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February 27, 1985

JOHN T. GRAHAM, Plaintiff,
F.B. LEOPOLD COMPANY, INC. a Mueller Co., Defendant

The opinion of the court was delivered by: WEBER

 AND NOW this 27th day of February, 1985, IT IS ORDERED that Defendant's motion for summary judgment is GRANTED, thereby terminating the action in this case.


 This age discrimination case, alleging violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5(f)(3), and the Age Discrimination in Employment Act, 29 U.S.C. § 626(c), is now before the court on defendant's motion for summary judgment. Both parties have submitted briefs which rely on deposition testimony.

 Defendant claims that there is no genuine issue of material fact and that plaintiff cannot establish his claims as a matter of law. If this is so, Fed.R.Civ.P. 56 entitles defendant to have summary judgment granted in his favor. Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 Defendant first argues that ADEA is the exclusive federal remedy for age discrimination and that Title VII of the Civil Rights Act accords no cause of action for the redress of age discrimination. Plaintiff does not dispute this argument. We agree that a simple reading of these two statutes indicates that only 29 U.S.C. § 623 is applicable. Therefore plaintiff's Count I alleging a violation of Title VII of the Civil Rights Act by age discrimination will be dismissed.

 Defendant next argues that plaintiff cannot satisfy the elements of a prima facie case or otherwise create a genuine issue of material fact regarding the alleged occurrence of age discrimination to warrant a trial. On this summary judgment motion, we must determine whether the facts, considered in a light most favorable to the plaintiff, state a claim for relief. The order of proof in this ADEA case, according to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), requires that plaintiff must make out a prima facie case of age discrimination by proving that:

1) he is within the protected age group of 40 - 70 years;
2) he was subject to adverse employment action;
3) he was qualified for the position in question, and
4) younger employees were treated more favorably.

 Proof of these facts raises a rebuttable presumption of discrimination which defendant may counter by presenting a legitimate, non-discriminatory reason for the employment action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089, 1094 (1981). Nevertheless, the plaintiff must still bear the ultimate burden of establishing that age was a determining factor in his discharge by a preponderance of the evidence. Smith v. Flax, 618 F.2d 1062 (4th Cir. 1980).

 In the present case, it is undisputed that Graham was 52 years of age when he was terminated from his position as Plant Superintendent of the Fiberglass Plant in December 1983. He had been with the company for 24 years. His position was filled by Jim Green, a foreman from the Clari-vac plant who was 41 years of age and had been an employee for approximately five years. Further, while there is some dispute about plaintiff's qualifications for the position he held, at least as compared with other management level employees holding similar positions (See Lyons Dep. Tr. at 51), for purposes of this motion we will assume that plaintiff has sufficiently met his burden of showing that he was qualified, thereby establishing a prima facie case.

 Defendant must, in turn, present its legitimate, nondiscriminatory reason for the employment action. Defendant has done so by stating that certain problems were noted in 1983 in Leopold's management, including a decline in Leopold's profitability. (Lyons Dep. Tr. at 14-15, 17-18; based on 1982 and 1983 operation data). Sales of products manufactured by the Plastic plants were down. (Lyons Dep. Tr. at 24-25, 43, 48; Goyak Dep. Tr. at 77). In light of this, Mueller, the parent company, determined that steps would be taken to reverse the downward turn, including a reduction in work force and the consolidation of five management jobs into four jobs. (Lyons Dep. Tr. at 18, 20, 22-23; Goyak Dep. Tr. at 84, 91). These five positions were viewed as the Leopold plant's management group and were treated equally for purposes of consolidation. (Lyons Dep. Tr. at 22). When plaintiff's job performance was compared to that of the other four employees, he had the least favorable performance rating (Lyons Dep. Tr. at 41, 50; Goyak Dep. Tr. at 91-92, 93). Also plaintiff was the only one of the five employed in the plastics plant, and Leopold was contemplating a shutdown of the Plastics plant at that time. (Goyak, Dep. Tr. at 77-79, 81-82, 91-92). For these reasons, Mr. Goyak, Leopold's Vice-President of Engineering and Operations Manager, recommended to Robert W. Lyons, Leopold's president, that plaintiff be terminated. (Lyons Dep. Tr. at 36). Mr. Lyons made the final decision. (Lyons Dep. Tr. at 26, 36, 50-51, 54; Goyak Dep. Tr. at 69). Plaintiff was one of 24 employees who were laid off by Leopold in late 1983. (Lyons Dep. Tr. at 20, ...

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