Here there is no argument that age was a BFOQ, or that the reorganization plan was in some way exempt from the ADEA. Quite to the contrary, defendant now admits that it knew that the reorganization plan could violate the ADEA and sought legal counsel to determine if the plan would comply with or violate the ADEA. Moreover, the court previously found that the reorganization plan was merely a pretext, and not a legitimate reason for plaintiff's termination. Thus, there was no finding that it was the reorganization plan itself which violated the ADEA. Even if the plan itself had violated the ADEA, a finding that defendant in good faith attempted to determine that the plan complied with the ADEA and mistakenly believed in that compliance would not result in a finding of nonwillfulness in this case. This is so because unlike Thurston, the plan itself did not result in the discriminatory conduct, i.e., the discharge of the plaintiff--the plan resulted in the elimination of plaintiff's position and the creation of a vacant position for which plaintiff was well qualified.
Similarly, in Hysell v. Mercantile Stores Co., 736 F. Supp. 457 (S.D.N.Y. 1989), the employer argued that plaintiff was a bona fide executive and therefore exempt from the ADEA. Id. at 458. In granting partial summary judgment for the defendant on the lack of willfulness, the court referred to a five page letter similar to a memorandum of law written by the employer's counsel applying the law to the facts to support his opinion that the plaintiff was a bona fide executive. Id. at 460-61. This belief was a recognized and legitimate "good faith and nonreckless" defense. Again, in this case there is no contention that defendant mistakenly believed that plaintiff was exempt from the ADEA.
Likewise, in Peterson v. Insurance Co. of North America, 40 F.3d 26 (2d Cir. 1994), the court found that it was error to refuse permission to amend a complaint to allege a nonwillful violation of the ADEA in a constructive discharge. Id. at 32. The defendant there argued that a constructive discharge was inherently intentional so that it would be "incongruous to allege non-willful discrimination." Rejecting this argument, the court reasoned that a constructive discharge did not necessarily constitute a willful violation of the ADEA. Id. The Second Circuit reiterated the "knowledge or reckless disregard" standard set forth in Thurston Id. at 31-32. Thus, Peterson stands for the proposition that in a constructive discharge case, an intentional violation of the ADEA may be willful or non-willful as determined pursuant to the "knowledge or reckless disregard" standard. The case presently before the court is not a constructive discharge case, so that Peterson does not directly apply to the facts of this case. Moreover, the willfulness standard set forth in Peterson is no different than the willfulness standard applied herein.
Defendant, also for the first time, argues that because a Mr. Elston, Senior Vice President of Manufacturing, testified that he inquired as to the age and length of service of each employee affected by the reorganization, and further consulted with attorneys to assure that the reorganization plan and failure to offer plaintiff an available position, would not violate the ADEA, the intentional discrimination was not willful as a matter of law. This argument also fails. This court has previously held as a matter of law that the reorganization plan and coincident elimination of plaintiff's Production Manager position were pretexts for intentional discrimination in discharging plaintiff and not offering him the available position. Thus, at this point, belated claims of prior attempts by defendant to evaluate and determine whether its reorganization plan violated the ADEA do not affect whether the intentional discrimination was willful.
The mere consultation with attorneys regarding the age and length of service of those affected by the reorganization plan does not show that the violation of the ADEA was not willful. The plan itself did not violate the ADEA. Certainly the attorneys were not approached for an opinion after being told that plaintiff would be terminated because of his age. The defendant has never admitted that it discharged plaintiff because of his age. Rather, this was a case where the plaintiff proved intentional discrimination by circumstantial evidence. It is a classic case of the type which led the Hazen Paper Co. Court to find that plaintiffs in such cases need not make any additional showing beyond intentional discrimination to prevail in a willful violation claim. See 113 S. Ct. at 1709 (rejecting requirements of direct evidence of discrimination, outrageous conduct, predominant rather than determinative factor). Once the plaintiff has overcome this burden, as he has done in this case, the defendant must come forward with some evidence of "good faith and nonreckless" behavior. The ultimate burden of proof rests, of course, with the plaintiff. But, if the defendant fails to come forward with evidence showing "good faith and nonreckless" behavior within the narrow confines as set forth by the Supreme Court and the Second Circuit, then there is no issue of fact to be tried.
In opposition to this motion, defendant did not put forth any evidence for a jury to consider that its intentional discrimination against the plaintiff was because of one or more of the two "good faith and nonreckless" excuses in a disparate treatment case as defined in Hazen Paper Co. and Pierce.8 Therefore, it has failed to raise a genuine issue of material fact to defeat plaintiff's motion. A grant of summary judgment in a discrimination case on the issue of liability, and in particular the issue of liability for liquidated damages, is unusual, and from this court's research, unprecedented. However, this court's previous decision, in combination with the Supreme Court's Hazen Paper Co. decision, the Second Circuit's Pierce decision, and the defendant's failure to raise any issue of fact regarding a recognized or legitimate "good faith and nonreckless" defense, compels a finding that defendant willfully discriminated against the plaintiff on the basis of his age in violation of the ADEA. See Pierce, 955 F.2d at 826 ("Where a party presents no evidence to support a particular theory of his case, he has no right to a jury instruction on that point."). The plaintiff is therefore entitled to judgment as a matter of law on the issue of willful violation of the ADEA and to liquidated damages.
Accordingly, it is hereby
1. Plaintiff's motion for partial summary judgment for liquidated damages is GRANTED; and
2. Defendant's cross-motion for partial summary judgment dismissing the claim for liquidated damages is DENIED.
David N. Hurd
United States Magistrate Judge
Dated: November 7, 1995
Utica, New York.