Schulz v. Hickok Manufacturing Co., Inc., Civ. A. No. 15131.

• Decision Date: 04 May 1973
• Docket Number: Civ. A. No. 15131.
• Citation: 358 F. Supp. 1208
• Parties: Charles E. SCHULZ v. HICKOK MANUFACTURING CO., INC.
• Court: U.S. District Court — Northern District of Georgia

358 F. Supp. 1208

Charles E. SCHULZ v. HICKOK MANUFACTURING CO., INC.

Civ. A. No. 15131.

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

May 4, 1973.

COPYRIGHT MATERIAL OMITTED

Morris, Etheridge, Redfern & Butler, Atlanta, Ga., for plaintiff.

Hansell, Post, Brandon & Dorsey, Atlanta, Ga., for defendant.

ORDER

RICHARD C. FREEMAN, District Judge.

This action was brought by plaintiff under the provisions of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634. Jurisdiction is founded on 28 U.S.C. § 1331 and 29 U. S.C. § 626(c). Plaintiff complains that he was discharged from his job with defendant because of his age, which was 56 at the time of his discharge. By this action plaintiff seeks reinstatement and back pay, plus liquidated damages for willful violation of the Act. A non-jury trial has been held and the case is ready for decision on the merits.

Plaintiff was first employed by the defendant in October, 1942, and from that date until February 23, 1953, served as a salesman. From February 24, 1953, until the date of his discharge, plaintiff was employed by defendant in the capacity of District Sales Manager. In this capacity plaintiff was responsible for the sales maintenance and sales budgets, development of new business, continual training, hiring, firing, evaluation and supervision of salesmen. Plaintiff was also to make sure that salesmen under him made calls on customers on a regular basis, and he was required to submit weekly reports on his own activities, as well as those of the salesmen in his area who, in turn, were to submit reports to him. As district manager, plaintiff was expected to spend a minimum of four to four and one-half days per week in the field and to apprise the National Sales Manager, Harry McLean, of any new problems or developments in his area.

Plaintiff was discharged from his job on November 16, 1970.

It is clear from the testimony at trial that the defendant company was in serious financial trouble in 1970. It had lost money every year since 1965 and in 1969 had lost over a million dollars. In February, 1970, the company underwent a substantial change in ownership and management with the Hickok family interests being taken over by the Parker interests. Mr. P. J. Parker assumed at that time the presidency of the corporation.

In the summer of 1971 the defendant again underwent a substantial change in which the Parker interest in defendant was taken over by Tandy Corporation.

Plaintiff contends that his discharge by defendant was because of his age. Principal support for his claim derives from a remark made to him in late August, 1970, by Harry McLean, National Sales Manager and plaintiff's immediate supervisor.¹ Plaintiff, McLean and Harry Bock, Vice-President of Marketing and McLean's supervisor, had been on a trip of several days visiting accounts in plaintiff's district. During the course of this trip plaintiff had sensed dissatisfaction with his job performance and there had been some discussion of a particularly troublesome account in plaintiff's district, Burdine's in Miami. During the trip there was mention of plaintiff's possible transfer to another position in the company. Plaintiff told McLean and Bock that he would be willing to accept a job change.

On or about August 27, 1970, as they were walking from one store to another in Atlanta, Georgia, in response to inquiries about why defendant would want to place him in a different job, McLean told the plaintiff that the company "wanted younger and new people." No one except plaintiff and McLean participated in or overheard this conversation.

On November 13, 1970, less than two months after this conversation McLean telephoned plaintiff and told him that he was being terminated. The reason given at this time for the termination was that plaintiff "should be doing more business." On November 16 plaintiff met with McLean and Bock and the explanation for the termination was again that plaintiff "should be doing more business." McLean and Bock refused to discuss the reasons for termination any more fully. No offer was made to plaintiff of another position within the company. At this meeting plaintiff expressed his concern that it would be difficult for him, at his age, to find suitable employment. Bock disagreed that plaintiff would face such problems. Plaintiff never received any letter from the defendant giving him official notice of his termination or of the reasons therefor.

At the November 16 meeting with McLean and Bock, plaintiff was promised that he would receive certain benefits from the company, including a portion of his pension, certain insurance, health insurance at one-half cost and severance pay. Only the severance pay has actually been received by plaintiff. All pensions were cancelled by the company at some point after plaintiff's discharge.

Plaintiff's claim of age discrimination was buttressed by the deposition of Theodore Salomon. Salomon, whose date of birth was March 18, 1921, served as a District Manager until he became a Key Salesman for defendant's Pioneer Line in June or July of 1970. He was discharged by defendant on October 28, 1970, at the age of 49. He testified that McLean informed him of his discharge while they were walking along the street in New York. In response to Salomon's question as to the reason for the termination, McLean stated, "I don't know. Call it their youth movement."

Defendant has vigorously objected to this testimony on the grounds of relevance and hearsay. Defendant argues that the testimony is not relevant because this is neither a "pattern and practice" action brought by the government nor a class action. While it is true that the only question in this action is whether defendant discriminated on the basis of age in its discharge of one particular employee, plaintiff Schulz, evidence of the defendant's behavior in similar cases is decidedly relevant to the court's determination of the reasons behind plaintiff's discharge. Thus in Danner v. Phillips Petroleum Co., 447 F.2d 159 (5th Cir. 1971), reh. den. 450 F.2d 881, in an individual and not a class action, evidence concerning the seniority and bidding rights of other female employees of the defendant company was found to be not only relevant but also very persuasive evidence bearing on plaintiff's claim under Title VII.²

In the present case the testimony of Salomon is especially relevant because of the striking similarity between the circumstances under which Salomon and the plaintiff were informed by McLean of their discharges and because of the similarity of the comments which he made to each of them. The remark to Schulz was made in late August, 1970; Salomon was informed of his discharge by McLean in late October, 1970.

While defendant argues that the testimony of Salomon is inadmissible hearsay, it is clear that the statements of a deceased agent are admissible against his principal. Ga.Code Ann. § 4-315. Also, statements against interest are admissible as an exception to the hearsay rule. Ga.Code Ann. § 38-309. The statement of McLean to Salomon is not excluded by the Georgia Dead Man Statute, the relevant portion of which, Ga.Code Ann. § 38-1603(4) provides as follows:

4. Where a person not a party, but a person interested in the result of the suit, shall be offered as a witness, he shall not be competent to testify, if as a party to the cause he would for any cause be incompetent.

However, Salomon clearly has no legal, financial or other interest in the outcome of this case which would bring him within the ambit of the Dead Man Statute.

Defendant argues that even if the testimony could be held to come within one of the exceptions to the hearsay rule it should not be admitted because it lacks trustworthiness. The court disagrees. The court finds evidence of the trustworthiness of this testimony from a letter which was admitted into evidence as plaintiff's exhibit # 42. This is a letter to Schulz from Salomon, dated November 10, 1970, only a short time after the conversation in which McLean told Salomon that he was being discharged by the defendant and long before the accidental death of McLean. The fact that Salomon's statement in this letter is substantially identical to Salomon's testimony on deposition is weighty evidence of the trustworthiness of the testimony.

Defendant's final objection to the testimony of Salomon is based on defendant's contention that McLean had no authority to make such a statement and that such a statement, if made, did not accurately reflect the true policy of the company in regard to age. Without discrediting the testimony of P. J. Parker, President of Hickok, that McLean had not been authorized to make such statements to Salomon and Schulz, testimony regarding such statements is nonetheless relevant, for McLean might very well have been expressing his opinion as to the true, albeit unacknowledged, policy of defendant to discharge certain district managers because of age.

To establish a prima facie case, plaintiff also relies on statistics showing the ages of the district managers before the Parker interests took over Hickok and at the end of the Parker term of control of the company. Defendant has objected to the introduction into evidence of this statistical evidence but it is clear that such statistics are admissible in a Title VII action. See Rowe v. General Motors Corporation, 457 F.2d 348 (5th Cir. 1972); Mabin v. Siegler, Inc., 457 F.2d 806 (6th Cir. 1972); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970); Stringfellow v. Monsanto, 320 F.Supp. 1175 (W.D. Ark.1970). Such statistics are therefore, by analogy, admissible in age discrimination cases. See fn. 2, supra. Defendant is of course correct, however, in stating that statistics are not conclusive proof of an employer's reasons for any particular discharge; they are relevant...