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November 7, 1995

IRECO, INC., Defendant.

The opinion of the court was delivered by: HURD

 Presently before the court are plaintiff's motion for partial summary judgment on his claim for liquidated damages, and defendant's cross-motion for partial summary judgment dismissing that same claim. Opposition to both motions were filed by the parties. Oral argument was heard on October 12, 1995.


 This is an action commenced pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34. On April 20, 1995, this court granted partial summary judgment for the plaintiff on the issue of liability, finding that defendant Ireco, Inc. ("Ireco") intentionally discriminated against the plaintiff on the basis of his age. Dittmann v. Ireco, 883 F. Supp. 807 (N.D.N.Y. 1995). The issue now before the court is whether that decision requires a finding that the intentional discrimination was willful as a matter of law, entitling plaintiff to liquidated damages.

 The court previously found that circumstantial evidence established plaintiff's prima facie case, and therefore created a presumption of unlawful discrimination. The defendant then proffered the reorganization and coincident elimination of plaintiff's position as the legitimate reason for plaintiff's termination. At that time, defendant never claimed that it consulted with counsel about ADEA ramifications. Nor did it claim that if it did violate the ADEA, such a violation was unintentional. The court found the proffered reason to be pretextual because the reorganization created a position for which plaintiff was fully qualified, and defendant failed to offer that position to plaintiff at the time of his termination. Moreover, the court found that the offer of a noncomparable position in Missouri, a form letter signed by plaintiff referring to "resignation," acceptance of a severance package after the termination, and rejection of the new position months before it was even created were insufficient to refute defendant's intentional discrimination. Familiarity with the detailed facts as set forth in the April 20, 1995, Memorandum-Decision and Order is assumed. Id.


 I. Summary Judgment Standard

 Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).

 When the moving party has met the burden, the nonmoving party "must do more than simply show that there is some meta-physical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. At that point, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250; Matsushita Elec. Indus. Co., 475 U.S. at 587. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49; Matsushita Elec. Indus. Co., 475 U.S. at 587. Thus, summary judgment is proper where there is "little or no evidence . . . in support of the nonmoving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted).

 II. Willful Violation of the ADEA.

 The ADEA provides that willful violations of the act will subject the employer to liability for liquidated damages. 29 U.S.C.A. § 626(b) (1985). A violation is willful where the employer "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." Hazen Paper Co. v. Biggins, 507 U.S. 604, 123 L. Ed. 2d 338, 113 S. Ct. 1701, 1710 (1993) (reaffirming the definition of willful set forth in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985)). The "knowledge or reckless disregard" standard applies to all disparate treatment cases under the ADEA, whether proven by direct or circumstantial evidence. *fn1" Id. Because liquidated damages are punitive in nature, where there is evidence that the defendant acted in good faith liquidated damages will not be assessed. Pierce v. F.R. Tripler & Co., 955 F.2d 820, 826 (2d Cir. 1992); Benjamin v. United Merchants and Mfrs., Inc., 873 F.2d 41, 45 (2d Cir. 1989). Thus, once an employer is found to have intentionally discriminated against an employee in violation of the ADEA, it may avoid a finding of willfulness if it shows that it acted in good faith and nonrecklessly. However, under such circumstances, this defense is not broad and all encompassing. The Supreme Court recognizes only three acts of "good faith and nonrecklessness" which may save the employer from liquidated damages. Specifically: (1) the employer was ignorant of the correlation between the selection mechanism and age; *fn2" (2) the employer believed that age was a bona fide occupational qualification ("BFOQ"); and (3) the employer believed the employee was not covered by the ADEA. *fn3" Hazen Paper Co., 113 S. Ct. at 1709; Pierce, 955 F.2d at 826; Hagelthorn v. Kennecott Corp., 710 F.2d 76, 84 (1983). *fn4" Thus, the "good faith and nonreckless" exceptions which apply in a disparate treatment case such as this one have been narrowly defined to include only (1) BFOQ, or (2) exemption from ADEA protection.

 Unlike its opposition to plaintiff's original motion for summary judgment, the defendants now raise broad and sweeping claims of "good faith and nonreckless" behavior in that it consulted with its attorneys before implementing the reorganization plan and discharging the plaintiff. This is insufficient, however, because the defendant has raised no issues of fact that it acted in "good faith" because of one of the particular two reasons set forth above which apply in disparate treatment cases such as this.

 In the instant case the court found that the defendant employer intentionally discriminated against the plaintiff on the basis of his age in violation of the ADEA. Defendant now admits it was well aware that discharging a protected employee on the basis of age would violate the ADEA. Since the defendant knew that age discrimination violates the ADEA, and the defendant intentionally discriminated on the basis of age, it follows that the defendant knowingly and willfully violated the ADEA. See Hazen Paper Co., 113 S. Ct. at 1710 (employer who "knew . . . its conduct was prohibited" acted willfully). Therefore, the defendant will be liable for liquidated damages unless it shows that the discriminating conduct was in good faith and nonreckless. See id. ("It would be a wholly circular and self-defeating interpretation of the ADEA to hold that, in cases where an employer more likely knows its conduct to be illegal, knowledge alone does not suffice for liquidated damages."); Pierce, 955 F.2d at 826 (where an employer intentionally denied plaintiff a promotion because of his age and the employer knew that to do so violated the ADEA, the employer "knew . . . its conduct was prohibited by the ADEA" and a finding of willfulness was proper) (quoting Thurston, 469 U.S. at 126).

 In Pierce, the plaintiff, a protected employee, was terminated when his position was eliminated due to a reorganization and reduction in force. 955 F.2d at 823. The discrimination claim flowed from the employer's failure to promote plaintiff to a position, General Manager, which was open and available at the time of the discharge. Id. Defendant argued in its motion for judgment notwithstanding the verdict that plaintiff failed to formally apply for the position when it was open, therefore defeating his prima facie ...

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