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February 10, 1987


The opinion of the court was delivered by: BROTMAN

 This action concerns the discharges of seven former employees of Prudential Property and Casualty Insurance Company ("PRUPAC" or "defendant") when the company eliminated the classification of "reduced-hour" employees. Plaintiffs include Nancy Reilly, Ann Dolphin, Jule Bonner, Kathleen Burness, Phyllis Lewis, and Edith Delcher, and Fred Warner as administrator on behalf of Ethel Warner ("Plaintiffs"). Several of their husbands are also plaintiffs but will be referred to in this opinion as "plaintiffs' husbands." Plaintiffs' husbands include: John Reilly, Fred Warner, James Bonner, Robert Burness, Bernard Lewis and Ernest Delcher.

 This action was commenced by plaintiffs in Superior Court, Atlantic County, seeking redress for violations of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA"), Title VII of The Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., The Equal Pay Act, 29 U.S.C. § 206, the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"), and pendent New Jersey state tort claims (i.e., wrongful discharge, tortious interference with an advantageous economic relationship, and loss of consortium). This action was removed by defendant to this court on the basis of federal question jurisdiction.

 Presently before the court is a motion by defendant for summary judgment. For the reasons set forth below, the court will grant in part and deny in part defendant's motion.

 Factual Background

 In 1975, PRUPAC's Linwood, New Jersey office added a third classification of employees known as reduced-hour to the existing classifications of temporary and full-time employees. Reduced-hour employees resembled full-time employees in that both received identical benefits, both were employees-at-will, and both were hired with the understanding "that they would remain with PRUPAC for an indefinite period of time." Brief in Support of Defendant's Motion for Summary Judgment at 2 ("Defendant's Summary Judgment Brief"). The primary difference was that reduced-hour employees worked fewer hours each week than full-time employees. All but one of the plaintiffs were originally hired as temporary employees and later became reduced-hour employees. Plaintiff Dolphin was hired as a reduced-hour employee.


 Defendant has moved for summary judgment. Defendant's brief in support of this motion cites numerous excerpts from deposition testimony. PRUPAC also submitted a statement of facts pursuant to Rule 12G. Plaintiffs submitted a brief opposing summary judgment that extensively cites plaintiffs' trial brief. Plaintiffs also submitted affidavits from each plaintiff and an affidavit from their counsel, Richard L. Press.

 The standard for granting summary judgment is a stringent one. Fed. R. Civ. P. 56(c) provides that summary judgment may be granted only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Hersh v. Allen Prods. Co., Inc., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Insurance Co., 721 F.2d 118 (3d Cir. 1983). In deciding whether an issue of material fact does exist, the court is required to view all doubt in favor of the nonmoving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 (3d Cir. 1983); Knoll v. Springfield Township School District, 699 F.2d 137, 145 (3d Cir. 1983); Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 874 (3d Cir. 1972). However, "the party resisting a motion for summary judgment may not rest upon mere allegations of his pleadings, his response must set forth specific facts showing that a genuine issue for trial exists." Watkinson v. Great Atl. & Pac. Tea Co., Inc., 585 F. Supp. 879, 882 (E.D. Pa. 1984).

 The Supreme Court recently stated, "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986) (citations omitted).


 In count one plaintiffs charge PRUPAC with violating Title VII and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. Count two alleges violation of ADEA as well as N.J.S.A. 10:5-3. In count one, which is incorporated into count two, plaintiffs allege several "unlawful employment practices." Defendant's motion, although labeled as a general motion for summary judgment, only addresses the charge of discrimination in PRUPAC's decision to discharge all members of the reduced-hour classification. Similarly, plaintiffs' response focuses solely on the alleged discrimination in the discharge decision. Regarding this motion, neither party discusses the other enumerated practices which plaintiffs claim in the complaint are unlawful employment practices. These include the following: "A. Failing to recruit and hire named Plaintiffs for management positions because of their sex; C. Failing to transfer and promote named Plaintiffs because of their sex; D. Failing to transfer and promote named Plaintiffs because of their age; E. Maintaining policies and practices with respect but not limited to wages, job assignments and other terms and conditions of employment which unlawfully operated to deny equal opportunities to named Plaintiffs because of their sex and age; F. Maintaining policies and practices which utilize subjective non-employment related criteria in promotion decisions, which criteria operates disparately to effect adversely named Plaintiffs because of their sex and age respectively; G. Failing to recruit the substantial exclusion of named Plaintiffs from higher paying job categories including supervisory and administrative positions because of their sex and age respectively; H. Failing and refusing to take affirmative action to correct the effects of discriminatory policies and practices complained of herein." Complaint at 7-8. As defendant only addresses the charge of age and sex discrimination in defendant's creation and termination of the class of reduced-hour employees, the court will consider the summary judgment motion as applying to that charge only and will not rule on the above claims.

 Because the provisions of the ADEA parallel those of Title VII, many courts have applied the principles of Title VII to cases involving age discrimination. See Dreyer v. ARCO Chemical Co., 801 F.2d 651 (3d Cir. 1986); Berndt v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253, 256 (3d Cir. 1986); Massarsky v. General Motors Corp., 706 F.2d 111, 117 (3d Cir.), cert. denied, 464 U.S. 937, 78 L. Ed. 2d 314, 104 S. Ct. 348 (1983); Douglas v. Anderson, 656 F.2d 528, 531-32 (9th Cir. 1981); Rodriguez v. Taylor, 569 F.2d 1231, 1239 (3d Cir. 1977), cert. denied, 436 U.S. 913, 56 L. Ed. 2d 414, 98 S. Ct. 2254 (1978). As stated in Massarsky,

A Title VII plaintiff may prosecute his claim under either of two distinct legal theories. First, he may allege that he is the victim of intentional discrimination, i.e., that his employer applied an expressly race-based or sex-based standard in its treatment of the plaintiff. This "disparate treatment" theory traces its roots to McDonnell Douglas Corp. v. Green, 411 U.S. 792, [36 L. Ed. 2d 668, 93 S. Ct. 1817] (1973). Alternatively, he may rely upon the so-called "disparate impact" theory of Griggs v. Duke Power Co., 401 U.S. 424, [28 L. Ed. 2d 158, 91 S. Ct. 849] (1971). This theory applies when the employer's adverse action resulted not from any discriminatory motive but simply from application of facially neutral criteria that are alleged to have a disproportionate impact on members of the protected class and which cannot be justified by business necessity. See Dothard v. Rawlinson, 433 U.S. 321, 329, [53 L. Ed. 2d 786, 97 S. Ct. 2720] (1979).

 706 F.2d at 117.

 In the case at bar plaintiffs have alleged violations of Title VII and ADEA under both of these theories, disparate treatment and disparate impact. While the Third Circuit has applied the McDonnell Douglas Title VII test for disparate treatment to ADEA, see Dreyer v. ARCO, supra, it has not stated whether one can recover under ADEA having proven disparate impact alone. See Massarsky, 706 F.2d at 120; EEOC v. Westinghouse Elec. Corp., 632 F. Supp. 343, 370 (E.D. Pa. 1986). However, at least five other Circuit courts have held that the disparate impact test applies to ADEA. See, e.g., EEOC v. Bordens, Inc., 724 F.2d 1390 (9th Cir. 1984); Leftwich v. Harris-Stowe State College, 702 F.2d 686 (8th Cir. 1983); Allison v. Western Union Telegraph Co., 680 F.2d 1318 (11th Cir. 1982); Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980), cert. denied, 451 U.S. 945, 68 L. Ed. 2d 332, 101 S. Ct. 2028 (1981). In addition, several district courts in the Third Circuit have held similarly. See EEOC v. Westinghouse, supra; Woodfield v. Heckler, 591 F. Supp. 1390, 1397 (E.D. Pa. 1984); Popko v. Clairton, 570 F. Supp. 446, 451 (W.D. Pa. 1983); Grecco v. Spang & Co., 527 F. Supp. 978 (W.D. Pa. 1981). This court joins the above courts and will apply the Title VII disparate impact test to ADEA. The court will thus consider plaintiffs' claims of sex discrimination and age discrimination under both the disparate treatment and disparate impact tests.

 A. Disparate Treatment

 The test to apply is the one set forth in McDonnell Douglas. The plaintiff has the initial burden to establish a prima facie case of unlawful discrimination. To do this, plaintiff must show that he is a member of the protected class and that he was laid off from a job for which he was qualified while others not in the protected class were treated more favorably. The burden then shifts to the employer to articulate "some legitmate, nondiscriminatory reason" for its treatment of the employee. McDonnell Douglas, supra, 411 U.S. at 802. If the employer presents evidence of a lawful justification, the plaintiff must then show that this asserted reason "was merely a pretext for unlawful discrimination." Massarsky, supra, at 118. The burden of persuasion always remains with the plaintiff. All the defendant must do is introduce sufficient evidence to create a genuine factual issue concerning the existence of a legitimate justification for the discharge.

 1. Sex discrimination: Disparate Treatment

 Regarding the creation and ultimate termination of the reduced-hour classification, plaintiffs have not made a prima facie case of discriminatory treatment for reason of their sex. Plaintiffs, all women, are in a protected class under Title VII and it appears undisputed that plaintiffs were not discharged because they were deemed unqualified for their work. One stipulated fact in the Final Pre-Trial Order states that "The decision to terminate plaintiffs/employees was not based on any individual criteria. Neither their performance, work experience, job knowledge, skills or length of service were considered in the decision to terminate any of the Plaintiff/employees." Final Pre-Trial Order at para. 15. The undisputed fact that plaintiffs were all offered full-time employment during their time at PRUPAC is further evidence that they were qualified for their jobs. However, plaintiffs have not set forth any facts to support the allegation that the male employees were treated more favorably. Considering all the facts presented to the court, and any possible inferences therefrom, in a light most favorable to the plaintiffs, the court holds that plaintiffs have not supported their allegation of discrimination based on sex. A mere assertion of discrimination unsupported by any facts is not sufficient to shift the burden to the employer to justify termination. See Locke v. Commercial Union Ins. Co., 676 F.2d 205, 206 (6th Cir. 1982) (affirming the district court's granting of summary judgment in an age discrimination case).

 Regarding plaintiffs' claim of discrimination in creating the class of reduced-hour employees, plaintiffs assert no facts from which one could infer that the employees' gender had any relation to that decision. Defendant states that "There was nothing to preclude males or persons under 40 years of age from becoming reduced-hour employees from 1975 through 1979 and, indeed, many of them were, but became full-time employees prior to 1983." Defendant's Summary Judgment Brief at 13. Plaintiffs do not contest this. It appears uncontested that in ...

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