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LAZZARO v. FRANKLIN MINT CO.

December 20, 1993

JOSEPH N. LAZZARO Plaintiff,
v.
FRANKLIN MINT COMPANY Defendant.



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 Joyner, J.

 Standard

 In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The court is required to determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In making this determination, all reasonable inferences must be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 256, 106 S. Ct. at 2512. While the movant bears the initial burden of demonstrating an absence of genuine issues of material fact, the nonmovant must then establish the existence of each element of its case. J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir. 1990), cert. denied, 499 U.S. 921, 111 S. Ct. 1313, 113 L. Ed. 2d 246 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)).

 Facts

 Plaintiff was fired from his job as a print shop manager on February 6, 1992 when he was 49 years old. Although plaintiff had been working at defendant for twelve years, he had only served as print shop manager for the last five years. While plaintiff's performance was generally rated as good or very good as related to his production management and printing industry knowledge, his performance relating to personnel, financial and administrative management, as well as his ability to work with others, had been rated as fair in the past.

 In July 1991, Timothy Patterson became plaintiff's new supervisor. It appears that there were problems between the two men from the start. Apparently, plaintiff exhibited some hostility to Patterson and questioned his authority when he became supervisor, and Patterson also rated plaintiff lower on his performance ratings in his October 1991 evaluation than his previous supervisor, Tony Ruggeiro, had done. In February 1992, Patterson fired plaintiff, citing three significant incidents that had occurred as his reason for his action. First, plaintiff had condoned the creation and administration of a "slush fund" whereby members of the print shop sold the metal printing plates to recyclers, and used the proceeds for their collective use. These plates had previously been thrown out by defendant. Plaintiff allegedly concealed this fund from Patterson although the two men had discussed how the Christmas party would be funded and the fund had already been earmarked for the party. Second, it was alleged that plaintiff was improperly disposing waste ink which was considered to be hazardous waste. Third, Patterson cited plaintiff's failure to accept management responsibility when an issue of The Mint Condition was unacceptable and had to be reprinted.

 After plaintiff was fired, defendant placed an advertisement for plaintiff's replacement. Defendant initially sought a person who would act as a consultant for two to three years while one of the employees in the print shop was being "groomed" for the position as manager of the print shop. Although two employees were considered to be the candidates for grooming, Dorothy Van Ess, aged 29, and Bruce Mishler, aged 31, nothing was definitely offered to either one of them.

 Discussion

 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 ...


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