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January 3, 1985


The opinion of the court was delivered by: VANARTSDALEN


 This case presents a dispute concerning the termination of plaintiff's employment as president of one of the defendant corporations, Fire Control, Inc. Plaintiff's amended complaint asserts three basis for liability: age discrimination; breach of employment contract, and intentional infliction of emotional distress. Defendants have moved for summary judgment on all three counts.

 In deciding a motion for summary judgment the court must determine whether the moving party has carried its burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). All reasonable inferences from the evidentiary material of record must be drawn in favor of the nonmoving party. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980). A response to a properly supported summary judgment motion may not rest upon the allegations of the pleading but must present, by affidavit or otherwise, specific facts sufficient to create a genuine issue of material fact. Fed. R. Civ. P. 56(e); Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982).

 In the present case, defendants are corporations engaged in the fire control sprinkler industry: The Williard Company (Williard); Fire Control, Inc. (FCI); Fire Protection Industries (FPI), and Worsham Sprinkler Company, Inc. (Worsham). During the time relevant to this case, Williard owned all the stock in FCI, and FCI was the parent company of both FPI and Worsham.

 Plaintiff, Steven A. Madreperla (Madreperla) had been the president of FPI before it was acquired by Williard. FCI was set up by Williard to oversee the operations of both FPI and Worsham. Madreperla was given a five-year contract as president of FCI.

 During the summer of 1981, new management took control of Williard and its subsidiaries. Bernard Jourdan became president of Williard in November 1981. There was a considerable degree of friction between Madreperla and Jourdan concerning the operation of FCI, FPI and Worsham. Eventually, Madreperla's employment was terminated, and he brought this action.

 I. Age Discrimination Claim

 The Age Discrimination in Employment Act (ADEA) makes it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To recover under the ADEA, a plaintiff must prove by a preponderance of evidence that age was "a determinative factor" in the employer's decision. See Smithers v. Bailar, 629 F.2d 892 (3d Cir. 1980). Plaintiff need not prove that age was the employer's sole or exclusive consideration but must prove that "age made a difference" in that decision. Id. at 898.

 A plaintiff can establish a prima facie case of age discrimination using statistical information, direct evidence of discrimination and/or circumstantial evidence. Miller v. General Electric Co., 562 F. Supp. 610 (E.D. Pa. 1983). A prima facie case can be established by showing: (1) that the plaintiff was within the protected age group; (2) that the plaintiff was qualified for the position; (3) that the plaintiff was removed from the position; and (4) that the position was filled by a younger person. Smithers, 629 F.2d at 894-95. These guidelines are borrowed from the Supreme Court's Title VII decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).

 If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). If the defendant satisfies that burden of production, the inference or presumption of discrimination dissolves, and the plaintiff must satisfy its burden of persuasion by convincing the trier of fact that (1) a discriminatory reason actually motivated the employer or (2) the employer's proffered explanation is unworthy of credence. Miller v. General Electric Co., 562 F. Supp. at 617; see also Blackwell v. Sun Electric Corp., 696 F.2d 1176 (6th Cir. 1983).

 Simply establishing a prima facie case is not necessarily sufficient to survive a summary judgment motion. The prima facie showing establishes a presumption which is destroyed upon defendant's satisfaction of its burden of production. Reeves v. General Foods Corp., 682 F.2d 515 (5th Cir. 1982). "The initial evidence introduced to support the prima facie case may or may not be adequate, after the presumption has disappeared, for a jury to draw a permissible inference of intentional discrimination." Id. (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 67 L. Ed. 2d 207, 101 S. Ct. 1089 n.10 (1981)).

 In the present case, defendants claim that plaintiff has not established a prima facie case of age discrimination. They claim that Madreperla was not removed from his position and replaced by a younger person. Rather, they assert that Madreperla's position was effectively eliminated and that he refused the offered replacement position.

 There is no dispute that Madreperla is in the protected age group or that he was qualified for the position he held. Plaintiff asserts he was removed from his position as president of FCI when he received a letter of termination on June 2, 1982, and that his duties were taken over by newly appointed presidents for FCI and FPI and a vice president of Williard; namely Robert Rambo, Joseph Doody and Ed Caplan, all of whom are significantly younger than Madreperla. Defendants characterize plaintiff's termination differently. They claim that labor disputes and Jourdan's policy of retrenchment to reduce losses made it necessary for FCI to cease its function of controlling the ...

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