equally rudimentary documents. It was never disputed that Curtis could, in fact, use the computer, and, in fact, did so. Robern's explanation at trial was, however, that Walsh was at ease with the computer and "paperwork" because he dealt with both on a daily basis and Curtis did not.
As the parties stipulated, Larry Katz, the Materials Manager, joined with Mark Madeira in making the decision to lay off Curtis. Katz's version of the reason for the layoff had nothing to do with computer or "paperwork" skills, and had everything to do with "economics". Katz stated that the "overwhelming reason" for Curtis's layoff "was money," i.e., Curtis made more than Walsh. Katz's superior, Madeira, contradicted Katz, and stated that the "cost difference between the two was negligible."
Although not a participant in the final decision to lay off Curtis in favor of Walsh, Larry Perpente, the former Traffic Manager, offered a third explanation. Perpente testified that the reason he believed Curtis was selected for layoff was because the "builder end" of the business, with which Curtis was familiar, was being phased out, and Walsh knew the growing "cabinet end", in Perpente's words, "inside and out." Madeira rejected this explanation for the decision he and Katz made.
It is quite apparent that much of the parties' dispute over whether cost was a motivating factor was because both sides were acutely aware of the Fifth Circuit's decision in Metz v. Transit Mix, Inc., 828 F.2d 1202 (7th Cir. 1987), which held that firing of an older employee to save salary costs resulting from seniority was a violation of the ADEA. Last week, however, the Supreme Court specifically disapproved the Fifth Circuit's decision in Metz when it decided Hazen Paper, supra.
Given that the testimony of Madeira and Katz were almost certainly shaped by concern for Metz, we believe that, to borrow a word Katz used in his telephone discussion with a representative of the United States Equal Employment Opportunity Commission, this subject was a "smokescreen." During the recross-examination, Katz acknowledged that he did not mention "money" in an exculpatory document he prepared in April, 1991, for Madeira because he "felt it would have been detrimental ... a detrimental statement." When Robern's counsel asked Katz what would have been "detrimental" about a reference to Curtis's compensation, Katz, acknowledging that he was not legally trained, said that the money differential "sounds discriminatory."
Given that a 26 year old General Manager and a 36 year old Materials Manager made the decision to lay off a 61 year old warehouse employee in favor of a 26 year old employee, we simply cannot conclude that both Katz and Madeira were ignorant of the age differential between Curtis and Walsh, or of the legal consequences of their February, 1991, decision. If we had any serious doubt on this subject, it would be removed by considering Madeira's behavior when he received a March 29, 1991 "Notice of Charge of Discrimination" from the EEOC's investigator, Deborah Bush (P-7).
The March 29 EEOC notice specifically stated that "No action is required on your part at this time." Notwithstanding this fact, Madeira testified that he caused Katz to draft a statement, which was dated "4-1-91", regarding Curtis's layoff.
In his deposition, and in the early part of his testimony at trial, Madeira claimed that he received Katz's handwritten statement (P-9) "a day or two" after receiving the EEOC notice. Later in the trial, however, we brought to Madeira's attention that March 29, 1991 was a Friday and April 1, a Monday. There is no dispute that Madeira was not in the office over the intervening weekend. In order to reconcile the date ascribed to P-9 with the immutable constraints of the calendar, Madeira then amended his testimony to say that Katz "must have" returned the statement on the day Robern received the EEOC notice. We find Madeira's testimony on this point not only incredible, but also as strong evidence of Madeira's urgent desire to improve the appearance of what he knew to have been an unlawful act on February 15, 1991.
First, it will be recalled that the March 29 EEOC notice by its terms called for "no action", and thus there was no urgency to do anything at all. Second, although Madeira, a Pennsylvania notary, certified on P-9 that on April 1, 1991 Katz had "sworn and subscribed" before him, Madeira admitted at trial that nothing of the kind happened, and that he merely attested Katz's signature after Katz had handed him the document. We can only conclude that Madeira's haste to make a record, and his certification contrary to his duties as a notary, are strong evidence of his knowledge of the wrongfulness of what he had authorized in February. It also, of course, demonstrates that his testimony on Robern's behalf is unworthy of belief.
Madeira had to admit that Curtis's layoff was not in conformity with the company's own procedures. Robern issues to every employee a handbook of policies (P-6) so detailed that it describes in fourteen lines of small print the minutiae of rules governing personal telephone calls. The last section of the handbook deals with "layoffs". For employees working in the same "work areas" as Curtis and Walsh were, the handbook states that:
... seniority shall be followed, provided that the remaining employees have the necessary skills and ability to perform the work .... Management will attempt to notify employees three work days in advance of layoffs, if possible.
P-6 at 14.
Although Robern attempted, largely through Madeira's testimony, to suggest that Walsh had "the necessary skills and ability to perform the work" and Curtis did not, by the time of closing argument, Robern's counsel readily agreed that Curtis had at least the ability to do it. Robern's internal documentary record, however, suggests that it regarded Curtis's "skills and ability" more highly than Walsh's.
All employees of Robern undergo annual reviews, and these reviews are recorded on a form called an "Employee Rate Review Sheet". These review sheets are the predicate for deciding whether the employee should get a raise and, if so, how much.
Curtis's last formal review occurred on September 28, 1990 (P-5). His overall performance was rated in the highest category, "more than adequate". The form defines "job knowledge" as "understands job methods and procedures, measure of skill & ablty [sic ]." Perpente on September 28, 1990, rated Curtis "R" in "job knowledge". This rating is the highest of five that can be made, and the form says it should be awarded to "one who demonstrates rare excellence compared to others who are proficient."
By contrast, Walsh's "Employee Rate Review Sheet" documented, in its August 21, 1990 version (Court Exhibit 1), that Walsh's "total performance" was "adequate" and not, like Curtis's, "more than adequate". Under "job knowledge", said to be the whole reason for choosing the 26 year old instead of the 61 year old, Walsh's August 21, 1990 form rated him "M", one level below Curtis's "R". Perpente was also Walsh's reviewer.
By its own documentation prepared ante litem motam, Robern rated Curtis as materially more valuable to the company than Walsh.
Although Madeira without evident embarrassment testified that it would take "several weeks" for Curtis to learn the computer and "paperwork" to Walsh's level of proficiency, Katz stated, and we credit his testimony, that it would take as little as fifteen minutes or, at the most, two days to become as adept in all respects as Walsh in the daily use of the computer and management of the paper flow.
Such a minuscule difference
could scarcely outweigh the difference in proficiency that the company identified in the job evaluations of September 28 and August 21 the year before. This difference was, however, palpably a "smokescreen" for Madeira to attempt to dress up what had happened to conform with the company's policies set forth in the Employee Handbook and thereby to attempt to negate the fact that "age made a difference"
in the decision to lay off Curtis instead of Walsh.
Ironically enough, Walsh was himself terminated on July 24, 1992, and replaced by Rohan Shiwdarsan, who, at the time, was 28 (his date of birth is August 3, 1963). Notably, Mr. Shiwdarsan had no experience (1) working in the warehouse, (2) with the inventory control computer, or (3) with the warehouse "paperwork". Madeira testified that Shiwdarsan was chosen because there was no one present with any knowledge of the job, and Shiwdarsan at least knew the components of cabinets because he had built them. When asked on cross-examination why Robern did not call back Curtis, Madeira referred to a "policy" that laid off employees are only recalled if the recall occurs within six months of termination. No such "policy" is mentioned in the Employee Handbook, and Robern proffered no document from any other source to confirm the existence of such a "policy". We can only infer, therefore, that no such "policy" exists, and that Curtis was not called back for the same reason he was laid off, his age.
Recognizing that Madeira's handling of Curtis's layoff and its aftermath did not present a textbook case of deft personnel management, Robern's counsel sought, in his closing argument, to explain away Madeira's at best heavy-handed conduct, noting that Robern's General Manager was "not as mature as you or I or the rest of us", that Madeira was, at the relevant times, "[a] 25 or 26 or 27-year-old kid."
In truth, Madeira was the company's Wunderkind, entrusted with complete operational authority over this substantial business at 25.
While Madeira is doubtless a highly intelligent, aggressive young man, his peremptory handling of Curtis's termination -- not even affording the three days' notice promised in the Employee Handbook -- demonstrates his insensitivity to good employee relations. His admitted misuse of the jurat demonstrates his insensitivity to his official office, as well as to the truth. His choice of a warehouseman his own age, rather than one 35 years his senior, and one who had served the company with distinction for almost fourteen years, makes us conclude that any motive other than age discrimination is simply "unworthy of credence". We therefore find that age was a determinative factor in Robern's decisions to lay off Curtis and not to recall him when Walsh was fired.
Having found that Curtis's age was indeed a determinative factor in Robern's action of February 15, 1991 and inaction in July of 1992, we must also determine whether that conduct was "willful" within the meaning of § 7(b) of the ADEA, 29 U.S.C. § 626(b), in order to determine whether the violation gives rise to liquidated damages.
Although it had been the rule in this Circuit that "willfulness" could only be found when the employer's conduct was "outrageous", Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 57-58 (3d Cir. 1989), the Supreme Court specifically disapproved of that standard in the Hazen Paper decision last week, supra, 61 U.S.L.W. at 4326-27. In rejecting Lockhart, the Supreme Court in Hazen Paper reaffirmed its definition of "willful" in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985) and McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 100 L. Ed. 2d 115, 108 S. Ct. 1677 (1988). The Court in Hazen Paper held that "willful" under § 7(b)
"... is generally understood to refer to conduct that is not merely negligent. The standard of willfulness that was adopted in Thurston -- that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute -- is surely a fair reading of the plain language of the Act."