The opinion of the court was delivered by: DIAMOND
Plaintiff, a former employee of the defendant, Spang & Company, brought this suit under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. (1975). Presently before the court is the defendant's motion for summary judgment, which, for the reasons set forth below, will be denied.
Plaintiff was the defendant's controller and chief financial officer from early 1959 until October 18, 1978. On that date Frank E. Rath, Sr., Chairman of the Board and chief executive officer of the defendant company, met privately with the plaintiff and informed him that because of differences in their respective business philosophies Rath had lost confidence in the plaintiff's ability to function successfully as the defendant's chief financial officer and was therefore terminating his employment. The plaintiff was then fifty-three years of age, but both parties to this suit agree that at no time during the termination interview did Rath mention anything about the plaintiff's age.
In addition to a direct-evidence case, plaintiff may prove an employment discrimination case brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1974), by means of either of two circumstantial evidence theories. Under the so-called disparate treatment theory, the plaintiff raises a rebuttable presumption of unlawful discrimination by proving that his employer has dealt discriminatorily with otherwise similarly situated employees based on the consideration of impermissive factors, such as, for example, race or sex, See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); see generally B. Schlei, P. Grossman, Employment Discrimination Law 15-25 (1976). The plaintiff also may prove a case based on the so-called disparate impact theory by creating a rebuttable presumption of unlawful discrimination through proof that the employer has an employment practice which, while facially non-discriminatory, in fact has an adverse impact on persons in one of the protected categories, such as race or sex. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). These theories also are applicable in age discrimination cases. Stanojev v. Ebasco Services Incorporated, 643 F.2d 914 (2nd Cir. 1981); Geller v. Markham, 635 F.2d 1027 (2nd Cir. 1980), cert. denied, -- - U.S. -- , 101 S. Ct. 2028, 68 L. Ed. 2d 332 (1981); Smithers v. Bailar, 629 F.2d 892 (3rd Cir. 1980).
In the case sub judice, plaintiff alleges that he was the victim of disparate treatment in that the defendant deliberately discharged him for reasons associated with age. It is necessary, therefore, to determine whether the plaintiff has established at least genuine issues for trial as to the elements of a prima facie case of disparate treatment.
A. Prima Facie Case of Disparate Treatment
The Supreme Court has stated that in order to establish a prima facie case of disparate treatment under Title VII the plaintiff must show:
(i) that he belongs to a racial minority (ii) that he applied and was qualified for a job for which the employer was seeking applicants (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973).
In the proof cycle of an employment discrimination case, making this type of prima facie showing is the first step in the proof of the ultimate issue of intentional discrimination. Whack v. Peabody & Wind Engineering Co., 595 F.2d 190, 193 (3rd Cir. 1979). Once the plaintiff has established a prima facie case; i.e., produced evidence sufficient to raise the rebuttable presumption of unlawful discrimination of which we spoke earlier, the burden shifts to the defendant to come forward with some evidence of a non-discriminatory reason for the disparate treatment of the employee. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). The facts, which give rise to the presumption sufficient to establish a prima facie case in the Title VII discrimination-in-employment cases under McDonnell Douglas, are those which experience has taught "if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 2949, 57 L. Ed. 2d 957 (1978).
In Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979), the court adapted McDonnell Douglas to an age discrimination case as follows:
To apply the (McDonnell Douglas) concept in the present case, which involves firing, not hiring, the critical elements (beyond being within the protected class ... and fired) must be modified to produce an analogous inference. Complainant would be required to show that he was "qualified" in the sense that he was doing his job well enough to rule out the possibility that he was fired for inadequate job performance, absolute or relative. See (International Brotherhood of Teamsters v. United States) Teamsters, 431 U.S. (324), 358 n.44, 97 S. Ct. 1843 (1866) (52 L. Ed. 2d 396 (1977)). He would also have to show that his employer sought a replacement with qualifications similar to his own, thus demonstrating a continued need for the same services and skills. Without proof along these lines, the conceptual underpinnings of McDonnell Douglas would not remain recognizable. Proof beyond this, however, is not mandated by McDonnell Douglas, and does not fit its conceptual underpinnings as described in Furnco and Teamsters. A correct statement of the elements of a McDonnell Douglas prima facie case, adapted to present circumstances, therefore would have been that ...