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RESTIVO v. SKF USA

June 15, 1994

PETER J. RESTIVO
v.
SKF USA, INC.



The opinion of the court was delivered by: ANITA B. BRODY

 MEMORANDUM AND ORDER

 In this age discrimination case, on a motion for summary judgment, the issue before me is whether evidence proffered by plaintiff of a prima facie case and some minimal evidence of only pretext, but not discrimination, are as a matter of law sufficient evidence of intentional age discrimination for plaintiff to necessarily survive summary judgment. I conclude that the proffer of such evidence is not as a matter of law sufficient to survive summary judgment. In this case, however, I find that plaintiff has produced enough evidence, which taken as a whole, permits a reasonable inference of age discrimination and therefore I will deny defendant's motion.

 I. Statement of Facts

 Plaintiff, Peter J. Restivo ("Restivo"), began his employment with defendant, SKF USA, Inc. ("SKF"), in 1983. In 1987, he was promoted to sales manager in SKF's automotive after-market department ("A/T"). Restivo's employment was terminated in December, 1991. Deposition of Peter J. Restivo at 31-33.

 In about April, 1990, SKF purchased CR Manufacturing Co. ("CR"), a former competitor in the market for bearings and seals and heavy duty trucks. Restivo Dep. at 48; Defendant's Ex. B. at P4. CR Services, a division of CR, was in substantially the same business as the A/T division of SKF but was significantly larger. Defendant's Ex. B. at P4. After the purchase, SKF and CR continued to function as independent companies. Despite a non-competition agreement between SKF and CR, there was continuing friction between the companies. Restivo Dep. at 50-55. As a result, in the summer of 1991 SKF developed a plan to merge with CR. Restivo Dep. at 64-65. Restivo learned of the planned merger in September, 1991. According to the Complaint, Restivo was born in October, 1930. At the time of the merger, he was nearly 61 years old. Restivo Dep. at 93; Complaint at P6.

 SKF announced that it would have a new sales and marketing structure after the merger. SKF salespeople were guaranteed continuing employment until December, 1991 when the new structure would be implemented. At that time they would be interviewed for new positions in the merged company. Restivo Dep. at 96-97. A memorandum dated September 10, 1991 listed, as part of an agenda for a newly formed transition team, that although there would be a major "head count" reduction at SKF, the A/T personnel would not be affected. Plaintiff's Ex. C.

 Despite this policy, at a September 23, 1991 meeting, John Lonati, Vice President of SKF, told Restivo that his employment would be terminated effective December, 1991. Lonati also told Restivo that SKF would offer him an attractive severance package. Restivo Dep. at 98-99.

 After the meeting, SKF asked Restivo to continue to work temporarily following his formal termination as sales manager on a transition team formed to coordinate the merger of SKF and CR. Restivo Dep. at 103-05. Restivo made a concerted effort to retain his employment with SKF at his old position or another of equal or lesser rank. He telephoned a Group Vice President of SKF in Sweden and the President of SKF, USA, Inc. to try to persuade them to retain him. He contacted other SKF personnel to find other employment within the company. He contacted the regional manager in Cincinnati about a possible opening. He informed personnel managers that he would be willing to accept a lower paying job to remain with SKF. Restivo Dep. at 111-14, 119, 121-25, 139-141, 150-54, 163-64. SKF did not offer Restivo a permanent position, a position of lower rank, or any outplacement services. Restivo Dep. at 82-85, 140-54. Restivo agreed to join the transition team until March, 1992 and was hopeful that he might find another permanent position with SKF during that time. Restivo Dep. at 180-81.

 Because SKF failed to offer him any permanent position, Restivo attempted to find other permanent employment outside of SKF. Restivo Dep. at 182-85. In December, 1991, L & S Automotive Products offered Restivo a job as Vice President of Sales. Restivo Dep. at 188. Restivo told Bruno Tassone, Vice President of SKF Bearing Services Co., that he had been offered other employment. Tassone suggested that Restivo take the job with L & S because SKF would not permanently employ him after March, 1992. Restivo Dep. at 207-08. Restivo accepted the position with L & S.

 When Restivo left SKF in December, 1991, he had an excellent performance record, had been awarded yearly performance bonuses in 1988 and 1989, and was qualified to be retained as a sales manager, national accounts manager, or as a salesman for SKF. Restivo Dep. at 234-35; Plaintiff's Ex. A.

 As of January 1, 1992, Edward Vance, a 55 year old national sales manager at CR, was appointed national sales manager of the newly merged conglomerate, a position that combined his former duties with those of Restivo. Restivo Dep. 114-16; Defendant's Ex. C. at P8, 10. Three of five account specialists, aged 34 to 53, were also terminated as of December 1991 but were later hired back. In addition two other management positions were filled by a 40 and 43 year old respectively. Defendant's Answers to Plaintiff's First set of Written Interrogatories Ex. B.

 Restivo brings this suit under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S.A. § 955, et seq. SKF offers evidence of a legitimate, non-discriminatory business reason for dismissing Restivo. SKF maintains that it was cost efficient to reduce its personnel following the merger with CR. SKF contends that in reducing its managerial force, it had to choose amongst its own managers and those of CR. SKF proffers that it systematically chose managers formerly of CR because the decision had been made for CR ...


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