The opinion of the court was delivered by: VANARTSDALEN
This is an age discrimination action in which the plaintiff, Silas A. Miller, alleges, inter alia, that the defendant, General Electric Company (GE), demoted him and reduced his salary by twenty-five percent (25%) because of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634. Trial was held before this court, sitting without a jury, on January 27 and 28, 1983. Upon consideration of the evidence and exhibits presented at trial and the post-trial memoranda submitted by the parties, I conclude that age was not a determinative factor in plaintiff's demotion and/or reduction in pay. I further conclude that plaintiff has failed to prove by a preponderance of evidence any violation of the ADEA by the defendant. In accordance with Federal Rule of Civil Procedure 52(a), I make the following findings of fact and conclusions of law.
1. Plaintiff, Silas A. Miller, was born on April 22, 1928. At all times relevant to this action, plaintiff was within the age group which Congress intended to protect under the provisions of the ADEA. See 29 U.S.C. § 631. Defendant, GE, is an "employer" as that term is defined under the ADEA. Id. § 630(b).
2. Plaintiff was hired by GE in 1959. After working in various positions at different GE facilities, plaintiff applied for the position of manager of materials at GE's Philadelphia Apparatus Service Shop. The Philadelphia Apparatus Service Shop was a repair facility for large equipment, including engines, transformers and turbines. The manager of materials was responsible for, inter alia, the order and purchase of parts and materials, the maintenance of the necessary inventory and the supervision and control of the stock room. The manager of materials reported directly to the shop manager.
3. Plaintiff was interviewed for the position of manager of materials by John Forchielli, the shop manager of the Philadelphia Apparatus Service Shop, and by Jack Waldron and Harold Bongarten, general managers at GE's Apparatus Service Business Division in Schenectady, New York. Mr. Bongarten commented to Mr. Forchielli that plaintiff "did not look like a shop manager." Mr. Miller was hired for the job of manager of materials and held that position from October, 1973 to February, 1978. The position was rated at a level 12 with a concomitant salary in 1978 of approximately $28,000. Mr. Miller was forty-five years of age when he was hired for the position.
4. In Mr. Miller's evaluation and development summary report dated January 14, 1974, Mr. Miller designated his immediate career interest as "Service Shop Manager" and his long term career interest as "Service Shop Manager -- reporting to a Department Level Manager" or "Area Manager in Europe or South America." The evaluation of Mr. Miller's performance as manager of materials since joining the Philadelphia Apparatus Service Shop in October of 1973 was favorable. The report, dated January 14, 1974, stated that Mr. Miller needed more exposure to the business but concluded, "Si has the ability to be a successful Shop Manager." A promotion to a shop manager was Mr. Miller's next recommended assignment after two years in the position of materials manager. See Plaintiff's Exhibit 8.
5. In Mr. Miller's evaluation and development summary dated January 16, 1976, Mr. Miller again received a favorable performance rating as manager of materials. The report recommended more "firing line" experience and continued exposure to the service business. The report further stated: "Si wants to be a Shop Manager and I feel that he has the drive, background and ability to be a successful one. He can also be a significant contributor as the Division Manager of Materials." The report, prepared by shop manager John Forchielli, recommended the position of shop manager as Mr. Miller's next assignment after one more year as materials manager and after completion of a shop manager training program. See Plaintiff's Exhibit 9.
6. Mr. Miller's performance was again reviewed in a report, dated December 16, 1976, prepared by Shop Manager R. O. Anderson. The report described Mr. Miller's work as follows:
Again, Mr. Miller was recommended for the position of shop manager, after another year as manager of materials and after completion of a shop manager training program. See Plaintiff's Exhibit 3.
7. In August of 1977, Francis D. Westfall, Jr., assumed the position of shop manager at the Philadelphia Apparatus Service Shop succeeding R. O. Anderson. Prior to that, Mr. Westfall was manager of the Manufacturing Projects, Eastern Apparatus Service Department. Mr. Westfall was familiar with the financial status of the Philadelphia Apparatus Service Shop. Mr. Westfall was sent to the Philadelphia Apparatus Service Shop by W. H. Bryan, the general manager of the Eastern Apparatus Service Department. The purpose in sending Mr. Westfall to the Philadelphia shop was "to get things back on track" after the Philadelphia shop, which historically had been one of GE's most productive shops, had received poor intra-corporate financial ratings.
8. Mr. Westfall reviewed the performance reports of each of the Philadelphia service shop managers, including Mr. Miller. Mr. Westfall discovered what he perceived to be deficiencies in the materials section, of which Mr. Miller was the manager. Mr. Westfall discussed these areas of concern with Mr. Miller in November of 1977. At or about that time, an audit was conducted of the Philadelphia Apparatus Service Shop by members of GE's Apparatus Service Business Division in Schenectady, New York. Although Mr. Westfall did not receive the written report of the material systems analysis for the Philadelphia Apparatus Service Shop until on or about January 19, 1978, Mr. Westfall received oral communications concerning deficiencies from the auditors prior to that date. The results of the audit identified problems in the materials section which needed to be addressed as well as problems which had been previously noted in that section which were in Mr. Westfall's opinion still uncorrected. These problems included missing or damaged materials and inadequate inventory control.
9. In an evaluation and development summary prepared by Mr. Westfall, dated January 4, 1978, in regard to Mr. Miller's performance, Mr. Westfall stated that the plaintiff's performance had been "totally unsatisfactory" during the period in which Mr. Miller had reported to Mr. Westfall. The report identified specific areas of concern within the materials section -- continued material shortages, inaccurate accounting for assigned stock and lack of any organized approach to the materials functions -- as well as Mr. Miller's waning enthusiasm and drive. Mr. Westfall recommended a ninety (90) day probationary period for Mr. Miller to "determine whether removal from the job is appropriate." Notwithstanding the prior evaluations and recommendations as to Mr. Miller's potential for a position as a shop manager, Mr. Westfall's evaluation summary stated that the plaintiff's goals were unrealistic at that time and that it was mandatory for Mr. Miller to make a concerted effort to improve his present performance. See Defendant's Exhibit 1.
10. Mr. Westfall received the material systems analysis audit of the Philadelphia Apparatus Service Shop on or about January 19, 1978. A copy of the audit was sent to Mr. Miller. See Defendant's Exhibit 3. Mr. Miller forwarded a copy of the January, 1978 report to two of his subordinates, John Baldino and Wayne Bevan, and suggested to them that the report would probably result in some personnel changes.
12. In a memorandum to Mr. Westfall dated February 3, 1978, Mr. Miller responded to Mr. Westfall's criticisms. Mr. Miller specifically addressed each of Mr. Westfall's concerns and further attempted to reconcile the deficiencies identified by Mr. Westfall. For example, Mr. Miller pointed out that his request for additional help for the materials section, including a full-time expediter and a manufacturing management program trainee, had been denied. Additionally, Mr. Miller defended his failure to provide a formal plan for the elimination of material shortages by asserting that it was his understanding that such plan was not to be attempted until after receipt and review of the division materials audit and review. On or about February 6, 1978, Mr. Miller submitted to Mr. Westfall his formal plan for remedying the problems identified in the materials section. Compare Defendant's Exhibit 4 with Defendant's Exhibit 5.
13. During Mr. Miller's probationary term, plaintiff took vacation time in order to travel to Florida to visit his ailing mother. Mr. Westfall was never notified of the plaintiff's vacation plans or the reason therefor. This action by Mr. Miller resulted in Mr. Westfall's decision to remove Mr. Miller from the position of manager of materials. See Plaintiff's Exhibit 1. Upon his return, the plaintiff's probationary status was terminated. In a letter dated February 24, 1978, Mr. Westfall notified Mr. Miller that he had thirty (30) days to seek employment, either inside or outside of GE. The letter further stated that if Mr. Miller was unable to obtain employment within the thirty (30) day period, GE would be prepared to offer him a level 6 position as a foreman. Before making the decision to terminate Mr. Miller, Mr. Westfall consulted with W. H. Bryan, the general manager of the Eastern Apparatus Service Department.
14. Plaintiff was replaced in his position as materials manager by Ronald F. Ritschel. Mr. Ritschel was under the age of forty at the time he replaced Mr. Miller.
15. Plaintiff was unable to find alternative employment during the thirty-day period. On or about March 24, 1978, he accepted GE's offer of a position as foreman at a level 6. He retains that position to date. Mr. Miller's salary was reduced by twenty-five percent (25%) as a result of the demotion from a level 12 position to a level 6 position. Mr. Miller's functions as a foreman are substantially different from his functions as a materials manager. In the latter position, Mr. Miller had ten to twelve hourly employees working under his supervision and three exempt salaried employees under his control. As a foreman, Mr. Miller supervises three to four hourly employees (truckers) and no exempt employees. Although some of his duties are tasks which he performed when he held the position of manager of materials, Mr. Miller no longer has the supervisory or managerial responsibilities of a materials manager.
16. While in his current position as foreman, Mr. Miller was alerted to an opportunity to work as a materialman administrator on a "contract basis" at a nuclear power plant in Tulsa, Oklahoma. When a GE employee goes to work for another company on a contract basis, the employee remains on the GE payroll, receiving his regular GE salary and benefits, and GE receives compensation for the employee's services under the contract with the borrowing company. Mr. Westfall objected to sending plaintiff to the Tulsa power plant on a contract basis because the position would only have been temporary. As a ...