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MCCAMBRIDGE v. BETHLEHEM STEEL CORP.

December 16, 1994

DONALD W. MCCAMBRIDGE, Plaintiff
v.
BETHLEHEM STEEL CORP., Defendant



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

 HUYETT, J.

 DECEMBER 16, 1994

 I. BACKGROUND

 Defendant Bethlehem Steel Corporation ("Bethlehem") employed Plaintiff Donald W. McCambridge for twenty-one years until he was permanently laid off from his job, effective June 30, 1992 as part of a "permanent force reduction." At the time of his termination, Defendant employed Plaintiff, then age sixty, as Director of Fiscal Affairs in its Industry Affairs Division.

 In Count I, Plaintiff alleges that his termination violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. In Count II, Plaintiff raises two claims. He claims that Defendant violated the 1990 Older Workers' Benefit Protection Act ("OWBPA"), Pub. L. No. 101-433, 104 Stat. 978 (codified as amended at 29 U.S.C. §§ 623(f)(2), 623(i)-(l), 626(f)) which amended the ADEA, because Defendant reduced his entitlement to severance pay based on his eligibility for retiree health benefits. He also claims that Defendant reduced his special initial pension amount ("Special Payment") by the amount of his earned vacation in violation of the OWBPA.

 Two motions are pending before the Court. In one motion, Defendant moves for summary judgment on both counts of Plaintiff's complaint. In the other motion, Plaintiff moves for partial summary judgment on Count II. In the interests of clarity and convenience, the Court considers both motions in this memorandum, although it issues two separate orders.

 After considering the parties memoranda in support of and opposition to the pending motions, the Court grants Defendant's motion for summary judgment with respect to the claim concerning calculation of severance pay in Count II. The Court denies Defendant's motion for summary judgment on the issue concerning payment of vacation pay in Count II as well as Defendant's motion for summary judgment on Count II. The Court also denies Plaintiff's motion for summary judgment in its entirety.

 II. DISCUSSION

 A. Summary Judgment Standard

 Summary judgment is proper when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). This Court's role is to determine "whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993). The moving party has the burden of demonstrating that no genuine issue of fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Further, the evidence must be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962). However, if the non-moving party fails to adduce sufficient evidence in connection with an essential element of the case for which it has the burden of proof, the moving party is entitled to summary judgment as a matter of law. Celotex, 477 U.S. at 322-23, 106 S. Ct. at 2552.

 B. Age Discrimination in Employment Act

 The ADEA proscribes employers from failing to hire, discharging, or otherwise discriminating against any individual because of that person's age, so long as he or she is within the statutorily protected class of persons who are at least forty years of age. 29 U.S.C. §§ 623(a), 631(a).

 A plaintiff may frame a discrimination action as a "mixed motive" case or a "pretext" case. In a mixed motive case, the plaintiff alleges that the decision to terminate resulted from a mixture of proper and improper motives. Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509 (3d Cir. 1992), cert. denied, U.S. , 114 S. Ct. 88, 126 L. Ed. 2d 56 (1993). The plaintiff must produce evidence of documents, conduct, or statements by persons involved in the decision making process that may be viewed as directly reflecting the alleged discriminatory attitude. The plaintiff then needs to prove "only that the discriminatory motive made a difference in the decision." Griffiths v. CIGNA Corp., 988 F.2d 457, 471 (3d Cir.), cert. denied, U.S. , 114 S. Ct. 186, 126 L. Ed. 2d 145 (1993).

 If a plaintiff lacks direct evidence of discrimination, the plaintiff may allege that the defendant's proffered reason for its employment decision is pretextual and that discrimination was the real reason. The Supreme Court established the standards necessary to prove pretextual discrimination in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). The Third Circuit Court of Appeals is currently weighing whether the standard requires that discrimination be the sole factor or a determinative factor in the employment decision in pretext cases. Cf. Miller v. Cigna Corp., 1994 U.S. App. LEXIS 16158, No. 93-1773, 1994 WL 283269 (June 28, 1994), vacated and ordered for rehearing en banc (Aug. 12, 1994), with Griffiths, 988 F.2d 457. Although the Court presumes that this case is a pretext case, *fn1" it is not necessary for the Court to consider what Plaintiff must prove at this time because it does not affect the outcome of Defendant's motion.

 Under the familiar burden shifting rules established for pretextual discrimination cases, once the plaintiff establishes a prima facie case, it creates a presumption that the employer unlawfully discriminated against the employee. St. Mary's Honor Center v. Hicks, U.S. , , 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993); Burdine, 450 U.S. at 254, 101 S. Ct. at 1094. In a reduction-in-force ("RIF") case, the plaintiff demonstrates the existence of a prima facie case by showing: (1) the plaintiff is a member of the protected class; (2) the plaintiff was discharged from a job; (3) the plaintiff was qualified for the job from which she was terminated; and (4) other workers not in the protected class were retained. Seman v. Coplay Cement Co., 26 F.3d 428, 431 (3d Cir. 1994); Massarsky v. General Motors Corp., 706 F.2d 111, 118 (3d Cir.), cert. denied, 464 U.S. 937, 104 S. Ct. 348, 78 L. Ed. 2d 314 (1983).

 After the plaintiff establishes a prima facie case, the burden of production shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; Burdine, 450 U.S. at 254, 101 S. Ct. at 1094. Once the employer rebuts the presumption raised by the prima facie case, the presumption disappears. "'The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" St. Mary's Honor Center, U.S. at , 113 S. Ct. at 2747 (1993) (quoting Burdine, 450 U.S. at 253, 101 S. Ct. at 1093).

 C. Decision to Terminate Plaintiff

 With respect to Count I, Defendant asserts that summary judgment is appropriate on the termination claim because: (1) Plaintiff admitted that age was not the motivating factor for his lay off by Defendant; and (2) Plaintiff is precluded from recovering damages because he failed to mitigate his damages. *fn2" The Court addresses each of these issues in turn.

 At the outset, the Court notes that Plaintiff has stated a prima facie case. Plaintiff has presented evidence to show that he was sixty years old when he was laid off, he was qualified for the job from which he was terminated, and he was laid off while other younger employees with equal or lesser qualifications were not selected for lay off.

 Defendant argues that summary judgment is appropriate because the Plaintiff's testimony shows that he believes that he was chosen for lay off because his economic circumstances permitted him to "land on his feet" after lay off. Def.'s Mem. of Law in Supp. of Its Mot. for Summ. J. [hereinafter "Def.'s Mot. for Summ. J."] at 21. This argument must be rejected. The issue at hand is whether Defendant discriminated in its decision to lay off Plaintiff. At this time, a material issue of fact still exists as to Defendant's motivation. Plaintiff avers that each section in his department had to reduce its forces by a certain number of employees, that he refused to accept an offer for early retirement, that he was the only employee in his department terminated, and that other sections in his department met the reduction quota because other employees accepted early retirement. Because Plaintiff has presented evidence creating a factual dispute concerning Defendant's reasons for its lay off and ...


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