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WHITTLESEY v. UNION CARBIDE CORP.

July 15, 1983

JOHN W. WHITTLESEY, Plaintiff,
v.
THE UNION CARBIDE CORPORATION, Defendant.



The opinion of the court was delivered by: LEVAL

OPINION AND ORDER

PIERRE N. LEVAL, U.S.D.J.

 The Age Discrimination in Employment Act (ADEA), 28 U.S.C. §§ 621 et seq., was amended in 1978 to raise the age of permissible compulsory retirement from 65 to 70. P.L. 95-256, 92 Stat. 189. The amendment carried an exemption permitting the compulsory retirement at 65 of employees who were entitled to a specified level of retirement benefits and who for two years prior to retirement were "employed in a bona fide executive or a high policy making position. . . ." Section 12(c)(1), 29 U.S.C. § 631(c)(1).

 This case is among the first to test the scope of the exemption. The employer is Union Carbide Corporation, one of the largest corporations in the nation. In 1981, Union Carbide gave notice to John Whittlesey that upon reaching his 65th birthday he would be compulsorily retired under the provisions of the exemption. Whittlesey, who had been employed at Union Carbide as an attorney since 1953, held the position of Chief Labor Counsel.He advised his superiors that he did not believe he came within the statutory exemption for bona fide executives and high policymakers. Carbide adhered to its position. Shortly before the date of his mandatory retirement, Whittlesey brought this action to enjoin the company from forcing his retirement.

 Initially he brought on an application for a preliminary injunction. I denied a preliminary injunction on July 22, 1982, primarily because there was no showing of irreparable harm, there being no proof that other employment was not available to him. His compulsory retirement became effective on September 1, 1982.

 Trial was conducted from January 25 to February 9, 1983. The testimony was heavily laden with characterization. Plaintiff described himself as a lawyer rather than an executive or policymaker. He described his functions as primarily giving advice on the requirements of law, handling arbitrations, overseeing or keeping track of litigations and certain administrative matters. He minimized the importance of his supervisory responsibilities over the four more junior lawyers in the Labor Section of the Law Department; he stated that beyond advising on the applicability and interpretation of laws, he had little impact on the formulation of policy at Union Carbide. The witnesses for Carbide characterized his role otherwise, contending of company labor and employee-safety policy and that his supervisory responsibilities over the Labor Section were substantial.

 The documentary evidence was voluminous. Carbide offered countless letters of memoranda prepared, drafted, signed or reviewed by Whittlesey, or addressed or copied to him, that expressed any concern with matters of "policy," as well as administrative vouchers, reports and the like arguably proving duties of oversight within the Labor Law Section.

 Whittlesey also relied on voluminous documents, often the same ones, stressing passages that supported the inference that his role was limited. Both sides referred to charts of corporate structure, job descriptions, pay rates and the like.

 I.

 The job of Chief Labor Counsel is one which might fall on either side of the exemption, depending on the functional role accorded to the position within the particular organization. It is possible to imagine a Chief Labor Counsel, particularly in a large labor intensive company, exercising important executive and policymaking responsibilities. this was the job which Carbide's witnesses sought to describe as Whittlesey's. It is also easily possible to imagine a Chief Labor Counsel who acts primarily as a lawyer, whose executive responsibilities are minor and does not exert an impact on company policy, as envisioned by the statutory exemption. That was the job Whittlesey's testimony described.

 I have found the characterizing testimony of relatively little value on both sides. However the voluminous evidence has drawn a reasonably complete portrait of the attributes of the Chief Labor Counsel at Union Carbide. I find that the evidence clearly demonstrates this is not a "bona fide executive" position or one of "high policymaking" within the meaning of the statute. The functions accorded to John Whittlesey's position over the last years by the Union Carbide management do not come close to those described in the exemption. The evidence showed that Whittlesey as Chief Labor Counsel had little executive responsibility and that this aspect of his work occupied a very small percentage of his time, by far the greater part of which was devoted to doing lawyers' work. He also did not meet the qualification of "high policymaker". Although it is clear that the advice he gave extended beyond mere interpretation of legal requirements and did touch on questions of policy, he was not looked to for significant contributions to the formulation of policy at Union Carbide. Whittlesey has demonstrated by clear convincing proof that Union Carbide violated the Age Discrimination in Employment Act by subjecting him to compulsory retirement at the age of 65.

 The interpretive regulations promulgated by the Equal Employment Opportunity Commission (EEOC) include discussion of both "bona fide executive" and "high policymaking position". 29 C.F.R. § 1625.12 (1979). The regulations adopt and incorporate considerable material from the conference Committee Report. H. Conf. Rep. No. 950, 95th Cong., 2d Sess. 8-10 (1978) reprinted in 1978 U.S. Code Cong. & Adm. News 528, 530-31.

 Bona Fide Executive

 As to the exclusion for a "bona "bona fide executive," the Regulation states in (d)(1) that:

 the employer must initially show that the employee satisfied the definition of a bona fide executive set forth in § 541.1 of the regulations under the Fair Labor Standards Act. Each of the requirements in paragraphs (a) through (e) of § 541.1 must be satisfied, regardless of the level of the employee's salary or compensation.

 29 C.F.R. § 541.1, to which the Conference Committee had referred as a guideline, defines the term bona fide executive for purposes of exemption from the wage and hour provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 213(a)(1). Paragraphs (a) through (e) of § 541.1. describe an employee whose primary duty consists of the management of the enterprise or a department or subdivision; who regularly directs the work of two or more other employees; who has the authority to hire and fire or whose suggestions and recommendations or hiring, firing, and promotion are given particular weight; who customarily exercises discretionary powers; and who does not devote more than 20% of his time to activities other than those specified above. *fn1"

 The EEOC Regulation continues, however, in Paragraph (d)(2) to make clear that meeting § 541.1(a)-(e) of the FLSA Regulations is not sufficient. The employee must also come within descriptive criteria elaborated in the Conference Committee Report designed to make clear that the exemption applies "only to a very few top level employees who exercise substantial executive authority over a significant number of employees and a large volume of business." § 1625.12(d)(2). Or, [w]ith respect ot employees whose duties are associated with corporate headquarters operations, such as finance, marketing, legal, production and manufacturing (or in a corporation organized on a productline basis, the management of product lines), the definition would cover employees who head those divisions.

 In a large organization the immediate subordinates of the heads of these divisions sometimes also exercise executive authority, within the meaning of this exemption. The conferees intend the definition to cover such employees if they possess responsibility which is comparable to or greater than that possessed by the head of a significant and substantial local operation who meets the definition.

 29 C.F.R. § 1625, 129d)(2), quoting H. Rep. 95-950 at 9.

 The evidence showed that Whittlesey's job came within neither the precise definitions of the FLSA Regulations § 541.1(a) - (e), nor the broader descriptions of a bona fide executive imported from the Conference Committee Report. He was primarily an attorney doing legal work, giving legal advice, giving attention to the effect of statutes, regulations and administrative action upon company practices, and attending to litigation.

 He was indeed the senior attorney in the Labor Law Secion and, as such, had some administrative or executive responsibility over the functioning of this small section. But his supervisory duties were quite minimal and occupied a very small portion of his time. For example, Whittlesey did not exercise responsibility for the assignment of work within his section. He did not supervise the other attorneys in their work, excepting a new and relatively inexperienced attorney. He did not decide, or exert a particularly strong influence over decisions on hiring, promotion or salary. He did not supervise the retention of outside counsel for litigated matters. And he did not exercise control over the most important matters in the Labor Section; the attorneys in the Labor Section generally received matters directly from "clients," i.e. managers or executives in operating divisions of the corporation, and worked on those matters generally without supervision (except in the case of an inexperienced lawyer).

 The administrative chores which came within his responsibility included the preparation of certain summaries, periodic reports and projections of travel and litigation expenses; they were of trifling importance.

 Whittlesey does not fit the further criteria of the Regulation, quoted from the Conference Committee Report, designed to deal with headquarters departments. He is not the "head" of the legal department, nor is he "the immediate subordinate" of the head who "in a large organization . . . sometimes also exercise[s] executive authority . . . ."

 His position was at a considerable remove from the top of the Law Department. In that department it was shown that eight attorneys, including 3 Assistant General Counsel, reported directly to the General Counsel. Each of the Assistant General Counsel were reported to by a number of lower level attorneys at or around Whittlesey's level. In the case of Whittlesey's segment of the Department, six attorneys reported to Assistant General Counsel Doan who was among eight reporting directly to the General Counsel. (Exhibit 374; Stipulated Fact No. 8)

 Nor is he on a par in the exercise of executive authority with the heads of "significant and substantial local or regional operation[s]. . . ." § 1625.12(d)(2). The title of his position had been Senior Labor Counsel until 1977 when it was changed to Chief Labor Counsel. It appears that the former title better described the responsibilities of the position. This is not to deny that he exercised some administrative authority over the small number of less senior labor lawyers in his section. It is rather to underscore the point that Whittlesey was above all in-house lawyer specialized in labor law matters, and that his slight administrative ...


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