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GRECCO v. SPANG & CO.

January 27, 1982

Samuel G. GRECCO, Plaintiff,
v.
SPANG & COMPANY, Defendant



The opinion of the court was delivered by: DIAMOND

MEMORANDUM ORDER

AND NOW, this 27th day of January, 1982, after consideration of the defendant's motion to reconsider our order of December 9, 1981, IT IS ORDERED that this court's opinion filed in the above-captioned case, 527 F. Supp. 978, on December 9, 1981, be, and the same hereby is, amended to include the following addendum.

 The defendant in its motion to reconsider maintains that the court misstated the bases on which the plaintiff intends to establish his prima facie of age discrimination. Under Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979), which we previously concluded adapts to an age discrimination case the requirements of a prima facie case under Title VII of the Civil Rights Act of 1964 which were set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973), the plaintiff here must show no more than (1) that he was within the protected age class, (2) that he was qualified for the position from which he was terminated and was performing his job at a satisfactory level, (3) that he was discharged, and (4) that his employer has retained someone to continue the plaintiff's work. Loeb, supra at 1014; Cf. Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978).

 We believe that the fallacy of the defendant's position lies in its contention that once it has produced evidence, whether it be evidence to rebut the elements of the prima facie case or to proffer a business justification defense, the law requires that the plaintiff move forward and present additional evidence to counter the defendant's case. If the defendant tenders evidence that challenges the existence of one of the elements of a prima facie case, the defendant only has created a genuine issue of material fact which must be resolved by the fact finder. Cf. Rhodes v. Robinson, 612 F.2d 766 (3rd Cir. 1979); Perks v. Firestone Tire and Rubber Co., 611 F.2d 1363 (3rd Cir. 1979); See generally, 6 Moore's Federal Practice P 56.15 (1.-0) (2nd ed. 1981). And in the event that the defendant presents evidence of a legitimate business justification, the plaintiff must be given an opportunity to cross-examine the defendant on this point before the fact finder. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 fn. 10, 101 S. Ct. 1089, 1095 fn. 10, 67 L. Ed. 2d 207, 216 fn. 10 (1981). In either case, the legitimacy of the defendant's discharge of the plaintiff may not be decided on a motion for summary judgment where the plaintiff has made out his prima facie case, and the issues must be submitted to the trier of fact.

 ACCORDINGLY, the defendant's motion for reconsideration will be denied.

19820127

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