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GABRIELLE v. BARRETT

November 5, 1986

Neil A. Gabrielle, Plaintiff
v.
Barrett, Haentjens & Co. and Walter D. Haentjens, individually and as president of Barrett, Haentjens & Co., Defendants



The opinion of the court was delivered by: NEALON

 Presently before the court is defendants' Motion for Summary Judgment. For the reasons set forth below, defendants' Motion for Summary Judgment will be denied.

 FACTUAL BACKGROUND

 In the present motion, defendants move for summary judgment claiming that plaintiff has failed to establish a prima facie case pursuant to the Age Discrimination in Employment Act (ADEA) and because plaintiff has failed to mitigate his damages as required. From the parties' statements of undisputed material facts, the following facts emerge.

 Plaintiff, born on August 8, 1925, filed a complaint of age discrimination on April 2, 1986. On April 2, 1984, plaintiff was informed of the elimination of his position at defendants' foundry. Plaintiff denies having been promised half salary until December 31, 1984, although defendants claim that this promise was made. At the time of plaintiff's termination, he suggested that he replace a foreman reporting to him, John Sullivan, or a pattern foreman, Alfred Reinmiller. At the time plaintiff's employment ceased, plaintiff was fifty-eight (58) years of age, Sullivan was also fifty-eight (58) and Reinmiller was sixty-two (62). Plaintiff's last day worked at the foundry was April 2, 1984.

 Plaintiff received $3,510.00 for unused vacation days, $3,900.00 for vacation which would have been earned for 1984-1985 and $15,112.50 for severance pay, half salary through December 31, 1984. *fn1" Plaintiff was offered a position by letter dated September 7, 1984, at the same salary as Reinmiller was receiving ($675.00 a week), provided that plaintiff agreed to take a management course offered locally at Penn State College. Plaintiff was asked to call defendants to discuss the terms and conditions of this offer. Plaintiff did not call in response to this letter but instead declined the position by letter dated September 18, 1984. Plaintiff claims that the position offered him was at a salary of approximately $300.00 per week less than his prior salary and at a completely different plant.

 Construing the facts and all reasonable inference derived therefrom in plaintiff's favor as the court is required to do on a Motion for Summary Judgment, the court finds that summary judgment is not warranted at this time.

 DISCUSSION

 I.

 The ADEA, in essence, proscribes discrimination against individuals between the ages of forty (40) and seventy (70) with respect to compensation, terms, conditions or privileges of employment, because of such individual's age. See Dreyer v. Arco Chemical Co., 801 F.2d 651, 653 (3d Cir. 1986). "To recover, 'a plaintiff must prove by a preponderance of the evidence that age was a determinative factor in the employer's decision.'" Id. (citation omitted). The standard for evaluating these claims has been enunciated by our Court of Appeals.

 
The order and allocation of proof in an ADEA case alleging disparate treatment on the basis of circumstantial evidence is governed by the three-part division set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 [93 S. Ct. 1817, 36 L. Ed. 2d 668] (1973), for Title VII cases. (citation omitted). Under this scheme, the plaintiff must first prove a prima facie case. Then the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the plaintiff's discharge. If the employer meets this burden, the plaintiff must show that the articulated reason is a pretext for discrimination. (footnote omitted). At all times, the plaintiff bears the ultimate burden of proving that age was a 'determinative factor' in the decision. (citations omitted).

 Id. 801 F.2d at 653. As stated, defendants allege that plaintiff fails to make out a prima facie case.

 In order to make out a prima facie case pursuant to the ADEA:

 
[A] plaintiff must prove that he (1) was discharged; (2) was qualified for the position; (3) was within the protected class at the time of discharge; (4) was replaced by someone outside the protected class, or . . . by someone younger, or . . ...

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