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EEOC v. MCI INTL.

July 30, 1993

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
MCI INTERNATIONAL, INC., Defendant.



The opinion of the court was delivered by: MARYANNE TRUMP BARRY

 BARRY, District Judge

 I. Introduction

 Plaintiff Equal Employment Opportunity Commission ("EEOC") brings this action against MCI International, Inc. ("MCII") on behalf of thirty-nine former MCII employees alleging that MCII made certain employment decisions on the basis of age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634. The allegedly discriminatory acts arise for the most part out of the acquisition by MCII of RCAG Global Communications, Inc. ("RCAG") in May, 1988. Plaintiff claims that MCII laid off employees, failed to subsequently rehire employees, and retaliated against employees on the basis of age.

 MCII has moved for summary judgment on the layoff claims brought on behalf of thirty-four of the thirty-nine claimants and on all the failure to rehire and retaliation claims. For the reasons which follow, defendant's motion for summary judgment will be granted in its entirety. *fn1"

 II. Factual Background

 The following background facts have been stipulated by the parties. On May 16, 1988, MCII, a subsidiary of MCI Communications Corporation, acquired RCAG Global Communications, Inc. ("RCAG"), located in Piscataway, New Jersey, from the General Electric Company. At the time of the acquisition, MCII operated facilities in New York City, Fort Lee, New Jersey, and Rye Brook, New York.

 RCAG salaried employees were eligible to participate in the RCA Retirement plan. Among the benefits offered under this plan was the option to receive pension benefits in a lump sum payment rather than periodic payments. In addition, the RCA Plan offered medical and life insurance coverage to retirees at reduced costs. In late 1987, General Electric announced restrictions on the lump sum payment option after December 31, 1988. These restrictions were rescinded in February, 1988.

 The contract of sale between General Electric and MCI provided that retiree medical and life insurance benefits under the RCA Retirement Plan would be preserved for all RCAG employees 55 years of age or older at the time of the acquisition. Thus, RCAG employees 55 or older as of the purchase date could later qualify for the RCA medical and life insurance benefits.

 Between May 17 and May 20, 1988, MCII sent welcome letters to the RCAG employees who were being retained, informing the recipient of his or her MCII departmental assignment, supervisor, salary and grade, and work location. The letters also provided information about MCII's performance review system and informed the employees that they were covered by MCII's benefits.

 Letters were also sent to those employees who were being released. These letters described the MCII benefits available: severance pay based on length of employment using years of service with RCAG to calculate the severance due, pay for unused vacation time, and continuation of medical and life insurance benefits for the duration of severance pay with an option to continue coverage thereafter at the employee's own expense. MCII followed a general procedure in laying off employees. A meeting was held between the employee, his or her supervisor, and a representative from MCII's human resources department. At this meeting, the employee was given the layoff letter and the supervisor explained that the layoff was the result of reductions in staff.

 III. General Statement of the Law

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Which facts are material is dependent on the substantive law being applied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party bears the burden of demonstrating that there are no genuine issues of material fact for trial regardless of which party would have the ultimate burden of proof at trial. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052 (1987). Where the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden in a motion for summary judgment by showing that the nonmoving party has failed to adduce evidence sufficient to establish an essential element which the nonmovant would have to prove at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party establishes such a failure of proof, the nonmoving party must go beyond the pleadings and demonstrate specific facts showing that there is a genuine issue for trial. Id. at 324; Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). If the evidence is merely colorable or not particularly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50. In deciding a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Matsushita, 475 U.S. at 587; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).

 Plaintiff alleges violations of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634. Section 7(b) of the ADEA provides for enforcement of the Act by incorporating the powers, remedies, and procedures of sections 16(b), 16(c), and 17 of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 216 (b), 216(c), and 217. Under sections 16(c) and 17 of the FSLA, the EEOC may sue on behalf of an employee and may seek injunctive relief. 29 U.S.C. §§ 216(c) and 217; EEOC v. Corry Jamestown Corp., 719 F.2d 1219, 1221 (3d Cir. 1983). Recognizing the advantages in proceeding collectively not only to ADEA plaintiffs but to the judicial system by virtue of the "efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity", an "opt-in" class action may be brought under § 216(b), and damages for a violation of the ADEA obtained. Hoffmann - La Roche, Inc. v. Sperling, 493 U.S. 165, 170, 107 L. Ed. 2d 480, 110 S. Ct. 482 (1989).

 The EEOC brings this action pursuant to these provisions, characterizing what is before the court as a "class action." Pl. Opp. Br. at 1. It is not. Wholly aside from the fact that in this circuit it has been assumed, if not decided, that certification of a purported class is required, Lusardi v. Lechner, 855 F.2d 1062 (3d Cir. 1988), and there has been no certification here, the "similarly situated" requirement of § 216(b) is simply not met. That requirement, while less stringent than the requirement of F.R.Civ.P. 23(b) that common questions of law and fact predominate, nonetheless mandates that there be a common thread unifying the putative class of employees allegedly laid off on the basis of age. Lusardi v. Xerox Corp., 118 F.R.D. 351, 361 (D.N.J. 1987).

 What is seen here is "'a monster that no one can deal with, made with a lot of individual people with specific grievances.'" Id. There is no single, company-wide action but, rather, layoffs by various supervisors of persons, on an employee by employee basis, of widely disparate ages, salaries, and positions over a two year period of time. The factual and/or employment setting of each person's layoff is different, many varying questions of law are raised, and the defenses posited are individual to each or small groups of those persons. And while this action alleges that the putative class was adversely affected by a pattern or practice of discriminatory treatment, no such pattern or practice is the least bit evident. Indeed, the only common thread seen here is that the persons involved were forty years old or older and were laid off by MCII. That is clearly not enough.

 Thus, class action or no class action, what is before this court on this motion are thirty-four separate disparate treatment cases and, were this motion to be denied in all respects instead of granted, thirty-nine separate disparate treatment cases EEOC would have this court try as one. To say that a trial of this action would be complicated and lengthy would be a gross understatement, as evidenced, for starters, by the fact that the list of prospective witnesses covers more than ninety pages of the Final Pretrial Order. This action could most likely have been pared down had application to do so been made. It was not, and this court will press on.

 The ADEA prohibits discrimination against persons over age 40 with respect to "compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a). In order to ultimately prevail in an action under the ADEA, a plaintiff must prove by a preponderance of the evidence that age was a determinative factor in the decision of the employer under consideration. Billet v. Cigna Corp., 940 F.2d 812, 816 (3d Cir. 1991); Bartek v. Urban Redevelopment Authority, 882 F.2d 739, 742 (3d Cir. 1989). Plaintiff need not show that age was the exclusive reason for the adverse employment action but, rather, that "age made a difference" in the decision. Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir.), cert. denied, 469 U.S. 1087, 83 L. Ed. 2d 702, 105 S. Ct. 592 (1984).

 IV. Layoff Claims

 A. Direct Evidence

 As in any other case, a plaintiff claiming discrimination may prove his or her case with either direct or circumstantial evidence. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714, n.3, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983). If the plaintiff is able to point to direct evidence of discrimination, the burden shifting analysis first enunciated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), is inapplicable, Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985); Gavalik v. Continental Can Co., 812 F.2d 834, 853 (3d Cir.), cert. denied, 484 U.S. 979, 98 L. Ed. 2d 492, 108 S. Ct. 495 (1987); Miller v. State Chemical Mfg. Co., 706 F. Supp. 1166, 1170 (W.D. Pa. 1988), and the "problems of proof are no different than in other civil cases." Goodman v. Lukens Steel Co., 777 F.2d 113, 130 (3d Cir. 1985), aff'd, 482 U.S. 656, 96 L. Ed. 2d 572, 107 S. Ct. 2617 (1987); see also Dillon v. Coles, 746 F.2d 998, 1002-03 (3d Cir. 1984); Perry v. Prudential-Bache Secur., Inc., 738 F. Supp. 843, 851 (D.N.J. 1989), aff'd without opinion, 904 F.2d 696 (3d Cir.), cert. denied, 498 U.S. 958 (1990). Thus, a plaintiff who has demonstrated by direct evidence that a genuine issue of fact exists as to whether age was a determinative factor in his or her discharge has shown, just as in any other case, that there is a factual dispute which must be resolved at trial by the factfinder. Miller, 706 F. Supp. at 1170-71. A factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for plaintiff. Anderson, 477 at 248.

 Direct evidence is "evidence, which if believed, proves [the] existence of [the] fact in issue without inference or presumption." Black's Law Dictionary 460 (6th ed. 1990); Earley v. Champion Int'l Corp., 907 F.2d 1077, 1082 (11th Cir. 1990); Perry, 738 F. Supp. at 851 (evidence was not direct where discrimination on the basis of age had to be inferred from an employer's remarks). Plaintiff touts several pieces of evidence as "direct." First and foremost among these, at least in plaintiff's view, is the deposition testimony of James Patrick, one of the claimants in this action, that while at RCAG, he was told by his superior, John Shields, to prepare a layoff list of employees in his department at RCAG, the Engineering Department, based on considerations such as who was doing the least amount of work given his or her salary and who was nearing retirement. *fn3" Patrick Dep. at 55-60. Patrick testified that he "always" prepared such lists and that this particular "list of who should stay and who should go" was prepared approximately one or two months prior to the takeover of RCAG by MCII. Id. at 55. Three of the claimants on whose claims MCII now moves for summary judgment were placed on that list: Peter Wu, George Doss, and Calvin Gum. *fn4" Patrick Aff. P 4.

 MCII points out that Patrick gave the list to Shields but not to anyone at MCII and did not know if Shields or anyone else at RCAG ever gave the list to anyone at MCII. Patrick Dep. at 72. Indeed, Patrick did not know what was done with the list after he gave it to Shields. Patrick Dep. at 56. MCII further points out that Patrick never discussed layoff decisions with any MCII managers and played no part in the layoff decisions. Patrick Dep. at 128, 131.

 Documents which list employees' ages, even documents which relate to a reduction in force, are not per se direct evidence of discrimination and may, indeed, be innocuous. See Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510, 514 (6th Cir. 1991); Earley, 907 F.2d at 1082. A document prepared (and statements made) expressly for the purpose of determining which employees could be laid off with consideration given to the employees' proximity to retirement, however, is not so innocuous, and were there any evidence that the list was prepared at the behest of, and/or reached MCII or played any part in the layoff decisions, plaintiff might well have direct evidence of discrimination. But that essential link to the defendant in this case is missing. There is utterly no evidence that the defendant, as opposed to RCAG, had anything to do with the list or anything that emanated from the list, including discussions with Patrick or Shields; indeed, Shields testified that he does not recall any discussion in his meetings with defendant about defendant wanting to get rid of retirement-eligible employees. Shields Dep. at 88. It is, therefore, clear that plaintiff has not produced direct evidence of discrimination by defendant as to the employees on Patrick's layoff list, Peter Wu, George Doss, and Calvin Gum.

 Second, plaintiff contends that a list of nonunion employees over the age of 55 constitutes direct evidence of discrimination. Pl. Trial Exh. 161. In addition to the typed title of the apparently computer-generated list, which reads "List of Non-Union Employees Over 55," is a handwritten title above which says "List of NU Empl with MED Life Ins from RCA at Retirement." Passarelli Aff., Def. Reply Exh. B42. This list contains the names of eleven claimants subject to this motion. *fn5" The list contains, among other things, the name, birth date, age, and date hired for each employee listed.

 Contrary to plaintiff's characterization, this list does not constitute direct evidence of discrimination on the basis of age. The affidavit of Vincent Passarelli, who was and is employed in MCII's Human Resources Department and had responsibility for assisting in benefits issues in the transition of RCAG employees to MCII in 1988, indicates that he requested the list from RCAG's Employee Relations Department to keep track of which RCAG employees would be eligible to receive medical and life insurance benefits through General Electric at retirement. Def. Reply Exh. B42. The parties have stipulated that the contract of sale contained a provision pursuant to which retiree medical and life insurance benefits under the RCA Retirement Plan would be preserved for all RCAG employees over 55 at the time of the acquisition so that RCAG employees over 55 that went to work for MCII could later qualify for the RCA medical and life insurance benefits. Stip. PP 11-12. The letters exchanged in March, 1988 between MCII and RCAG indicate on their face that the purpose of the list was to assist in benefits administration. Def. Reply Exh. B42. This is confirmed by Passarelli's statement that he used the list only for benefits administration and that he shared the list only with his supervisor, Jeffrey Previte. Passarelli Aff., Def. Reply Exh. B42, PP 5-6. Anne Hughes, who worked in benefits administration at RCAG and subsequently at MCII, similarly states that the list was made to administer benefits and counsel employees. Hughes Aff., Def. Reply Exh. B38, P 5. See Wilson, 932 F.2d at 514 (maintenance of records of employees' birth dates and years of service not proof of discrimination absent direct evidence that the records were used in making adverse employment decisions); Earley, 907 F.2d at 1082 (documents relating to the number of employees eligible for early retirement which contained ages or birth dates of employees not direct evidence of age discrimination).

 The third piece of evidence characterized as direct evidence by plaintiff is a statement allegedly made by Patrick McKenna to George Eccleston in the course of laying off Eccleston. Eccleston testified that McKenna said to him that Eccleston had always wanted to retire at age 55 and that he, McKenna, had to keep the people that he thought would stay with him for the long term. Eccleston Pep. at 58. Eccleston conceded that for many years he and McKenna had discussed Eccleston's interest in retiring at age 55. Id. McKenna testified that when he had to provide a list of names for layoffs, he considered what the impact on his operation would be, and considered the fact that Eccleston had indicated that he was going to retire at age 55. Eccleston, it should be noted, was but six months away from his 55th birthday at the time of his layoff. McKenna reasoned that, given Eccleston's intention to retire, Eccleston could not be given any long term important work because it would hurt the operation if he retired as soon as he turned 55. McKenna Dep. at 84. Id. McKenna's statements do not constitute direct evidence that age played a role in the decision to lay off Eccleston; rather, those statements constituted a recognition of Eccleston's stated intention, which is not disputed, to retire in a matter of months. *fn6"

 There is no direct evidence to support the layoff claims of Peter Wu, George Doss, Calvin Gum, George Eccleston, and Donald Moran, the only claimants as to whom "direct evidence" has been proffered. Because plaintiff has failed to point to direct evidence of discrimination with regard to these and the thirty other claimants the subjects of this motion, the court must consider the circumstantial evidence. This entails an application of the McDonnell Douglas shifting burdens analysis. Chipollini, 814 F.2d at 897; see also Billet, 940 F.2d at 816 n.3.

 B. Indirect Evidence: The McDonnell Douglas Framework

 If a plaintiff is unable to produce direct evidence of discrimination, he or she may proceed under the shifting burdens analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). See also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). This analysis came to be in recognition of the fact that in most cases direct evidence of discriminatory intent is unavailable or difficult to acquire. Chipollini, 814 F.2d at 897. Under the McDonnell Douglas analysis, a plaintiff must first establish a prima facie case of discrimination. This can be done by showing that plaintiff (1) belongs to the protected class, here 40 years of age or older; (2) was qualified for the position; (3) was dismissed despite being qualified; and (4) was ultimately replaced by a person sufficiently younger to permit an inference of age discrimination. Gray, 957 F.2d at 1078; Billet, 940 F.2d at 816 n.3; Chipollini, 814 F.2d at 897. Where the discharged employee's job is eliminated and he or she is not replaced, the employee need only show that he or she was laid off from a job for which he or she was qualified while a younger employee was retained or treated more favorably. Turner v. Schering-Plough Corp., 901 F.2d 335, 342 (3d Cir. 1990); Healy v. New York Life Ins. Co., 860 F.2d 1209, 1214 n.1 (3d Cir. 1988), cert. denied, 490 U.S. 1098, 104 L. Ed. 2d 1004, 109 S. Ct. 2449 (1989); White v. Westinghouse Elec. Co., 862 F.2d 56, 60 (3d Cir. 1988); Berndt v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253, 256-57 (3d Cir. 1986); Maxfield v. Sinclair Int'l, 766 F.2d 788, 792 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986); Massarsky v. General Motors Corp., 706 F.2d 111, 118 (3d Cir.), cert. denied, 464 U.S. 937, 78 L. Ed. 2d 314, 104 S. Ct. 348 (1983). A prima facie case creates a presumption of unlawful discrimination.

 Once the employee has made out a prima facie case, the burden of production shifts to the employer to dispel the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for discharging the employee. Gray, 957 F.2d at 1078; Billet, 940 F.2d at 816; Turner, 901 F.2d at 342; Siegel v. Alpha Wire Corp., 894 F.2d 50, 53 (3d Cir.), cert. denied, 496 U.S. 906, 110 L. Ed. 2d 269, 110 S. Ct. 2588 (1990).

 If the employer meets its burden, neither the presumption nor the McDonnell Douglas framework are any longer relevant and the burden shifts back to plaintiff to prove by a preponderance of the evidence that defendant's stated reasons were a pretext for discrimination, i.e., that the reasons were false and that discrimination (here, on the ground of age) was the real reason. Saint Mary's Honor Ctr. v. Hicks, U.S. , S. Ct. , 61 U.S.L.W. 4782, 4786 (U.S. 1993). Importantly for this court's purposes, Hicks explicitly rejected precedent of the Court of Appeals for the Third Circuit which held that a finding of pretext mandates a finding of illegal discrimination. *fn7" Importantly, too, Hicks implicitly rejected Third Circuit precedent which held that pretext -- which Hicks construed to mean pretext for discrimination -- may be proven merely by showing that the defendant's proffered reasons are unworthy of credence. *fn8" "Nothing in the law would permit us to substitute for the required finding that the employer's action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer's explanation of its action was not believable." Hicks at 4785. A reason "cannot be proved to be 'a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." Id. at 4786 (emphasis in original). Thus, the Court concluded, once the defendant submits evidence of the reason for its action as to a particular plaintiff, the factfinder must decide not whether that evidence is credible but, rather, the ultimate factual issue in the case, i.e., whether the employer intentionally discriminated against the plaintiff. Id. at 4786-87. The plaintiff at all times bears the ultimate burden of persuasion. Id. at 4784.

 "Title VII does not award damages against employers who cannot prove a nondiscriminatory reason for adverse employment action" or necessarily against employers whose proffered reason is unpersuasive or even obviously contrived. 61 U.S.L.W. at 4788. Title VII only awards damages against employers who are proven to have taken adverse employment action by reason of, in that case, race. Id.9 And under the ADEA, as under Title VII, if the employer's explanation for its decision is unworthy of credence, a plaintiff must also show at least indirect evidence of age motivation, which the court distinguished from "other unsavory motives." Hazen Paper Company v. Biggins, U.S. , 123 L. Ed. 2d 338, 113 S. Ct. 1701, 1708 (1993).

 Parenthetically, the dissenting opinion in Hicks complained of the "conflicting signals" given by the Court as to the scope of its holding, id. at 4791, and specifically pointed to the Court's statement, at 4784, that although proof of the falsity of the defendant's proffered reasons does not compel judgment for the plaintiff, such evidence without more "may . . . suffice" or "will permit the trier of fact to infer the ultimate fact of intentional discrimination . . . .", a statement on which the plaintiff in this case largely hangs its hat. The Court, however, at id. note 4, found "nothing whatsoever inconsistent between this statement and our later statements that (1) the plaintiff must show 'both that the reason was false, and that discrimination was the real reason' . . . and (2) 'it is not enough . . . to disbelieve the employer' . . . . There must be a finding of discrimination". Id. (emphasis in original). And, it appears, the fears expressed in the Hicks' dissent that what it called the Court's "pretext-plus" approach "will result in summary judgment for the employer in the many cases where the plaintiff has no evidence beyond that required to prove a prima facie case and to show that the employer's articulated reasons are unworthy of credence", id. at 4791, may in those many cases be realized.

 While Hicks, of course, was not a summary judgment case, its principles can be incorporated into the well-understood summary judgment standard. Thus, defendant, as the moving party, bears the burden of demonstrating that there are no genuine issues of material fact for trial. Because plaintiff, as the nonmoving party, will bear the burden of proof of trial, the defendant may satisfy its burden by showing that plaintiff has failed to adduce evidence sufficient to establish an essential element which plaintiff would have to prove at trial -- here, that the defendant's reasons were false and that discrimination was the real reason, and plaintiff must come forward with specific facts showing that there is, indeed, a genuine issue for trial.

 The facts, of course, must be viewed in the light most favorable to plaintiff and all reasonable inferences must be drawn in plaintiff's favor. Thus, where the falsity of defendant's reasons is at issue, the facts must be viewed as plaintiff views them unless, of course, those facts are not probative of the issue of falsity or because merely conclusory statements are offered. But even assuming the falsity of defendant's reasons for purposes of summary judgment, plaintiff will have to demonstrate as to a particular claimant that those false reasons together with the prima facie case raise a genuine issue of material fact as to whether the defendant intentionally discriminated against that claimant and, of course, may submit additional facts, if any, to support this claim. If plaintiff cannot do so, summary judgment will be granted; if plaintiff does do so, summary judgment will be denied.

 No reasonable jury could find from the facts to which plaintiff points and any reasonable inferences therefrom that intentional age discrimination was practiced here as to any claimant, and this court cannot conclude that any genuine issue in that regard has been raised. Tough business decisions had to be made, and they were made without any unlawful reference to age. Parenthetically, albeit subtly, this conclusion is reinforced by the fact that the parties briefed defendant's motion for summary judgment before the decision in Hicks was announced with plaintiff focusing, virtually exclusively, on why defendant's reasons were unworthy of credence and barely at all on how or why the real reason was discrimination. *fn10"

 Thus, even assuming that plaintiff has made a sufficient showing that defendant's reasons were unworthy of credence, and as to almost no claimants did it do so, evidence of age motivation or a reasonable inference thereof sufficient to raise a genuine issue of material fact -- or an issue at all -- is conspicuously lacking. Moreover, no showing has been made that any of defendant's reasons, which plaintiff did not challenge as being false, were a proxy for or could be correlated with age. See Hazen Paper, 113 S. Ct. at 1707 . And, notably, even in the supplemental briefs submitted to this court post-Hicks, plaintiff's inability to show that what this case is about is discrimination on the ground of age was glaringly apparent. An analysis of each claimant's case under the McDonnell Douglas framework should underscore that conclusion. Indeed, for what it is worth, this court predicts that this case, were it to go beyond this point, would be a paradigm example of a very long, very fact-intensive trial with the jury finding no cause of action and stating, as juries so often did pre-Hicks, that there was simply no evidence of age in the case.

 One observation must be made before entering into the McDonnell Douglas analysis as to each of the thirty-four claimants the subject of this motion. EEOC has, in a nutshell, put this court to the test by essentially hanging it out to dry. EEOC, in its 47 page brief, has given one, two or, perhaps, three pages of its attention to each claimant's case with that attention typically little more than bold or perfunctory statements or a few facts plucked from a mosaic of facts, followed by the citation, by exhibit number only, to various exhibits in the record (which frequently belie the statements for which they were cited) and an occasional case citation. This court has, thus, been required to attempt to glean from the record the arguments which EEOC could have made and then develop and analyze those arguments in light of the record and the law. Stated somewhat differently, this court, with little meaningful help from EEOC, has made every effort to do justice to each individual's claims.

 1. James Patrick

 James Patrick was 47 years of age when MCII acquired RCAG in May, 1988 and he was laid off. Stip. PP 241, 245. At the time of his layoff, Patrick held the title of Manager, Facilities and TOCC Engineering within RCAG's Network Engineering Department, Stip. P 242; Pl. Trial Exh. 169, and was responsible for managing the technical operating control center (TOCC) and customer engineering. Patrick Dep. at 41-43. MCII asserts that plaintiff cannot establish a prima facie case with respect to Patrick because Patrick's job was eliminated. An ADEA plaintiff who has not been replaced -- as is usually the case if one's job has been eliminated -- may nonetheless satisfy the fourth prong of the prima facie case, which ordinarily requires a showing that the plaintiff was replaced by a younger individual, by showing that others not in the protected class were retained or treated more favorably. Turner, 901 F.2d at 342; White, 862 F.2d at 60. Of course, the plaintiff must show that those retained were similarly situated in terms of qualifications and position. Hill v. Bethlehem Steel Corp., 729 F. Supp. 1071, 1075 n.6 (E.D. Pa. 1989), aff'd without opinion, 902 F.2d 1560 (3d Cir. 1990).

 Plaintiff asserts that MCII retained two younger employees to perform Patrick's duties: Larry Stone, age 33, and Lou Marchese, age 31. Some of the order processing functions previously performed by Patrick were, indeed, taken over by Stone in a different department under Leo Cyr. Fitzgerald Dep. at 17. In addition, Irene Paladino, age 39, assumed some of Patrick's order processing and facilities duties. Patrick Dep. at 90. The circuit engineering portion of Patrick's job was taken over by Marchese and remained in the Engineering Department. Fitzgerald Dep. at 16-17; Patrick Dep. at 91. Although the technical specifics of each part of Patrick's job and who assumed which responsibility are not entirely clear from the record, the court is satisfied that Patrick has shown that three similarly situated employees were treated more favorably than Patrick. See Turner, 901 F.2d at 342 (evidence that three managers more junior than plaintiff took over plaintiff's managerial responsibilities sufficed to show that others similarly situated were treated more favorably for purposes of prima facie case); Massarsky, 706 F.2d at 118 (prima facie case easily made out). Accordingly, plaintiff has met its initial burden of establishing a prima facie case as to Patrick.

 MCII asserts as nondiscriminatory reasons for Patrick's layoff that he lacked the technical ability and managerial skills to be a manager in the reorganized Network Engineering Department. Lance Boxer, MCII's Senior Manager of Network Engineering, expressed his view as to why Patrick was not qualified for a position in his department. First, in a meeting with Patrick just prior to the MCII acquisition, Boxer found Patrick's philosophy and management style to be inconsistent and ineffective. Boxer Dep. at 25. Second, Patrick did not have an engineering degree. Id. Third, Boxer was unable to "move functions around" to create an opening given Patrick's inadequate technical skills. Id.

 Plaintiff argues that the reasons proffered are not worthy of credence. First, plaintiff notes that Boxer's assessment of Patrick's management style was based on a one hour interview--a fact Boxer himself brought up in his deposition. Boxer Dep. at 26-27. Second, plaintiff relies on the fact that Patrick's immediate supervisor, John Shields, was "pretty shocked" to see that Patrick was being laid off and objected to the decision. Shields Dep. at 11, 14, 16-17. See Pears v. Spang, 718 F. Supp. 441, 444 (W.D. Pa. 1989) (relevant to pretext that immediate supervisor was not consulted and expressed surprise at layoff). *fn11" Finally, Patrick states at P 2 of his affidavit, filed in response to the motion for summary judgment, that his performance was always highly rated and he was never criticized for being deficient in technical ability, that he was never told he needed an engineering degree to be a technical manager, and that numerous other technical mangers at RCAG were not degreed engineers.

 It seems clear, at least to the court, that Patrick's say-so that a one hour interview was not long enough and Shields' belief that Patrick should have been retained without any explanation as to why are insufficient to show that a genuine issue exists as to whether defendant's reasons are unworthy of belief. Moreover, Patrick's generalized conclusion that he was always highly rated cannot rebut a specific reason for his layoff. Anderson v. Stauffer Chemical Co., 965 F.2d 397, 403 (7th Cir. 1992). And if he was never criticized or told he needed an engineering degree, "from a legal perspective managers are not compelled to convey their dissatisfaction to employees" and the effect of a failure to do so perhaps indicates that the employee had been receiving the benefit of the doubt. Healy, 860 F.2d at 1216.

 But the issue, of course, is whether Patrick was laid off on account of his age and not whether he was laid off for an insufficient or inaccurate reason in some general sense; indeed, the court will assume, for purposes of summary judgment, that defendant's reasons are unworthy of credence. Even given that assumption, however, plaintiff has not presented this court with any evidence from which it could be said that a genuine issue of material fact exists that but for his age he would not have been laid off. Summary judgment will be granted as to Patrick's layoff claim.

 2. James Marsh

 James Marsh was laid off at the age of 51 from his position as a lead engineer in the Engineering Department's network support group following the acquisition in May, 1988. Stip. PP 205-207, 209. MCII does not challenge plaintiff's ability to establish a prima facie case as to Marsh, but asserts that Marsh was chosen for layoff because of poor performance. In September, 1987, less than one year before the layoff, Marsh received an unfavorable evaluation by his supervisor, Joseph Fitzgerald. Fitzgerald Dep., Exh. 3. The evaluation called Marsh's performance "unsatisfactory" and cited as particularly problematic his ability to communicate and his level of technical involvement with his projects. After advising Marsh that his performance needed improvement, the evaluation concluded that "Your failure to perform acceptably may result in your removal from your position and possible dismissal." Fitzgerald Dep. at 94 and Exh. 3. Plaintiff does not dispute that of the three lead engineers in Fitzgerald's group, Marsh was rated the lowest. Fitzgerald Dep. at 95; Norris Aff. P 4.

 Plaintiff has failed to raise a factual issue as to pretext. Plaintiff argues that Marsh's performance was rated "satisfactory" by Fitzgerald in a December, 1987 evaluation prepared as a follow up to the September, 1987 evaluation. This later evaluation noted that improvement had been made since the unsatisfactory rating but that "more improvement is needed in order for you to become a really effective leader." Fitzgerald Dep., Exh. 4. In addition, Marsh testified that he and Fitzgerald did not see eye to eye, that he thought that Fitzgerald had a "vendetta" against him, and that he thought that Fitzgerald resented him because of his age and experience. Marsh Dep. at 17-18, 28-29. The only hint of an age-based bias on the part of Fitzgerald evidenced by Marsh's testimony is an allegation that Fitzgerald made some comments that Marsh may not have been informed on a technical aspect of RCAG's business because of the length of time he had been out of school. Marsh Dep. at 29. Neither this attenuated argument nor the alleged "vendetta," both of which are supported only by Marsh's opinion, is sufficient to raise an issue of pretext. Summary judgment is appropriate as to his layoff claim.

 3. Joseph Coppola

 Joseph Coppola was laid off from his position in the New York City engineering group in May, 1988 at the age of 58. Stip. PP 105-107, 109. MCII contends that plaintiff cannot make out a prima facie case of age discrimination with respect to the layoff of Coppola because plaintiff cannot show that younger employees similarly situated were treated more favorably. The parties dispute which employees were "similarly situated" with respect to Coppola.

 The names and ages of the four members of the New York City engineering group other than Coppola at the time of the acquisition were: Jack Morita, the group leader (age 64), John Donnelly (age 62), John Dietz (age 60), and Joel Zweier (age 46). Stip. P 110. Coppola was the only one of the five laid off. Id. MCII claims that only Morita and Donnelly were similarly situated and that, because Coppola was the youngest of the three, and the second youngest in the department, no prima facie case of age discrimination can be established. Plaintiff is of the opinion that Dietz and Zweier were also similarly situated and that because the younger Zweier was treated more favorably, it has met the requirements of the prima facie case. It should be noted that although Zweier, age 46, was not outside the protected age group, because he was "sufficiently younger" than Coppola a showing that he was treated more favorably than Coppola would suffice for a prima facie case under Third Circuit law. See Maxfield, 766 F.2d at 792.

 MCII's argument that only Morita and Donnelly were similarly situated to Coppola is based on the type of work done by them vis-a-vis the work done by Dietz and Zweier. Morita, Donnelly, and Coppola were involved in circuit installation at the New York City facility. McDonald Dep. at 22-23. Coppola specialized in narrow band circuits, while Donnelly specialized in wide band circuits. Muller Dep. at 36, 39-40. Dietz was a switching engineer and was involved in a project in Guam. Muller Dep. at 40; Morita Dep. at 9. Zweier was a construction engineer, responsible for dealing with construction projects, power, and air conditioning at the New York City facility. Muller Dep. at 40-41. While both Dietz and Zweier had engineering degrees and Coppola did not, see Coppola Dep. at 60, James McDonald described Coppola as "a hardworking, dedicated individual who turned out more work than any other two people combined." McDonald Dep. at 19.

 While it is clear that there was some difference in the general work done by Coppola and Zweier, see Muller Dep. at 41, to say that Dietz and Zweier were not similarly situated for purposes of the prima facie case would be too narrow a reading of what is required. The New York City facility had a five person engineering department; each of the five had an area of expertise. To extinguish Coppola's claim of age discrimination on the basis that no younger employee with his specialization was treated more favorably would place a nearly impossible burden on him. The court holds that Coppola has made a sufficient showing of a prima facie case.

 MCII states, however, that Zweier's construction skills constitute a legitimate, nondiscriminatory reason for laying off Coppola rather than Zweier. Two pieces of evidence are raised in rebuttal. First, McDonald stated that it was more likely that Coppola could perform Zweier's job function than vice versa. McDonald Dep. at 26. A difference of opinion, pure and simple. Second, plaintiff notes that four months after Coppola was laid off, MCI advertised in the newspaper for openings in circuit installation. Coppola Dep., Exh. 11. MCII asserts that the positions advertised were different from Coppola's position, and plaintiff has not cited anything which would permit a contrary conclusion much less anything which would indicate that positions in circuit installation were available at or about the time Coppola was laid off. Be that as it may, there is neither evidence showing that there is a genuine issue for trial, nor a reasonable inference, that discrimination on the ground of age prompted MCII's actions. Summary judgment will be granted as to Coppola's claim.

 Donald Lee was laid off from his position as a principal member of the engineering staff of the Telex Systems Department in May, 1988 at the age of 51. Stip. PP 187-189, 191. His duties in the engineering department included hardware engineering as well as software programming. Lee Aff. P 5; Lang Dep. at 14. Lee reported through his supervisor, Nouzer Mistry, to Rudolph Lang, RCAG's manager for telex switching systems, who, in turn, reported to Brian Mair, the Director of Software Engineering. Lee Dep. at 39; Lang Dep. at 14; Lang Aff. P 3

 MCII contends that plaintiff cannot establish a prima facie case as to Lee because there was only one similarly situated employee, Joseph Volz, who was retained and that Volz is older than Lee. Plaintiff claims that, in addition to Volz, other members of the engineering group to which Lee belonged were also similarly situated. Those employees in Lee's group that plaintiff categorizes as similarly situated, Steven Lubash, Gregory Brinton, Abraham Chait, and Susan Tobey, are software engineers or software programmers. Lang Pep. at 22-24; Mair Dep. at 31. While Lee's affidavit is crafted to indicate that he did some software programming, he cannot be considered similarly situated with employees who performed only software programming functions. Moreover, although there is evidence which indicates that Tom Chin, age 45, Ben Hecksher, age 21, and David Summerland, age 26, who worked for MCII prior to the acquisition, performed the same function as Lee, this evidence is unavailing given this court's lack of confidence in the proposition that the acquiring company's employees should be placed in the mix of employees of the company being acquired for purposes of determining who is similarly situated. The retention of these employees while Lee was laid off is not sufficient to satisfy the prima facie requirement.

 But even had a prima facie case been established on behalf of Lee, MCII cites Lee's poor performance as a legitimate, nondiscriminatory reason for laying him off. Mair Dep. at 47-48, 52, 98-99; Lang Dep. at 44-49, 86. Plaintiff has come forward with evidence which could indicate that this reason is unworthy of credence. Lee's personnel form indicates that he was recommended for reemployment. PL. Trial Exh. 20. In addition, Lang wrote a positive letter of recommendation for Lee. Pl. Trial Exh. 397. See Chipollini, 814 F.2d at 901 (positive letters of recommendation written for employee terminated for poor performance are evidence which could support a finding of pretext). Indeed, Lang stated in this letter that Lee's layoff was "not due to any fault on his account, but a result for [sic] reduction in staff due to a merger of the Company". Id. Even if this evidence casts doubt on MCII's proffered reasons, and the court will assume for purposes of this motion that it has, plaintiff has presented nothing which would indicate that discrimination on the ground of age was the real reason. Summary judgment is appropriate as to Lee's claim.

 5. John Sharp

 John Sharp was laid off from his position as the supervisor of the Safetran computer system in May, 1988 at the age of 47. Stip. PP 269-271, 273. At the time of the acquisition, the technical supervisors for Safetran were Sharp, Nelson Caro, age 43, and Victor Torres, also age 43. McKenna Dep. at 9. MCII argues that plaintiff cannot make out a prima facie case with respect to Sharp because when Sharp was laid off in May, 1988, the two technical supervisors retained at that time, Caro and Torres, were only four years younger than he. MCII urges that the four year age difference is insufficient to give rise to an inference of discrimination.

 In an attempt to rebut MCII's argument, plaintiff contends that the similarly situated employees with whom Sharp should be compared include, in addition to Caro and Torres, the operations supervisors: Amalia Almario, age 37; Leslie Sturt, age 27; Joseph Antoci, age 34; and Philip Ahern, age 46. However, technical supervisors and operations supervisors, while in the same department, did not perform the same functions. Caro Dep. at 27-30. Nelson Caro, a technical supervisor, testified that an operations supervisor would not be able to do the entire job of a technical supervisor. Id. at 30. Plaintiff's argument that the operations supervisors and technical supervisors were similarly situated for purposes of showing a prima facie case must be rejected.

 Plaintiff next argues that even if only Caro and Torres were similarly situated employees, it has established a prima facie case as to Sharp because the four year age difference between Sharp and Caro and Torres is sufficient to make out this element of a prima facie case. Plaintiff relies, incorrectly, on Bruno v. W.B. Saunders Co., 882 F.2d 760, 764-65 (3d Cir. 1989), cert. denied, 493 U.S. 1062, 107 L. Ed. 2d 962, 110 S. Ct. 880 (1990), for this proposition. The Third Circuit held in Bruno that the age difference between the plaintiff, who was age 46, and her replacement, who was age 36, was sufficient to permit an inference of age discrimination. Id. at 765. The court relied heavily on the fact that the plaintiff was within the protected class while the replacement was not, and distinguished that situation from the one presently before the court, in which both plaintiff and the younger employees who plaintiff claims have received more favorable treatment are within the protected class, noting that such a situation had been addressed in Maxfield. Id. It concluded that in the Maxfield -type situation "we found it necessary to examine the magnitude of the age difference in order to determine whether it would support an inference of discrimination." Id.

 In Maxfield, the plaintiff was age 65 and the replacement was age 42. The court rejected the proposition that such an age disparity could not support an inference of discrimination where both persons were within the protected age category. Maxfield, 766 F.2d at 793. In considering the policy rationale for rejecting a narrower reading of the prima facie case requirement, the court noted that such a construction would render the ADEA virtually useless to those in the upper ages of the protected class. Id. at 792. Obviously Sharp, at age 47, is not the type of plaintiff contemplated by the Maxfield court. Moreover, it is telling that the example used in that case by the appellant-employer to illustrate the supposed evils of recognizing prima facie cases where both employees were within the ADEA's protected class was that a deluge of 45 year old employees replaced by 48 year old employees would flood the courts. The court described this suggestion as "frivolous", and observed

 
Moreover, we see little basis for any concern that replacement by a slightly younger employee will give rise to an ADEA claim, since proof of replacement by a younger person is not conclusive of discrimination but is merely one element in a set of circumstances that may give rise to an inference of discrimination. If the difference in ages of the two employees is insignificant, the district court would likely find that the evidence was insufficient to permit an inference of discrimination.

 Id. at 793.

 Under Bruno and Maxfield, the four year age difference between sharp and those similarly situated who were retained at the time he was laid off, Caro and Torres, is insufficient for purposes of the prima facie case. Summary judgment is, therefore, appropriate as to the layoff claim raised on behalf of sharp.

 6. Nelson Caro

 Although Nelson Caro was retained when James sharp was laid off at the time of MCII's acquisition of RCAG in May, 1988, he was terminated from his position as a supervisor in the Centralized Computer Systems ("CCS") Department in September, 1988 at the age of 43. Stip. PP 78-80, 82. After the acquisition, MCII consolidated the Safetran system with the CTE system to create the CCS. McKenna Aff. P 4. As a result of this consolidation, the two technical supervisors from Safetran, Caro and Torres, were combined with the technical supervisors from CTE, Eligio Briones, age 44, and Charles Rayside, age 41. McKenna Aff. P 4; Pl. Trial Exh. 162 at 5998. Just as with Sharp, MCII contends that plaintiff cannot establish a prima facie case of discrimination because of the three technical supervisors retained, one was older than Caro, one was the same age, and one was two years younger. As it did with respect to sharp, plaintiff maintains that the operations supervisors should be similarly situated. For the reasons previously expressed, the court rejects that argument. Plaintiff's remaining argument, i.e., that the two year age difference between Caro and Rayside is significant enough to permit an inference of discrimination, is even more attenuated than was the argument with respect to Sharp. In short, the two year age difference does not support a prima facie showing and MCII's motion for summary judgment with respect to Caro's layoff claim is granted.

 7. Philip Ahern

 Philip Ahern was laid off from his position as a computer analyst in February, 1989 at the age of 46. Stip. PP 31-32, 34. Ahern's job responsibilities included supervising tape librarians, tape and disk media backups, and acting as a relief supervisor on the computer floor. Ahern Dep. at 17. MCII argues that summary judgment is appropriate as to Ahern's claims because his position was the only one of its kind and, therefore, when it was eliminated no similarly situated employees were retained. Plaintiff does not seriously challenge the assertion that Ahern's position was eliminated, and the evidence indicates that Ahern's duties were absorbed by others. McKenna Aff. P 7; Ahern Dep. at 27.

 Rather, plaintiff's claim seems to be that Ahern was discriminated against by not being transferred to an opening for a floor supervisor. At the time Ahern was advised that his position was being eliminated, he was given 30 days within which to seek a new position within the company. Ahern Dep. at 31. The only internal opening for which he felt he was qualified was the position of floor supervisor and, accordingly, he posted for that position, but was not selected. Id. at 29-31. Rather, David Gutierrez, age 29, was transferred from the Fort Lee, New Jersey facility to fill the open position. Plaintiff has satisfied this element of the prima facie case insofar as it has shown the failure to transfer Ahern to the opening in favor of transferring Gutierrez. *fn12"

 MCII claims that it filled the floor supervisor position with Gutierrez rather than Ahern because Ahern lacked enthusiasm for floor supervisor work and did not have strong technical and operational skills. Patrick McKenna, Ahern's supervisor, testified that Ahern told him that he did not want the job of floor supervisor and McKenna thought that Ahern was simply trying to avoid being terminated. McKenna Dep. at 30-31. In addition, McKenna noted that the supervisor's position could entail some duties which fern would not be able to perform because of his lack of technical ability. McKenna Dep. at 58. In contrast, McKenna stated, Gutierrez was a highly rated supervisor at the Fort Lee facility, although he later had performance problems in the new position at Piscataway and eventually transferred out because, in McKenna's opinion, he could not adjust to the Safetran environment. McKenna Dep. at 118. MCII has met its burden of production in setting forth legitimate, nondiscriminatory reasons for not placing Ahern in the floor supervisor position.

 Plaintiff has not met its burden of demonstrating a genuine issue of fact as to whether MCII's asserted reasons are, in fact, a pretext for discrimination. Plaintiff asserts that Gutierrez "had been reprimanded for countless performance problems." Pl. Opp. Br. at 18. A review of Gutierrez's personnel file reveals that his performance was rated "low excellent" for the year 1987-88; mostly "very good" for 1986, with the exception of attendance problems; and "very good high" for the period from July, 1986 to July, 1987. Pl. Trial Exh. 359. There was one performance problem in July, 1987, as well as absentee or tardiness problems in January, 1987, December, 1986, and October, 1986. Ahern's evaluation form for the period from October, 1987 ...


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