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.
The ADEA makes it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To recover, "a plaintiff must prove by a preponderance of the evidence that age was the determinative factor in the employer's decision." Berndt v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253, 256 (3d Cir. 1986) (citations omitted).
The three-stage shifting burden of proof originally developed in the context of title VII employment discrimination cases, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1980), has been adapted for use in claims filed under the ADEA. See, e.g., Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986). First the plaintiff has the burden of making out a prima facie case of employment discrimination. In the absence of direct evidence, a plaintiff may establish a prima facie case of discrimination in the failure to hire context by proving by a preponderance of the evidence that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was rejected for the position despite being qualified; and (4) the employer ultimately filled the position by a person sufficiently younger to permit an inference of age discrimination. See Maxfield v. Sinclair International, 766 F.2d 788, 793 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986). See generally, Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897-98 (3d Cir. 1987), cert. dismissed, 483 U.S. 1052, 97 L. Ed. 2d 815, 108 S. Ct. 26 (1987).
Once plaintiff has established a prima facie case, the burden then shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the failure to hire. McDonnell Douglas, 411 U.S. at 802. If such a reason is offered, the plaintiff then has the burden of showing that the proffered reason was in fact a pretext for invidious discrimination. See Burdine, 450 U.S. at 256. The plaintiff may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer, or indirectly by showing that the employer's proffered explanation is unworthy of credence. Id. Because of this structure of proof, an ADEA defendant can prevail on a summary judgment motion either by showing that the plaintiff can raise no genuine issue of fact as to one or more elements of plaintiff's prima facie case; or, by introducing evidence of nondiscriminatory animus and showing that plaintiff can raise no genuine issue of fact as to whether the proffered reason is a pretext for discrimination. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988) (citation omitted).
Defendant's only challenge to the prima facie case is that Ms. Tester, at age 54, is not "sufficiently younger" than plaintiff to support the final element of a prima facie case. In this regard, plaintiff need not show that he was replaced by an individual not in the protected class, i.e., someone below age 40. Maxfield v. Sinclair International, 766 F.2d 788, 792-93 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986). However, plaintiff must show that the favorably treated employee was "sufficiently younger to permit an inference of age discrimination." Id. at 793. In Maxfield, the court found that a twenty-three year difference was sufficient to raise the inference. In Healy v. New York Life, 860 F.2d 1209 (3d Cir. 1988), the court ruled that nine years difference was sufficient. However, the court is admonished to avoid a mechanistic approach to the prima facie test. See Pace v. Southern Railway System, 701 F.2d 1383 (11th Cir. 1983), cert. denied, 464 U.S. 1018, 78 L. Ed. 2d 724, 104 S. Ct. 549 (1983). Accordingly, we look not only to the actual age difference, but to the surrounding circumstances to determine if plaintiff has raised an inference of discrimination. Thus, in Douglas v. Anderson, 656 F.2d 528 (9th Cir. 1981), a five year difference plus substantial evidence of plaintiff's qualification for the position established a prima facie case.
While the six year difference between plaintiff and Ms. Tester is not great, a jury acting reasonably could conclude that it is sufficient to raise an inference of discrimination, particularly when coupled with the fact that plaintiff was qualified for the position and that plaintiff was eligible for the 70/80 plan while Ms. Tester was not. We conclude plaintiff has established a prima facie case.
Defendant next claims that it is entitled to judgment because plaintiff has offered no evidence to show that its decision to hire Ms. Tester was a pretext for age discrimination rather than a reasonable business decision.
Among the objective indicia of pretext are employment decisions that represent a departure from standard business practice, suspect methods of decision-making, proof of a history of discrimination or of a hostile working environment, and statistical proof. See Warren v. Halstead Industries, Inc., 802 F.2d 746, 752-53 (4th Cir. 1986). It is axiomatic that plaintiff can not create an issue for the jury simply by challenging defendant's business judgment. See Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1223 (7th Cir. 1980), cert. denied, 450 U.S. 959, 67 L. Ed. 2d 383, 101 S. Ct. 1418 (1981) ("The Age Discrimination in Employment Act . . . was not intended as a vehicle for judicial review of business decisions.").
Defendant explained its decision to retain Ms. Tester as follows:
The duties of the consolidated position of chief clerk-car and locomotive were assumed on October 1, 1986 by Jean A. Tester, the incumbent chief clerk-car who was 54 years old at the time. Union Railroad determined that Jean Tester possessed certain job skills, not possessed by plaintiff, which made her more qualified to take over the position. Jean Tester knew the office procedures for compliance with the rules and regulations of the Federal Railroad Administration ("FRA") and the American Association of Railroads ("AAR") governing cars, plaintiff did not. Although plaintiff would have been familiar with the rules governing locomotives, the car rules were far more extensive, in fact the amount of time required by the chief clerk to comply with the rules and regulations for cars was approximately five times greater than that which was required with respect to locomotives.
Jean Tester also knew how to operate word processing systems, plaintiff did not. Moreover, Jean Tester showed initiative by learning word processing skills on her own. In 1986, personal computers were installed in defendant's Monroeville office where Jean Tester was employed. The Car Department files were then transferred to these computers. Jean Tester prepared herself in advance for this change by learning word processing through in-office training and evening courses at a local college.