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OBITKO v. OHIO BARGE LINE

January 10, 1986

JOHN J. OBITKO, Plaintiff,
v.
OHIO BARGE LINE, INC., Defendant



The opinion of the court was delivered by: DIAMOND

 DIAMOND, J.

 Plaintiff, John J. Obitko, commenced this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. and the Pennsylvania Human Relations Act, 43 Pa. S.A. § 951 et seq. Presently before the court is the defendant's motion for summary judgment which for the reasons set forth below will be denied.

 I. BACKGROUND.

 The following facts are stipulated by the parties in a pretrial stipulation. Plaintiff, John J. Obitko, was first hired by defendant, Ohio Barge Line, Inc., ("OBL"), on April 22, 1952; Obitko continued to work for OBL until it suspended Obitko from his job as a fleet watchman on December 20, 1980, and terminated his employment on January 5, 1981. Obitko was 57 years of age when he was terminated from his employment with the defendant. OBL filled the position of fleet watchman which previously had been held by the plaintiff with George Harden, age 58.

 In September, 1982, plaintiff filed a complaint under the ADEA and the Pennsylvania Human Relations Act wherein he alleges that his discharge from OBL's employment was "wrongful, willful and in bad faith." In support of these allegations, the plaintiff asserts that: (1) he was discharged because of his age; (2) he was discharged prior to complete vesting of his pension benefits; (3) his discharge was a breach of his employment relationship with the defendant and did not comport with the reasonable expectations of the parties; and (4) OBL made no attempt to investigate allegations which were made against the plaintiff prior to his discharge.

 Defendant maintains that it is entitled to summary judgment because the plaintiff has failed to demonstrate that he can produce sufficient evidence to establish a prima facie case of age discrimination under the ADEA. Specifically, defendant contends that while a prima facie case is not necessarily foreclosed when an employee is replaced by an older individual, replacement by an older employee creates an inference of non-discrimination; to overcome this inference the plaintiff must point to some other highly probative evidence of age discrimination to succeed. In this regard, the defendant asserts that the plaintiff has failed to produce any persuasive or probative evidence which can overcome the inference of non-discrimination created by the fact that he was replaced by an older person.

 II. APPLICABLE LAW.

 In a motion for summary judgment, the moving party must demonstrate that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must determine whether the record indicates any issues of material fact, assume the resolution of any issue in favor of the non-movant and determine whether the movant is entitled to judgment as a matter of law. First Jersey National Bank v. Dome Petroleum Ltd., 723 F.2d 335 (3d Cir. 1983). See, e.g., Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981).

 In order to dispose of the defendant's motion for summary judgment, we must determine what the elements of a prima facie case and the proper allocation of the burden of proof are in cases brought under the ADEA. Our inquiry begins with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), wherein the Supreme Court stated that in order to establish a prima facie case of disparate treatment under Title VII, the plaintiff must show:

 
(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants;
 
(iii) that despite his qualifications he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

 McDonnell Douglas, at 802.

 Although these guidelines arose in a Title VII case, they have been deemed applicable to cases arising under the ADEA. See, Smithers v. Bailar, 629 F.2d 892, 894 (3d Cir. 1980). Indeed, in Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979), the First Circuit adapted McDonnell Douglas to cases where the plaintiff alleges that his employer's decision to discharge him was motivated by age discrimination. In this type of case, the plaintiff must prove the following four elements to establish a prima facie case of age discrimination:

 
1. That he was in the protected age group; i.e., between 40 and 70;
 
2. That he was performing his job at a level that met his employer's ...

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