replacement was clearly superior on certain relevant criteria. The relative merit of Pears' replacement is not clear, and Company officials claim not to have compared the qualifications of the two men. Healy would have had to undertake expanded responsibility which he was not suited for. Pears was to perform the same job. Objections to Healy were consistent with prior performance evaluations. Pears had always received highly favorable reviews.
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,
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. 87-416 will be denied.
C. Jacqueline Walsh (C.A. No. 87-417)
Jacqueline Walsh was employed by Spang as a secretary to the Corporate Engineering Department at the Company's Butler headquarters. At the time of the August 30, 1985 layoff, Walsh was 58 years of age. Other younger secretaries were retained.
Within days of the November 30, 1985 terminations, each terminated employee went through an individual exit interview with the Company's personnel office. At that interview, each employee was offered a special severance benefit in return for a release of any claims against the Company. This offer was made to Ms. Walsh, and she took the forms home and discussed them with her husband. Several days later she returned to Spang's offices, signed the release and accepted a special severance payment of $ 2,040 representing two months' pay.
Defendant now raises the release as a bar to plaintiff's claim. Waiver of an ADEA claim is enforceable, but only after careful evaluation of certain relevant factors to determine whether the employee's waiver was "knowing and willful." Cirillo v. ARCO Chemical Co., 862 F.2d 448 (3rd Cir. 1988); Coventry v. United States Steel Corp., 856 F.2d 514 (3rd Cir. 1988). The relevant factors are 7 in number:
(1) The clarity and specificity of the release language;
(2) the plaintiff's education and business experience;