plan, which is not a subterfuge to evade the purposes of this chapter." 29 U.S.C. § 623(f)(2). Lastly, it is not unlawful for an employer to discharge or otherwise discipline an individual for good cause. 29 U.S.C. 623(f)(3).
Plaintiffs alleging age discrimination under the ADEA have generally been held to the same burdens and allocation of proof as those alleging race or sex discrimination under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. Rodriguez v. Taylor, 569 F.2d 1231, 1239 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S. Ct. 2254, 56 L. Ed. 2d 414 (1978). See Massarsky v. General Motors Corp., 706 F.2d 111, 117-18 (3d Cir.1983). As under Title VII, and ADEA plaintiff may prevail if he can prove either disparate treatment or disparate impact. Id. at 117.
Under the disparate treatment theory, an ADEA plaintiff must show that his employer applied an expressly age-based standard in its treatment of plaintiff. This theory requires the plaintiff to bear the ultimate burden of proving that his treatment was "caused by purposeful or intentional discrimination." Smithers v. Bailar, 629 F.2d 892, 898 (3d Cir.1980). The Supreme Court, cognizant of the possible difficulty plaintiff may encounter in obtaining direct evidence of intentional discrimination, has set forth certain rules of proof which give plaintiff the benefit of a presumption. Massarsky v. General Motors Corp., 706 F.2d 111, 118 (3d Cir.1983). Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393 (3d Cir.1984). These rules were first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) in a Title VII context. As adapted to age discrimination these rules require the plaintiff to carry the initial burden to establish a prima facie case of discrimination. This may be done by showing: (1) that he is a member of the protected class; (2) that he was qualified for the job that he held; (3) that he satisfied the normal requirements of the job; and (4) that he was the object of adverse action. McClain v. Mack Trucks, Inc., 532 F. Supp. 486, 489 (E.D.Pa.1982); see Whack v. Peabody & Wind Engineering Co., 452 F. Supp. 1369, 1371 (E.D.Pa.1978), aff'd 595 F.2d 190 (3d Cir.1979). This test has been specifically tailored by the Fourth Circuit to apply to a demotion. Under this test, the plaintiff is required to show: (1) that he is in the protected age group; (2) that he was demoted; (3) at the time of the demotion, he was performing his job at a level that met his employer's legitimate expectations; and (4) following his demotion, the plaintiff was replaced by someone of comparable qualifications outside the protected class. E.E.O.C. v. Western Electric Company Incorporated, 713 F.2d 1011, 1014 (4th Cir.1983).
Once the plaintiff has met his burden, the defendant must then articulate "some legitimate non-discriminatory reason" for the treatment of plaintiff. Furnco Construction Corp. v. Waters, 438 U.S. 567, 578, 98 S. Ct. 2943, 2950, 57 L. Ed. 2d 957 (1978); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). Once the employer has produced such evidence, the plaintiff to ultimately prevail must then submit evidence that the employer's asserted reason was merely pretextual for unlawful discrimination. McDonnell Douglas, 411 U.S. at 804. "The ultimate burden of persuasion remains on the plaintiff at all times; the defendant's burden is only to introduce sufficient evidence to create a genuine factual issue concerning the existence of a legitimate justification for the action." Massarsky, 706 F.2d at 118.
Under the disparate impact theory, plaintiff must show that the "employer's adverse action resulted from application of facially neutral criteria which have a disproportionate impact on members of the protected class and which cannot be justified by business necessity." Id. at 117. This theory, was first articulated by the Supreme Court in the Title VII case of Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). Subsequently, a test was devised which applies to age discrimination. The test requires the plaintiff to prove that the facially neutral criteria had a significantly discriminatory impact. Once such evidence is shown, the employer must then demonstrate that the requirement has a manifest relationship to the employment in question. Even if the employer makes such a showing, the plaintiff may prevail if he shows that the employer was using the practice as a mere pretext for discrimination. Connecticut v. Teal, 457 U.S. 440, 102 S. Ct. 2525, 2531, 73 L. Ed. 2d 130 (1982).
In the case sub judice, plaintiff has brought his claim under the disparate treatment theory. Thus, this court will apply the test enunciated in McDonnell Douglas to determine whether plaintiff has proved his prima facie case.
The first and second part of this test have easily been met. The plaintiff is a member of the protected age group as he was born on July 20, 1925 thus making him 58 years old and there is agreement that plaintiff was demoted.
The third part of the test requires plaintiff to prove that he was performing his job at a level that met his employer's expectations. The performance history of plaintiff has been set out in this memorandum.
At trial plaintiff offered a variety of documents which were admitted into evidence which he contends substantiates his allegations that his performance was adversely affected by the discriminatory motives of his supervisors. Exhibit 2 details that on June 30, 1980, plaintiff was twenty years older than any other CA in his Module. Exhibits 4, 5 and 6 detail several instances in which plaintiff's work was incorrectly graded and subsequently favorably regarded. Exhibits 7 and 9 attempt to prove that the screening process was detrimental to the plaintiff and that screeners were warned of impending samples. Exhibit 12 attempts to prove that other CAs who performed below standard were not placed on intensive review.
We are unable to ascertain how plaintiff's deficient performance was caused by any of the circumstances detailed in his evidence. The sole performance requirement of plaintiff was 86% accuracy with the completion of 13-15 routine cases per day. Infrequent instances of favorably regarded cases as detailed in Exhibits 4, 5 and 6 are insufficient to prove that plaintiff's performance was adequate. Exhibit 7 proves only that the screening process circulated cases faster to the MBCA. This would not affect plaintiff's performance because he was only required to process 13-15 routine cases per day. Exhibit 9, a written statement by Mr. Donnelly, does admit that one CA may have been aware of an impending review but this memo also details how this problem was corrected and the CA subsequently was found deficient and warned that she might not receive her step increase.
Plaintiff relies heavily on Exhibit 12 to prove that he was discriminated against because other CAs who performed below standard were not placed on intensive review. Again, we are unable to agree with plaintiff that this is so. Of the sample histories recorded on this document only five are those of CAs, all of whom are under forty. Of those five, only one displayed a consistent pattern of substandard performance. Elsie Walker explained that this one person was under psychiatric treatment and therefore a special circumstance. Defendant's Exhibit 20, Deposition of Elsie Walker, Pages 59-61. Further, this person later resigned. Of the remaining CAs listed, one was warned that she would not receive a step increase if her performance did not improve and another resigned. The other two CAs did not display a consistent insufficient performance.
Therefore, because we can find no discriminatory age motive we focus solely on plaintiff's performance and find that he has failed to establish his prima facie case because he has failed to prove that he was performing his job at a level that met his employer's expectations.
Even assuming that plaintiff had met the requirements to make out his prima facie case, the defendant met its burden by articulating legitimate non-discriminating reasons for his demotion. As stated above, once the plaintiff has established a prima facie case the burden shifts to the defendant to articulate "some legitimate non-discriminatory reason" for the treatment of the plaintiff. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. It appears evident from the evidence presented that Mr. Donnelly was a very strict manager and thus required a full day's production from his personnel. Defendant's Exhibit 20, Deposition of Elsie Walker, Pages 21-24. Such a manager was not the type that plaintiff was accustomed to. But, we do not find it unlawful for the defendant to require plaintiff to perform at the level required. In fact, the ADEA does not require an employer to prove that a particular decision was "a matter of sound business judgment." Miller v. General Electric Co., 562 F. Supp. 610, 617 (E.D.Pa.1983). Also, an employer may demote an employee on purely subjective reasons as long as age is not the determinative factor in the decision. Id. Thus, we find that by requiring plaintiff to perform at the level required for the position, the defendant has articulated a legitimate non-discriminatory reason for the treatment of plaintiff.
Once determined that the employer has offered a legitimate non-discriminatory reason for his decision to demote the employee, the plaintiff may still prevail if he can prove that the employer's reasons were pretextual for unlawful discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. at 1825. We conclude that plaintiff has not met his burden in this regard, as we find no evidence to prove that defendant's reasons for the demotion were pretextual, and that age was the determinative factor in the decision to demote him.
In accordance with Rule 52(a) of the Federal Rules of civil Procedure the above constitutes this Court's Findings of Fact and Conclusions of Law.
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