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TOZZI v. UNION R.R. CO.

August 31, 1989

ENIO A. TOZZI, Plaintiff,
v.
UNION RAILROAD COMPANY, Defendant


Maurice B. Cohill, Jr., United States District Judge, Gary L. Lancaster, United States Magistrate.


The opinion of the court was delivered by: COHILL, JR.; LANCASTER

MAGISTRATE'S REPORT AND RECOMMENDATION

GARY L. LANCASTER, UNITED STATES MAGISTRATE

 Plaintiff, Enio A. Tozzi, filed this civil action against Union Railroad Company alleging that defendant violated the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. §§ 621-634. Before the court is defendant's motion for summary judgment. For the following reasons, the motion should be granted.

 I. BACKGROUND

 The following material facts are undisputed. Defendant provides rail freight service on a 17 mile line between North Bessemer, Pennsylvania, and Clairton, Pennsylvania, as well as on several short branch lines. This service is closely tied to the steel industry located in Monongahela River Valley ("Mon Valley"), with the bulk of defendant's business consisting of moving raw materials and finished products and performing in-plant switching for Mon Valley steel mills. However, the decline in the Mon Valley steel industry in recent years greatly reduced defendant's freight traffic and revenues. This decline in business and in the concomitant reduction in the size of its fleet has resulted in less work for defendant's mechanical department. As a result, defendant determined to streamline certain management positions in that department. Accordingly, during the summer of 1986, management determined that one person could assume the duties of both the Chief Clerk-Locomotive and Chief Clerk-Car, and thus consolidated the two positions into one entitled Chief Clerk-Car and Locomotive. At the time, the Chief Clerk-Locomotive job was held by plaintiff. The job of Chief Clerk-Car was held by Jean Tester, a fifty-four (54) year old woman.

 There is no dispute that both plaintiff and Tester performed the functions of their respective positions in a competent manner. Nor is there a dispute that either could perform the functions of the consolidated position. However, when faced with the need to consolidate the two positions, defendant chose to retain Ms. Tester. Plaintiff was, in essence, then forced to retire. *fn1" Plaintiff contends that the decision not to offer him the new consolidated position was due in whole or in part to his age (60).

 II. STANDARD OF REVIEW

 Summary judgment is proper when the pleadings and evidence on file show that "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. Rule 56(c). A "material fact" is one whose resolution will affect the ultimate determination of the case. S.E.C. v. Seaboard Corp., 677 F.2d 1289, 1293 (9th Cir. 1982). A genuine dispute about a material fact arises when "the evidence is such that a reasonable jury could return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Contrary to the traditional view that summary judgment is a drastic remedy, to be used sparingly, the Supreme Court has now made clear that Rule 56(c) was designed to facilitate, not inhibit, the granting of summary judgment. See Anderson, id. at 242; Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To demonstrate entitlement to summary judgment, the defendant, as the moving party, is not required to refute the essential elements of the plaintiff's cause of action. The defendant need only point out the absence or insufficiency of the plaintiff's evidence offered in support of those essential elements. Id. at 322-23; Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Houser v. Fox Theatres Management Corp., 845 F.2d 1225, 1229 (3d Cir. 1988). Once that burden has been met, the plaintiff must identify affirmative evidence of record which supports each essential element of his cause of action. Anderson, 477 U.S. at 256-57.

 Factual specificity is required of one who opposes a motion for summary judgment because summary judgment is designed to go beyond the pleadings to assess whether a genuine issue of material fact exists and whether a trial is necessary. Celotex, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548. Therefore, in order to defeat a properly supported motion for summary judgment, a plaintiff can not merely restate the allegations of his complaint, Farmer v. Carlson, 685 F. Supp. 1335 (M.D.Pa. 1988), nor can he rely on self-serving conclusions unsupported by specific facts in the record. Plaintiff must point to concrete evidence in the record which supports each essential element of his case. Celotex, 477 U.S. at 322-23. If the plaintiff fails to provide such evidence, then he is not entitled to a trial and defendant is entitled to summary judgment as a matter of law.

 Thus, the mere existence of some alleged factual dispute between the parties will not defeat a motion for summary judgment. See Graham v. Collier, 688 F. Supp. 146, 147 (D.Del. 1988). Rather, where the party with the burden of proof fails to demonstrate the existence of an element essential to his case, "there can be 'no genuine issue as to any material fact,' given a complete failure of proof concerning an essential element of the non-moving party's case, necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322-23.

 With these concepts in mind, we turn to the merits of the motion.

 III. ...


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