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February 10, 1989


The opinion of the court was delivered by: POLITAN


 This matter comes before the Court on defendant's motion for reconsideration pursuant to General Rule 12 I of the denial of summary judgment on the ADEA claims. Plaintiff has cross-moved for reconsideration of my decision to grant summary judgment on the claim for liquidated damages under 29 U.S.C. section 626(b) and on plaintiff's ERISA Count. For the reasons outlined herein, defendant's motion is granted and plaintiff's motion is denied.

 In his Complaint, plaintiff alleges that defendant discriminated against him because of his age in violation of the Age Discrimination in Employment Act, ("ADEA"), 29 U.S.C. sec. 621 et seq. and the New Jersey Law Against Discrimination, N. J. Stat. Ann. 10:5-1, et. seq. Plaintiff's Complaint also contains a claim that his rights under the Employment Retirement Income Security Act ("ERISA"), 28 U.S.C. sec. 1001, et seq. were violated as well as a state law claim for wrongful discharge. Defendant now moves for summary judgment on the entire Complaint.

 To recover under the ADEA, a plaintiff must prove that age was a determinative factor in the employer's decision to terminate plaintiff. Berndt v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253, 256 (3d Cir. 1986). The order and allocation of proof in an age discrimination suit is governed by the three part test set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), for Title VII cases. First, plaintiff must make out a prima facie case. Then the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for plaintiff's termination. If the employer meets this burden, the plaintiff must show that the proffered reason is a pretext for discrimination. See, e.g., Dreyer v. Arco Chemical Co., 801 F.2d 651, 653 (3d Cir. 1986). "At all times, the plaintiff bears the ultimate burden of proving that age was 'a determinative factor' in the decision." Id. (citations omitted).

 Plaintiff may establish a prima facie case by proving by a preponderance of the evidence that he (1) belongs to a protected class; (2) was qualified for the position; (3) was dismissed despite being qualified; (4) was replaced by someone younger. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.)(en banc), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987).

 It is undisputed that plaintiff was 55 years old when Schering terminated his employment. It is also undisputed that plaintiff was qualified for the position from which he was terminated. Plaintiff has clearly met his burden of establishing a prima facie case. At the time plaintiff was terminated, Schering eliminated the position so plaintiff was never actually replaced with a younger person. *fn1" The Third Circuit has recognized that "in a reduction in force situation, it is often impracticable to require a plaintiff whose job has been eliminated to show replacement." Dreyer, 801 F.2d at 654 (citations omitted).

 Under McDonnell-Douglas, the burden now shifts to defendant to articulate their reason for the termination. In the instant case, defendant has submitted evidence that the reason for plaintiff's termination was a company reorganization of management personnel. Therefore, they have come forth with a legitimate, nondiscriminatory reason for the termination. The burden of production now shifts back to plaintiff to show that the proffered reason was pretextual and that defendant's true reason for the termination was discriminatory.

 Defendant contends that they are entitled to summary judgment as a matter of law because plaintiff has not come forth with any proof that the reason given for plaintiff's termination was pretextual. "To defeat a summary judgment motion based only on defendant's proffer of a nondiscriminatory animus, a plaintiff who has made a prima facie showing of discrimination, need only point to evidence establishing a reasonable inference that the employer's proffered explanation is unworthy of credence." Sorba v. Pennsylvania Drilling Co., Inc. 821 F.2d 200, 205 (3d Cir. 1987), cert. denied, 484 U.S. 1019, 108 S. Ct. 730, 98 L. Ed. 2d 679 (1988). Specifically, in age discrimination cases, "where the employer has produced evidence of a non discriminatory motive for the employee's dismissal, the appropriate summary judgment question is whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown age discrimination directly or that the proffered nondiscriminatory reason is unworthy of credence." Id. 821 F.2d at 203. In order to prevail on a summary judgment motion, the defendant employer must show that the plaintiff will be unable to introduce either direct evidence of a purpose to discriminate, or indirect evidence of that purpose by showing that the proffered reason is subject to factual dispute. Chipollini at 899. However, as the Court later noted in Healy v. New York Life, 860 F.2d 1209, 1219 (3d Cir. 1988), Chipollini does not stand for the proposition that summary judgment is never available in discrimination cases. In order to avoid summary judgment, a plaintiff must present evidence which "create[s] a genuine issue of material fact as to the credibility of the employer's legitimate business reasons. . . ." Id.

 Healy concerned a situation similar to that of the plaintiff in this case. In Healy, plaintiff was terminated due to a reduction in force. Healy argued that he was a satisfactory employee and that his employer's reason for discharge was pretextual. Until the time of Healy's discharge, he had generally received favorable reviews. Those reviews, however, had noted deficiencies in high-level executive performance. Healy's superiors claimed the discharge was a result of Healy's inability to broaden his responsibilities and assume expanded job functions to prepare for future objectives. Id. at 1212.

 Healy challenged the defendants asserted reasons in three manners, two of which are relevant here. *fn2" Firstly, Healy argued that the same evaluations used by the Company to demonstrate Healy's shortfalls also show that he was willing to assume new responsibilities. Id. at 1215. The Court declined to rule that this alone demonstrated pretext. Rather, they stated "however, this fact does not refute the Company's legitimate business reasons for [Healy's] discharge, even when read in the light most favorable to Healy." Id. Next, Healy pointed out that the defendant promoted him immediately after an evaluation later used to demonstrate Healy's deficiencies. The Circuit noted that promotion from a lower level does not mean that problems do not exist which could affect performance in a more demanding job. Id. In short, Healy failed in his efforts because he "failed to introduce counter-affidavits and argumentation that demonstrate that there is reason to disbelieve this particular explanation . . . ."

 The deposition submitted in the present case sets forth in precise detail the reasons for plaintiff's demotion. LaHood, plaintiff's supervisor testified that he was dissatisfied with Turner's performance as Manager of Distribution. LaHood testified that problems existed at the distribution centers under Turner's control. He also testified that there were concerns about Turner's lack of awareness regarding his responsibilities, and about Turner's apparent inability to supervise and direct others. LaHood states that he discussed these concerns with Turner and that the decision to demote Turner was made after Turner did not improve. Rather than dispute each basis for LaHood's assessment, plaintiff merely states that LaHood was thirty five years old and had only observed plaintiff for a short time. *fn3" ...

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