Moore v. Sears, Roebuck and Co., Civ. A. No. 76-1041.

• Decision Date: 01 February 1979
• Docket Number: Civ. A. No. 76-1041.
• Citation: 464 F. Supp. 357
• Parties: Calvin S. MOORE, Clifford B. Anderson, James W. Baker, Louis B. Bowen, Walter M. Kelley, Wesley P. Maynard, Lewis F. Hicks, Leah J. Moulton, Robert J. Gutting, and Ralph E. Cox, Plaintiffs, Rudolph H. Nesbitt and George H. Schmeelk, Jr., Plaintiff-Intervenors, v. SEARS, ROEBUCK AND CO.
• Court: U.S. District Court — Northern District of Georgia

464 F. Supp. 357

Calvin S. MOORE, Clifford B. Anderson, James W. Baker, Louis B. Bowen, Walter M. Kelley, Wesley P. Maynard, Lewis F. Hicks, Leah J. Moulton, Robert J. Gutting, and Ralph E. Cox, Plaintiffs Rudolph H. Nesbitt and George H. Schmeelk, Jr., Plaintiff-Intervenors, v. SEARS, ROEBUCK AND CO.

Civ. A. No. 76-1041.

United States District Court, N. D. Georgia, Atlanta Division.

February 1, 1979.

COPYRIGHT MATERIAL OMITTED

Ellsworth T. Simpson, Washington, D. C., Margie Hames and Mary Ann B. Oakley, Atlanta, Ga., Lionel H. Silberman, Orlando, Fla., for plaintiffs.

John R. Crenshaw and Glen A. Reed, Alston, Miller & Gaines, Atlanta, Ga., for defendant.

ORDER

RICHARD C. FREEMAN, District Judge.

This is an action brought pursuant to the Age Discrimination in Employment Act of 1967 hereinafter "ADEA", 29 U.S.C. § 621 et seq. The plaintiffs allege that they were discharged or forced to accept early retirement by defendant Sears, Roebuck & Company in violation of Section 4(a)(1) of the Act, 29 U.S.C. § 623(a)(1).¹ The case is presently before the court on Sears' motion for summary judgment² against plaintiffs Anderson, Kelley, Nesbitt, Bowen, Baker, and Moore.³ For the reasons set forth below, we DENY the motion as to all of the plaintiffs.

The instant motion rests on Sears' contention that none of the plaintiffs is able to make out a prima facie case of age discrimination under the governing law in the Fifth Circuit. Sears argues, in addition, that the evidence of record conclusively shows that its decision to terminate each of the plaintiffs was founded on good cause, or was otherwise "based on reasonable factors other than age." 29 U.S.C. § 623(f)(1). We will briefly review the circumstances under which each plaintiff was terminated or retired, to the extent necessary to permit application of the standards for making out a prima facie case. We emphasize, however, that with the exception of the ages of the individuals involved, none of the circumstances we discuss should be deemed free from ambiguity. The parties may dispute at trial the proper characterization of acts such as termination or replacement of an employee, or abolition of his position. We do not imply that there lack genuine issues as to the "facts" set forth below, but merely provide an outline within which to frame our discussion of the applicable law.

In late 1974 and early 1975, Sears initiated a company-wide program of cost reduction. Under the program, four of the plaintiffs against whom Sears now seeks summary judgment saw their positions eliminated. Plaintiff Anderson was discharged at the age of 52 when his job as Merchandise Manager in Charlotte, North Carolina, was abolished. His responsibilities were divided among other Sears employees in the merchandising field. Plaintiff Kelley was forced to accept early retirement at 55 when Sears abolished his position, which had been termed a "Special Assignment" in the Atlanta Catalog Merchandise Distribution Center. It appears that no one assumed the duties he had performed at that job.

Plaintiff-intervenor Nesbitt was forced to accept early retirement at the age of 55 when Sears eliminated his position as Staff Assistant in the Installation Department for the Southern Territory. His responsibilities were divided among four remaining employees. One of these four was 32 years old; one was 40; the other two were both 49. Plaintiff Bowen was 51 when Sears discharged him and abolished his job as Liquidation Sales Coordinator in the Atlanta Catalog Merchandise Distribution Center. His duties were taken over by two employees, one of whom was 23 and one of whom was 42.

The remaining two plaintiffs now facing summary judgment did not have their jobs eliminated, but were directly replaced by other employees. Plaintiff Baker was forced to accept early retirement at 57. His replacement as Automotive Center Manager in Nashville, Tennessee, was 41 years old. Plaintiff Moore was 48 when Sears discharged him from his position as Store Manager in Cleveland, Tennessee. His replacement was also 41.

At some risk of oversimplification, we may classify the challenged plaintiffs as having been discharged or involuntarily retired in one of three fashions. Each plaintiff either (1) had his position eliminated and his duties taken over by others; (2) had his position and his duties eliminated; or (3) had his position filled in a one-for-one replacement. We provide these characterizations because, as will be seen below, each is susceptible of slightly different analysis in determining the requirements for a prima facie showing of age discrimination.

The dominant theme sounded by Sears in its extensive briefing of the summary judgment motion derives from one of the age discrimination cases decided by the Fifth Circuit Court of Appeals. In Price v. Maryland Casualty Co., 561 F.2d 609, 612 (5th Cir. 1977), the court held that:

To show a prima facie case of age discrimination, the plaintiff-employee must show that (1) he was a member of the protected group, (2) he was discharged, (3) he was replaced with a person outside the protecting group, and (4) he was qualified to do the job.

Sears contends that not one of the six plaintiffs can satisfy the third Price requirement. Four of the plaintiffs, Sears argues, were not replaced at all. The other two were replaced by other members of the "protected class."⁴ Since none of the plaintiffs is capable of making out a prima facie case under Price, Sears concludes that each must suffer summary judgment regardless of what other proof of discrimination he may adduce.

Sears' first point is technically correct: none of the plaintiffs was, strictly speaking, "replaced" by an individual under the age of forty. We are consequently faced with two questions. The first is whether plaintiffs — in this instance, Anderson, Kelley, Nesbitt, and Bowen — who were not strictly "replaced," but whose positions were eliminated, are nevertheless capable of building a prima facie case of age discrimination. The second is whether plaintiffs — here, Baker and Moore — who were replaced, but with individuals also protected by the Act, can still make out a prima facie case. The language in Price suggests a response in the negative. We reach the contrary conclusion, however, and find that under the governing standards all six plaintiffs are capable of making out the necessary prima facie case. In addition, we conclude that the fact that plaintiffs Baker and Moore were replaced by other members of the protected class does not constitute evidence by which Sears can conclusively rebut a prima facie showing and obtain summary judgment against those plaintiffs.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court first articulated the specific elements of a prima facie showing in a discrimination action. The respondent, plaintiff below, had charged that he was denied employment because of his participation in a civil rights protest at McDonnell Douglas' headquarters in St. Louis, Missouri. McDonnell Douglas had answered that the protest was illegal, and that it was the respondent's participation in the unlawful conduct that prompted and justified McDonnell Douglas' refusal to hire him. Justice Powell wrote:

Thus, the issue at the trial on remand is framed by those opposing factual contentions. The two opinions of the Court of Appeals and the several opinions of the three judges of that court attempted, with a notable lack of harmony, to state the applicable rules as to burden of proof and how this shifts upon the making of a prima facie case. We now address this problem.

The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

411 U.S. at 801-02, 93 S.Ct. at 1824 (footnotes omitted). Thoughtfully, the court added the following footnote:

The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.

Id. at 802 n. 13, 93 S.Ct. at 1824.

The court continued:

In the instant case, we agree with the Court of Appeals that respondent proved a prima facie case. Green v. McDonnell Douglas Corp., 463 F.2d 337, 353. Petitioner sought mechanics, respondent's trade, and continued to do so after respondent's rejection. Petitioner, moreover, does not dispute respondent's qualifications and acknowledges that his past work performance in petitioner's employ was "satisfactory."

The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. We need not attempt in the instant case to detail every matter which fairly could be recognized as a reasonable basis for a refusal to hire. Here petitioner has assigned respondent's participation in unlawful conduct against it as the cause for his rejection. We think that this suffices to discharge petitioner's burden of proof at this stage and to meet respondent's prima facie case of discrimination.

Id. at 802-03, 93 S.Ct. at 1824 (footnotes omitted).

Recently, the Court has had occasion to comment further on the rationale underlying the prima facie discrimination case. In Furnco Construction Corp. v. Waters, 438 U.S. 567, 576-578, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978), Justice Rehnquist wrote:

The central focus of the inquiry in a case such as this is always whether the employer is treating "some people less favorably than others because of

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