The opinion of the court was delivered by: MCCUNE
BARRON P. McCUNE, District Judge
In this action brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the plaintiff, Equal Employment Opportunity Commission and charging party, Nancy Herdt,
allege that the defendant, Jones & Laughlin Steel Corporation (J&L), engaged in employment practices which discriminated against women.
We consider the defendant's motion for summary judgment.
The plaintiff was employed by J&L from July of 1950 until February of 1983 at which time she was laid off from her position as a Customer Service Correspondent (CSC) at J&L's Aliquippa Works 14" Mill.
Following plaintiff's layoff a male employee, Larry Musante, who had been on "Layoff-Recall Likely," was called back to replace the plaintiff.
The plaintiff shortly thereafter filed a sex discrimination complaint with the EEOC alleging that she (1) belongs to a protected group (female), (2) she was performing her job in a satisfactory manner, and (3) she was laid off in order to rehire a male employee.
In response to these charges the defendant contends that due to economic conditions, plaintiff's unwillingness to perform certain down river duties and her overall performance, it was in the best interest of the corporation to lay off the plaintiff and recall Musante, who was judged to be the most productive, flexible and qualified for the CSC position. The defendant submits that the plaintiff's sex was not a factor in determining which employees would be retained. Based on the above, the defendant contends that it has rebutted the plaintiff's prima facie case and further argues that since the plaintiff has not offered any evidence of pretext it is entitled to summary judgment as a matter of law.
The Third Circuit Court of Appeals has recently held that a prima facie case is easily made out in a Title VII suit. All that parties alleging a discriminatory layoff need show is that they were laid off from a job for which they were qualified while others not in the protected class were retained. Bellissimo v. Westinghouse Electric Corp., et al., 764 F.2d 175 (3d Cir. 1985).
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. ...