which she was satisfactorily performing and that she was replaced by a man.
A layoff, however, is not per se disparate treatment. It violates Title VII only if it is made on a basis that would not result in the layoff of a male employee. Bellissimo, supra citing Moore v. City of Charlotte, 754 F.2d 1100, 1106, 1110 (4th Cir. 1985).
In order to rebutt the inference of discrimination raised in the plaintiff's prima facie showing, the defendant must set forth valid, non-discriminatory reasons for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).
In the instant case it is undisputed that from 1981 to 1983, J&L experienced a serious decline in its business. This decline in business resulted in a reduction in the number of salaried employees at the defendant's Aliquippa works.
J&L adhered to the policy of retaining those employees who best met its needs based on the individual's experience, performance, skills and ability.
The plaintiff's replacement, Larry Musante, was at one time a Correspondent, Chief Correspondent and plaintiff's Supervisor at the 14" Mill. He later was Chief Correspondent at the Seamless Tube Plant but due to a poor seamless tube market his position was eliminated and he was placed on "Layoff-Recall Likely." Musante was rated as "Beyond Full Standards" while Chief Correspondent at both the 14" Mill and Seamless Tube operation and had excellent evaluations through most of his career. Thus one could reasonably conclude that although the plaintiff was a good employee, Musante was the more experienced and qualified.
In reviewing the affidavits, depositions and other evidence of record we find support for the defendant's position and conclude that the defendant has set forth valid, non-discriminatory reasons for its actions, thus shifting the burden to the plaintiff to demonstrate that the reasons set forth by the defendant were a mere pretext for discrimination.
It is at this stage of the shifting burden of proof that the plaintiff has difficulty in making out its case. Although the plaintiff contends in its briefs that there are issues of fact to be determined regarding whether Musante was truly the better employee, the plaintiff fails to offer any evidence which rebutts the deposition testimony and documentary evidence submitted by the defendant which supports defendant's position. The plaintiff merely argues that it should be given the opportunity to show that this is mere pretext without offering any evidence which raises a genuine issue of fact.
Furthermore, the plaintiff stipulated at the pretrial conference held in the instant case that its only evidence of discrimination is the testimony of the plaintiff. The plaintiff can point to no specific facts other than her own speculation that shows sex discrimination.
Plaintiff specifically denies ever being told that she was laid off because of her sex and does not possess any documents that would support her claim other than those already made a part of the record.
Plaintiff attempts to raise an issue of fact in a footnote on page 7 of her second response to defendant's motion for summary judgment by stating that she will show at trial that the few female CSC's with the defendant were also replaced by males. Plaintiff fails to support this contention, however, with any evidence whatsoever. It is well settled that a party may not raise a genuine issue of fact by merely stating so in its brief, but must by affidavit or otherwise set forth specific facts showing there is a genuine issue for trial. Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981). Plaintiff has failed to do this.
Setting forth a prima facie case of discrimination does not preclude the entering of summary judgment. Graham v. F. B. Leopold Company, Inc., 602 F. Supp. 1423 (W.D. Pa. 1985). When the defendant sets forth valid, non-discriminatory reasons for its actions, which are supported by the record, the ultimate burden to show pretext rests with the plaintiff. In the instant case, the plaintiff has failed to offer any evidence which raises a genuine issue of fact regarding whether the reasons offered by the defendant for the layoff were pretextual.
Absent any genuine issue of material fact, the defendant is entitled to a judgment as a matter of law.
An order follows.
AND NOW, August 15, 1985, the defendant's motion for summary judgment is granted.