Cowen v. Standard Brands, Inc.

• Decision Date: 25 October 1983
• Docket Number: Civ. A. No. 81-AR-1010-S.
• Parties: William S. COWEN, Plaintiff, v. STANDARD BRANDS, INCORPORATED, Defendant.
• Court: U.S. District Court — Northern District of Alabama

572 F. Supp. 1576

William S. COWEN, Plaintiff, v. STANDARD BRANDS, INCORPORATED, Defendant.

Civ. A. No. 81-AR-1010-S.

United States District Court, N.D. Alabama, S.D.

October 25, 1983.

Burton H. Brody, New York City, Thomas A. Carraway, Clarence M. Small, Jr., Rives & Peterson, Birmingham, Ala., for defendant.

Louis W. Scholl, Scholl, Allen & Caldwell, Donald W. Davis, Davis & Howland, Birmingham, Ala., for plaintiff.

MEMORANDUM OPINION

ACKER, District Judge.

This case was brought by a 59 year old salesman, William C. Cowen (Mr. Cowen), pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (ADEA), claiming that because of his age he was terminated by defendant, his employer, Standard Brands, Incorporated (Standard Brands). Standard Brands denies any age discrimination and affirmatively asserts as a defense that in a reorganization of its sales force, which was designed without any motive to eliminate its older salesmen, and which was uniformly applied, Mr. Cowen was only incidentally adversely affected.

At the conclusion of the evidence, Standard Brands filed a motion for directed verdict pursuant to Rule 50, F.R.Civ.P. In support of its motion Standard Brands not only made the arguments which it made in support of the same motion at the conclusion of plaintiff's case, but urged for the first time an absolute defense based on Ford Motor Company v. EEOC, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982). The Court was unfamiliar with Ford Motor and had not previously had an opportunity to read the case and to ascertain what significance, if any, it has in this case. Under the circumstances, the Court was unwilling at that moment to grant defendant's Rule 50 motion without first seriously studying Ford Motor. Therefore, the Court took defendant's motion under advisement and informed both parties that the Court would treat defendant's motion as a motion for judgment notwithstanding the verdict in the event the jury should bring in a verdict in favor of Mr. Cowen. The jury thereupon brought in a verdict in favor of Mr. Cowen both for back wages and for liquidated damages under ADEA. In an abundance of precaution Standard Brands filed a redundant motion for judgment n.o.v. and an alternative motion for new trial.

Standard Brands presents three basic arguments in support of its motion for judgment n.o.v. First, it says that plaintiff offered no substantial evidence, using the test of Boeing v. Shipman, 411 F.2d 365 (5th Cir.1969), to support his allegation that Standard Brands' plan for a reduction in force was a pretext or a cover up for age as a determining cause for terminating Mr. Cowen, and that Mr. Cowen failed in his ultimate burden of proof under the analysis of McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Secondly, Standard Brands says that there is no substantial evidence of a "willful violation" so as to justify liquidated damages under 29 U.S.C. § 626(b), or, in the alternative, that the question of "liquidated damages" is a matter for the Court's discretion and not for the jury. Thirdly, Standard Brands says that its offer to Mr. Cowen of a comparable position in Pittsburgh, Pennsylvania, before suit was filed, while the controversy was under consideration by the EEOC, and before Mr. Cowen actually suffered any lost salary, precludes any claim by Mr. Cowen. For this proposition Standard Brands relies on Ford Motor. The Court will address these contentions in order.

Was There Substantial Evidence Of Pretext?

The Court disagrees with Standard Brands' contention that under the Boeing requirement there is no substantial evidence here to the effect that its reorganization plan was a pretext for age discrimination and that Mr. Cowen's age was, in fact, a determining factor in his termination. The Court agrees that if the jury had reached the conclusion urged upon it by Standard Brands and had believed Standard Brands' testimony that it was only exercising a legitimate business judgment without in any way considering the ages of the various members of its sales force when it designed its plan of reorganization, such a jury verdict would have been entirely reasonable and would have been invulnerable. However, in the Court's opinion, the following items of evidence do form a basis for the jury's indulgence of logical inferences and findings to the contrary, and in favor of Mr. Cowen's contention that the reorganization was a pretext for age discrimination:

Facts Meeting the Boeing Test

(1) Mr. Casey, the officer of Standard Brands who was primarily responsible for the reorganizational design, and who explained its rationale from the witness stand, testified that the plan was "consistent", in that it was applied uniformly across-the-country and was based on the single criterion or consideration of displacing a lower level salesman with a higher level salesman where the two happened to be in the same location. The idea, according to Mr. Casey, was to minimize disruption and the moving of salesmen while giving preference to higher ranking salesmen in the reduction in force. Although Mr. Cowen and Mr. Barry, Mr. Cowen's superior who replaced him in the shakeup, both lived and worked in Birmingham, Alabama, so that the consolidation criterion was applied precisely in Birmingham as articulated by Mr. Casey, it did not work exactly the same way in Dallas, Texas. Rather, in Dallas the demoted higher level salesman, Mr. Chapin, had been located in Dallas where two lower level salesmen lived. Yet, Mr. Chapin was transferred to Houston to displace Mr. Jack Green, a lower level salesman 59 years old, who was terminated as Mr. Cowen was. Standard Brands' hopeful explanation of this deviation from norm is that Mr. Chapin owned property in Houston and had previously lived there. Arguably, however, this deviation from norm militates against the "consistency" required to eliminate all possibility of age bias. Mr. Chapin's transfer was and is sufficiently "inconsistent" and different to raise a suspicion upon which Mr. Cowen could mount a legitimate jury argument that the reorganization plan was a pretext for eliminating Mr. Cowen and Mr. Jack Green, both in their late 50's.

(2) The statistics and percentages offered by Standard Brands to demonstrate that there was no overall adverse impact by age on its total sales force, arguably are skewed in that they do not present an impact picture limited to those salesmen who were forced to relocate or who were terminated. Arguably, if a narrower focus were taken, a disparate impact based on age would appear. Also, statistics within very small universes can be rejected or looked at with a jaundiced eye because of their speculative predictive value. White v. City of San Diego, 605 F.2d 455, 461 (9th Cir.1979). Put another way, the smaller the group the more probable that a statistical analysis can be manipulated. The group here was very small.

(3) The sequence of Standard Brands' offers of transfer or relocation also is arguably significant. The evidence is logically susceptible to the interpretation that Standard Brands preferred its younger salesmen when it offered relocation to comparable jobs. For instance, when relocation offers were extended to the younger salesmen earlier than to Mr. Cowen or to Mr. Jack Green, the options were perhaps more varied and perhaps more attractive. Arguably, the relocation offers had an age pattern to them, so that by the time Standard Brands got around to offering Mr. Cowen a relocation after he had first been told categorically and unequivocally of his termination without an offering of relocation, all that was left was Pittsburgh, Pennsylvania. The Pittsburgh job was never filled, arguably indicating that Pittsburgh was less than the most desirable territory. This inference is reinforced by the undisputed fact that Mr. Belcastro, a younger man who was assigned the Pittsburgh territory before the reorganization, was offered and took the Chicago job before Mr. Cowen was offered any relocation. Furthermore, the fact that Standard Brands made available to Mr. William Green (a different and younger Mr. Green from the 59 year old Mr. Green in Dallas), an independent opportunity in Tampa, Florida, without first discussing the opportunity with either of its two men over 50, can make a pretty good argument for "pretext".

There is another angle to this case which calls for comment. It arises from Marshall v. Westinghouse Electric Corp., 576 F.2d 588 (5th Cir.1978), which has become the law of the Eleventh Circuit under Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981). In Marshall, the Fifth Circuit recognizes that inasmuch as ADEA expressly provides for affirmative defenses (something Title VII does not provide) when an employer affirmatively interposes such a statutory defense, the employer undertakes not only the burden of articulating a legitimate, nondiscriminatory reason for its decision as in McDonnell Douglas and Burdine, but undertakes the burden of persuasion or of proof as to the statutory reason if it is the same reason. The Fourth Circuit has reasoned similarly in E.E.O.C. v. Baltimore & Ohio R.R., 632 F.2d 1107 (4th Cir.1980), cert. denied, 454 U.S. 825, 102 S.Ct. 113, 70 L.Ed.2d 98 (1981), and Arritt v. Grisell, 567 F.2d 1267 (4th Cir.1977). In the instant case Standard Brands answered Mr. Cowen with what it described as its "Affirmative Defense", in which it alleged:

Plaintiff's termination resulted from a reorganization and resultant force reduction designed to meet the business needs and purposes of Standard Brands Incorporated. Plaintiff's age played no part in defendant's decision to reduce its force and terminate plaintiff. Rather, plaintiff's termination was for business reasons wholly unrelated to plaintiff's age, or to plaintiff's age relative

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