Pretrial Order at 6-7. William J. Belinski, then Vice-President of personnel, who implemented the recommendation to terminate the reduced-hour employees, "did not know the names, sexes or ages of any of the persons in the reduced-hour classification at CARSO at the time he made the decision, but acted on the basis of the lack of organizational need for the classification itself." Defendant's Summary Judgment Brief at 6. Defendant states that "The terminations at CARSO included male employees . . . and among the employees retained were female employees." Id. at 7.
Nothing in the affidavits submitted by plaintiffs contests these statements or provides any information upon which one could infer any sex discrimination. In fact, many of the plaintiffs' statements support defendant's contention that it did not intend to discriminate. In each affidavit the plaintiffs state who remained after the firing. None state that most of those retained were male, they all focus on the issue of age. The ones that do discuss the gender of those retained state that women were retained. Ann Dolphin states that "the persons who remained in [the Billing] Department after my termination were younger women." Affidavit of Ann Dolphin at 3. According to Jule Bonner, working in the Micrographic Department, "on the basis of my observations, there were only younger girls working within that Department who remained in that Department." Affidavit of Jule Bonner at 2. (Plaintiff Kathleen Burness was also in the Micrographic Department.) The court will thus grant defendant's motion for summary judgment on the charge of intentional discrimination on the basis of sex in creating and subsequently terminating the class of reduced-hour employees.
2. Age Discrimination: Disparate Treatment
Plaintiffs have established a prima facie case of age discrimination. Plaintiffs, all over 40 years of age, are in the protected class. (The protected class under ADEA is individuals ages 40 to 70.) As stated above, defendant does not contest that plaintiffs were qualified for their jobs. Third, plaintiffs have alleged that employees outside the protected class were retained. Plaintiffs state in their affidavits that many of the remaining employees were younger than they. See Supplemental Brief of Plaintiffs Opposing Summary Judgment; Plaintiffs' Affidavits.
The burden thus shifts to defendant to present evidence that the decision to terminate all reduced-hour employees was a non-discriminatory one. Defendant contends that the decision to eliminate the reduced-hour classification was purely a business judgment "based upon organizational need, business considerations, and the desire to give the highest degree of consideration to satisfactory full-time employees." Defendant's Summary Judgment Brief at 6, citing depositions of Taylor and Belinski.
Plaintiffs must then prove by a preponderance of the evidence their claim that this justification is a mere pretext for a discriminatory decision.
To recover under ADEA, "a plaintiff must prove by a preponderance of the evidence that age was a determinative factor in the employer's decision." Dreyer v. ARCO, supra, at 653, citing Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 789 F.2d 253, 256 (3d Cir. 1986). Under ADEA, age need not be the sole consideration motivating the employer's decision. Defendant presents a fact from which one can infer that age was a consideration in the decision to discharge plaintiffs. Plaintiffs' trial brief states that "defendant issued confidential 'surplus staff' memorandums which listed 26 persons, including the 8 reduced hours. These confidential surplus staff memos are attached hereto as Exhibit 1. Significantly, there are check marks noted next to the dates of birth for each of the reduced hour employees." Plaintiffs' Trial Brief at 6. From this fact, one can reasonably infer that age may have been a determinative factor in the decision to discharge plaintiffs.
This court in deciding defendant's motion for summary judgment is not a trier of fact. It merely considers all facts in the light most favorable to the nonmoving party. Whether age was a determinative factor in defendant's decision to fire plaintiffs is a material issue of fact. There is a genuine dispute regarding that issue. Defendant cites depositions stating that age was not a factor. Plaintiffs submit a memo suggesting that age may have been a consideration. The court must therefore deny defendant's motion for summary judgment on plaintiffs' charge of age discrimination under the theory of intentional discriminatory treatment because there are genuine issues of material fact in dispute: whether age was a determinative factor in the decision to terminate plaintiffs' employment and whether defendant's justification was merely a pretext.
B. Disparate Impact
Courts have adopted a different test for claims of violations of Title VII and ADEA under the theory of disparate impact. A defendant can violate those Acts even if he applies a facially neutral rule if the result of such application has a disparate impact on a protected class. See Griggs v. Duke Power Co., supra.
Again turning to Massarsky, the Third Circuit stated that
To establish a prima facie case under the disparate impact model, plaintiff must show "that the facially neutral employment practice had a significantly discriminatory impact." Connecticut v. Teal,  U.S. , , 102 S. Ct. 2525, 2531, 73 L. Ed. 2d 130 (1982). "If that showing is made, the employer must then demonstrate that 'any given requirement [has] a manifest relationship to the employment in question,' in order to avoid a finding of discrimination. . . . Even in such a case, however, the [employee] may prevail, if he shows that [the] employer was using the practice as a mere pretext for discrimination. It is apparent, however, that the employer's burden of justifying the employment practice does not arise until after the plaintiff has made out a prima facie case."
706 F.2d at 120 (citations omitted).
1. Sex discrimination: Disparate Impact
Plaintiffs contend that they were discriminated against on the basis of sex because the decision to eliminate the reduced-hour employees had a disproportionate impact on women. Unfortunately, the record presented by plaintiffs and defendant is wholly inadequate to enable the court to decide this claim on a motion for summary judgment.
The only fact plaintiffs present to support this allegation is that the reduced-hour classification consisted of eight women. Plaintiffs do not state how many employees were retained; how many of those retained were men; nor how many of the total number discharged were men. Plaintiffs have thus made out the barest prima facie case. In defendant's motion for summary judgment, the only information defendant adds is the following: "The terminations at CARSO included male employees and employees under 40 years of age. Jule Bonner Tr. at 56-57." Defendant's Summary Judgment Brief at 7. Beyond these bare minimum of facts, each side argues in conclusory terms: plaintiffs, that there was a disproportionate impact, and defendant, that there was no disproportionate impact. The court has absolutely no idea what percent of the work force was discharged and what percent of those discharged were women. A motion for summary judgment is inappropriate at this time.
With the above scanty set of facts, the court cannot decide as a matter of law that there was or was not a disparate impact on women. The court will thus deny defendant's motion for summary judgment without prejudice.
2. Age discrimination: Disparate Impact
Plaintiffs submit a more complete record to support the claim of age discrimination. Plaintiffs in their affidavits state that they each are members of the protected class under ADEA as they are all over 40 years of age. In addition, plaintiffs state facts from which it would be reasonable to infer that there was a disparate impact on those in the protected class. The court notes the following statements:
At the time of my termination, I was in the Post Issue Department. There were approximately 10 people in that Department including Ethel Warner and I. I believe that Ethel was the most senior in years of service and of age in that Department and I was one of the 3 - 4 most senior people in years of service and in age. Most of the people who remained in that Department were younger persons. Nancy Reilly Affidavit at 2.
At the time of my termination, I was in the Billing Department with approximately 8 other persons. I believe that I was the oldest person in that Department and that the persons who remained in that Department after my termination were younger women. Ann Dolphin Affidavit at 3.