Nicholas Malfitano May 4, 2016, 2:09pm


PHILADELPHIA -- A pair of former mechanics from Otis Elevator Company will have their claims of age and gender discrimination resulting in alleged unlawful termination proceed, after a federal court found a “genuine issue of material fact” as to their claims.

Judge Cynthia M. Rufe of the U.S. District Court for the Eastern District of Pennsylvania ruled Friday that such claims brought forward by Gerald Kiesewetter and Erika Noell against Otis Elevator Company would continue in a federal court.

Kiesewetter asserted he was improperly terminated because of his age in violation of the Age Discrimination in Employment Act (ADEA) and the Pennsylvania Human Relations Act (PHRA), while Noell argued she was overlooked for a promotion from assistant mechanic to mechanic and later terminated, due to her race and sex, in violation of Title VII of the Civil Rights Act of 1964 and the PHRA.

Kiesewetter was born in 1948, and began working in the elevator industry in 1970. In 2005, Otis acquired Eastern Elevator, the company for which Kiesewetter then worked as a mechanic, and Kiesewetter became an Otis employee. He worked for Otis as a route mechanic from 2005 until Otis terminated him in October 2012, at age 63.

Noell was born in 1969 and is an African-American woman. Noell began working for Otis as an assistant mechanic in 2010, when Otis acquired Amtech, whom Noell was working for at the time of the acquisition. She worked for Otis at the Philadelphia International Airport until she was laid off in February 2013.

Otis argued both Kiesewetter and Noell were laid off as a result of two separate “reductions in force” and that discriminatory motives were not a determinative factor in the decisions.

But Rufe said Kiesewetter alleged a prima facie case of discrimination.

“Although Otis claims Kiesewetter was selected for termination because he had the lowest score on a ‘rack and stack’ rating, Kiesewetter argues that this score was manipulated to create a justification for selecting him for layoff,” the judge wrote.

“Kiesewetter points to evidence that he had consistently received high rankings on his formal, annual performance evaluations, and that the last ‘rack and stack’ ranking, developed immediately prior to his termination, was not consistent with his actual work performance or his annual performance evaluation.”

Kiesewetter alleged his score on the last “rack and stack” ranking was decreased, through a lowering of customer relations scores -- an area where Kiesewetter always excelled, which two supervisors admitted as much in depositions on the subject.

“A reasonable jury could infer from the evidence, including the email exchange and the inconsistency between his prior performance evaluations and his last ‘rack and stack’ rating with regard to his customer relations skills, that Kiesewetter was targeted for layoff not because of his work performance but because of his age,” Rufe said.

“Because there is a genuine issue of material fact for trial as to whether the reasons given for selecting Kiesewetter for the layoff were a pretext for discrimination, the Motion for Summary Judgment will be denied as to Kiesewetter’s claims.”

As for Noell, she “put forth evidence that 17 coworkers, all Caucasian men, were promoted from assistant mechanic to mechanic during the three years she worked for Otis, and she was not promoted, although she passed her Elevator Mechanic’s examination in November 2009.”

Noell also presented evidence that after she was terminated, her duties were assigned to a Caucasian male apprentice mechanic, and nine additional employees were hired -- all Caucasian males.

“Otis argues that Noell was ultimately laid off in February 2013 because a large construction project ended in early 2013, and Otis made a business decision to lay-off poor-performing employees (including Noell and two or four Caucasian men),” Rufe said. “Noell was selected for termination, according to Otis, because of her low ‘rack and stack’ rating.”

Rufe explained Noell presented evidence that, in her case, the “rack and stack” ratings were “developed improperly, without the benefit of a performance evaluation conducted by a supervisor familiar her work” -- and in fact, Noell argued she was never once given a performance evaluation from her supervisor directly, despite it being an annual requirement of her employment.

Rufe said while Otis provided a pair of performance evaluations during discovery, Noell’s supervisor admitted their lack of direct involvement in a deposition.

“Furthermore, Noell has put forth evidence that after being rated unsatisfactory or low in nearly every category on the Jan. 15, 2013 ‘rack and stack’ she was rated as meeting expectations in many of the same categories in the formal performance evaluation produced during discovery,” the judge wrote. “Such ambiguities, inconsistencies, and deviations from typical evaluation procedures are sufficient to allow a factfinder to disbelieve Otis’s asserted reasons for the adverse employment actions.

“As there are genuine issues of material fact as to whether the reasons given for overlooking Noell for promotion and later terminating her were merely pretext for discrimination, Otis’s Motion for Summary Judgment will also be denied as to Noell’s claims against it.”

Rufe continued, “For the reasons set forth herein, the Court finds a genuine issue of material fact as to whether the asserted rationales for laying off Kiesewetter and for overlooking Noell for promotion and ultimately laying her off were a pretext for discrimination. Accordingly, the Motion for Summary Judgment is denied.”

The plaintiffs are represented by Patricia V. Pierce of Greenblatt Pierce Funt & Flores in Philadelphia, plus Patricia A. Barasch of Schall & Barasch in Moorestown, N.J.

The defendant is represented by John J. Delany III of Delany McBride, also in Philadelphia, plus Howard M. Miller and Jessica C. Moller of Bond Schoeneck & King in Garden City, N.Y.

U.S. District Court for the Eastern District of Pennsylvania case 2:14-cv-01517

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com.

More News