hired Robert Domosh, aged 48, to replace plaintiff, although he was initially hired as a consultant to work for a two to three year period. However, after about three months, when it was apparent to defendant that Domosh was an excellent manager, and that no current employees in the print shop were capable of being groomed for the position of manager within the next few years, Domosh was offered, and accepted, the position on a permanent basis.
Defendant argues that plaintiff fails to establish a prima facie case of discrimination because plaintiff cannot prove he was replaced by a sufficiently younger person in order to permit an inference of age discrimination. Plaintiff argues that this factor is not absolutely required in proving a prima facie case of discrimination, but rather, the circumstances as a whole give rise to an inference of discrimination. Plaintiff contends that the fact that defendant initially sought to groom one of two younger employees as potential candidates for plaintiff's replacement shows that there is enough evidence for a reasonable jury to conclude that the discharge occurred under circumstances giving rise to an inference of age discrimination.
We disagree with plaintiff's characterization of the elements to establish a prima facie case of discrimination. Under the ADEA, the employee must prove by a preponderance of the evidence that age was a determinative factor in firing the employee. Billet v. Cigna Corp., 940 F.2d 812, 816 (1991) (citations omitted). Although the employee has the ultimate burden to prove that age was a determinative factor, this need not be the sole reason for the employer's decision, rather, age must make a difference in his decision. Id. (citations omitted). Initially, the plaintiff must first make out a prima facie case of discrimination under the ADEA, which can be proven by either direct or circumstantial evidence. Id.; Maxfield v. Sinclair Internat'l, 766 F.2d 788, 791 (3rd Cir. 1985), cert. denied, 474 U.S. 1057, 106 S. Ct. 796, 88 L. Ed. 2d 773 (1986). In the absence of direct evidence of discrimination, courts use the formula originally set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), which gives rise to an inference of age discrimination based on a certain set of assumptions about the employer's behavior. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3rd Cir. 1987), cert. denied, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987); Maxfield, 766 F.2d at 791-93. This test, as adopted by the Third Circuit courts is as follows:
1) plaintiff must prove he belongs to a protected class (which is aged 40 years or older); 2) that he was qualified for the position; 3) that he was dismissed despite his qualifications; and 4) that he was ultimately replaced by someone sufficiently younger to permit an inference of age discrimination. Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3rd Cir. 1992); Billet, 940 F.2d at 816 n.3; Healy v. New York Life Ins. Co., 860 F.2d 1209, 1214 (3rd Cir. 1988), cert. denied, 490 U.S. 1098, 109 S. Ct. 2449, 104 L. Ed. 2d 1004 (1989); Chipollini, 766 F.2d at 897. Once this burden has been met, then the burden shifts to the employer to prove some legitimate, nondiscriminatory reason for firing plaintiff. Billet, 940 F.2d at 816. The burden then shifts back to plaintiff to show that the reason offered by the employer is merely a pretext for discrimination. Id.
Recently, in Gray v. York Newspapers, Inc., the Third Circuit Court of Appeals granted summary judgment in favor of defendant with regard to plaintiff Laird's claim of discrimination under the ADEA because plaintiff could not meet the fourth prong of the prima facie test. After plaintiff was fired, defendant replaced him with a current employee, Pierce, who was 49 years old, one year younger than plaintiff. Although plaintiff attempted to argue that it was plausible to infer that he was replaced by persons substantially younger because two copy editors in their twenties were hired after he was fired, and they took over Pierce's job, the court concluded there was nothing in the record to indicate that the copy editors had replaced either plaintiff or Pierce. Further, in Spangle v. Valley Forge Sewer Auth., 668 F. Supp. 430 (E.D. Pa. 1987), aff'd, 839 F.2d 171 (3rd Cir. 1988), the court also granted summary judgment in favor of defendant because plaintiff could not make out a prima facie case, in part, because he could not prove he was replaced by someone sufficiently younger. 668 F. Supp. at 434.
Plaintiff cites various cases for the proposition that the fourth prong is flexible, and is not always required to prove a prima facie case of age discrimination. For instance, plaintiff quotes Bonham v. Dresser Indus., Inc., 569 F.2d 187, 194 (3rd Cir. 1977), cert. denied, 439 U.S. 821, 99 S. Ct. 87, 58 L. Ed. 2d 113 (1978), as stating "We do not believe that a complaint of age discrimination will always require proof that the discharged person was replaced by a younger employee; it is enough that he was discharged because of his age." However, plaintiff fails to state that in Bonham, the court stated this when it was considering whether summary judgment on a claim for breach of an oral contract of employment was proper. In so stating, the court was discussing the district court's determination that under Pennsylvania law, a breach of contract claim would lie if Bonham could prove age discrimination under the Pennsylvania statutes, thereby proving that the employer's action had offended the state's public policy. Thus, the court's statement was dictum, and further, it was not even referring to the ADEA.
Plaintiff also cites cases from other jurisdictions for the proposition that the fourth prong is not a rigid requirement. See e.g. Pena v. Brattleboro Retreat, 702 F.2d 322, 324 (2nd Cir. 1983) (where court held fourth prong was not necessary if plaintiff could show discharge occurred in circumstances which would give rise to an inference of age discrimination). While plaintiff cites no cases in this Circuit that have dropped the fourth prong, it appears in limited circumstances this prong is not always required. For instance, in reduction-in-force cases, where the employee is simply not replaced, plaintiffs need not prove this element to make out a prima facie case. White v. Westinghouse Elec. Co., 862 F.2d 56, 60 (3rd Cir. 1988). Likewise, one court in this Circuit has found where the circumstances indicate there was evidence of discrimination, then the fourth prong is not absolutely necessary. Thus, in Edwards v. Thomas Jefferson Univ., LEXIS GENFED Library, DIST File, Civ. A. No. 85-5508, 1986 WL 4316 (E.D. Pa. April 8, 1986), District Judge Giles concluded that being replaced by a younger person was one way to establish a prima facie case of age discrimination, but that plaintiffs could also establish the fourth prong by direct evidence that they were discharged because of their age. Judge Giles stated a person could:
make out a prima facie case of age discrimination, despite the fact that his replacement is older, if there is proof of age bias....While replacement by an older worker would suggest no age discrimination, it would not disprove age bias altogether. For example, employers might ward off threatened discrimination suits merely by hiring an older employee.
Id. at 1. The court found that plaintiff had shown that age was a determinative factor in the employer's decision to fire him because of statements made by plaintiff's supervisor after termination, because three other employees in the protected class were also fired, and because age discrimination could be inferred by the fact that the employer was looking for someone with a college degree and that older persons in his field tended not to have college degrees.
Based on the above cases, we find that plaintiff has not sustained his burden by proving a prima facie case of discrimination. Clearly, plaintiff was not replaced by a sufficiently younger person in this case given that Mr. Domosh was only one year younger than plaintiff. As the facts are sufficiently similar to the facts of the Third Circuit's decision in Gray, summary judgment is clearly appropriate in this case. Moreover, this is not a case where the fourth prong is inapplicable. First, this is not a reduction-in-force case. Second, plaintiff has not shown any evidence suggesting that he was fired because of his age. Unlike the situation in Edwards, plaintiff provides no evidence that age ever played a factor in Patterson's decision to fire him; there is no evidence of any statements made by Patterson or any other employee which evidences discrimination, nor does plaintiff provide evidence of other older employees being fired. Even considering plaintiff's assertions in the light most favorable to him, plaintiff's only evidence is that defendant was considering "grooming" two younger employees to ultimately replace him. However, this alone still does not provide sufficient evidence to infer that age was a factor in firing plaintiff, given that neither one of these employees was promised the managerial position, and because Mr. Domosh was the person who ultimately replaced plaintiff.
As such, plaintiff fails to provide any evidence from which a reasonable jury could infer that defendant's reasons for firing plaintiff were because of his age. Thus, plaintiff fails to prove a prima facie case by virtue of not meeting the fourth prong, and because this is not a situation like Edwards where the circumstances justify dropping the fourth prong. An appropriate order follows.
AND NOW, this 20th day of December, 1993, upon consideration of the motion of defendant Franklin Mint Company, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and all responses thereto, it is hereby ORDERED that defendant's motion is GRANTED, and summary judgment is entered in favor of defendant and against plaintiff on the Complaint.
BY THE COURT:
J. Curtis Joyner, J.