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White v. Westinghouse Electric Co.

argued: July 27, 1988.


On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil Action No. 86-2155.

Gibbons, Chief Judge, Seitz and Hutchinson, Circuit Judges.

Author: Hutchinson


HUTCHINSON, Circuit Judge.

James White appeals a district court order granting his former employer, Westinghouse Electric Company (Westinghouse), summary judgment in his age discrimination action.*fn1 Because evidence of the timing of White's discharge is sufficient to raise a genuine issue of material fact, we will reverse and remand this case for further proceedings.


James White began working for Westinghouse in 1956 as a traffic clerk. While with Westinghouse, he occupied various positions. He became Manager of Transportation, Power Systems Projects, in 1973 and Manager of Transportation, Nuclear International Product, in 1980. In 1982, Westinghouse consolidated White's transportation manager position with another held by Jeffrey Neubert. Westinghouse assigned the resulting single position to the younger Neubert and gave White the newly created position of Senior Engineer, Transportation, Nuclear Project. In this capacity, he was assigned to resolve difficulties on several Westinghouse projects in Spain and reported to Neubert.

In September 1985, White was relieved of all international project assignments. According to a memo dated September 5, 1985, signed by both White and Neubert, "[White's] job performance was not satisfactory." Appendix (App.) at 33. Neubert gave White a special assignment which he made deliberately vague "to allow [White] the opportunity to show . . . the level of initiative that he could demonstrate." Id.

On November 5, 1985, Neubert notified White that he would be discharged effective January 31, 1986, because of a reduction in force. Westinghouse had an over-all reduction goal of 5-10%. In order to meet it in the Nuclear Operations Division's Transportation Department, one of the department's ten members had to be discharged.*fn2 According to Neubert and Merle Marsh, Neubert's superior, White was selected for discharge for two reasons. His performance rating had been the lowest in the department in each of the two previous years*fn3 and his position on special assignment was the most expendable because its elimination would not affect other ongoing projects. Of the nine employees retained in the Transportation Department, two were older (58 and 52) and two just one year younger than White, who was 51 years old. White was not replaced, nor were his duties assigned to anyone else.

At the effective date of his discharge, White had worked for Westinghouse for 29 3/4 years. If he had achieved 30 years of service, he would have received higher benefits whether he sought early retirement or full retirement at age 65.*fn4 In addition, he could have sought early retirement at age 58 rather than 60. White alleges that his numerous requests to extend his termination date to allow completion of 30 years of service were either ignored or denied. App. at 57.


When reviewing a district court's decision on a motion for summary judgment, we apply the same standard as the district court. Spangle v. Valley Forge Sewer Auth., 839 F.2d 171, 173 (3d Cir. 1988). Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. We view the evidence in the light most favorable to the non-moving party. Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). Doing so, we accept the non-movant's allegations as true and resolve any conflicts in his favor. Gans v. Mundy, 762 F.2d 338, 340 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). However, summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

To apply this standard we must identify the essential elements which White, as plaintiff, must prove in his action under the Age Discrimination in Employment Act.*fn5 In an ADEA action, the plaintiff bears the ultimate burden of persuasion on the issue of discriminatory intent. To meet it, he must persuade the factfinder that age was a determinative factor in the defendant employer's decision to discharge him. Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir.), cert. denied, 469 U.S. 1087, 83 L. Ed. 2d 702, 105 S. Ct. 592 (1984).

A plaintiff may prove his case by direct or circumstantial evidence. Maxfield v. Sinclair Int'l, 766 F.2d 788, 791 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 106 S. Ct. 796, 88 L. Ed 2d 773 (1986). "When direct evidence is available, problems of proof are no different than in other civil cases." Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987). Because direct evidence of discriminatory intent is often unavailable, however, the Supreme Court has fashioned "a method of proof that relies on presumptions and shifting burdens of production." Dillon v. Coles, 746 F.2d 998, 1003 (3d Cir. 1984). First set out in McDonnell ...

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