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KILISZEWSKI v. OVERNITE TRANSP. CO.

April 13, 1993

JEROME W. KILISZEWSKI, Plaintiff,
v.
OVERNITE TRANSPORTATION CO., Defendant.



The opinion of the court was delivered by: GLENN E. MENCER

 Defendant Overnite Transportation (hereinafter "Overnite") has moved for summary judgment in this suit alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Plaintiff Jerome Kiliszewski began employment with Overnite as a sales representative in March, 1986. Plaintiff asserts that he was a "reliable and highly productive member of the sales force." (Complaint at 7). Plaintiff avers that a new sales manager was appointed in November, 1989, George Davis. Mr. Davis implemented a new sales rating system, negatively rated the plaintiff's performance, and terminated the plaintiff on September 6, 1990. Plaintiff asserts that a younger, less-qualified sales person filled his position.

 Mr. Kiliszewski asserts that these acts by Overnite constituted discrimination against him because of his age, and were intended to drive him out as the oldest salesman at the Erie terminal, and replace him with a younger person. He also believes that the stated reasons for discharging him such as "poor sales performance" and "attitude" were pretextual, and as such constitute willful violations of the Age Discrimination in Employment Act. Plaintiff is asking for injunctive relief as well as monetary damages. Defendant Overnite filed the motion for summary judgment with this court on February 10, 1993.

 The framework of the evidentiary burdens in actions under the ADEA is now well settled. The plaintiff must first establish a prima facie case by demonstrating by a preponderance of the evidence that he or she (1) belongs to a protected class, i.e. is at least 40 years of age; (2) was qualified for the position; (3) was dismissed despite being qualified; and (4) ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination. Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir. 1992). A prima facie case creates an inference of unlawful discrimination. The burden of production then shifts to the defendant-employer who can dispel the inference by articulating a legitimate business reason for discharging the employee. Id. If the defendant meets this burden, the plaintiff then must prove by a preponderance of the evidence that the articulated reasons are a pretext for discrimination. Pretext may be proved either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered reason is unworthy of credence. Id., 957 F.2d at 1078. At all times, the plaintiff-employee has the burden of persuading the trier of fact that age was a determinative, though not necessarily the sole, factor in defendant-employer's decision to take an adverse employment action against the employee. Id.

 The standard for summary judgment is more easily stated than applied. Williams v. Borough of West Chester, Pa., 891 F.2d 458, 459 (3d Cir. 1989). "Summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. . . If reasonable ends could differ as to the import of the evidence. . .a verdict should not be directed. . .In essence. . .the inquiry under each standard is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id., quoting Anderson v. Liberty Lobby, 477 U.S. at 242, 250-52, 106 S. Ct. at 2505, 2511-12, 91 L. Ed. 2d 202 (1986).

 The court alluded to the Supreme Court's guidance in Liberty Lobby and the Third Circuit's counsel in Williams for a purpose. Presently before the court is: 1) Overnite's motion and brief in support of its motion for summary judgment; 2) Kiliszewski's brief in opposition to defendant's motion for summary judgment; 3) Overnite's reply to the plaintiff's response to defendant's motion for summary judgment; 4) Plaintiff's rebuttal to Overnite's reply to the plaintiff's response to defendant's motion for summary judgment; 5) Overnite's surrebuttal to the plaintiff's rebuttal; 6) Plaintiff's rebuttal to Overnite's surrebuttal to the plaintiff's rebuttal.

 This volume of evidence on summary judgment must be evaluated in light of Liberty Lobby's further directive that:

 
Our holding that the clear-and-convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury. It by no means authorizes trial on affidavits. Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Neither do we suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial.
 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 . (Emphasis added).

 Simply put, following the dictates of the Supreme Court, this court will not conduct a trial on the affidavits, The evidence before the court is clearly such that a reasonable party could return a verdict for the plaintiff. The evidence presents a sufficient disagreement to require submission to a jury, and is not so one-sided that one party must prevail as a matter of law. Williams, supra, 891 F.2d at 460. The record is replete with credibility determinations and the drawing of legitimate inferences from the facts which are jury functions, not those of the judge. Liberty Lobby, 477 U.S. at 255.

 II. Discussion.

 
Willy was a salesman. And for a salesman, there is no rock bottom to the life. He don't put a bolt to a nut, he don't tell you the law or give you medicine. He's a man way out there on the blue, riding on a smile and a shoeshine. A salesman is got to dream, boy. It comes with the territory.
 
Arthur Miller, Death of a Salesman (1949).

 To supplement the accustomed smile and a shoeshine, Overnite in 1989 implemented a system known as the 220 Sales Program, and a sales technique program known as Mastering Sales Fundamentals. Overnite describes the 220 Selling System as a "goal-oriented, organizational tool designed to promote effective time management." It is the evaluation based upon the 220 Selling System and Mastering Sales Fundamentals that Overnite used as its reason for dismissing the plaintiff. The court will observe initially that these two programs could be found in themselves to be pretextual by a rational trier of fact. For instance, the testimony of George Davis, who became the District Manager in charge of the plaintiff in November, 1989, ...


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