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SPANGLE v. VALLEY FORGE SEWER AUTH.

July 30, 1987

Spangle, William S.
v.
Valley Forge Sewer Authority



The opinion of the court was delivered by: GREEN

 GREEN, J.

 In this action brought pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Section 621 et seq., plaintiff William S. Spangle ("Spangle") claims that age was a factor in his alleged constructive discharge from his Chief Operator position at the Valley Forge Sewer Authority ("Valley Forge"). Valley Forge, the defendant herein, operates a sewage treatment plant in Phoenixville, Pennsylvania. Pending are cross motions for summary judgment, supported by affidavits.

 The uncontroverted evidence shows that the Board of Directors ("Board") of Valley Forge decided in December of 1984 to create the new position of Manager of Operations and Maintenance. The manager would be responsible for overseeing operations and maintenance of the plant. Because the Board had determined that plaintiff, an engineer by profession, lacked the necessary managerial skills, it did not consider him for the new position.

 Prior to the decision to create the new position, there were times when the plant had not operated in compliance with its Pennsylvania Department of Environmental Resources ("DER") permit. The December, 1984 decision to create the new position was based upon the Board's determination that the management of the plant was inadequate. The Board concluded that the deficiencies in management were attributable, at least in part, to Mr. Spangle's lack of managerial skills. Spangle does not challenge the Board's conclusion regarding the inadequacy of management but instead blames the problems at the plant on Mr. Bateman the plant General Manager. The Board's solution to the problem was to create the new position of Manager of Operations and Maintenance. The new manager was to be assigned the management responsibilities of Spangle, and some of the responsibilities of General Manager Bateman. To carry out this decision, the Board retained an outside consulting firm to seek and screen applicants for the new position. Initially, the Board sought a person with both managerial and engineering experience. However, the Board concluded that the salary allocated for the new position was insufficient to attract a candidate with both engineering and managerial skills and, accordingly, set managerial skills as the number one requirement. The search was open and extensive, however, Spangle was not invited to apply nor did he apply for the position. The Board members frankly admit that they did not consider Mr. Spangle for the position because the position had been created partly as a result of the Board's dissatisfaction with Spangle's managerial skills.

 Mr. Spangle does not challenge the affidavits of the Board members or aver that he had the requisite managerial skills for the position. Nevertheless, he maintains that he was denied the opportunity to compete for the position because of his age. Mr. Spangle does not challenge defendant's affidavits as to the role of the Board in creating the position. Instead, Spangle focuses on the General Manager, Mr. Bateman, as the person who unlawfully made age a factor in defendant's personnel decisions. However, the unchallenged evidence presented on summary judgment is that the role of Mr. Bateman was limited to recommending the new manager from two candidates recruited by the consulting firm and tentatively approved by the Board. The Board hired Mr. Babylon for the manager position based upon the recommendations of the recruiting firm and Mr. Bateman.

 The parties agree that, before the creation of the new position, Mr. Spangle, as Chief Operator, reported to Mr. Bateman, the General Manager, who reported to the Board. After creation of the new position, Mr. Spangle, as Chief Operator, reported to Mr. Babylon, the Manager of Operations and Maintenance, who reported to Mr. Bateman, who reported to the Board.

 After the Board's hiring of Mr. Babylon, Mr. Spangle asked for and received a meeting with the Board. At the meeting, Spangle was assured that his job as Chief Operator remained secure. After the appointment of Mr. Babylon, Mr. Spangle's job title of Chief Operator remained the same, his engineering duties as Chief Operator remained the same and his salary and benefits remained the same. However, Spangle's managerial responsibilities were transferred to Mr. Babylon the new Manager of Operations and Maintenance. In the reorganization, some of the managerial duties of Mr. Bateman, the General Manager, were also transferred to Mr. Babylon.

 This civil action for relief under ADEA focuses upon two personnel decisions by the Board, i.e., (1) the Board's creation of the position of Manager of Operations and Maintenance and (2) the Board's failure to consider Mr. Spangle for appointment to the position. Spangle concedes that the Board took no action which directly deprived him of salary or benefits. He claims, however, that he is entitled to recover under ADEA because the Board created an intolerable situation and that, as a reasonable person, he was justified in resigning his position and accepting other employment at a lower wage rate.

 The cross motions for summary judgment are before the court after full opportunity for discovery. The record on summary judgment includes affidavits submitted by the parties.

 In Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986), the Supreme Court stated:

 Because I find that plaintiff has not made a showing sufficient to establish elements essential to his case, I will grant defendant's motion for summary judgment and deny plaintiff's motion for summary judgment.

 In Sorba v. Pennsylvania Drilling Co, Inc., 821 F.2d 200, 202 (3d Cir. 1987), the Third Circuit again analyzed and restated the interrelationship of the shifting burden of production in discrimination cases with the ...


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