1As we later note, it appears to the court that plaintiff was fifty-four when

1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT CREASY, :

: Case No. 04-CV-2296

Plaintiff, :

:

v. :

:

NOVELTY, INC., : (Judge McClure)

:

Defendant :

M E M O R A N D U M

October 26, 2005

BACKGROUND:

On October 18, 2004, plaintiff Robert Creasy (“Creasy”), commenced this

action in the Middle District of Pennsylvania. The three-count complaint alleged

that Creasy’s employment was wrongfully terminated by defendant Novelty, Inc.

(Novelty), in violation of the Age Discrimination in Employment Act, 29 U.S.C. §

621 (ADEA), the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213

(ADA), and the Pennsylvania Human Relations Act (PHRA), 43 Pa. C.S.A. §§

951-63. Plaintiff alleges that he was discharged from his job because of his age,

fifty-five,1 and because of a physical impairment, sleep apnea.

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 1 of 23
 his employment was terminated.

2

On July 17, 2005, Creasy filed an amended complaint to clarify his claims. 

In his amended complaint, Creasy continues to assert causes of action under the

ADEA, ADA, and the PHRA. On September 15, 2005, defendant filed the instant

motion for summary judgment. The motion is now fully briefed, and for the

following reasons the court will grant the motion in part.

DISCUSSION:

I. LEGAL STANDARD

It is appropriate for a court to grant a motion for summary judgment “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled a judgment as a matter of law.” Fed. R. Civ.

P. 56(c).

“If the nonmoving party has the burden of persuasion at trial, ‘the party

moving for summary judgment may meet its burden by showing that the evidentiary

materials of record, if reduced to admissible evidence, would be insufficient to

carry the nonmovant's burden of proof at trial.’” Jalil v. Avdel Corp., 873 F.2d

701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer Gifts, Inc., 814 F.2d 893,

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 2 of 23
3

896 (3d. Cir. 1987)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In evaluating a motion for summary judgment the court will draw all

reasonable inferences from the evidence in the record in favor of the nonmoving

party. Am. Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d 574, (3d

Cir. 1995). The nonmoving party, however, cannot defeat a motion for summary

judgment by merely offering general denials, vague allegations, or conclusory

statements; rather the party must point to specific evidence in the record that

creates a genuine issue as to a material fact. See Celotex, 477 U.S. at 32;

Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999).

II. FACTUAL BACKGROUND

A. Plaintiff’s Failure to Comply with Local Rule 56.1

First, we note that plaintiff has not complied with Local Rule 56.1 which

provides in relevant part: “[t]he papers opposing a motion for summary judgment

shall include a separate, short and concise statement of the material facts,

responding to the numbered paragraphs set forth in the statement required in the

foregoing paragraph, as to which it is contended there exists a genuine issue to be

tried.” L.R. 56.1.

Defendant has filed a separate statement of material facts with citations to

the record in support. (Rec. Doc. No. 32-2.) Under Local Rule 56.1, “[a]ll

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 3 of 23
4

material facts set forth in the statement required to be served by the moving party

will be deemed admitted unless controverted by the statement required to be served

by the opposing party.” L.R. 56.1. Therefore, the court could admit all the

statements provided by the defendants as unopposed. The plaintiff has provided a

concise statement of facts in his brief in opposition, (Rec. Doc. No. 35, at 2-3);

albeit, without citations to the record. Therefore, although plaintiff has not

complied with the local rules, the court will not deem admitted statements made by

defendant that plaintiff has opposed, so long as plaintiff’s statements are supported

by evidence in the record.

B. Statement of Relevant Facts

Plaintiff, Robert Creasy, is an adult individual residing in Mifflinburg,

Pennsylvania. Creasy was born on January 7, 1948. Defendant, Novelty, Inc., is a

foreign corporation authorized to conduct business in the Commonwealth of

Pennsylvania and has a principal address at 351 West Muskegon Drive, Greenfield,

Indiana.

Creasy was an employee of Novelty from October 13, 1997 until December

2, 2002. While Creasy was employed with Novelty he was a Salesperson/Route

Driver. As a Salesperson/Route Driver, Creasy’s duties included servicing

approximately eighty convenience stores. At the stores, Creasy was responsible

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 4 of 23
2This plan has not been provided to the court, nor have any documents that

may be contained within Novelty’s employee file for Creasy.

5

for stocking shelves, organizing Novelty’s products’ displays, keeping display

areas neat, and removing outdated products. Creasy’s job required that he service

twelve to fifteen stores per day, and that he load and unload his company vehicle. 

Creasy, however, did not have to adhere to any particular daily schedule, and rarely

had contact with his supervisors.

On November 12, 2002, Michael Evan Clark, then Creasy’s Regional

Manager, received a complaint from Shawn Hardy, a Regional Manager for UniMart, that Creasy was not properly servicing Uni-Mart stores in his region. 

According to Clark’s affidavit, Hardy specifically complained that Novelty’s

display racks in his stores were dirty, cluttered, and poorly merchandised. Upon

receiving Hardy’s complaint, Clark inspected several of Creasy’s stores with

Hardy. These inspections confirmed to Clark that the stores were not being

properly serviced. Clark then developed an action plan for Creasy that contained

specific requirements for each Uni-Mart store Creasy serviced.2 Clark contends

that he was extremely concerned about the Uni-Mart account because the company

was Novelty’s principal customer in the area serviced by Creasy. After

approximately two weeks, Clark inspected Creasy’s stores to determine whether 

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 5 of 23
6

Creasy had followed Clark’s action plan. At that time Clark discovered that Creasy

had not followed the plan and, therefore, he directed Rob Zorger, then Creasy’s

District Manager, to terminate Creasy’s employment.

It was solely Clark’s decision to terminate Creasy’s employment. Clark

asserts that he decided to discharge Creasy only because of the complaint from

Hardy, and Creasy’s failure and/or refusal to follow the action plan he developed to

correct the situation. Creasy asserts that he was fired because of his disability and

his age. 

Creasy has been diagnosed with sleep apnea, and as a result, uses a CPAP

machine and has taken prescription drugs. The sleep apnea affects Creasy’s ability

to sleep normally. Under deposition, Creasy testified that his sleep apnea had

caused him to fall asleep while driving the company vehicle. Although Clark knew

that Creasy had previously taken almost three weeks off for medical reasons during

August and September 2002, he asserts that he was never informed that Creasy had

any ongoing medical problems that affected his ability to work on a daily basis.

Creasy’s deposition testimony is consistent with Clark’s account; Creasy

informed Clark, Zorger, and coworker Dave Naugel, that he had sleep apnea, and

that was why he needed to take the time off in August and September 2002. There

is no evidence that Clark was ever informed by Creasy, or by anyone at Novelty,

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 6 of 23
3Plaintiff’s deposition makes this eminently clear. ( See Rec. Doc. No. 35,

Ex. 1, at 51, 108, and 121-26.)

4Defendant states, citing the amended complaint, that Creasy was fifty-five

years old on the date of his discharge, December 2, 2002. (Rec. Doc. No. 32, at 7,

¶ 13.) Creasy was born on January 7, 1948. Therefore, he was fifty-four years, ten

months, and twenty-five days old.

7

that Creasy had a medical condition that required an accommodation, or that

Creasy had requested an accommodation, other than the time he took off in

September 2002.3

Creasy was fifty-four years old at the time of his discharge from

employment.4 Approximately forty percent of Novelty’s salespersons/route drivers

are more than forty years old, and approximately five percent are more than fifty

years old. Creasy asserts that on the day his employment was terminated, Zorger

did not provide a reason for the termination. Because of this, Creasy then sought

an explanation from Clark. Clark allegedly told Creasy that “he thought somebody

younger could do a better job.” (Rec. Doc. No. 35, Ex. 1, at 77, 78.)

Since his termination from employment with Novelty, Creasy has not looked

for work. In February 2003, Creasy became unable to work full time and went on

social security disability.

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 7 of 23
8

III. CREASY’S ADA CLAIM

The ADA seeks to protect individuals with disabilities from discrimination by

employers. See 42 U.S.C. § 12101(b). Because Creasy relies on indirect evidence,

he bears the initial burden of establishing a prima facie case of disability

discrimination under the burden-shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), by a preponderance of the evidence. See St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Shellenberger v. Summit Bancorp,

Inc., 318 F.3d 183, 187 & n.5 (3d Cir. 2003); Bearley v. Friendly Ice Cream Corp.,

322 F. Supp. 2d 563, 574 (M.D. Pa. 2004). To establish a prima facie case under

the ADA, Creasy must demonstrate that he: (1) is disabled within the meaning of

the ADA; (2) was qualified to perform the essential functions of his job, with or

without accommodation; and (3) suffered an adverse employment decision because

of discrimination. See Williams v. Phila. Housing Auth. Police Dep’t, 380 F.3d

751, 761 (3d Cir. 2004) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306

(3d Cir. 1999)). In order to make out a prima facie case, and survive the instant

motion for summary judgment, Creasy must demonstrate each of those elements by

a preponderance of the evidence. Walton v. Mental Health Ass’n of Se. Pa., 661,

668 (3d Cir. 1999). 

The ADA defines “disability” as: “(A) a physical or mental impairment that

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 8 of 23
9

substantially limits one or more major life activities of such individual; (B) a record

of such impairment; or (C) being regarded as having such an impairment.” 42

U.S.C. § 12102(2); see 29 C.F.R. § 1630.2(g). Importantly, simply having an

impairment that does not substantially limit a major life activity is not a disability,

and therefore is not covered by the ADA. See Toyota Motor Mfg., Ky., Inc. v.

Williams, 534 U.S. 184, 195 (2002).

Major life activities are defined as “functions such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and

working.” 29 C.F.R. § 1630.2(i). Major life activities are “those basic activities

that the average person can perform with little or no difficulty.” 29 C.F.R. Pt.

1630, App. § 1630.2 (I).

A “substantially limiting” impairment is an impairment that renders an

employee “unable to perform a major life activity that the average person in the

general population can perform,” or that significantly restricts the employee as to

“the condition, manner or duration under which an individual can perform a

particular major life activity as compared to the condition, manner, or duration

under which the average person in the general population can perform that same 

major life activity.” 29 C.F.R. § 1630.2(j); see Toyota, 534 U.S. at 195-96. 

Pertinent factors for the court to consider include: “the nature and severity of the

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 9 of 23
10

impairment; the duration or expected duration of the impairment; and the permanent

or long-term impact, or the expected permanent or long-term impact of or resulting

from the impairment.” 29 C.F.R. §§ 1630.2(j)(2)(i)-(iii); see Toyota, 534 U.S. at

196.

Defendant argues that: (1) Creasy does not have a disability under the ADA;

(2) sleep apnea is not a disability under the ADA; (3) Creasy failed to request an

accommodation and engage in an interactive process; (4) Creasy did not perform

his job satisfactorily; and (5) Creasy was not treated differently than other

employees. Plaintiff contends that: (1) sleep apnea is a disability under the ADA;

and (2) Creasy did request an accommodation, i.e., his three-week vacation, and he

was fired upon his return to work.

First, we note that this is plaintiff’s second amended complaint. The court

has already clarified to the parties, by order dated July 6, 2005 (Rec. Doc. No. 27),

what was required of plaintiff to establish a prima facie case of discrimination. In

our earlier order, we noted that Creasy’s first amended complaint failed to state a

legally sufficient claim, particularly as to the first two elements of his prima facie

case, i.e., that Creasy was disabled within the meaning of the ADA and was

qualified to perform the essential functions of his job, with or without

accommodation. (Rec. Doc. No. 27, at 5-6.) To address these deficiencies, 

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 10 of 23
5Creasy asserts that the three weeks he took off from work because of his

sleep apnea were an accommodation.

11

plaintiff’s second amended complaint circuitously states that Creasy’s sleep apnea

substantially impaired him in the major life activity of “sleeping.” (Rec. Doc. No.

28, at 2, ¶ 15.) The second amended complaint also states that Creasy was

capable of performing the essential functions of his job with reasonable

accommodations.5

As we noted in our prior order, a diagnosis of sleep apnea alone is not

enough to be a disability under the ADA. See Toyota, 534 U.S. at 195 (“Merely

having an impairment does not make one disabled.”) Creasy must demonstrate,

with admissible evidence, that his sleep apnea substantially impairs a major life

activity.

Numerous courts of appeals have found sleep to be a major life activity. 

Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2d Cir. 1998);

E.E.O.C. v. Sara Lee Corp., 237 F.3d 349, 352 (4th Cir. 2001); Swanson v. Univ.

of Cincinnati, 268 F.3d 307, 316 (6th Cir. 2001); Heisler v. Metro. Council, 339

F.3d 622, 628 (8th Cir. 2003); McAlindin v. County of San Diego, 192 F.3d 1226,

1234-35 (9th Cir. 1999); Steele v. Thiokol Corp., 241 F.3d 1248, 1253 (10th Cir.

2001); Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir. 1999); see also Rossi

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 11 of 23
12

v. Alcoa, Inc., 129 Fed. Appx. 154, 158 (6th Cir. 2005); Cartwright v. Lockheed

Martin Util. Servs., Inc., 40 Fed. Appx. 147, 153 (6th Cir. 2002); Boerst v. General

Mills Operations, Inc., 25 Fed. Appx. 403, 406 & n.2 (6th Cir 2002). Relying on

the case law of these other circuits, district courts within our circuit have applied

the substantial impairment analysis to the major life activity of sleeping. Peter v.

Lincoln Technical Inst., Inc., 255 F. Supp. 2d 417, 432-33 (E.D. Pa. 2002)

(applying substantial impairment analysis to determine whether plaintiff suffering

from sleep apnea was disabled under ADA); Popko v. Pa. State Univ., 84 F. Supp.

2d 589, 593 (M.D. Pa. 2000) (Caputo, J.); Reese v. Am. Food Serv., 2000 WL

1470212, *6 (E.D. Pa. Sep. 29, 2000) (Waldman, J.). We agree with the approach

these courts took, and therefore, will also apply a substantial impairment analysis to

Creasy’s case.

“The question of whether an individual is substantially limited in a major life

activity is a question of fact.” Williams, 380 F.3d at 763. The Third Circuit

follows the EEOC’s interpretive guidelines to determine if a plaintiff is substantially

limited in one or more major life activities; this approach necessitates that we

conduct a two-step analysis. Peter, 255 F. Supp. 2d at 431 (citing Mondzelewski

v. Pathmark Stores, Inc., 162 F.3d 778, 783 (3d Cir. 1998). Step one is to

determine if the plaintiff is substantially impaired in a major life activity other than

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 12 of 23
13

working. If the court finds that the plaintiff is substantially impaired in the first step,

then the inquiry ends. If not, then the court turns to the second step of determining

whether the plaintiff is limited in the major life activity of working. Mondzelewski,

162 F.3d at 783; see, e.g., Merit v. Se. Pa. Transit Auth., 315 F. Supp. 2d 689, 698

(E.D. Pa. 2004) (Rufe, J.).

First, Creasy’s counsel has not provided to the court sufficient evidence to

indicate that Creasy’s sleep was impaired. Plaintiff’s testimony from his deposition

indicates that while he was working with Novelty his sleep apnea made him tired all

the time, because he did not get his sleep at nighttime. (Rec. Doc. No. 35, Ex. 1, at

88.) Other than vague generalities, plaintiff has not introduced evidence about the

extent of Creasy’s sleep impairment. The only area where plaintiff did provide

specifics was plaintiff’s testimony regarding the oxygen levels in his blood. 

Apparently, after taking three weeks off work, and using his CPAP machine to

sleep at night, in conjunction with other medications, Creasy was able to restore the

oxygen levels in his blood to ninety-six percent, from a low of forty percent, and

improve his condition. A court must consider these sorts of corrective measures

when determining whether plaintiff is substantially impaired. Sutton v. United Air

Lines, Inc., 527 U.S. 471, 488 (1999); Fiscus v. Wal-Mart Stores, Inc., 385 F.3d

378, 385-86 (3d Cir. 2004). Plaintiff’s testimony only suggests to the court that if

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 13 of 23
14

Creasy treats with medication he can improve his condition. (See Rec. Doc. No.

35, Ex. 1, at 127-28 (Creasy’s sleep apnea was under control “[a]s long as [he]

sleep[s] with a CPAP”))See, e.g., Rossi, 129 Fed. Appx. at 158 (“Rossi testified

that he sleeps well when he takes his medication; therefore, he is not substantially

limited by his condition, which fails to rise to the level of a disability.”) With such a

sparse evidentiary record, we cannot find that plaintiff is substantially impaired in

the major life activity of sleeping. See, e.g., Heisler, 339 F.3d at 628; Rossi, 129

Fed. Appx. at 158; Cartwright, 40 Fed. Appx. at 153 (6th Cir. 2002).

Now to the second step in our analysis, plaintiff’s counsel wholly fails to

advance an argument that Creasy is substantially impaired in the major life activity

of working. In order to advance an argument that he was substantially impaired

from the major life activity of working plaintiff’s counsel would have had to have

submitted evidence of Creasy’s work-related abilities and qualifications, the jobs

available in his geographic area, the number of jobs utilizing his particular abilities

and the number of those jobs from which he is disqualified due to his impairments

(i.e., he is restricted from a class of jobs), or the number of jobs that do not utilize

his particular abilities and the number of those jobs from which he is disqualified

due to his impairments (i.e.,he is restricted from a broad range of jobs in various

classes). See Rufe, 315 F. Supp. 2d at 701 & n.29 (citing 29 C.F.R. §

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 14 of 23
15

1630.2(j)(3)(ii)(A)-(C)). Plaintiff has presented none of this evidence. Creasy

cannot establish a prima facie case of discrimination under the ADA because he has

not demonstrated to the court that he is substantially impaired in any major life

activity. Therefore, the court will enter judgment in favor of the defendant on

Count I of the complaint and the corresponding state disability claim alleged in

Count III.

IV. CREASY’S ADEA CLAIM

“To prevail on an intentional age discrimination claim under either the ADEA

or the ‘analogous’ provision of the PHRA, a plaintiff must show that his or her age

actually motivated or had a determinative influence on the employer’s adverse

employment decision.” Fasold v. Justice, 409 F.3d 178, 183-84 (3d Cir. 2005)

(internal quotations and citations omitted). A plaintiff can maintain a claim of age

discrimination on the basis of either direct or indirect evidence. Id. at 184. The

parties’ evidentiary burdens depend on the type of evidence plaintiff relies on to

bring his case. In the instant case, although not articulated by counsel, plaintiff has

presented direct evidence, via testimony elucidated by defense counsel at Creasy’s

deposition. Defendant’s briefs, however, only address the merits of plaintiff’s 

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 15 of 23
6The McDonnell-Douglas burden shifting framework applies to claims

brought under the ADEA when those claims are based on indirect evidence. Kautz

v. Met-Pro Corp., 412 F.3d 463, 465 (3d Cir. 2005) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973)); Stanziale v. Jargowsky, 200 F.3d 101, 105

(3d Cir. 2000) (same). In order to establish a prima facie case of discrimination

under the ADEA, Creasy must show that: (1) he was a member of a protected

class, i.e., that he was over forty; (2) he was qualified for the position; (3) he

suffered an adverse employment decision; and (4) that he was ultimately replaced

by a person sufficiently younger to permit an inference of age discrimination. 

Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001) (citing

Connors v. Chrysler Fin. Corp., 160 F.3d 971, 973 (3d Cir. 1998)).

16

prima facie ADEA case.6 An ADEA claim based on direct evidence of animus

follows the evidentiary framework set forth in Justice O’Connor’s controlling

opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). “Under Price

Waterhouse, when an ADEA plaintiff alleging unlawful termination presents ‘direct

evidence’ that his age was a substantial factor in the decision to fire him, the burden

of persuasion on the issue of causation shifts, and the employer must prove that it

would have fired the plaintiff even if it had not considered his age.” Fakete v.

Aetna, Inc., 308 F.3d 335, 338 (3d. Cir. 2002) (citing Price Waterhouse, 490 U.S.

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 16 of 23
7Clark’s affidavit indicates that he was the sole decision maker in terminating

Creasy’s employment. (Rec. Do. No. 33, Ex. 3, at 2, ¶ 10.)

17

at 265-66 & Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512-13 (3d Cir.

1997)). 

Creasy introduced direct evidence that he was terminated from his

employment on the basis of his age. Creasy testified at his deposition that on or

about the December 2, 2002, the day of his termination, Clark, the sole decision

maker in terminating Creasy,7 allegedly told Creasy that “he thought somebody

younger could do a better job.” (Rec. Doc. No. 35, Ex. 1, at 77, 78.)

Clark’s statement, allegedly made on or about the day of Creasy’s

employment termination, by the decision maker, cannot be considered a stray

remark, and constitutes direct evidence of discrimination. See Price Waterhouse,

490 U.S. at 277 (noting that stray remarks, statements by nondecision makers, and

statements by decision makers unrelated to the decisional process itself do not

meet the standard of proof for direct evidence); see e.g., Glanzman v. Metro.

Mgmt. Corp., 391 F.3d 506, 512-14 (3d Cir. 2004) (finding ADEA plaintiff

produced direct evidence of discrimination); Fakete, 308 F.3d 338-40 (same). 

Clark’s alleged statement, made while in the scope of his employment as Novelty’s

regional director, would be admissible at trial as nonhearsay under Fed. R. Evid.

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 17 of 23
8Neither party has provided the court with copies of this documentation.

18

801(d)(2)(D).

In order to dispute plaintiff’s claims, defendant has come forward with the

affidavits from Clark, and Novelty’s Human Resources Director, Victoria L.

Ferguson. In Clark’s affidavit he states: “At the time of Creasy’s termination, I

was not aware of his age, and neither his age nor his medical condition played any

part in my decision to terminate him.” (Rec. Doc. No. 33, Ex. 3, at 3, ¶ 14.)

Clark’s affidavit addresses how Creasy was allegedly not meeting his employer’s

expectations, and Ferguson asserts that the documentation in Creasy’s personnel

file indicates that Creasy was terminated solely for poor performance.8 Ferguson

also states that approximately forty-percent (40%) of Novelty’s salespersons/route

drivers are more than forty (40) years old, and approximately five-percent (5%) are

more than fifty (50) years old, and that to her knowledge Novelty has never had a

claim of age discrimination. Neither affidavit addresses Clark’s alleged statement to

Creasy.

This information does not help defendant meet its high burden in order to

succeed on its motion for summary judgment. Defendant has to leave no doubt to

a rational finder of fact that it would have fired Creasy, even if it had not considered

his age. See Glanzman, 391 F.3d at 514. Although defendant contends that

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 18 of 23
19

Creasy’s work was inadequate, it has not introduced into the record any

contemporaneous documentation of Creasy’s poor performance, nor has

defendant included a copy of Clark’s plan to improve Creasy’s work. Under Price

Waterhouse, there is a genuine issue of material fact as to whether defendant would

have fired Creasy even if it had not considered his age. Therefore, a date for trial

will be set as to plaintiff’s ADEA claim and his corresponding PHRA claim.

V. CREASY’S PHRA CLAIMS

The Pennsylvania Human Relations Act forbids “any person, employer,

employment agency, labor organization, or employee, to aid, abet, incite, compel,

or coerce the doing of any act declared by this section to be an unlawful

discriminatory practice.” 43 Pa. C.S.A. § 955(e). Courts interpret the PHRA’s

provisions identically with the corresponding provisions of the ADA and ADEA. 

Kautz, 412 F.3d at 466 n.1; Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382 (3d

Cir. 2002) (citing Kelly v. Drexel University, 94 F.3d 102, 106 (3d. Cir. 1996));

Buskirk v. Apollo Metals, 307 F.3d 160, 166 n.1 (3d Cir. 2002). Therefore,

because we find that defendant is entitled to summary judgment on plaintiff’s ADA

claim, Creasy’s PHRA claim on the basis of a disability fails. Under the same

reasoning that his PHRA claim for disability fails, his claim for age discrimination

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 19 of 23
20

survives the instant motion.

VI. MITIGATION OF DAMAGES

Finally, Novelty asks the court to enter summary judgment limiting the

potential scope of Creasy’s damages for lost earnings because he has failed to

mitigate damages by not looking for future work, was partially disabled, and in

February 2003, three months after his separation from Novelty, became completely

disabled, and began collecting social security disability. Plaintiff contends that had

he not been discharged, he would have continued to work for Novelty as long as he

could have. This does not address whether he attempted to mitigate his damages,

and it is clear that Creasy did not seek employment since his termination from

employment in December 2002. Therefore, to the extent any damages would have

been awarded for lost earnings, Creasy will be precluded from recovering beyond

the date of February 2003. We agree with plaintiff, however, that Creasy’s military

related disability is not relevant to offsetting any award.

CONCLUSION:

For the above-stated reasons, by accompanying order we will grant

defendant’s motion for summary judgment as to plaintiff’s claim under the ADA

and his corresponding PHRA disability claim. Plaintiff’s ADEA claim, and his

corresponding PHRA age claim, however, will survive the motion for summary

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 20 of 23
21

judgment. Plaintiff’s damages for lost and future earnings shall be capped to reflect

his lost earnings from December 2002 until February 2003, the time he became

totally disabled.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 21 of 23
1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT CREASY, :

: Case No. 04-CV-2296

Plaintiff, :

:

v. :

:

NOVELTY, INC., : (Judge McClure)

:

Defendant :

O R D E R

October 26, 2005

For the reasons set forth in the accompanying memorandum,

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Defendant’s motion for summary judgment is granted in part. (Rec.

Doc. No. 32.)

2. Plaintiff’s ADEA claim and the corresponding claim under the PHRA

(Counts II and III-age), survive the motion for summary judgment. 

3. Judgment is entered in favor of the defendant Novelty Inc., and against

plaintiff Robert Creasy, as to the ADA claim (Count I), and the

corresponding state disability claim (Count III-disability).

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 22 of 23
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4. Plaintiff’s damages for future earnings shall be limited to those lost

earnings from December 2002 until February 2003, the time that

plaintiff became totally disabled.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

Case 4:04-cv-02296-JFM Document 38 Filed 10/26/05 Page 23 of 23