United States District Court, Western District of New York
September 17, 1991
DANIEL G. WOLF, PLAINTIFF,
FERRO CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Curtin, District Judge.
Plaintiff Daniel G. Wolf brings this action for employment
discrimination against his former employer, Ferro Corporation,
under the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. § 621 et seq. Plaintiff argues that he was subjected to
disparate treatment under the Act when he was discharged, at the
age of fifty-seven, during a reduction-in-force ("RIF") at the
plant where he worked on January 31, 1986. Defendant chose to
retain Michael Maddex, then twenty-five years old, in
plaintiff's former position. Mr. Maddex, with six years
seniority, had been trained by Mr. Wolf, who had accumulated
nearly forty years of seniority. Defendant moves for summary
judgment on plaintiff's claim. Plaintiff opposes the motion.
Ferro Corporation ("Ferro") manufactures specialty ceramics at
its plant in Buffalo, New York. Ferro bought the plant from
Electro-Refractory and Abrasives ("Electro") in 1967. At that
time, the plant consisted of four main divisions and several
service units. Due to adverse economic conditions, in February,
1984, Ferro began a series of RIFs at the plant. In 1984, one of
the main divisions was completely eliminated. The plant
continued to lose money, and a series of RIFs followed in 1985
1986. The final reduction occurred in January, 1986. Between
February 1, 1984, and February 1, 1986, twenty-six salaried
employees were discharged for cause or as part of the
Bruce Tarquino was Plant Engineer during these RIFs. His
responsibilities included overseeing the engineering,
maintenance, and industrial engineering service units. As of
January, 1985, those units had approximately thirty salaried
employees. Tarquino was responsible for recommending who should
be released as part of the RIFs. Plaintiff was one of the
salaried employees under Tarquino's supervision who was
recommended for termination.
At the time of his discharge on January 31, 1986, plaintiff
was fifty-seven years old. Plaintiff had originally been hired
by Electro on September 26, 1946. Plaintiff started as a
draftsman, designing production molds in the machine shop. He
left briefly for U.S. Army service in 1950-52, but then returned
to Electro. In 1958, plaintiff became Machine Shop Foreman. From
1973 to 1978, plaintiff also served as Maintenance Department
Foreman. In 1978, plaintiff became Mold Design and Fabrication
Supervisor in the engineering department while maintaining his
position as Machine Shop Foreman. He supervised two draftsmen
and three machinists. He held these positions into early 1985.
In July, 1979, Ferro hired Michael Maddex as a Draftsman I.
Mr. Maddex was one of two draftsmen supervised by plaintiff. One
of Mr. Wolf's primary responsibilities during this time was to
train Mr. Maddex in mold design and machine shop practices.
Beginning as early as 1982, Ferro managers began to express
their concern that Mr. Maddex might leave the company.
Accordingly, promotion and wage increases were discussed and
implemented for Mr. Maddex.
In January, 1985, Plant Engineer Tarquino implemented a new
maintenance system. This maintenance system required a new
position: Maintenance Planner. Tarquino chose plaintiff for the
position on the basis of his experience. This was considered a
lateral move with no change in plaintiff's salary. Just prior to
plaintiff's February 1, 1985, reassignment as Maintenance
Planner, Mr. Maddex was promoted to Maintenance Foreman I. This
position represented the same responsibilities then being
performed by Mr. Wolf as Mold Supervisor, but under a different
On May 24, 1985, during a RIF at the plant, plaintiff's
Maintenance Planner position was eliminated. Rather than return
plaintiff to his former position as Mold Supervisor (or
Maintenance Foreman I, the new name for the position), plaintiff
was assigned the title of Drafter III, with no loss in pay,
under the supervision of Mr. Maddex, who remained as
Maintenance Foreman I. A twenty-one-year-old draftsman hired in
November, 1984, was laid off to make room for Mr. Wolf. One of
the reasons for "demoting" Mr. Wolf to a position below his
former trainee, Michael Maddex, was: "The expectation, also,
that Dan was going to retire as early as he can and we would
continue to develop with Maddex." Item 19, Exh. V at 75 (second
Tarquino deposition). Despite this "demotion," plaintiff earned
a four-percent merit pay increase in September, 1985.
On January 31, 1986, during another RIF at the plant,
plaintiff was terminated. Michael Maddex was retained. As of
February 6, 1986, however, his title was changed to Drafter III,
the position just vacated by plaintiff. This position relieved
Mr. Maddex of his supervisory duties. There were no other
employees in drafting, and Ralph Benson, Maintenance Foreman,
had by that time already assumed supervision of the machine
The pay differential between Messrs. Wolf and Maddex at Wolf's
termination was pronounced. Mr. Wolf's salary was $32,160 per
year. Mr. Maddex's salary was $21,288 per year. In addition, Mr.
Wolf was a participant in the "Electro Refractories Pension
Trust," which covered all former employees of Electro at a cost
significantly higher than the Ferro pension plan of which Mr.
Maddex was a participant. As Mr. Tarquino noted in his
deposition, he and Plant Manager William F. Miley considered
cost to the company when
assessing who should be terminated during the 1986 RIF. "We
talked in terms of dollars," he said. Item 19, Exh. U at 4
(first Tarquino deposition).
Defendant contends that Mr. Wolf was first placed under Mr.
Maddex's supervision, and then laid off, while Maddex was
retained, because Mr. Maddex was better qualified. Defendant
alleges that shortly after plaintiff was transferred to his new
position as Maintenance Planner in February, 1985, Mr. Tarquino
began noticing deficiencies in plaintiff's performance. The
deficiencies cited by defendant include: a shortfall in the
volume of maintenance work scheduled, the inability to
communicate with the Maintenance Foreman and other members of
the maintenance staff, and excessive socializing with employees
not involved in maintenance or engineering. After counselling
plaintiff on March 15, 1985, Mr. Tarquino noticed improvement in
plaintiff's work. Nevertheless, during the January, 1986, RIF,
Mr. Tarquino recommended that plaintiff, rather than Mr. Maddex,
be let go. In support of this decision, defendant argues that
Mr. Maddex (1) cut down on the number of trips taken outside the
plant to mold design shops, (2) fostered better morale with
employees under his supervision, and (3) turned out a greater
quantity of drafting work during the period in 1985 when both
Wolf and Maddex were drafting. Plaintiff counters these
contentions with evidence to show that defendant's stated
reasons for terminating him were pretextual. Plaintiff argues
that (1) the alleged deficiencies in his performance as
Maintenance Planner can be attributed to the experimental nature
of the position, the brief period in which it existed, the fact
that plaintiff was required to work with newly hired foremen,
and the resistance of hourly workers, (2) trips taken by
plaintiff to outside shops were usually taken on plaintiff's own
time, (3) performance reviews of himself and Mr. Maddex rated
plaintiff higher, and (4) the claims of higher productivity and
morale under Mr. Maddex are unsupported by the record.
Under Title VII, 42 U.S.C. § 2000e et seq., as under the
ADEA, 29 U.S.C. § 621 et seq., the Supreme Court has parsed
two methods of proving the ultimate fact required in each case
of employment discrimination: namely, that the defendant
intentionally discriminated against the plaintiff. The most
common method of proving discrimination is by the three-step
procedure set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and affirmed in
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101
S.Ct. 1089, 67 L.Ed.2d 207 (1981).
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in
proving the prima facie case, the burden shifts to
the defendant "to articulate some legitimate,
nondiscriminatory reason for the employee's
rejection." Third, should the defendant carry this
burden, the plaintiff must then have an opportunity
to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for
Id. 450 U.S. at 252-53, 101 S.Ct. at 1093-94 (citation
omitted) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct.
at 1824). The other method of proof comes into play when
plaintiff has direct evidence sufficient to prove that a
discriminatory reason more likely than not played a motivating
or substantial role in an employment decision. Price Waterhouse
v. Hopkins, 490 U.S. 228, 244, 109 S.Ct. 1775, 1787, 104
L.Ed.2d 268 (1989) (plurality opinion); Barbano v. Madison
County, 922 F.2d 139, 145 (2d Cir. 1990); Grant v. Hazelett
Strip-Casting Corp., 880 F.2d 1564, 1568 (2d Cir. 1989);
George v. Frank, 761 F. Supp. 256, 269 (S.D.N.Y. 1991);
E.E.O.C. v. National Broadcasting Co., 753 F. Supp. 452, 465
(S.D.N.Y. 1990), aff'd without opinion, 940 F.2d 648 (2d Cir.
June 11, 1991); Danna v. New York Tel. Co., 752 F. Supp. 594,
613 n. 6 (S.D.N.Y. 1990). Once plaintiff has directly
established that an illegitimate reason played a role in the
"the burden falls to the defendant to prove by a preponderance
of the evidence that it would have made the same decision even
if it had not taken the illegitimate factor into account."
Grant, 880 F.2d at 1568. See Price Waterhouse, 490 U.S. at
244-45, 109 S.Ct. at 1787-88.
At some point in the proceedings, of course, the
District Court must decide whether a particular case
involves mixed motives. If the plaintiff fails to
satisfy the factfinder that it is more likely than
not that a forbidden characteristic played a part in
the employment decision, then she may prevail only if
she proves, following Burdine, that the employer's
stated reason for its decision is pretextual.
Id. 490 U.S. at 247 n. 12, 109 S.Ct. at 1789 n. 12. See also
George v. Frank, 761 F. Supp. at 269.
Plaintiff has introduced two pieces of direct evidence to show
that Ferro was motivated by discriminatory purposes in its
decision to discharge Mr. Wolf. The first piece of evidence is a
statement by Plant Engineer Bruce Tarquino indicating that
plaintiff was let go rather than Mr. Maddex because it was
expected that plaintiff would retire soon, whereas Michael
Maddex was much younger and would continue to develop. The full
context of Mr. Tarquino's statement is as follows: In January
1985, Tarquino implemented a new maintenance system and chose
plaintiff to head up the new system as Maintenance Planner. This
required a lateral move by plaintiff out of his positions as
Mold Design and Fabrication Supervisor and Machine Shop Foreman.
This move in turn opened a space for Michael Maddex to be
promoted within engineering to Maintenance Foreman I, a position
which entailed the same responsibilities plaintiff had performed
as Mold Design and Fabrication Supervisor. Four months later,
when plaintiff's Maintenance Planner position was eliminated in
a plant RIF, plaintiff was returned to the engineering
department as a draftsman. Plaintiff was not returned to his old
supervisory position, however, but instead was placed under the
supervision of his former trainee, Michael Maddex. The
motivation behind this decision was explained by Bruce Tarquino
during his deposition:
Q: Besides outside visits to outside shops and the
excessive socializing, what other reasons [did you
have] for retaining Maddox [sic] in the Mold
Supervisor position rather than putting Wolf back
in that position and Maddox [sic] back to
A: The expectation, also, that Dan was going to
retire as early as he can and we would continue to
develop with Maddox [sic].
Item 19, Exh. V at 74-75 (second Tarquino deposition). Although
this statement was offered by Mr. Tarquino to explain Mr. Wolf's
May 1985 "demotion" rather than his January 1986 discharge, as
defendant explained in its brief, "[a]ll the factors that had
convinced Tarquino to keep Maddex as Mold Supervisor back in May
1985, when Plaintiff's Maintenance Planner position was
eliminated, certainly would have influenced Tarquino's decision
to recommend Plaintiff for layoff rather than Maddex." Item 16
at 22-23. The second piece of evidence is also a statement by
Mr. Tarquino. When asked in deposition what standards he and
Plant Manager William Miley used to decide who should be laid
off and who should be retained during the plant RIFs, Mr.
Tarquino said: "We talked in terms of dollars. . . ." Item 19,
Exh. U at 49 (first Tarquino deposition).
An "expectation of longer service" by a younger, retained
employee, has been held an impermissible reason to discharge the
older employee. Marshall v. Arlene Knitwear, Inc., 454 F. Supp. 715,
728 (E.D.N.Y. 1978), aff'd in part, rev'd and remanded in
part without opinion, 608 F.2d 1369 (2d Cir. 1979). See also
Metz v. Transit Mix, Inc., 828 F.2d 1202, 1208 (7th Cir. 1987).
Similarly, "a number of cases hold that it is age discrimination
to replace an older employee with a younger one for the sole
purpose of economizing on salary costs." Visser v. Packer Eng'g
Assoc., Inc., 924 F.2d 655, 658 (7th Cir. 1991) (en banc)
(citing Metz, 828 F.2d at 1206-11; Jardien v. Winston
Network, Inc., 888 F.2d 1151, 1157-58 (7th Cir. 1989); and
White v. Westinghouse Elec. Co., 862 F.2d 56, 62 (3d Cir.
1988)). See Geller v. Markham, 635 F.2d 1027, 1034 (2d Cir.
1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d
332 (1981) (rejecting cost-cutting rationale for school board
policy that restricted teacher hiring to persons with less than
five years' experience); Hahn v. City of Buffalo, 596 F. Supp. 939,
953 (W.D.N.Y. 1984), aff'd, 770 F.2d 12 (2d Cir. 1985)
(Curtin, J.) ("An employer's desire to have the most
cost-effective work force cannot justify age discrimination
where age is not a [bona fide occupational qualification].");
E.E.O.C. v. City of Altoona, 723 F.2d 4, 7 (3d Cir. 1983),
cert. denied, 467 U.S. 1204, 104 S.Ct. 2386, 81 L.Ed.2d 344
(1984) (reduction-in-force decisions based on age may not be
justified by economic considerations); Diamantopulos v.
Brookside Corp., 683 F. Supp. 322, 328-29 (Conn. 1988)
("Economic considerations which are simply a result of employing
older employees do not constitute legitimate, non-discriminatory
reasons for either a failure to hire them or their discharge.").
But cf. Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 117
(2d Cir. 1991) ("[T]here is nothing in the ADEA that prohibits
an employer from making employment decisions that relate an
employee's salary to contemporaneous market conditions and the
responsibilities entailed in particular positions and concluding
that a particular employee's salary is too high.").
In this case, the statements cited above would appear to raise
a genuine issue of fact whether plaintiff was discharged, in
part, because of his age. Tarquino's comment that "Dan was going
to retire as early as he can and we would continue to develop
with Maddex," indicates that the comparative ages of the two men
was a direct factor in Ferro's decision to discharge the
plaintiff. Alone, it might be sufficient evidence to reach a
jury under the Price Waterhouse mixed-motives analysis. See
Grant v. Hazelett Strip-Casting Corp., 880 F.2d at 1569 (memo
that company president was looking for a "young man" sufficient,
if believed, to show that age played at least some part in
employment decision; "[i]t was for the jury to decide whether it
played a `motivating or substantial part' in the
dismissal. . . ."). Similarly, a jury might conclude that
Tarquino's comment that "dollars" were a factor in deciding who
should be laid off, when set against the salary and pension cost
disparity between Wolf and Maddex, indicated a desire to
"replace an older employee with a younger one for the sole
purpose of economizing on salary costs." Visser, 924 F.2d at
658. See also Metz, 828 F.2d at 1207 ("Given the correlation
between Metz's higher salary and his years of satisfactory
service, allowing Transit Mix to replace Metz based on the
higher cost of employing him would defeat the intent of the
[ADEA]"). Accordingly, it would appear that plaintiff has
adduced sufficient evidence to defeat summary judgment under
The court cites this evidence but does not hereby conclude
that plaintiff has carried its burden of establishing a Price
Waterhouse method of proof. Although the court must at some
point decide whether this case involves mixed motives, Price
Waterhouse, 490 U.S. at 247 n. 12, 109 S.Ct. at 1789 n. 12, it
declines to make this choice at this stage. As will be seen
below, it appears that plaintiff has adduced sufficient evidence
to defeat defendant's motion for summary judgment under the
McDonnell Douglas/Burdine method of proof.
The first step in establishing proof of discrimination under
McDonnell Douglas/Burdine is the prima facie case. "[T]o
establish a prima facie case, the plaintiff must demonstrate
that `(1) she belonged to a protected group (2) she was
qualified for her position (3) she was discharged, and (4) her
discharge occurred under circumstances giving rise to an
inference of [age] discrimination.'" George v. Frank,
761 F. Supp. at 268 (quoting Lopez v. S.B. Thomas, Inc.,
831 F.2d 1184, 1188-89 (2d Cir. 1987)). See Ludovicy v. Dunkirk Radiator
Corp., 922 F.2d 109, 110 (2d Cir. 1990); Montana v. First Fed.
Sav. & Loan of Rochester, 869 F.2d 100, 105 (2d Cir. 1989);
Russo v. Trifari, Krussman & Fishel, Inc., 837 F.2d 40, 43 (2d
Pena v. Brattleboro Retreat, 702 F.2d 322, 324 (2d Cir. 1983).
There is no question that plaintiff has satisfied the first
three of these requirements. He was fifty-seven years old at the
time of discharge, was qualified for multiple positions in the
plant, and was discharged. It would also appear that plaintiff
has satisfied the fourth element. First, plaintiff's
responsibilities, or those he was capable of performing, were
assumed by a twenty-five-year-old employee who was paid
significantly less than plaintiff. See Oxman v. WLS-TV,
846 F.2d 448, 455 (7th Cir. 1988) (prima facie case established
where employee could show, in RIF situation, that employer
released "protected employee while simultaneously hiring (or not
`bumping') younger employees to fill positions for which the
older employee was qualified. . . ."). Second, as discussed
above, one of the reasons stated for discharging Mr. Wolf and
retaining Mr. Maddex was the expectation that "Dan [Wolf] was
going to retire as early as he can and we would continue to
develop with Maddex." This fact alone may raise an inference of
age discrimination. See supra. Third, it appears that the
relative cost of retaining plaintiff versus Mr. Maddex was also
considered. See supra. This evidence is sufficient to raise a
genuine issue of fact that age discrimination played a role in
Mr. Wolf's discharge. See Montana, 869 F.2d at 105; Blanchard
v. Stone Safety Corp., 935 F.2d 18, 19-20 (2d Cir. 1991).
Defendant rebuts this prima facie case with several claims
which essentially boil down to one: Maddex was retained rather
than Wolf because he was the better qualified employee.
Defendant supports this argument by claiming that (1) Maddex
took fewer trips to outside machine shops when he supervised
mold design than did Wolf, (2) Maddex produced a greater
quantity of drafting work when both he and Wolf were drafters,
(3) Wolf socialized excessively, and (4) employee morale was
better under Maddex's supervision than under Wolf's. These
non-discriminatory reasons are sufficient to shift the burden
back to plaintiff to show that they are pretextual. Burdine,
450 U.S. at 253-55, 101 S.Ct. at 1093-95.
To prove pretext, plaintiff is not required to show that age
was the only factor in discharging plaintiff. Nor is plaintiff
required to show that defendant's "proffered reason was false,
but only that its stated reason was not the only reason and that
[his] age did make a difference." Montana, 869 F.2d at 105.
See Lowe v. Commack Union Free School Dist., 886 F.2d 1364,
1375 (2d Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct.
1470, 108 L.Ed.2d 608 (1990); Hagelthorn v. Kennecott Corp.,
710 F.2d 76, 82 (2d Cir. 1983). Moreover, at the summary
judgment stage, plaintiff need not prove pretext, but need only
show that material issues of fact exist as to whether
defendant's reasons for discharging plaintiff were pretextual.
Dister v. Continental Group, Inc., 859 F.2d 1108, 1115 (2d
Cir. 1988); Halbrook v. Reichhold Chem., Inc., 735 F. Supp. 121,
124-25 (S.D.N.Y. 1990); Diamantopulos, 683 F. Supp. at
328. Cf. Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 205
(3d Cir. 1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98
L.Ed.2d 679 (1988). This can be shown by establishing that
defendant's proffered reasons are "unworthy of credence."
Gibson v. American Broadcasting Co., 892 F.2d 1128, 1132 (2d
Cir. 1989); Dister, 859 F.2d at 1113.
For the reasons stated below, plaintiff has met this burden.
With respect to the relative qualifications of the two men, five
performance evaluations prepared by various Ferro managers have
been submitted to the court.*fn1 Only two of these
evaluations appear directly comparable, however: the September
1, 1984, evaluation of Wolf as Mold Supervisor and the January
1, 1986, evaluation of Maddex in that same position. Both of
these evaluations were prepared by Mr. Tarquino, whose opinion
defendant relies on to support its claim that defendant
believed Maddex to be better qualified. A comparison of these
evaluations by any standard reveals that plaintiff, not Mr.
Maddex, performed better in a supervisory role.*fn2 This
conclusion is not substantially undercut by reference to the
other evaluations and is, in any event, a question for the jury.
See Dister, 859 F.2d at 1114 (where an employer's intent or
state of mind is in issue, summary judgment is often
Defendant's claim that it discharged plaintiff because he made
more trips to outside machine shops than did Maddex is also
questionable. In deposition, Mr. Tarquino admitted he did not
know how many trips were made by plaintiff on his own time. Item
19, Exh. V at 70-71. Moreover, plaintiff has filed affidavits of
the outside machine shop owners who state that, while Wolf made
trips before or after working hours, Maddex only visited during
working hours. See, e.g., Items 30, 31 (affidavits of Carl F.
Maute and Richard K. Dern). Again, this evidence would appear to
raise an issue of fact for trial.
Similarly, Tarquino's claim that Maddex did more work as a
draftsman is called into question by his own deposition. On
cross-examination, after being pressed about the basis of his
belief that Maddex produced more work, the following exchange
Q. Okay, okay. So, you don't know how much work
either one produced for whatever time you observed
them spending at the [drafting] board in 1985, do
Item 19, Exh. V at 104. Moreover, comparing Tarquino's September
1, 1984, evaluation of plaintiff with his January 1, 1986
evaluation of Maddex, reveals that Tarquino rated plaintiff
higher under "Quantity of Work." See Item 21, Exh. A.
Defendant's claim that morale was better is also thin. It
appears to be based on the statements of only two employees,
only one of whom was under the supervision of either Wolf or
Maddex, the substance of whose comments Mr. Tarquino has no
recollection. See Item 19, Exh. V at 115-20. Finally, as for
the claims of excessive socializing, there is only one comment
on Wolf's performance reviews at all related to this allegation.
In Wolf's September 1, 1984, evaluation prepared by Mr.
Tarquino, Tarquino writes: "Develop a conscious effort at
self-discipline in conversation by `sticking to the subject.'"
Item 21, Exh. A. Contrasted against this is Tarquino's
"Satisfactory" rating for plaintiff in the areas of "Human
Relations" and "Employee Relations." These ratings are equal to
Maddex's in his January 1, 1986, evaluation. See id.
This evidence is sufficient, when coupled with the direct
evidence that defendant considered the comparative ages of Wolf
and Maddex when deciding to discharge the former, see supra,
to raise a genuine issue of fact as to whether defendant's
stated reasons for discharging plaintiff were pretextual. See
Montana, 869 F.2d at 105-06; Blanchard, 935 F.2d at 19-20.
Accordingly, defendant's motion for summary judgment is denied.
Discovery is now complete. This file is referred to United
States Magistrate Judge Leslie G. Foschio for the purpose of
conducting settlement negotiations. Counsel shall contact the
Magistrate's office for an appointment. If the parties cannot
reach a settlement, either a meeting or telephone conference
shall be held with the court on January 7, 1992, at 8:45 a.m. to
set a trial date.