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February 14, 1978


The opinion of the court was delivered by: PIERCE



 At the close of plaintiff's case in this non-jury action, defendants have moved to dismiss on the ground that the plaintiff has shown no right to relief, pursuant to Rule 41(b) Fed.R.Civ.P. The Court makes the following findings of fact and conclusions of law pursuant to Rule 52(a) Fed.R.Civ.P.

 Findings of Fact

 This action is brought by plaintiff Raymond J. Havelick, pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("the Age Act"). Plaintiff claims that the termination of his employment with the defendant Julius Wile Sons & Co. ("JWS") was part of an unlawful scheme by JWS and its parent corporation, Standard Brands, Inc., between 1972 and 1975 to replace older employees with younger men in order to reduce corporate expenditures relating to salaries and pension benefits.

 Plaintiff joined JWS in 1946 as a clerk; the following year he was made a salesman. In 1965, Havelick was made responsible for JWS' mid-western sales territory, and in 1973, he was promoted to manager of the JWS Western Division. At the time of his termination in April, 1975, the plaintiff was a Vice-President and Western Division Sales Manager for JWS, with responsibility for thirteen states, including two very significant markets, Northern and Southern California. In each of the years 1970 through 1974, Havelick received salary raises and bonuses. However, defendants offered testimony showing that these raises and bonuses were primarily routine.

 During the relevant period, defendant JWS was in the business of importing wines and spirits for sale in this country. JWS acted as agent for several foreign producers of wines and spirits, selling these products to distributors who in turn resold the products to retailers. Between 1973 and 1975, the period most crucial here, defendant Howard Blum was JWS' Senior Vice-President and General Sales Manager and defendant Richard Blum was JWS' President and Chairman of the Board of Directors.

 Plaintiff's responsibilities as Manager of the Western Division included the supervision of JWS District Sales Managers, and the sale and distribution of JWS products in the western portion of the United States. Plaintiff's direct superior was Howard Blum.

 While the plaintiff has presented certain evidence concerning his sales performance, the facts most important to the Court's decision are those relating to the relationship between Havelick and his superiors. Between May 1973 and April 1975 there transpired a series of incidents which must be considered as having a significant bearing on JWS' ultimate decision to discharge the plaintiff.

 In May 1973, Howard Blum wrote to the plaintiff, directing him to take a specific list of wine samples to a Mr. Stark of Safeway Stores in an effort to promote JWS' long-time interest in having Safeway carry JWS wines in their supermarkets. Although Blum had asked plaintiff in May to take forty-eight samples to Safeway, Havelick did not deliver any samples to Safeway until September 21, 1973. At that time, Havelick delivered only five wine samples, two of which he later agreed with Blum were "unwise" selections. The correspondence relating to this incident evidences JWS' dissatisfaction with plaintiff's performance (see DX-N, DX-Q, DX-R, DX-S, DX-U). Howard Blum accused Havelick of "fumbling the ball" with Safeway. Plaintiff conceded on cross-examination that Blum's memos constituted a criticism of his work. However, plaintiff states that this criticism was unjustified in light of JWS' long history of unsuccessful efforts to promote such sales in Safeway supermarkets.

 Plaintiff also conceded that Howard Blum had criticized him for failing to see that Safeway ordered sufficiently early to obtain special JWS Christmas giftboxes. Havelick further conceded that despite Blum's specific direction that he visit Stark regularly in an effort to cultivate his interest, Havelick called to see Stark only four to six times in 1973. Further, plaintiff conceded that he was criticized by Blum for his failure to follow up on a plan to show Stark the success of JWS' supermarket wine program in Southern California (DX-W).

 Howard Blum was also critical of Havelick's continual failure to file written progress reports with the New York office, and his similar failure to insure that his subordinates filed such reports. As a JWS policy statement (DX-J-4) reveals, Howard Blum had directed all salesmen to file regular reports so that the corporate officers in New York could have some understanding of what was happening in the field. Despite this clear JWS policy, Havelick found himself criticized often by Blum for his failure to insure that his men filed reports (DX-X) and for his own failure to file reports (DX-BB). Indeed, the latter criticism was contained in a memorandum so filled with ire that any reasonable person would have concluded that his employment was in jeopardy. In that memo, dated October 4, 1974, Howard Blum wrote that he was "appalled to call to [plaintiff's] attention" the fact that JWS had received no written progress reports from Havelick since September 6, 1974. Havelick explained that his failure to file reports was due to the fact that in early July, 1974, he had to discharge his secretary for budgetary reasons. Havelick had made a request for a part-time secretary (PX-164); however, he never followed up on this request.

 During 1974, several other incidents occurred which provoked Howard Blum to send Havelick memos containing sharp criticisms of the plaintiff's job performance. For example, in March, 1974, Howard Blum wrote to say that he was unable to understand why one of Havelick's subordinates could not obtain an accurate inventory count at one warehouse (see DX-C-2). Blum two months later criticized Havelick for giving his subordinates "vague directions" (DX-GG). In June, 1974, Havelick was criticized for giving retailers "unrealistic" arrival dates for JWS shipments (DX-JJ). Havelick was also sharply criticized by Blum in June, 1974, for his failure to post with the California state authorities new prices for "Get Peppermint" in order to insure that the same prices were charged in northern and in southern California (see DX-KK, DX-LL, DX-MM, DX-NN, DX-OO).

 An incident that further provoked Howard Blum to criticize Havelick was the plaintiff's failure to obtain an assistant for his subordinate Mr. Redin to aid Redin in JWS' successful southern California supermarket wine program. In March, 1974, Havelick was directed to hire a part-time assistant for Redin. Two months later, Blum reprimanded Havelick for his failure to obtain such an assistant, and authorized the hiring of a full-time assistant for Redin (DX-RR). It was not until October, 1974, that a full-time assistant was ...

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