnesses.
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence.
Talbert, 129 A.3d at 545–46 (internal brackets, citations, and quotation
marks omitted; some additional formatting).
We have not found – and the parties have not provided – any case law
from the Supreme Court of Pennsylvania or the Superior Court of
Pennsylvania on retaliation. However, this subject has been discussed
multiple times in the Commonwealth Court and the Third Circuit. Although
we are not bound by decisions from the Commonwealth Court or from courts
in other jurisdictions, we may use them for guidance to the degree we find
them useful, persuasive, and (for other jurisdictions) not incompatible with
Pennsylvania law. Newell v. Mont. W., Inc., 154 A.3d 819, 823 & n.6 (Pa.
Super. 2017).
In Spanish Council of York, Inc. v. Pa. Human Relations
Comm'n, 879 A.2d 391, 399 (Pa. Cmwlth. 2005), the Commonwealth Court
articulated the elements to establish a prima facie case of retaliation:
A prima facie case of retaliation requires a complainant to show
that: (i) she was engaged in a protected activity; (ii) her
employer was aware of the protected activity; (iii) subsequent to
participation in the protected activity complainant was subjected
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to an adverse employment action; and (iv) there is a causal
connection between participation in the protected activity and
the adverse employment action.
In Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259 (3d Cir. 2007),
the Third Circuit analyzed how the fourth element, the “causal connection,”
can be established:
To establish the requisite causal connection a plaintiff usually
must prove either (1) an unusually suggestive temporal
proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with
timing to establish a causal link. In the absence of that proof
the plaintiff must show that from the evidence gleaned from the
record as a whole the trier of the fact should infer causation.
Id. at 267 (internal citations and quotation marks omitted).
In the current action, the trial court found that Appellant failed to
establish the fourth element of retaliation – i.e., that there was a causal
connection between Appellant’s protected activity of filing an age
discrimination complaint and the adverse employment action. TCO at 16;
see also Spanish, 879 A.2d at 399. According to the trial court, in order to
demonstrate that the 2010 complaint was a proximate cause of her 2012
termination, Ferraro needed to provide evidence that the two events were
connected or that her termination occurred within an unusually close
proximity to the protected activity. TCO at 16. The trial court concluded
that Ferraro had not provided such evidence and, consequently, failed to
establish a case of retaliation. Id.We agree with the trial court that there is no unusually suggestive
temporal proximity between Ferraro filing her internal age discrimination
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complaint in 2010 and her firing in 2012. Lauren W., 480 F.3d at 267; see
also N.T., 1/4/17, at 67-68; TCO at 1-2, 16. We also give the gravest
consideration to the trial court’s finding that there was no evidence from the
record as a whole from which the trial court, as fact-finder, should have
inferred causation. Lauren W., 480 F.3d at 267; see also Talbert, 129
A.3d at 545-46.
Nevertheless, the trial court opinion does not analyze whether a
pattern of antagonism coupled with timing established a causal link. Lauren
W., 480 F.3d at 267; TCO at 16. Ferraro contends:
Here, the [t]rial [c]ourt and [Temple] fail to acknowledge that
the circumstances as a whole provide ample evidence to suggest
that the employer had retaliatory animus. This includes
[Ferraro]’s pretext evidence, which can suggest that [Temple]
had a retaliatory animus. Furthermore, there was substantial
evidence that the individuals responsible for the adverse action
knew of [Ferraro]’s protected conduct at the time they acted.
Moreover, not only did the individuals know of Ms. Ferraro’s
protected activity, but both Carolyn Ashburn and Brenna Woods
clearly lied or intentionally misled the [t]rial [c]ourt when they
denied conferring in December 2011 about Ms. Ferraro’s prior
November 2010 age discrimination complaint. In fact the [t]rial
[c]ourt tacitly acknowledged this to be true when it found that
none of [Temple]’s witnesses were credible. These falsities
alone demonstrate retaliatory intent, but when coupled with the
other pretext evidence already discussed, it is clear [Ferraro]
suffered a retaliatory discharge.
Ferraro’s Reply Brief at 10 (citations omitted). Nonetheless, Ferraro does
not clearly indicate any particular actions that were antagonistic. If we
accept her implication that the discussion between Ashburn and Woods –
assuming it even happened -- was antagonistic, that is still only one
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incident, which is insufficient to demonstrate a “pattern.” Lauren W., 480
F.3d at 267; N.T., 1/5/16, at 31, 35-39, 54-55.
Finally, Ferraro generally states that “the trial court’s opinion is not
supported by competent evidence” and that “the weight of the evidence in
this case is so contrary to the [t]rial [c]ourt’s [opinion] against [her] that a
new trial is necessary to remedy the situation.” Ferraro’s Brief at 60 (citing
Lanning v. West, 803 A.2d 753, 765 (Pa. Super. 2002)).
Questions of the weight of the evidence are solely the province of the
fact-finder – here, the trial court – who is free to believe or to disbelieve any
evidence it chooses. Talbert, 129 A.3d at 545–46. We cannot and will not
re-weigh the evidence nor re-assess the credibility of the witnesses. Id.
Here, the trial court exercised its discretion and concluded that Ferraro
had not provided sufficient evidence to show pretext for age discrimination.
See id.; TCO at 10. In reaching this conclusion, the trial court took into
consideration several pieces of evidence. Id. at 10-11 (citing N.T., 1/4/17,
at 94-96; N.T., 1/6/17, at 27-28; Plaintiff’s Proposed Findings of Fact ¶ 6
(citing N.T., 1/4/17, at 73-75; N.T., 1/6/17, at 57-58)). First, the trial court
considered that the inquiry from Ferraro’s supervisor about her retirement
plans occurred in 2010 – more than a year before Ferraro’s firing in January
2012. N.T., 1/4/17, at 66-72, 91, 94-97; TCO at 1-2. The trial court was
also aware that Ferraro was the last to receive training during the software
rollout. Additionally, the trial court knew that a substantially younger
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woman was given preferential treatment. Notwithstanding the trial court’s
awareness of these facts, they did not alter its verdict.
The trial court also held that the record is devoid of evidence showing
inconsistencies or contradictions in Temple’s employment practices, such as
a coercive retirement scheme, a pattern of giving younger but unqualified
employees promotions over older and qualified employees, or a system that
gave lighter punishments to younger employees than older employees for
the same infractions. TCO at 12 (citing Sempier v. Johnson & Higgins,
45 F.3d 724, 732 (3d Cir. 1995), Bartek v. Urban Redevelopment Auth.
of Pittsburgh, 882 F.2d 739 (3d Cir. 1989), and Leibensperger v.
Carpenter Techs., Inc., 152 A.3d 1066, 1076 (Pa. Cmwlth. 2016),
respectively).
The trial court further observed that Temple’s actions were not facially
invidious. TCO at 13. The trial court’s analysis is thorough, logical, and
supported by the record, and we see no assailable reason for granting a new
trial. See Talbert, 129 A.3d at 545-46. Accordingly, none of Ferraro’s
claims raised on appeal merit relief.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/18
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