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CURTIS v. ROBERN

April 28, 1993

HAROLD F. CURTIS
v.
ROBERN, INC.



The opinion of the court was delivered by: BY THE COURT; STEWART DALZELL

 Dalzell, J.

 April 28, 1993

 Defendant Robern, Inc. is a manufacturer and distributor of architectural quality building supplies. As was the case with many firms in the building industry, Robern's fortunes suffered in the recent recession.

 In response to the recession, Robern laid off a number of its employees. Plaintiff Harold Curtis was one of them. The issue in this case is whether Curtis was a victim of the recession or of age discrimination, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.

 We held a non-jury trial on April 21 and 22, and the following will constitute our findings of fact and conclusions of law in accordance with Fed.R.Civ.P. 52(a). We have federal question jurisdiction under 28 U.S.C. § 1331.

 Background

 The parties have stipulated to many of the underlying facts. Although Robern is now a manufacturer of aluminum railings and medicine cabinets, until around August of 1991 it was also a distributor of pre-manufactured building materials for installation in new homes. Such products included shower doors, closet doors, towel bars, and other bathroom accessories.

 At all times relevant to this action, Robern employed more than twenty people and was engaged in interstate commerce. More specifically, as of February, 1990, Robern had fifty-five employees.

 In August of 1977, Robern hired Curtis as a warehouseman. At the time, Curtis was 47 years old (his date of birth is January 19, 1930). Curtis's title was changed to "Leadman" in 1987. According to Mark R. Madeira, Robern's General Manager, "Leadman" is a designation given to employees Robern considered "very knowledgeable" about their jobs.

 Robern hired Jesse Walsh in 1985 as a warehouseman. At the time he was hired, Walsh was 21 years old (his date of birth is May 19, 1964). Thus, from 1985 through 1991, both Jesse Walsh and Harold Curtis worked full-time in the approximately 6,000 square foot inventory section of the 32,000 square foot plant in Bensalem, Pennsylvania.

 The parties have stipulated that beginning in early 1990, the recession in the building and new construction industry began to take its toll on Robern's business. Consequently, a reduction in force commenced in March of 1990, and by a year later, nineteen employees were laid off and not replaced.

 General Manager Mark Madeira, who was 26 years old at the time (his date of birth is August 4, 1964), decided that the warehouse did not require two full-time employees, and thus either Jesse Walsh or Harold Curtis would have to be laid off. The parties have stipulated that Madeira and Larry Katz, then the Materials Manager, made the final decision that resulted, on February 15, 1991, in Curtis's layoff.

 No one at trial disputed Curtis's testimony that on February 15, at about 2:30 in the afternoon, Larry Perpente, then Robern's Traffic Manager, called Curtis into the office of Michael Seville and told Curtis, "We are going to have to let you go today." Curtis therefore that day ended almost fourteen years of service to Robern with no advance warning. Jesse Walsh, 34 years' Curtis's junior, kept his job.

 Factual and Legal Analysis

 In closing argument, Robern's counsel conceded that Curtis established a prima facie case under the ADEA. In short, there is no dispute that Curtis belongs to a protected class, *fn1" was qualified for the job, was laid off despite his qualification, in favor of an individual sufficiently younger to permit an inference of age discrimination. Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).

 Having established a prima facie case, the burden of production shifts to Robern to demonstrate a legitimate, non-discriminatory reason for the discharge. Gray, 957 F.2d at 1078. Robern has produced evidence of such a reason. Thus, for Curtis to prevail, we must find, by a preponderance of the evidence, that Robern's articulated reason is a pretext for discrimination. Billet v. Cigna Corp., 940 F.2d 812, 816 (3d Cir. 1991). On examining the record as a whole, Curtis has carried his burden of establishing pretext. Put in the vocabulary of applicable authority, we find, for the reasons stated below, that Robern's explanation of its decision to lay off a 61 year old well-qualified employee in favor of a 26 year old employee to be "unworthy of credence." Hazen Paper Co. v. Biggins, 123 L. Ed. 2d 338, 61 U.S.L.W. 4323, 4326, 113 S. Ct. 1701 (April 20, 1993), quoting United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).

 Robern's version at trial of why it laid off Curtis instead of Walsh was that Walsh was adept at operating Robern's computer-based inventory control system and had more experience dealing with "paperwork" than Curtis. This "paperwork" was merely filling out bills of lading, entering United Parcel Service shipments in a "UPS log", and managing 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 ...


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