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PEARS v. SPANG

August 7, 1989

PEARS
v.
SPANG; McKRUIT, JR. v. SPANG; WALSH v. SPANG; GIBSON v. SPANG



The opinion of the court was delivered by: WEBER

 FACTS

 Spang & Co. is a manufacturing concern headquartered in Butler, Pennsylvania. One division manufactured oil drilling equipment and from 1982 to 1985 this division showed increasing losses. From 1982 to 1984 these losses were fortunately offset by profits from other divisions, but in 1985 all Spang's divisions experienced a business downturn. In this Opinion we will spare the reader the detail of financial data and history provided by defendant in its brief.

 As a result of diminishing business, Spang decided in 1985 to close one plant and to effect a reduction in its salaried workforce. Company officials were instructed to conduct a review of all salaried employees throughout the Company to determine which employees were to be retained and which were to be dismissed. On August 30, 1985, Spang placed various salaried employees on indefinite layoff. Ninety days later, on November 30, 1985, layoff was converted to termination. Each of the four plaintiffs was included in this reduction in force, including the August 30, 1985 layoffs and the November 30, 1985 terminations.

 A. Merle Pears (C.A. No. 87-415)

 Merle Pears was a foreman of the Shipping and Receiving Department of the Magnetics Plant in East Butler, Pennsylvania. At the time of the August 30, 1985 layoff, Pears was 49 years old, and was replaced by a 39 year old foreman transferred out of the Closed Drill Pipe Plant. Plaintiff clearly establishes a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Just as clearly, defendant articulates a legitimate non-discriminatory reason for plaintiff's dismissal - a reduction in force and retention of allegedly better qualified or better performing employees. It is thus up to the plaintiff to establish discriminatory intent through direct evidence, or circumstantially by proving that defendant's asserted business reason was pretextual. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).

 In this case, defendant contends that plaintiff is unable to raise a material issue of fact for resolution by a jury. Specifically, defendant contends that plaintiff is unable to produce any evidence to counter defendant's asserted business reason other the the plaintiff's own subjective disagreement with the decision.

 Defendant relies heavily on Healy v. New York Life Insurance Co., 860 F.2d 1209 (3rd Cir. 1988) which allegedly revives the use of summary judgment in age discrimination claims in this Circuit. Although we believe that Healy demonstrates that summary disposition is still available in the appropriate case, it does not by itself reverse this Circuit's trend in the opposite direction, a trend which we have been most acutely aware of. See, Graham v. F.B. Leopold Co., Inc., 602 F. Supp. 1423 (W.D. Pa. 1985), rev'd 779 F.2d 170 (3rd Cir. 1985); Sorba v. Pennsylvania Drilling Co., Inc., 648 F. Supp. 292 (W.D. Pa. 1986), rev'd 821 F.2d 200 (3rd Cir. 1987); Brieck v. Harbison Walker Refractories, 624 F. Supp. 363 and 705 F. Supp. 269 (W.D. Pa. 1986), rev'd in part 822 F.2d 52 (3rd Cir. 1987), cert. granted, 485 U.S. 958, 108 S. Ct. 1218, 99 L. Ed. 2d 420 (1988), cert. dismissed as improvidently granted, 488 U.S. 226, 109 S. Ct. 546, 102 L. Ed. 2d 512 (1989). But see, Pierce v. New Process Corp., 580 F. Supp. 1543 (W.D. Pa. 1984); Hanslovan v. Pennsylvania Mines Corp., 603 F. Supp. 464 (W.D. Pa. 1985), aff'd in pertinent part 791 F.2d 917, 918 (1986).

 Other relevant facts aid plaintiff here. Pears' immediate supervisor was not consulted in the review process and expressed surprise at the decision on Pears. According to Pears, at his termination interview a Company official tried to dissuade plaintiff from seeking an attorney. Finally, one Company official admits that the Company did not consider recalling Pears from layoff because he had filed a discrimination claim.

 In addition we note that the entire matter rests on the credibility of the plaintiff and the Company's witnesses. Credibility is for a factfinder at trial and is not susceptible to summary disposition.

 Defendant has also advanced statistical evidence to support its position, and plaintiff has submitted evidence of past age discrimination by Company officials in an effort to avoid summary judgment. Because of our decision above, we need not consider this evidence in resolving the present motion, and a decision on the admissibility of such evidence will be made at trial. In fact, trial briefs on these two points may be in order.

 For the reasons stated, we conclude that summary judgment is inappropriate in C.A. No. 87-415, and defendant's motion will therefore be denied.

 B. McKruit (C.A. No. 87-416)

 Stanley McKruit, Jr. was a foreman in the Powder Core Department of the Magnetics Division Plant in East Butler, Pennsylvania. McKruit was born November 22, 1945, placing him in a unique factual position which prompts one prong of defendant's motion for summary judgment. At the time of the August 30, 1985 layoff, McKruit had not yet reached age 40. However, plaintiff celebrated his 40th birthday only eight days prior to termination on November 30, 1985. McKruit was replaced by a 31 year old foreman.

 Defendant argues that McKruit is not a member of the protected class because he was not yet 40 years old when he was included in the reduction in force. Although plaintiff reached 40 by the time he was formally terminated, the decision to include him in the reduction in force had allegedly been made long before.

 Plaintiff admits that he does not challenge the layoff because he was not yet a member of the protected class, but he argues that the layoff was not a final decision, that he was informed that the Company would re-evaluate in the intervening 90 days, and some persons laid off were in fact recalled rather than terminated. Plaintiff claims that the decision not to recall him but to include him in the termination was discriminatory on the basis of age.

 Although it is a close and unique questions, *fn1" we think that summary judgment is inappropriate in these circumstances. Plaintiff's cause became certain when the Company's decision became final. The fact that defendant had first included plaintiff in the layoff some months earlier is not determinative. Defendant admits that it held out some hope of recall for those on layoff and in fact at least two persons were recalled to work, saving them from termination.

 Until termination was actually effected, the Company at least had the option of recalling plaintiff but chose not to exercise that option. Actual termination occurred on November 30, 1985, after plaintiff had reached age 40. At the time of the discharge, McKruit was undeniably within the protected class.

 This result also provides some measure of certainty and ease of operation under the statute. We need not concern ourselves with the true nature of the layoff, or when a personnel decision was actually made. We need only look to the actual date of discharge.

 Although plaintiff cannot and does not challenge the layoff because he was not in the protected class at that time, it does not mean that plaintiff must admit that defendant's reasons for the layoff were legitimate. Presumably the considerations that caused defendant to place McKruit on layoff were the same considerations that caused defendant to ultimately terminate plaintiff. Plaintiff now bears the burden of proving that those reasons were pretextual.

 Defendant also seeks to defeat McKruit's claim on the same grounds that it attacked Pears' claim, relying on Healy. On the present record we do not believe summary judgment is warranted on this point for the same reasons stated above in consideration of the motion concerning Pears.

 For the reasons stated, defendant's motion for summary judgment in C.A. No. ...


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