buyers under his direction. His current employer testified that he continues to perform well in his current position as a merchandise manager for a 15-store chain of women's clothing shops. The department under his direction at Pomeroy's performed well through the 1960s but had both good and bad years during the 1970s.
After Edward Munley became Pomeroy's managing director in 1972, annual reviews of Mr. Berkowitz and other executives were conducted. Mr. Berkowitz received the following summary appraisals in this annual review conducted by the managing director: "outstanding" in 1972; "incomplete" in 1973; "outstanding" in 1974; "satisfactory" in 1975; "very good" in 1976; "very good" in 1977; and "unsatisfactory" in 1978, the 1978 review having been prepared after Pomeroy's decision to discharge Mr. Berkowitz. Each review covered the previous year's performance.
Read as a whole, these reviews, conducted by three different supervisors (Messrs. Munley, Rubenstein, Robert H. Landau), show plaintiff to be a good merchant, but not one without faults. As early as 1973, his reviews noted that he was set in his ways of operating his departments, "extremely conservative" and somewhat defensive when criticized for these perceived shortcomings. However, other reviews, particularly that of 1974, show that he responded well to earlier lukewarm reviews. However, the problems alluded to in earlier reviews continued to be noted in the 1976 and 1977 reviews.
During the 1970s, the sales volume and gross margin (total retail dollar sales minus the cost of goods sold) in the plaintiff's departments increased in some years and decreased in others. However, during 1976 and 1977, the departments for which Mr. Berkowitz was responsible were generally decreasing in both sales and gross margin. (Exhibit D-3). Retailers regard gross margin as a significant figure that provides a good indication of a merchandise manager's relative success in operating his departments. During the 1976-1977 period, the entire Pomeroy's chain was performing poorly relative to other stores owned by Allied and its subsidiaries (Exhibit D-3). As a result, Mr. Berkowitz and others were replaced.
Mr. Rubenstein, the managing director in early 1978, was principally responsible for the decision to discharge Mr. Berkowitz. He consulted with Mr. Lesser and Mr. Davidow before so doing; they concurred in his decision. Mr. Rubenstein made this decision because he felt that Mr. Berkowitz had not adapted well to the changes in Pomeroy's internal operation or to changing trends in the fashion industry, resulting in poor performance in the departments under his supervision. At the time, Mr. Rubenstein was making and considering several significant personnel changes in an effort to improve Pomeroy's fortunes. He was, at the time he decided to discharge plaintiff, also considering discharging Mr. Davidow. Several months later, Mr. Lesser, acting on behalf of the parent corporation, decided to discharge Mr. Rubenstein and replace him him with Mr. Davidow and Mr. Rubenstein was terminated and replaced with Mr. Davidow. The Court finds that the evidence shows that the decision to discharge Mr. Berkowitz was based on dissatisfaction with his performance during 1976 and 1977 and management's desire to find someone who would produce a gross margin more acceptable to Allied Stores.
At trial, both sides presented statistical studies concerning the discharge of Pomeroy's executives. Most of the testimony was devoted to criticizing the methodology of the opposing party. Predictably, the plaintiff's expert witness concluded that older Pomeroy's executives were more likely to be terminated and that this statistical probability did not result from random chance or sampling error. The defendant's expert witness concluded that no such pattern existed unless one made arbitrary methodological assumptions favorable to the plaintiff. For the reasons hereinafter set forth, the Court found the expert statistical evidence of both sides to be inconclusive.
In suits brought pursuant to the ADEA, the plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. To satisfy this burden, a plaintiff must show that (1) he was within the age group protected by the ADEA; (2) he was qualified for the job he held; (3) he was discharged, and (4) the position was filled with a younger employee or employees. Smithers v. Bailar, 629 F.2d 892, 894-95 (3rd Cir. 1980). These guidelines for establishing a prima facie case of discrimination were first set forth by the United States Supreme Court in the context of Title VII suits involving race discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and have been considered applicable in ADEA cases as well. See Smithers, supra, 629 F.2d at 894-95; Rodriguez v. Taylor, 569 F.2d 1231, 1239 (3rd Cir. 1977), cert. denied, 436 U.S. 913, 98 S. Ct. 2254, 56 L. Ed. 2d 414 (1978); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); Laugesen v. Anaconda Co., 510 F.2d 307 (6th Cir. 1975). See also Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S. Ct. 2066, 2071, 60 L. Ed. 2d 609 (1979) (analogous sections of ADEA and Title VII should be construed similarly).
Once plaintiff has established a prima facie case of age discrimination, the burden of production shifts to the defendant to rebut the resulting presumption of discrimination by producing evidence that the plaintiff was discharged for a legitimate, non-discriminatory reason. To do this, the defendant must set forth, through the introduction of admissible evidence, the reasons for discharging the plaintiff. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 1094-95, 67 L. Ed. 2d 207 (1981). The burden is not a heavy one. The defendant need only articulate and support rather than prove a non-discriminatory reason for discharge. The employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus. Burdine, supra, 450 U.S. at 257, 101 S. Ct. at 1095; accord, Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S. Ct. 295, 58 L. Ed. 2d 216 (1978); Grant v. Gannette, Civil Action 538 F. Supp. 686 (1982).
Once the defendant proceeds with his burden of production to rebut plaintiff's prima facie case, the plaintiff, who has the burden to convince the trier of fact, by a preponderance of the evidence, may then rebut the defendants' proffered reason for discharging the plaintiff by showing that it is merely pretext for age discrimination.
Although discrimination cases can be usefully analyzed in terms of the three-phase framework set forth in McDonnell Douglas v. Green, supra, "there is no requirement that the evidence be introduced in such a compartmentalized form." Worthy v. United States Steel Corporation, 616 F.2d 698, 701 (3rd Cir. 1980). Plaintiff's evidence relevant to the question of pretext can be presented as part of his initial evidence going to the prima facie case itself or it may be developed during the other party's case in chief, such as by cross-examination. Id. at 701; Whack v. Peabody & Wind Engineering Co., 595 F.2d 190, 193 (3rd Cir. 1979).
The plaintiff retains the burden of persuasion throughout the litigation. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 1094-95, 67 L. Ed. 2d 207 (1981). To satisfy this burden, the plaintiff must show that the plaintiff's age was a "determining factor" in the defendant's decision to discharge him. That is, the plaintiff must show that age was a proximate cause of his discharge and that "but for" his age, he would not have been discharged. In Smithers v. Bailar, 629 F.2d 892, 897 (3rd Cir. 1980), the Third Circuit stated that, to persuade the trier of discrimination,
plaintiff must show that age was one factor considered by the employer and, second, plaintiff must prove that age made a difference in the disputed decision.... (Plaintiff must establish that age played a part in the decision even though the employer could demonstrate strong and perhaps more compelling non-discriminatory reasons for his actions.... (a) plaintiff need not prove that age was the employer's sole or exclusive consideration, but must prove that age made a difference in deciding the promotion, retention or discharge.