attorney first raised the issue of age discrimination and not the Plaintiff. Thus, Plaintiff could not be held to have sought out an attorney within the meaning of Bonham. Defendant offered no evidence suggesting that Plaintiff actually knew of his rights under the ADEA prior to receipt of that letter. Consequently, we consider the 300-day filing period to have been tolled at least until August 26, 1982.
Plaintiff's failure to discover grounds for filing an age discrimination charge will not support further equitable tolling unless Plaintiff can prove that he was actively misled. Miller, 755 F.2d at 24; Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir. 1982); Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir. 1981); Wilkerson v. Siegfried Ins. Agency, Inc., 621 F.2d 1042, 1045 (10th Cir. 1980); Coke v. General Adjustment Bureau, Inc., 616 F.2d 785, 790-91 (5th Cir. 1980). We find no record of conduct by anyone associated with Defendant which could be construed as actively misleading the Plaintiff. However, since we find that the failure to post tolled the filing period until August 26, 1982, Plaintiff's charge must be construed as timely filed.
Defendant argues that Plaintiff failed to allege a prima facie case of age discrimination under the ADEA. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court set forth the guidelines applicable to burdens of proof in "disparate treatment" cases under Title VII. These guidelines have been specifically applied to cases of age discrimination brought under the ADEA. See e.g. Huhn v. Koehring Co., 718 F.2d 239 (7th Cir. 1983); Smithers v. Bailar, 629 F.2d 892 (3d Cir. 1980); Marshall v. Roberts Dairy Co., 572 F.2d 1271 (8th Cir. 1978); Price v. Maryland Casualty Co., 561 F.2d 609 (5th Cir. 1977).
The Plaintiff, in an action under the ADEA, bears the initial burden of offering evidence sufficient "to create an inference that an employment decision was based on discriminatory criterion illegal under the Act." Maxfield v. Sinclair International, 766 F.2d 788, 791 (3d Cir. 1985) (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977)). In order to satisfy this burden, Plaintiff, in his prima facie case, must prove by a preponderance of the evidence that 1) he belonged to the protected age group; that is, between the ages of 40 and 70; 2) he was discharged; 3) he was qualified for the position; and 4) the position was ultimately filled by an employee younger than the Plaintiff. Trainer v. Philadelphia National Bank, 541 F. Supp. 195 (E.D. Pa. 1982), aff'd 707 F.2d 1395 (3d Cir. 1983).
The burden then shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for the employee's discharge. McDonnell Douglas, 411 U.S. at 802. See also, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207, 215 (1981); Duffy v. Wheeling Pittsburgh Steel Company, 738 F.2d 1393, 1395 (3d Cir. 1984). The Defendant's burden is one of production, not of persuasion. He must produce only enough evidence to dispel the adverse interference created by the Plaintiff's prima facie case. Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175, 179 (3d Cir. 1985); Dillon v. Coles, 746 F.2d 998, 1003 (3d Cir. 1984).
Once the employer has raised a legitimate, nondiscriminatory reason for dismissing the employee, the burden shifts back to the employee to show that the employer's reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804-5; Burdine, 450 U.S. at 253. The employee must prove by a preponderance of evidence that "but for" his age, he would not have been discharged. Lewis v. University of Pittsburgh, 725 F.2d 910, 917 (3d Cir. 1983), cert. denied, 469 U.S. 892, 105 S. Ct. 266, 83 L. Ed. 2d 202 (1984). See also Maxfield, 766 F.2d at 791; Bellissimo, 764 F.2d at 179. The ultimate burden of persuading the trier of fact that the employer discriminated against the employee remains at all times with the employee. Burdine, 450 U.S. at 253; McDowell v. Avtex Fibers, Inc., 740 F.2d 214, 219 (3d Cir. 1984); Massarsky v. General Motors Corp., 706 F.2d 111, 117-18 (3d Cir.), cert. denied, 464 U.S. 937, 104 S. Ct. 348, 78 L. Ed. 2d 314 (1983).
Plaintiff has made out a prima facie case. Specifically, he has alleged that 1) he was a member of the protected class in that he was 51 years old at the time of his layoff; 2) he was discharged by virtue of his layoff status; 3) he was qualified for the position by virtue of having worked for Defendant for 17 years in positions of salesman and sales manager of the International Sales Department; and 4) he was replaced by Richard Bennett, a younger man hired by Defendant on August 24, 1981 shortly before Plaintiff was laid off.
Assuming Plaintiff could prove these allegations by a preponderance of evidence, Defendant has produced evidence uncontradicted by Plaintiff, that Plaintiff was discharged for a legitimate business purpose rather than because of his age. Moorhouse v. Boeing Co., 501 F. Supp. 390 (E.D. Pa.) aff'd, 639 F.2d 774 (3d Cir. 1980).
Newton N. Teichmann, Chairman of the Board of Directors and Director of the Sales Department of Defendant, supervised Plaintiff from the time he was originally hired by Defendant. Beginning in 1980, he became increasingly dissatisfied with Plaintiff's job performance. Affidavit of Newton N. Teichman, at para. 6. That same year, Defendant suffered a decline in sales, particularly in the International Department. The sales decline resulted in net losses for fiscal years 1980, 1981 and 1982. Affidavit of Newton N. Teichmann, at paras. 7 & 8; Affidavit of Archie L. McIntyre, President of Defendant, at para. 3. In an attempt to prevent future losses, the officers of Defendant decided to reduce the work force. A study was performed to determine where labor costs could be reduced. That study indicated that only two employees were needed in the International Sales Department. Affidavit of Archie L. McIntyre, at para. 8.
In 1982, the International Sales Department employed four people: Mr. Teichmann, the Plaintiff, E. Mason Ashby and Kenneth Berghauer. Mr. Ashby, 65 years of age at the time, was sales representative in the Caribbean area and South America. In addition to his sales duties, he was manager of the Technical Service Department. Mr. Berghauer, the newest and youngest member of the department, shared the Caribbean and South America territory with Mr. Ashby. Affidavit of Newton N. Teichmann, at para. 9. Plaintiff was responsible for the Middle East and Far East, a territory previously covered primarily by Mr. Teichmann. During Plaintiff's tenure in that capacity, Mr. Teichmann remained active also. Affid. of Newton N. Teichmann, at para. 5.
As director of the department, Mr. Teichmann was instructed to lay off two employees. In light of Mr. Ashby's sales performance, his value as manager of Technical Services, and his experience as primary salesman for the Caribbean and South America, Mr. Teichmann determined that Mr. Ashby should be retained. Consequently, Plaintiff and Mr. Berghauer were laid off. Mr. Teichmann resumed primary responsibility for the Middle East and Far East territory. Affid. of Newton N. Teichmann, at paras. 9 and 10.
Both Mr. Teichmann and Mr. McIntyre state that age was not a factor in the lay off decisions. Affid. of Newton N. Teichmann at para. 10; Affid. of Archie L. McIntyre, at para. 8. Aside from the Plaintiff, 12 other employees were laid off in an effort to reduce costs. The mean age of the work force prior to the lay offs was 41.59 and after was 43.07. Affid. of Archie L. McIntyre, at para. 10.
Richard Bennett, the man Plaintiff alleges assumed his duties after he was laid off, has a degree in Engineering and prior experience as a Manager of Engineering. Affid. of Richard Bennett, at para. 3. He was hired to work under Mr. McIntyre in the Engineering Department and to assist David Defibaugh in the Domestic Sales Department. Affid. of Richard Bennett, at para. 2. Since Plaintiff's discharge, Mr. Bennett states that he has acted as technical advisor to the International Department, but has not assumed any sales duties. Affid. of Richard Bennett, at para. 4.
Plaintiff neither alleged facts tending to show that Defendant's nondiscriminatory reasons were a pretext for discrimination, nor contradicted those facts stated by Defendant in rebuttal. Consequently, no genuine issues of material fact remain to be decided by a jury on the issue of age discrimination. Rule 56 (e) states that the adverse party may not rely on "mere allegations or denials of his pleadings," but must set forth specific facts showing a genuine issue for trial. Failure to do so makes summary judgment appropriate. Fed. Civ. P. 56(e). While Plaintiff has filed an affidavit in response to the Defendant's motion for summary judgment it does not satisfactorily speak to the factual allegations of the several affidavits filed in support of Defendant's motion for summary judgment. We will grant summary judgment for Defendant on this issue.
In light of our grant of summary judgment on the federal question, we find the federal forum inappropriate for determination of the remaining state claims. Therefore, we decline to exercise pendent jurisdiction over Counts 2, 3, 4 and 5. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966); Walck v. American Stock Exchange, Inc., 687 F.2d 778, 792 (3d Cir. 1982), cert. denied, 461 U.S. 942, 77 L. Ed. 2d 1300, 103 S. Ct. 2118 (1983); Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 195-96 (3d Cir. 1976). Accordingly, we dismiss Counts 2-5 with leave for Plaintiff to effect transfer pursuant to the provisions of 42 Pa. C.S.A. § 5103(b) (Purdon Supp. 1983) and in accordance with Weaver v. Marine Bank, 683 F.2d 744 (3d Cir. 1982). See McLaughlin v. ARCO Polymers, Inc., 721 F.2d 426, 430 (3d Cir. 1983).
AND NOW, to-wit, this 21st day of November, 1985, having reviewed the affidavits and depositions submitted, having heard the argument offered at a hearing on Defendant's Motion for Summary Judgment, and for the reasons stated in the accompanying Memorandum Opinion, having determined that no genuine issue of material fact exists, it is hereby ORDERED, ADJUDGED and DECREED that the Defendant's Motion for Summary Judgment be and hereby is GRANTED with respect to Count 1. Further, it is hereby ORDERED, ADJUDGED and DECREED that Counts 2 through 5 be and hereby are DISMISSED for lack of jurisdiction with leave to transfer pursuant to 42 Pa. C.S.A. § 5103(b) (Purdon Supp. 1983).
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