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REILLY v. FRIEDMAN'S EXPRESS

February 3, 1983

DOUGLAS REILLY, Plaintiff
v.
FRIEDMAN'S EXPRESS, INC., Defendant; ROBERT HOPKINS, Plaintiff v. FRIEDMAN'S EXPRESS, INC., Defendant



The opinion of the court was delivered by: NEALON

 NEALON, Chief Judge:

 Plaintiffs, Douglas Reilly and Robert Hopkins, commenced these actions against their employer, Friedman's Express, Inc. alleging that they were denied the opportunity to transfer from the defendant's terminal in Dorrance, Pennsylvania to a new facility in Scranton, Pennsylvania because of their ages in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. ยงยง 621-634. The defendant moved for summary judgment pursuant to Fed. R. Civ. P. 56. Plaintiffs opposed the motion and oral argument was held, on the record, on January 20, 1983. For the reasons set forth below, the motion will be granted.

 FACTS

 The Defendant, Friedman's Express, Inc. (Friedman's) operates a motor freight line in Northeastern Pennsylvania with its main office in Dorrance, Pennsylvania. Dorrance also houses a terminal which until June, 1980, handled freight for the Wilkes-Barre, Hazleton and Scranton areas. In the early part of 1980 the defendant began investigating the possibility of opening a new terminal in the Scranton area because of the money-saving potential. *fn1" As work which was previously handled by the Dorrance terminal would now be handled in Scranton, Friedman's intended to transfer certain of its Dorrance employees to the new operation. Through the use of company records, Friedman's Operations Manager determined that thirteen employees would be needed in Scranton.

 In accordance with its obligations under the National Master Freight Agreement, *fn2" Friedman's applied to the Central Pennsylvania Joint Area Grievance Committee for approval of its change of operations plan. *fn3" On June 13, 1980, the Committee approved the application and established a 60-day window period during which employee transfer or return rights with seniority would continue in the event the number of transfers turned out to be incorrect. *fn4"

 While approval of the change of operations was pending before the Grievance Committee, the defendant posted a memorandum in May, 1980 requesting employees to indicate whether they wished to transfer to Scranton in the event the change was approved. *fn5" Both plaintiffs signed the memorandum. See Exhibit 4 to Document 25 of the Record. In terms of respective seniority among those wishing to transfer, Plaintiff Reilly ranked eighteenth and Plaintiff Hopkins ranked seventeenth. As there were thirteen individuals who signed the memorandum with greater seniority than the plaintiffs, the plaintiffs were not eligible for the transfer.

 The change of operation, having been approved by the Grievance Committee, went into effect on June 21, 1980. The thirteen employees were transferred to Scranton but replacements were soon needed on a day-to-day basis. *fn6" The President of Local 401, Francis Belusko, requested Friedman's to call "extra-list" *fn7" Dorrance employees in accordance with seniority, to work as replacements in Scranton. Friedman's agreed to the request, even though under the change of operations, it had the right to call whomever it wished to work as a replacement including someone "off the street" i.e., non-Friedman employees. Pursuant to the agreement, Plaintiffs, as well as several other Dorrance employees, were given the opportunity to work as replacements *fn8" at the Scranton terminal during the window period.

 At the expiration of the sixty-day window period, company and union officials met to discuss the need for more than thirteen employees in Scranton as some members of Local 401 contended that more employees should have been eligible to transfer. After two meetings, held on August 26, 1980 and September 5, 1980, both Local 401 and a representative of the Eastern Conference of Teamsters concluded that the transfer of only thirteen employees was proper and did not violate the collective bargaining agreement. Indeed, the Central Pennsylvania Joint Area Grievance Committee upheld the propriety of the defendant having transferred only thirteen employees when a grievance challenging that number was filed by a member of Local 401.

 After the window period ended, replacements were still needed for the Scranton employees on a day-to-day basis. Inasmuch as the agreement to call Dorrance employees was no longer in effect, the Manager of the Scranton terminal felt he could call anyone to work as a replacement. Because he needed immediate replacements, he called Dorrance employees. However, so as not to interfere with the Dorrance operation, he called individuals towards the bottom of the Dorrance seniority list. *fn9" Deposition of William Galetka, at 10-12.

 Among those called as replacements were Charles Grimes (age 32), George Spunar (age 31), Thomas Richards (age 29), Bernard Strezelecki (age 43), and Carl Walkowiak (age 46). *fn10" Each of these five individuals commenced working as "extra-list" employees at the Scranton terminal on either September 10 or 11, 1980 following their request to work at that terminal. Prior to submitting such requests, these five apparently realized that, as they were at the bottom of the Dorrance "extra-list," they would have a better chance to work if they could get on the extra-list for Scranton. On their own initiative, after the expiration of the window period, they began inquiring about how to become a Scranton employee. Through union officials at both Local 401 and Local 229, they learned that they would have to fill out an employment application for the Scranton terminal and sign a statement relinquishing all seniority rights accrued through employment at the Dorrance terminal. These five individuals followed that procedure and commenced employment at Scranton. Indeed, at a meeting of Local 401, a notice of which was posted on September 9, 1980, held on September 13, 1980, the procedure for commencing employment at the Scranton terminal was specifically discussed. Plaintiff Reilly attended said meeting. However, neither of the plaintiffs requested to work at the Scranton terminal in September, 1980 or completed an application for employment at that terminal. See Document 26 of the Record, Deposition of Robert Hopkins at pp. 12-13; Document 26 of the Record, Deposition of Douglas Reilly at p.9. In September, 1980, Plaintiff Reilly was 49 years old and Plaintiff Hopkins was 52.

 DISCUSSION

 The ADEA provides, in pertinent part:

 
It shall be unlawful for an employer -- (1) to fail or refuse to hire or discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges ...

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