Gray v. York Newspapers, Inc.

Decision Date10 February 1992
Docket Number91-5645 and 91-5646,Nos. 91-5644,s. 91-5644
Citation957 F.2d 1070
Parties58 Fair Empl.Prac.Cas. (BNA) 191, 58 Empl. Prac. Dec. P 41,308, 60 USLW 2602 Anita M. GRAY; Dorothy G. Keeney; Donald E. Krause; George H. Laird, III; Robert R. Merkert; Linda M. Roeder; Leroy E. Spangler v. YORK NEWSPAPERS, INC.; Garden State Newspapers, Inc.; Media News Group, Inc. Anita M. Gray, Dorothy G. Keeney, George H. Laird, III, Appellants. . Submitted under Third Circuit Rule 12(6)
CourtU.S. Court of Appeals — Third Circuit

Elliott A. Strokoff, Strokoff & Cowden, P.C., Harrisburg, Pa., for appellants.

Douglas R. Pierce, M. Kim Vance, Michael K. Goodwin, King & Ballow, Nashville, Tenn., for appellees.

Before GREENBERG and COWEN, Circuit Judges, and GREEN, District Judge *.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. FACTUAL AND PROCEDURAL HISTORY
A. Background

Anita Gray, Dorothy G. Keeney and George H. Laird, III separately appeal from the district court's orders for summary judgment entered against them on the merits of the case on February 1, 1991, and in favor of their former employer, York Newspapers, Inc. (York), in this action alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. We will consolidate the appeals for disposition. The appellants were formerly employed by The York Dispatch, a daily newspaper which York purchased on March 1, 1988, and which is distributed in the York, Pennsylvania, area. Defendant-appellee York is a wholly-owned subsidiary of defendant-appellee Garden State Newspapers, Inc. The third defendant-appellee is Media News Group, Inc. which provides financial management services to York. Garden State and Media News also obtained summary judgment in their favor but this judgment was predicated on the theory that they were not the appellants' employers rather than on the lack of merit to the appellants' claims.

We describe the facts as developed in the comprehensive discovery proceedings at length, first setting forth the facts significant to all three appellants and then describing their individual situations. In general the cases concern personnel changes effectuated by York after it purchased the Dispatch. In particular, York brought in new management to run the newspaper, following which some employees were reassigned and others left. York contends that those who left did so through ordinary attrition, were terminated for cause because they did not meet new standards, or left because they elected to take early retirement. In part the personnel changes were triggered by York's purchase of a second newspaper, the Sunday News, on September 1, 1988, with the resultant consolidation of certain of the two papers' operations.

In the summer of 1988, John Reynolds, the publisher of the Dispatch, developed an early retirement plan which the appellants label the "secret plan." The plan was not part of the company's regular retirement program, and its contents were divulged orally to the Dispatch's department heads. The plan was to be available to all employees within five years of the normal retirement age of 65.

The appellants maintain that, from the end of September 1988 through the end of February 1989, a total of 21 regular full-time employees of the Dispatch left their employment for reasons other than regular retirement or voluntary attrition. According to the appellants, of these 21 employees, 18 were over age 40 but only one retired under a bona fide retirement plan; eight retired under the "secret" early retirement plan and nine were either terminated or permanently laid off. 1 However, the record shows that 128 employees actually separated their employment with York during this time period. The appellants arrived at the figure of 21 by subtracting part-time employees, employees who had been with the newspaper less than three months and employees who resigned or quit.

The facts pertaining directly to each of the individual claims are as follows:

1. Anita Gray

In September 1988, Gray, who had been a reporter for the Dispatch for 27 years, the last 12 of which she spent covering the York County Courthouse, was 62 years old. Tim Graham, who began his employment at the Dispatch in August 1988, was the paper's Metro Editor. According to Gray, a few days after Graham arrived at the paper he asked Gray if she liked her assignment and she replied that she "really liked covering the courthouse." About one week after this conversation, Graham and Gray were discussing a conversation Gray had had with Phil Klinedinst, the Dispatch's managing editor, regarding the difficulty Gray and others experienced working with a certain supervisor. While Graham suggested that Gray had the option of retiring, she told him that she had no intention of doing that.

On September 13, 1988, Graham again raised the issue of retirement by advising Gray that York was working on an early retirement package. In her affidavit, Gray maintains that Harris Sacks, a reporter for the Dispatch who was terminated in September 1988 at the age of 60 in what York regarded as an early retirement, told Gray that the new management was putting pressure on him to resign. Because Graham raised the issue of retirement shortly after Gray told Graham that she had no intention of retiring, and because of Gray's conversation with Sacks, Gray sought and obtained legal advice.

Gray maintains that, on September 15, 1988, the last day before her scheduled one-month vacation, she saw through a glass partition in the office that Graham was having a meeting with Sacks, who appeared to be quite distressed. Right after Sacks left the office, Graham summoned Gray into his office and offered her an early retirement package comprised of a $25,000 lump sum payment plus $1,000 for medical benefits, or $30,000 plus $1,000 over a two-year period. He also indicated that the offer would not "last forever." 2 Graham advised Gray that when she returned from her vacation in October, she would no longer have the "courthouse beat," but would work on "general assignment reporting," an assignment Gray regarded as "demeaning." However, her title and salary were to remain the same.

At that same meeting Gray asked Graham why he was reassigning her and he replied that he had someone "much stronger" for the courthouse, Mike Snyder, a 30-year old entertainment reporter at the Dispatch with no court-reporting experience. That day, Gray wrote to Reynolds, the publisher of the Dispatch, stating that she "will discuss any [early retirement] proposals with [her attorney] when I return and would expect to be given a reasonable length of time to make a decision."

When Gray returned from her vacation she learned that Snyder had refused the courthouse assignment. Graham called Gray into his office on her first day back and asked Gray if she had made up her mind about retirement; she told Graham that she had not. Graham then told Gray that he had realized that there was more to covering the courts than he had originally thought, and that Gray could continue to cover the courts for the paper. When Gray asked Graham if Snyder had turned the job down, Graham indicated that Snyder wanted to remain an entertainment reporter. In her affidavit, Gray states: "Therefore, I concluded that Graham was lying to me and that I would be covering the courts only temporarily until another replacement could be found. I concluded this probably wouldn't be too long because if Graham first wanted Snyder, obviously experience in court coverage wasn't a consideration."

Gray had contemplated the early retirement offer during her vacation and, after she had returned, discussed it with her husband, daughters, several friends and attorney. On or about October 25, 1988, Gray informed Graham that she had decided to accept York's offer of early retirement. Gray nevertheless maintains that her retirement was, in effect, involuntary. She states in her affidavit that, when she returned from her vacation, she learned that Sacks had been "forced out" of his job and that a co-worker, Linda Roeder, "had been harassed to the point where she had to go on medical leave." Moreover, Gray perceived that the new management did not treat the older employees well and, because she did not know of any other employees who were offered early retirement, she felt isolated. She explains:

I would have to endure what Harris Sacks went through, and what Linda Roeder was going through. At that time, I did not feel I had the emotional and financial strength to oppose management's efforts to get me out. I felt that if I refused the early retirement offer, I would soon find myself harassed and then forced out of a job without anything. Therefore, although I had not even reached the point where I was thinking about planning for retirement and I wanted to work for several more years as a reporter for The York Dispatch, under all the circumstances, I felt I had no real practical choice but to accept their early retirement offer.

App. at 103.

On October 27, 1988, Gray sent a memorandum confirming her acceptance of the early retirement offer. The next day Peter Bhatia, the editor of the Dispatch, sent Gray a confirming memorandum. On October 29, Gray gave "formal notice" of her retirement. Gray asked that there not be a lot of fanfare surrounding her retirement and after she was presented with the traditional Dispatch retirement gift, Gray sent Bhatia and Graham a cordial, hand-written note thanking them for respecting her wishes.

2. Dorothy G. Keeney

Dorothy G. Keeney was employed full-time as the switchboard operator for the Dispatch from January 4, 1961, to September 30, 1988, and, at 77, was the oldest employee at the newspaper. Keeney operated the switchboard from 8:00 a.m. to 5:00 p.m. Mondays through Thursdays and from 8:00 a.m. to 1:30 p.m. on Fridays. Other employees at York filled in for...

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