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WATKINSON v. A&P

March 30, 1984

Alfred T. WATKINSON
v.
The GREAT ATLANTIC & PACIFIC TEA CO., INC.



The opinion of the court was delivered by: KELLY

 KELLY, District Judge.

 This action was filed by plaintiff Alfred T. Watkinson against defendant The Great Atlantic & Pacific Tea Company, Inc. ("A & P") on June 30, 1982. In his Complaint, plaintiff alleged that he was terminated from his position with A & P in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq. (1976) (Count I), state contract law (Count II), and the federal Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 et seq. (1976) (Count III).

 FACTS

 Plaintiff was terminated from his employment with A&P on February 20, 1982, at which time plaintiff was 51 years old. Immediately prior to his termination, plaintiff was employed by A & P as the Controller of the Pennsylvania Group, a position he had held since August of 1980, when the Pennsylvania Group came into being.

 As a result of severe financial circumstances experienced by the Company during the 1970's, A & P was forced to embark on a substantial national store-closing program in 1975, which has continued to date. As part of the continuing storeclosing program the decision was made to close approximately 400 additional unprofitable A & P stores nationwide. In connection with these closings, 39 stores within the Philadelphia Division of the Pennsylvania Group were closed in December of 1981. As a result of these retail store closings, many positions within the Pennsylvania Group's administrative staff, including the position of Group Controller, were eliminated. On February 5, 1982, plaintiff was informed that his job as Group Controller had been eliminated and that he would be terminated effective February 20, 1982.

 The elimination of positions within the administrative staff of the Pennsylvania Group continued until February 25, 1982, when the decision was announced by A&P corporate officials that the entire Pennsylvania Group would be closed along with the Philadelphia Division, as would approximately 70 additional A&P stores administered by the Group. By late April of 1982, the administrative offices of the Pennsylvania Group were fully disbanded, all job functions within the Group were eliminated, and all but a handful of the employees were terminated.

 Subsequent to the institution of this action, two additional complaints were filed captioned Alfred T. Watkinson v. Super Fresh Food Markets, Inc., No. 84-0892 (" Watkinson v. Super Fresh ") and Edward J. Shields v. The Great Atlantic and Pacific Tea Company, No. 84-0893 (" Shields v. A & P "). These Complaints were filed on February 23, 1984. Presently before the Court is defendant's motion for summary judgment and plaintiff's motion to consolidate this action with Watkinson v. Super Fresh and Shields v. Super Fresh.

 DISCUSSION

 The appropriate standard for determining a Rule 56 motion for summary judgment was summarized in Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314 (E.D.Pa.1982),

 
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Fed.R.Civ.P. 56(e). The initial burden of support under the Federal Rules is upon the movant, who must show that the facts which would warrant summary judgment in his favor are indisputable with the opposing party given the benefit of any favorable inferences. See 6 Moore's Federal Practice para. 56.15[1] at 56-344. But the burden shifts to the opposing party when the movant presents evidence which would require a directed verdict in his favor at trial. Cousins v. Yaeger, 394 F. Supp. 595 (E.D.Pa.1975); 6 Moore's Federal Practice, para. 56.11[3]. "The party resisting a motion for summary judgment may not rest upon the mere allegations of his pleading; his response must set forth specific facts showing that a genuine issue for trial exists." Wire Mesh Products, Inc. v. Wire Belting Association, 520 F. Supp. 1004, 1005 (E.D.Pa.1981).

 Id. at 320-21.

 A. ADEA Claim

 In support of its motion for summary judgment with respect to Count I, defendants assert that "on the basis of plaintiff's deposition testimony, as well as in light of the affidavits attached to A & P's motion for summary judgment, it is clear that there are presently no disputed material facts relevant to a disposition." ...


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