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July 23, 1985


The opinion of the court was delivered by: GERRY

 This is a suit brought under the Age Discrimination in Employment Act. The plaintiff was terminated in October, 1982. At that time, he had been employed by the defendant for a period of ten years and was 58 years of age. Plaintiff during those ten years was a construction manager for the defendant. Upon his termination, plaintiff's duties were assumed by his assistant, Ralph Liberatore, who was 43 years of age. Shortly thereafter, Liberatore was officially promoted to the title of construction manager, and the assistant's job was eliminated.

 The defendant, Spencer Gifts, contends that plaintiff's termination was the result of a need to reduce the size of its work force. In the previous year, the number of new stores the company opened declined dramatically in comparison to previous years. One of the principal responsibilities of plaintiff's department was the planning and supervision of new store openings. The defendant states that it decided that it could only retain one executive in the construction department, and thus, that it had to choose between plaintiff and Liberatore.

 The defendant does not seriously dispute that plaintiff was a good worker. However, his informal evaluations had gradually declined from "Excellent" to "Good ." Moreover, his supervisors had found him to be less cooperative and easy to get along with than they would have liked. They also believed that his health problems made him less flexible from the standpoint of travel. Finally, they were disappointed in his performance on a project assigned to him toward the end of his tenure. Chipollini had been made the company's "energy warden," in charge of implementing cost-cutting measures in this important area. Apparently, according to defendant, Chipollini did not accept this new responsibility very willingly, failed to show much initiative in doing this job, and did not produce the hoped-for energy savings.

 The defendant states that Liberatore was more flexible and easier to work with than plaintiff. Liberatore, however, had only been made Chipollini's assistant in the home office some 3 to 4 months prior to plaintiff's termination. Prior to that, he had been a construction person "out in the field" for about three years. Thus, despite his relative lack of experience in carrying out the functions of the executive branch of the construction department, the defendant believed that Liberatore was a better man for the job.

 The plaintiff, for his part, does not dispute Liberatore's qualifications for the job. He simply alleges that age entered impermissibly into the decision as to who should be retained.

 The defendant has moved for summary judgment and claims that age had nothing to do with its decision on who to retain and who to let go.

 Legal Analysis

 1. The defendant initially contends that the plaintiff has failed to establish a prima facie case under the ADEA. In a discriminatory treatment case such as this, the plaintiff, in the absence of direct proof of discriminatory intent, may satisfy his initial burden of going forward by meeting the four-part test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). That case, of course, was a Title VII suit but has generally been held to apply to ADEA claims as well. See Massarsky v. General Motors Corp., 706 F.2d 111 (3d Cir. 1983). The McDonnell Douglas test is not designed to be applied mechanically; different facts may necessitate modifications in the basic elements, but that case nevertheless provides a useful starting point. Under McDonnell Douglas, a prima facie case is established where:

(1) the plaintiff is a member of a racial minority;
(2) he was qualified for the job for which an employer was seeking applicants;
(3) despite his qualifications, he was rejected; and
(4) after his rejection, the position remained open, and the employer continued to seek applicants from persons of plaintiff's qualifications.

 Here, plaintiff was within the ADEA's protected class of 40 to 70 year olds and therefore meets the first prong of McDonnell Douglas, as adapted to the ADEA. Second, we believe the evidence presented establishes that Chipollini was performing his job in a satisfactory manner, satisfying the second prong of the adapted test. See Douglas v. Anderson, 656 F.2d 528, 533 (9th Cir. 1981). It is important to recognize that plaintiff need not show that he was the world's greatest employee to be deemed satisfactory. All that is required is evidence that he generally performed the job in a capable manner. Although there is evidence that his employer may have felt that Chipollini's performance was not as excellent as it had been in ...

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