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EEOC v. TWA

August 13, 1982

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
TRANS WORLD AIRLINES, INC., Defendant


Cannella, D.J.


The opinion of the court was delivered by: CANNELLA

CANNELLA, D.J..

After a nonjury trial on the merits of plaintiff's complaint, the Court finds for defendant. The complaint is dismissed.

 BACKGROUND

 Plaintiff Equal Employment Opportunity Commission ["EEOC"] commenced this action on August 15, 1979, pursuant to 29 U.S.C. §§ 217, 626(b), alleging that defendant Trans World Airlines, Inc. ["TWA"] had continuously engaged in unlawful employment practices since June 12, 1968, in violation of section 4(a) of the Age Discrimination in Employment Act ["ADEA"], 29 U.S.C. § 623(a). At trial, however, plaintiff narrowed the scope of its allegations to the following claims: (1) a "pattern or practice" of discrimination arising from the reorganization of defendant's Cargo Staff department in New York City in August 1976, and (2) discrete acts of discrimination in terminating or refusing to promote, transfer or reassign six employees because of their age.

 On the third day of trial, the Court granted defendant's motion to dismiss those claims relating to the August 1976 Cargo Staff department reorganization on the ground that they were barred by the applicable statute of limitations, 29 U.S.C. § 255. *fn1" What remained were plaintiff's claims that TWA unlawfully denied promotions and/or reassignments to James A. Rooney, Maxwell McFall, John F. Murphy and Roger Cutrufello, and terminated George B. Kujawski and Vito A. Angerame. Plaintiff claims that all six employees are entitled to back pay.

 Defendant contends it did not discriminate against the six employees on the basis of age. Moreover, defendant argues that plaintiff's evidence failed to establish a prima facie case of age discrimination with respect to many of the contested employment decisions, and that all the other contested decisions were made for legitimate, nondiscriminatory reasons.

 Defendant is an employer engaged in an industry affecting commerce within the meaning of 29 U.S.C. § 630(b), (g), (h). Plaintiff conciliated all claims now pending in accordance with 29 U.S.C. § 626(b). The Court has jurisdiction pursuant to 28 U.S.C. §§ 451, 1345.

 FACTS

 James A. Rooney

 James A. Rooney, born September 6, 1927, joined TWA in 1951 as a Transportation Agent in Chicago. He was promoted to his first management position in 1956 as a Station Supervisor, and promoted again in 1960 to Supervisor, Ticketing Procedures in Kansas City. In 1964, he became Regional Manager, Passenger and Cargo Services at John F. Kennedy International Airport ["JFK"] in New York City. In 1968, at the age of 40, he was promoted again to Supervisor, Cargo Reservation Services. In the latter position, he supervised a department of approximately six persons which monitored TWA's system-wide cargo activity on a daily basis. In 1969, Rooney joined TWA's Cargo Staff department at company headquarters in Manhattan as Manager, Cargo Charter Sales. In 1971, he became Manager, Freight Customer Services, and in 1974 he was promoted to Manager, Freight Regulations and Claims Prevention. Rooney then assumed the position of Manager, Freight Regulations and Procedures in January 1976, but in August 1976, he was demoted to Analyst, Central Cargo Control in Kansas City as a result of the Cargo Staff reorganization. At the time of trial, Rooney held the latter position. *fn2"

 Rooney testified that he obtained extensive customer service and supervisory experience as Station Supervisor in Chicago from 1956 to 1960, Supervisor, Ticketing Procedures in Kansas City from 1960 to 1964, Regional Manager, Passenger and Cargo Services at JFK from 1964 to 1968, and Supervisor, Cargo Reservation Services at JFK from 1968 to 1969. *fn3" Rooney acknowledged, however, that the last time he held a customer service position at an airport was 1960 as a Station Supervisor in Chicago. *fn4"

 Rooney also testified that he had extensive cargo sales experience as Manager, Cargo Charter Sales in New York between 1969 and 1971. *fn5" The latter was not a field position, although Rooney claimed he assisted field personnel in making sales and occasionally made direct sales to customers in the field. *fn6" In addition, Rooney testified that he had finance experience. He stated, however, that this experience was of a personal nature gained in private real estate and stock transactions. *fn7"

 Rooney testified that he gained experience with ticket sales when he worked as a Transportation Agent and Station Supervisor in Chicago from 1951 to 1960. *fn8" He also said that between 1960 and 1964, as Supervisor, Ticketing Procedures in Kansas City, he was responsible for devising the ticketing procedures for the entire TWA system. *fn9" He admitted, however, that his familiarity with city ticket offices, as opposed to airport ticket facilities, was limited to his transactions as a customer of TWA. *fn10"

 Gene Ossler, who worked for TWA in various capacities from 1952 to 1976, *fn11" testified that he had had business dealings with Rooney on numerous occasions during his TWA career. *fn12" He stated that Rooney performed his duties as a Supervisor of Ticketing Procedures in Kansas City in an average to above-average fashion. *fn13" He also said that Rooney had been cooperative and thorough in his dealings with Ossler while Rooney worked in cargo charters at JFK in the late 1960's. *fn14"

 Ossler's last position with TWA was Director of Flight Operations in the Cargo Department in Manhattan, from June to August 1976, during which he supervised Rooney when he was Manager of Freight Regulations and Procedures. At trial Ossler testified that Rooney did an "outstanding" job in that position, *fn15" although in prior deposition testimony, he acknowledged that he had not observed or been stationed with Rooney long enough to evaluate his performance in a formal manner. *fn16"

 Plaintiff also introduced management performance evaluations of Rooney conducted by his supervisor, R. E. Pearles, in March 1977 and March 1978. In both, Pearles gave Rooney an overall evaluation of "4" on an ascending scale from "1" to "6". Pearles's comments on both were identical, and included the following: "Works very well with station personnel to achieve unit goals and objectives"; "manages unit function in efficient manner with little direction required from his Manager"; "has excellent knowledge of most facets of Cargo Operation. Also has extensive background in Ticketing, Budgets, Training"; "does good job of organizing and setting priorities"; and "works well with other managers of various levels." Pearles also stated in both evaluations that Rooney had "no subordinates [and] needs an assist in self motivation." *fn17"

 Between October 1976 and August 1979, Rooney allegedly applied for more than fifty jobs within the TWA system. *fn18" Nevertheless, plaintiff contended at trial that only eight of these positions were denied Rooney because of his age. Near the end of trial, the parties stipulated to withdraw Rooney's claims with respect to two jobs, *fn19" and plaintiff has since apparently abandoned its claims with respect to two others. *fn20" Thus, only four denials of promotion are still contested.

 1. Senior Analyst, Rate Proceedings (Kansas City)

 Rooney applied for the position of Senior Analyst, Rate Proceedings in March 1977 when he was forty-nine years old. *fn21" Plaintiff did not adduce evidence of the stated job requirements. Rooney testified, however, that the duties of the position included research and analysis leading to the preparation of reports and exhibits for rate and other proceedings before the Civil Aeronautics Board ["CAB"], and assisting TWA personnel who would testify or otherwise be involved in such proceedings. *fn22"

 Rooney was not selected for this position, but plaintiff did not adduce any evidence as to the name, age or qualifications of the successful applicant for the job. Indeed, Rooney testified that he did not know whether the job was ever filled. *fn23" Rooney and plaintiff requested this information, but defendant was not able to locate any records pertaining to this position. *fn24"

 2. Supervisor, Customer Services (Phoenix)

 Rooney applied for this position in June 1977 and was rejected later that month. *fn25" Essentially, the job involved supervision of all customer service functions at the Phoenix airport, and its stated qualifications included "in-depth knowledge" of such functions. *fn26" Rooney admitted that he had last performed customer service functions at an airport in 1960 in Chicago. *fn27" Nevertheless, Ossler, who had previously supervised similar personnel, testified that Rooney was qualified for the position. *fn28"

 The successful applicant was James States, a thirty-six year old Group Supervisor of Customer Services at the Albuquerque airport, who had been performing functions identical to those required for this position for the previous six years. States had also held management positions since 1970 and had subordinates reporting to him in 1977. *fn29" At the time of selection, Rooney had no one reporting to him. *fn30" States also had an overall management performance evaluation of "5, " as opposed to Rooney's "4." *fn31" R. A. Barba, who made the selection, wrote to Rooney as follows: "A large number of applications were received from employees such as yourself and I chose to interview those employees whose background, work experience, and work record appeared best for the position." *fn32"

 3. Staff Analyst, Cargo Marketing (New York City)

 On October 4, 1978, Rooney applied for this position by writing to Pearles. *fn33" Rooney's March 1978 management performance evaluation was later attached. The job opening announcement listed the following qualifications: "Cargo field sales experience desired -- finance and/or data services experience helpful." *fn34" Rooney had two years of cargo sales experience as Manager, Cargo Charter Sales in New York City, although he did not have any cargo sales experience in a field position. *fn35" Rooney's testimony that he had been involved in direct selling to customers and that he was responsible for assisting field personnel in making sales was not reflected in his personnel records and Rooney did not otherwise mention this experience in his application. Rooney's management performance evaluation indicates that he had background in budgeting, although Rooney testified that his finance experience was limited to private real estate and stock transactions. *fn36" Ossler, who had supervised cargo sales personnel, testified that Rooney was qualified for this position. *fn37"

 Randy Zimnowski, age thirty-one, was selected for the position. Zimnowski obtained cargo field sales experience at the Philadelphia airport in his position as Analyst "A" in Cargo Services in 1977. He also gained finance experience working as a Senior Analyst in the controller of flight operations department in Philadelphia from 1975 to 1977. *fn38" Ann Anderson, a TWA personnel administrator, testified that a review of Rooney's and Zimnowski's employment records revealed that Zimnowski was better qualified for the position. *fn39" Although Anderson admitted that she did not know either employee personally, *fn40" plaintiff did not adduce any evidence to indicate that the decision-maker at the time of selection knew either employee personally.

 4. Supervisor, City Ticket Offices (Kansas City)

 Rooney applied for this position in January 1979 in a letter to Mr. Pearles. *fn41" The stated qualifications were that the applicant "be sales and/or marketing oriented [and have] strong administrative/leadership/analytical and communicative skills," in order to "supervise the operation and marketing efforts of six district ticket offices." *fn42" Rooney had experience in ticketing operations, although his job-related experience was limited to airport ticketing, as opposed to city ticket office ticketing. He also had other sales and supervisory and administrative experience. *fn43"

 The successful applicant for this position was William Morgason, age thirty-four, who obtained the position by lateral transfer, whereas it would have been a promotion for Rooney. *fn44" Morgason was an account executive in the sales department in Kansas City at the time of his selection, *fn45" and his responsibilities included "calling on major businesses within the Kansas City area, travel agents, soliciting, generating new business within those businesses and travel agents." *fn46" In this capacity, he had frequent contact with the city ticket offices in Kansas City. *fn47"

 Maxwell McFall

 Maxwell McFall, born February 24, 1931, joined TWA in 1952 as a Cargo Agent in Kansas City. He became a Transportation Agent in 1953, a Lead Transportation Agent in Tulsa in 1956, and a Passenger Relations Representative in 1957. He transferred to Washington, D.C. in 1962, and returned to Tulsa in 1963 as Supervisor of Station Operations. In 1966, he was promoted to Assistant Ramp Manager at O'Hare Airport in Chicago, and in 1967 he was promoted again to District Transportation Manager in Atlanta. In 1968, he was promoted to Manager, Cargo Sales and Services in St. Louis, where he became Manager of Freight Services in 1971. In 1972, he left St. Louis to become Manager, Freight Service Programs in New York City in the Cargo Staff department. In 1974, the title of his job was changed to Manager, Freight Operations and Procedures. In the latter position, McFall supervised two Analysts. In August 1976, however, he was demoted to Analyst, Central Cargo Control in Kansas City. *fn48"

 The evidence established that McFall had experience in a wide variety of jobs throughout the TWA system in customer services and cargo sales, and also had considerable supervisory and administrative experience. In several management performance evaluations and letters of commendation, McFall's performance was rated anywhere from adequate to outstanding. *fn49"

 In 1976 and 1977, McFall applied for approximately forty positions within the TWA system. *fn50" Plaintiff contends, however, that only three of these positions were denied to McFall because of his age: Manager, Cargo Sales and Services (St. Louis), General Manager, Cargo Sales and Services (JFK), and Supervisor, Customer Services (Tulsa). Subsequently, in September 1977, McFall was promoted to Manager of Cargo Services in Philadelphia. A year later, at the age of forty-seven, McFall was transferred at his request to the position of Manager, Ground and Aircraft Services, also in Philadelphia. He held the latter position at the time of trial. *fn51"

 1. Manager, Cargo Sales and Services (St. Louis)

 McFall applied for this position in October 1976. *fn52" He had held the position from 1968 to 1971, and the job had essentially remained unchanged since then. *fn53" Ossler, who through his position as Manager of Cargo Services at JFK had many dealings with McFall while McFall held the position in St. Louis, testified that his performance there was "outstanding." *fn54"

 Defendant selected J. H. O'Neill, age thirty-one, for this position, who was then the Acting Manager, Cargo Sales and Services in St. Louis. *fn55" The Acting Manager's position was identical to the Manager's position. As Acting Manager, O'Neill reported directly to a Mr. Bell, who made the decision to hire him. In addition, O'Neill received high praise from R. A. Miller, who occupied the Manager's position prior to O'Neill's selection. *fn56"

 2. General Manager, Cargo Sales and Services (JFK)

 In January 1977, McFall applied for this position, the duties and qualifications for which were essentially the same as those for the Manager's position in St. Louis. *fn57" John S. Nord, age thirty-four and a Manager, Dining and Commissary at JFK, was selected for the position. *fn58" Nord's most recent management performance evaluation had been prepared by John E. Murphy, who reported directly to the decision-maker, H. W. Cox. *fn59" Nord received the highest possible rating on that evaluation, a "6, " while McFall had received a "5" on his most recent evaluation in January 1976. *fn60" Cox informed McFall of his rejection, noting that "although your background is impressive, I have chosen to interview those whose background, work experience, and work record appeared to suit them best for the position." *fn61"

 3. Supervisor, Customer Services (Tulsa)

 McFall applied for this position in May 1977 and included the March 1977 performance evaluation prepared by R. E. Pearles. *fn62" This evaluation reflected McFall's recent demotion from a Manager's position to an Analyst's position, and rated McFall as a "4" in virtually every category, including the overall category. *fn63" McFall had held a similar position from 1963 to 1966 in Tulsa, but the last time he had been stationed at an airport was 1972. *fn64"

 Defendant selected Sheila Guerra, age thirty-four, for the position. At the time, Guerra was a first level supervisor in the reservations office in Los Angeles and responsible for work direction, hiring and discipline of employees in customer service functions. The Supervisor's position for which she was selected in Tulsa involved the same supervisory responsibilities. *fn65"

 John F. Murphy

 John F. Murphy, born September 29, 1929, joined TWA at the age of twenty in 1950 as a cargo handler in Chicago. He held a series of other jobs in Chicago before joining the Cargo Staff department in New York in 1959 as Assistant Director of Mail and Express Sales. After a brief assignment as District Manager of Mail and Express Sales at JFK in 1962, Murphy returned to Cargo Staff as Director of Mail and Express Sales. In 1968, he became Manager of Government Air Freight Sales, which he held until he was transferred to Chicago in 1970 as Manager, Cargo Sales and Services. In 1971, he returned to Cargo Staff as Manager of Mail and Express Sales and Services. Three years later, at age forty-five, Murphy was promoted to Director of Government Cargo Sales and Services, which he held until his demotion in August 1976 to Manager of Government and Military Sales, his current position. *fn66"

 Although Murphy's managerial career at TWA included one year in general cargo sales and services, he spent virtually all his time in the area of solicitation and handling of mail and other Government freight. *fn67" In his Director's position, Murphy had the responsibility of developing plans and programs for both domestic and international mail services. In management performance evaluations prepared in 1972 and 1976, Murphy's performance was rated from acceptable to outstanding in the various categories. In addition, during the ten years prior to August 1976, Murphy received numerous merit increases. *fn68"

 When the Cargo Staff department was reorganized in August 1976, Murphy was demoted from a Director to a Manager position, but his responsibilities remained essentially unchanged. *fn69" The demotion was effective August 16, 1976. The next day, TWA posted job opening announcements for three new Director positions created by the reorganization -- in Cargo Services, Cargo Marketing and Cargo Sales. *fn70" Murphy learned of these openings soon thereafter and applied for all three on August 23, 1976. *fn71"

 1. Director, Cargo Services (New York City)

 The required qualifications for this position were stated as follows: "Must have substantial exposure to various cargo service or service related activities. Must have proven skills in managing people in various positions." *fn72" TWA selected Roland A. Mosher for the position, who, at age thirty-five, had been Manager of Passenger Services Operations at the Los Angeles airport since 1974. He also had cargo experience for five years as an accountant. *fn73"

 Defendant's Staff Vice President of Cargo Sales and Services, Charles Martin, made the decision to hire Mosher. Martin testified that he did not select Murphy because his "whole career had been dealing with the post office and a little bit of military. [He] had no qualifications to do the other jobs . . . . [He] spent his whole career dealing with mail, all of it. One hundred percent of the time that I know of." *fn74" Martin also testified that he selected Mosher because he "had experience, some of that in cargo accounting, some in passenger accounting, some in ramp services, some in airport operations, and the last year or two in cargo services and managing the cargo facility at Los Angeles." *fn75" When asked why he believed Mosher to be more qualified than the other applicants, Martin testified:

 
He had -- one of the problems with this cargo staff group is that all the people on the cargo staff in the past had been on the cargo staff for a long time and hadn't had current field experience, therefore in my opinion were not relating to the day to day problems of the field cargo people who needed the help of that group. And [Mosher] had a combination of current cargo experience, the operations experience at the airport which is the side where they load all the things onto the passenger airplanes. He had the exposure to automation when he was in accounting and had the interest and enthusiasm to do that job. So he had a broad mix of experience and it was all current. *fn76"

 2. Director, Cargo Marketing (New York City)

 The following were stated as the qualifications for this position: "Must have substantial experience in marketing, specifically advertising planning. Must also have proven creative ability in addition to people management skills." *fn77" Philip U. Moore, age thirty-three, was selected for the position. At the time, Moore had been Manager of Freight Sales Development in New York for four months. Prior to that, Moore had supervised the sales and services training program and been an instructor in sales and marketing training for several years. *fn78"

 Martin's testimony that he did not hire Murphy for any of the three positions for which he applied because of his exclusively mail services background applies to this position as well. Martin specifically testified that he hired Moore because:

 
Phil had, prior to working at TWA, been involved in marketing with some consumer goods company which I don't remember now. Had been involved in cargo services and had for about three years been involved in training all the sales people for the entire cargo organization and came to cargo staff in charge of a marketing related function and had the basic mental skills, understanding of what we needed to get done, to do that job in my opinion. *fn79"

 3. Director, Cargo Sales (New York City)

 Finally, Murphy applied for the position of Director, Cargo Sales. Defendant listed the following as qualifications for the job: "Must have specific functional industry experience. Must have been a field cargo sales or sales and service manager. Proven ability to manage, motivate, train and evaluate a direct sales force in the cargo industry." *fn80" Galbie D. Robinson was the successful applicant. Plaintiff did not establish Robinson's age, although Martin testified that Robinson was "forty-ish. Could have been thirty-nine, could have been forty-two." *fn81"

 Again, Martin's testimony with respect to Murphy's lack of qualifications for any of the three positions applied. Moreover, Martin testified that he selected Robinson for the following reasons:

 
[Robinson] had something like ten years with TWA, started as a cargo sales rep in Columbus and then became a senior cargo sales rep, was in field cargo sales for probably about five years and then was brought into the training group and was totally responsible for all cargo sales and sales management training.
 
. . .
 
Q. What made him so qualified for this new director's job?
 
A. His experience and knowledge was also current because he had been training current salespeople, got the feedback on the problems they had as well as sales managers, knew what needed to be done, had been there himself. *fn82"

 Roger Cutrufello

 Roger Cutrufello, born March 2, 1935, joined TWA a Cargo Agent in 1957, loading cargo on passenger and cargo aircraft. In 1959, he became a Transportation Agent, boarding passengers and monitoring the loading of cargo, and in 1964 he was promoted to Flight Information Coordinator ["FIC"]. An FIC coordinates information on arrivals and departures and advises departments and dispatch offices at other airports accordingly. All three of these nonmanagement positions were located at the Philadelphia airport. *fn83" In each, Cutrufello's performance was rated as good. *fn84"

 In December 1975, at age forty, Cutrufello was transferred on special assignment to Saudi Arabia pursuant to a management contract between TWA and the Saudi Arabian Airlines ["Saudia"]. *fn85" As an FIC for Saudia, Cutrufello performed essentially the same duties he had performed in Philadelphia for the previous ten years. *fn86" The position was technically considered a management position by Saudia, although as far as TWA was concerned the position was nonsupervisory and therefore remained nonmanagement. *fn87" In his only performance review, Cutrufello received an overall rating of "2" out of a possible "6." *fn88"

 The Saudia assignment was planned to last two years but, in January 1977, Cutrufello and seventeen other TWA special assignment employees were prematurely terminated by Saudia. *fn89" Cutrufello testified that he was not told the reason for his termination except that it "was for the convenience of Saudia." In addition, Cutrufello believed that Saudia had reneged on its promise to provide adequate housing for him and his family. *fn90"

 TWA furloughed Cutrufello upon his return to the United States. Until April 12, 1977, he was paid his full salary from Saudia, and from then until December 10, 1977, the day on which the two-year assignment was to have ended, TWA paid him at the same rate. *fn91" During this period, Cutrufello performed no services for the company. *fn92"

 Although TWA assisted Cutrufello in his efforts to secure a new assignment, *fn93" at no time did any TWA employee guarantee Cutrufello that he would be reassigned. *fn94" Indeed, defendant's procedures in this area, as set forth in a company policy manual, do not contain any job guarantee upon return from special assignment. *fn95" Defendant followed its procedures in Cutrufello's case.

 Cutrufello testified that he applied and was rejected for more than 200 positions within the TWA system during 1977 after his return from Saudi Arabia -- over 100 in writing and over 100 by telephone. *fn96" Cutrufello claimed that he applied for every job opening in the TWA system *fn97" and that he was qualified to hold any position except pilot. *fn98" In any event, plaintiff now maintains that Cutrufello was denied thirty-nine positions because of his age.

 In contrast to Cutrufello's experience, all seventeen other TWA employees prematurely terminated by Saudia at the same time as Cutrufello obtained reassignment within the TWA system no later than December 1977. Two-thirds were reassigned within six months. Eight of the returnees were over forty years of age, and seven were older than Cutrufello. The group included individuals from all organizational and salary levels and from stations throughout the United States. *fn99"

 Because Cutrufello had no management experience and his employment records did not indicate any significant supervisory experience, F. R. Ruocco, TWA's Manager of Special Services Personnel who assisted Cutrufello in his reassignment search, advised Cutrufello not to apply for management positions. *fn100" Ruocco further advised Cutrufello to concentrate his efforts in Philadelphia where he had worked eighteen and one-half years: "I feel that by keeping in constant personal contact with your former supervisor and associates in Philadelphia . . . your chances of reassignment are far better than by bidding into managerial jobs and locations where you are unknown." *fn101" Ruocco contacted the Philadelphia personnel department on Cutrufello's behalf, and was told that it "would [be] more than . . . happy to consider him for something that he was qualified for." *fn102" Cutrufello apparently never applied for any positions in Philadelphia and in fact established residence in California. *fn103" Every other nonmanagement employee who returned from Saudia with Cutrufello was reassigned either at his prior station or in the same city, including those over forty years of age. *fn104"

 Aside from the common sense of Ruocco's advice, it was TWA's policy to the extent possible to prefer local candidates over non-local candidates for nonmanagement positions. TWA's purpose in so doing was to boost the morale of the local workforce, to retain employees familiar with local operations and to reduce the company's payments for relocation costs. *fn105" Plaintiff claims Cutrufello applied for fourteen nonmangement positions, for which a total of approximately thirty applicants were selected. Of these thirty, twenty-six were local candidates. *fn106" Cutrufello was a non-local candidate for all fourteen job openings.

 The other twenty-five contested positions were management level positions. Cutrufello never held a management position during his twenty years with TWA and his employment records do not reflect any significant supervisory experience. *fn107" Moreover, during 1976 and 1977, TWA reorganized its management workforce at airport locations. This so-called "FORT" *fn108" reorganization had the effect of eliminating many lower level supervisory positions. All supervisors who lost their jobs were assured of securing some other position with TWA, but still had to apply for the newly created positions. *fn109" These individuals were thus in competition with Cutrufello generally, and five of the positions were filled by applicants who were former supervisors or group supervisors at the time of their selection. *fn110"

 Some time in mid-1977, Cutrufello telephoned Robert J. Lauchlan, Staff Vice President of Special Services and Ruocco's superior, to complain about his inability to secure a new assignment despite having applied for eighty-seven positions. *fn111" Lauchlan alerted Ruocco and Ruocco assigned his subordinate, Mary Jean Wolf, to investigate. On November 9, 1977, Wolf advised Ruocco as follows:

 
I find that many of the Job Opening Announcement numbers [Cutrufello] listed never existed, and that others do not correspond with jobs where his PER 288 *fn112" was received. Additionally, it is my understanding that he did receive an interview in New York, for Quality Assurance Representative, contrary to his assertion that he received no response at all from the New York area.
 
I also note that some of the JOA numbers are for secretarial positions, or other jobs that he is not suited for, such as Manager Cargo Customer Services, JFK.
 
St. Louis claims that they never received a PER 288, or letter of application, for any of the seven jobs he allegedly applied for at that station.
 
In view of this large number of discrepancies, I feel it would not be fruitful to continue to investigate Mr. Cutrufello's complaints. I would not recommend providing the information he is seeking unless and until he is able to better represent his problem. *fn113"

 Ruocco advised Cutrufello accordingly on November 11. *fn114"

 Cutrufello nevertheless renewed his complaints in a letter to D. M. Crombie, Senior Vice President of Administration, dated February 21, 1978. Cutrufello charged that TWA discriminated against him on the basis of his age in not providing "normal severance pay," not continuing to forward job opening announcements and not placing him. *fn115" Crombie responded that Ruocco and Lauchlan had indeed aided Cutrufello in his job search, and that additional severance pay was inappropriate in view of the fact that Cutrufello had already received a ninety-day severance payment and an additional nine months full salary and benefits. Crombie also reminded Cutrufello of TWA's policy not to continue forwarding job opening announcements after an employee is separated. *fn116"

 At trial, defendant contended that Cutrufello did not apply for many of the jobs still contested, that many of the openings were filled by employees older than Cutrufello, and that many of the selected applicants were clearly more qualified than Cutrufello. The Court will consider each job separately.

 1. Customer Service Agent (Newark)

 Other than Cutrufello's testimony that he applied for every job opening in the TWA system, there is no evidence that he applied for this position. In addition, a TWA personnel administrator testified that he searched TWA's job files but could not locate an application from Cutrufello for this position. *fn117" In any event, the evidence established that the duties of a Customer Service Agent included airport ticketing, check-in and passenger assistance. *fn118" Cutrufello testified that his experience as a Transportation Agent from 1959 to 1964 and his past experience in general qualified him for this and the other Customer Service Agent positions for which he applied. *fn119"

 Three applicants were selected, all of whom were under forty years of age. *fn120" Two were part-time Customer Service Agents at the time of their selection, performing functions identical to those performed by full-time Customer Service Agents. *fn121" The third successful applicant was a Reservation Sales Agent in a city ticket office, and as such had extensive knowledge of TWA's Computerized Passenger Information System ["PARS"]. *fn122" Cutrufello had no PARS experience *fn123" and his ticketing experience generally was limited to non-computerized ticketing at least thirteen years prior to his application. *fn124" In addition, all three successful applicants were from the New York area, while Cutrufello resided in California.

 2. Customer Service Agent (St. Louis)

 Although Cutrufello testified *fn125" that he applied for this position, *fn126" no documentary evidence was adduced to support this contention. Indeed, defendant's employment records contain a list of applicants on which Cutrufello's name does not appear. *fn127" Cutrufello nevertheless testified that his experience as an FIC qualified him for this position. *fn128"

 Of the three successful applicants, two were Reservation Agents at the time. A Reservation Agent's duties are similar to a Customer Service Agent's duties. *fn129" Both applicants were from St. Louis and both were under forty. *fn130" The third successful applicant was forty at the time of selection and had returned from Saudia about the same time as ...


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