Buchholz v. Symons Mfg. Co.
| Decision Date | 13 January 1978 |
| Docket Number | No. 75-C-340.,75-C-340. |
| Citation | 445 F. Supp. 706 |
| Parties | Harold W. BUCHHOLZ, Plaintiff, v. SYMONS MANUFACTURING COMPANY, a division of Symons Corporation, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
COPYRIGHT MATERIAL OMITTED
Michael, Best & Friedrich by Lee J. Geronime, Milwaukee, Wis., for plaintiff.
Pope, Ballard, Shepard & Fowle by Paul E. Freehling & Terry Satinover, Chicago, Ill., for defendant; Godfrey & Trump by William H. Frazier, Milwaukee, Wis., of counsel.
DECISION and ORDER
This is an action under the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 621 et seq. Jurisdiction is based on 29 U.S.C. § 622(b) and 28 U.S.C. § 1331. The plaintiff claims to have been discharged from his employment with the defendant because of his age; the defendant claims that age was not a factor in the plaintiff's discharge, contending instead that he was terminated because of inadequate job performance. The plaintiff seeks back pay, lost benefits, damages for pain and suffering, liquidated damages pursuant to 29 U.S.C. § 216, costs, and reasonable attorney's fees.
The case was tried to the court, and the parties have filed briefs on the merits. They have also submitted proposed findings of fact and conclusions of law. The testimony adduced at trial disclosed several key factual disputes. In this decision, which shall constitute my findings of fact and conclusions of law, pursuant to Rule 52(a), Federal Rules of Civil Procedure, these factual disputes have been resolved as indicated after a consideration of the conflicting testimony and the exhibits received into evidence.
The plaintiff, Harold Buchholz, was employed by the Symons Manufacturing Company on March 1, 1959, in Chicago, where he and his wife then resided. Symons, an employer of more than 20 persons, manufactures, distributes, sells and rents concrete construction forms and accessories, and sells chemicals for concrete treatment and curing for use by contractors in pouring concrete buildings. Its headquarters are in Des Plaines, Illinois.
Mr. Buchholz served as an account manager responsible for sale and rental of Symons products in the Chicago area. As account manager, he was also required to act as liaison between the company and its customers, make collections, and to assist contractors with the application of Symons' products to the particular jobs.
From 1959 through 1969, Mr. Buchholz met or exceeded the sales quota assigned to him for each year. His sales volume and sales ranking among all Symons account managers for the years 1962 to 1969 was as follows:
NO. OF ACCT
YEAR AMOUNT MANAGERS RANK
1962 $173,624.00 30 5
1963 218,797.00 37 5
1964 167,116.00 39 15
1965 334,741.00 47 3
1966 296,902.00 47 2
1967 305,068.00 44 2
1968 336,551.00 51 3
1969 368,180.00 45 6
Like account managers, Mr. Buchholz received a salary plus a commission on each sale to an account assigned to him whether or not his efforts contributed to making the sale.
On March 1, 1970, at the plaintiff's request, he was transferred from Symons' headquarters to Waukesha, Wisconsin, to become an account manager with the Wisconsin branch office. His immediate superior there, occupying the position of district sales manager, was Michael Nolan. Mr. Nolan's supervisor was Warren Senneke, the district manager. Mr. Senneke's supervisor was James Norris, the regional manager. Mr. Senneke and Mr. Norris worked at the Des Plaines headquarters.
Mr. Buchholz' sales record in Wisconsin for the years 1970-1972 was as follows:
NO. ACCT
YEAR AMOUNT MANAGERS RANK
1970 $306,319 52 6
1971 359,412 65 7
1972 392,954 68 14
During these years, as in many previous years in Chicago, he received letters of commendation from John Imonetti, Symons' divisional marketing manager, and he was awarded bonuses for exceeding his sales quotas and for establishing new accounts.
At a meeting attended by Messrs. Nolan, Senneke, Norris and Buchholz on November 30, 1972, the plaintiff's performance as an account manager was criticized, and he was advised that four of his major accounts were being transferred to Mr. Nolan effective January 1, 1973. When Mr. Buchholz objected to the transfer of accounts, Mr. Norris stated: "Hell, you've only got four more years to go." As a result of subsequent written protests to Mr. Nolan and other Symons executives, one of the transferred accounts was returned to Mr. Buchholz.
After the November 30, 1972, meeting, the plaintiff's working relationship with Messrs. Nolan, Senneke and Norris was strained. His letters to them and other Symons management personnel were ignored, and he was left out of sales discussions and meetings. On several occasions prior to and after the November 30, 1972 meeting, Mr. Buchholz was compared to, and reminded of other retiring employees during conversations with Mr. Norris. Initially, Mr. Buchholz accepted references to his age and possible retirement as "good natured ribbing," but after the November meeting, the remarks became more pointed. In July, 1973, Mr. Buchholz requested and received information concerning early retirement benefits. However, when he discussed early retirement with Messrs. Norris, Senneke and Nolan at a meeting on September 4, 1973, he advised them that he had no intention of retiring.
On September 14, 1973, Mr. Nolan wrote a memorandum to Mr. Norris and Mr. Senneke recommending that Mr. Buchholz be retired at age 62, in February, 1974. The reason cited by Mr. Nolan for this recommendation was that Mr. Buchholz' customers were complaining "on an almost daily basis" of Mr. Buchholz' "lack of performance." Mr. Nolan also recommended that the plaintiff's territory be divided between himself and Craig Vanderbunt, a 22 year old Symons engineer assigned to the Waukesha office, because they were already servicing many of Mr. Buchholz' accounts.
On October 17, 1973, Mr. Buchholz met with Messrs. Nolan, Senneke and Norris in a tension-filled meeting at which he was told that fourteen of his accounts were being transferred to Mr. Vanderbunt because he "wasn't doing the job." He was told that he could continue as an account manager in Wisconsin without the transferred accounts (which constituted the bulk of his sales volume), that he could transfer to another territory if one were available, or that he could take early retirement.
On November 2, 1973, Mr. Buchholz met with Mr. Norris and James Carlson, Symons' personnel director, to discuss early retirement benefits. On January 10, 1974, Mr. Carlson's department forwarded retirement forms to be filled out by Mr. Buchholz. On January 16, 1974, Mr. Buchholz wrote to Mr. Carlson stating that the forms had been sent in error and that he had no intention of taking early retirement.
In late January, 1974, Mr. Buchholz was advised by telegram that all of his accounts were being transferred to Mr. Vanderbunt as of February 1, 1974, and that he should report to Mr. Norris' office in Des Plaines on January 31, 1974.
On January 31, 1974, Mr. Buchholz met with Mr. Norris and Mr. Carlson and reiterated his position that he had no intention of retiring early. He was then told that there was no suitable territory open for him and that because he was rejecting early retirement, he was terminated effective March 1, 1974. Mr. Buchholz responded by stating that his forced early retirement was "nothing but age discrimination." Mr. Norris' reply, according to the plaintiff, was "you're damned right it is."
On February 4, 1974, Mr. Carlson wrote a letter to Mr. Buchholz enclosing retirement forms and summarizing the reasons for his termination discussed at the January 31 meeting: "adverse customer reaction, ineffective job servicing, and a lack of technical understanding." Mr. Carlson also wrote that there were no "openings that do not require a greater technical insight than your current performance would indicate you possess."
The plaintiff introduced the testimony of two other former Symons employees concerning remarks made by Mr. Norris. Calvin Rudolph, an account manager who worked for Symons from 1950 until February 1, 1973, testified concerning the circumstances of his own early departure from the company. Mr. Rudolph testified that Mr. Senneke advised him that he was being retired early because "younger men were needed in the territory." The deposition of Robert Wilson, a former marketing manager and assistant to the president of Symons from 1962 to 1975, was admitted into evidence pursuant to Rule 32(a)(3)(C), Federal Rules of Civil Procedure. At the deposition, he testified that he overheard a conversation between Mr. Norris and Mr. Senneke in which Mr. Senneke said to Mr. Norris that they had disposed of Mr. Rudolph and now were going to get rid of Mr. Buchholz.
Mr. Norris testified at trial and denied making any of the remarks related above. The parties' evidence on these factual questions is in direct conflict. I have resolved the conflict in favor of the plaintiff, finding his testimony more credible.
The plaintiff has submitted certain statistical evidence to show a violation of the statute. I believe that the plaintiff has made out a substantial case of employment discrimination because of age with his other evidence, and thus the statistical...
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