The opinion of the court was delivered by: MCCUNE
BARRON P. McCUNE, District Judge
Plaintiff brings this action pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. and § 16 of the Fair Labor Standards Act (FLSA) 29 U.S.C. § 216, claiming that he was demoted, laid off, and finally terminated as a result of willful age discrimination in violation of the ADEA and FLSA. All discovery has closed and pretrial statements have been filed. We consider the defendant's motion for summary judgment. For the reasons stated below, we will grant the motion.
Plaintiff was born December 10, 1923. He was 59 years old when he was demoted and laid off by the defendant. He was 61 years old when he was terminated.
The parties are in agreement as to the plaintiff's chronogical work history. He was initially hired by the defendant on October 20, 1952. Prior to his demotion, he served in the Industrial Engineering Department of the defendant's Pittsburgh works as a project industrial engineer. While serving as such, he was also the "group leader" responsible for supervising individuals working as maintenance standard applicators.
He was demoted from project industrial engineer and group leader to the position of maintenance standard applicator on July 1, 1982. Subsequently, on October 15, 1982, he was laid off with "recall likely." His status was changed to "recall unlikely" on May 25, 1984, and he was notified that he was terminated from employment effective June 1, 1984.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on April 30, 1983, contending that the "most recent or continuing discrimination" by the defendant took place on July 1, 1982, the date of his demotion to maintenance standard applicator. The EEOC notified the plaintiff by a letter dated September 5, 1984, that it would not proceed any further with the processing of his charge.
Plaintiff filed the instant suit on November 2, 1984, alleging:
". . . The defendant retained and promoted employees who are less than forty years of age in positions for which the plaintiff is qualified before, at the time of, during and after the plaintiff's demotion, layoff and termination. The defendant offered employment opportunities, transfers and promotions for which the plaintiff is qualified to employees who are less than forty years of age. The actions are willfull violations of ADEA and FLSA because the defendant decided to demote, layoff and terminate the plaintiff solely because of his age . . ."
The plaintiff contends that although the defendant claims to use a neutral evaluation system of which age is not a factor, his allegation is supported by the following statistical data. He contends that as of July 1982, there were 17 professional non-bargaining unit employees in the Industrial Engineering Department at the Pittsburgh works, and 8
of the 17 were no longer working for the defendant, and all not working were 50 years of age or older. The plaintiff avers that of the employees retained since July, 1982, 2 were in their twenties, 3 were in their thirties, 1 was 45 years old and 4 were in their fifties. (Apparently 10, not 9 were retained or there were 18 in the department). These employees were not maintenance standard applicators, however, and as will be noted, the plaintiff does not contend that he was qualified outside of his department. He does not identify any of the retained jobs for which he was qualified.
The defendant denies that it discriminated against the plaintiff because of his age. It contends that its actions were based on economic conditions
and other work related factors totally unrelated to the plaintiff's age.
The defendant points out that at the time of its initial shutdown (April 30, 1982) it had a decreased need for maintenance standard applicators. With this decreased need for maintenance standard applicators plaintiff's supervisory position was no longer needed and was eliminated. Instead of letting the plaintiff go at this point, defendant transferred him to the position of maintenance standard applicator at no loss of pay.
However, in October of 1982, the defendant reached an interim incentive agreement with its unionized steelworkers which eliminated the need for any maintenance standard applicators whatsoever and laid off the plaintiff with "recall likely." The defendant contends that it was only after it became apparent that the plaintiff had no possibility of being recalled due to the curtailed status of the Pittsburgh works that it terminated him.
The motion for summary judgment contends that plaintiff's suit should be barred from proceeding any further on three grounds. First, the suit was commenced beyond the running of the applicable statute of limitations. Secondly, the plaintiff has failed to set forth a prima facie case of age discrimination and there does not exist any question of material fact as to this issue. Thirdly, even if the plaintiff can establish a prima facie case of age discrimination, no question of ...