Wolf v. Ferro Corp., CIV-88-3C.

Decision Date17 September 1991
Docket NumberNo. CIV-88-3C.,CIV-88-3C.
PartiesDaniel G. WOLF, Plaintiff, v. FERRO CORPORATION, Defendant.
CourtU.S. District Court — Western District of New York

772 F. Supp. 139

Daniel G. WOLF, Plaintiff,

No. CIV-88-3C.

United States District Court, W.D. New York.

September 17, 1991.

William A. Price, Buffalo, N.Y., for plaintiff.

Elarbee, Thompson & Trapnell (Robert L. Thompson and Joseph Freeman, of counsel), Atlanta, Ga., for defendant.


CURTIN, District Judge.

Plaintiff Daniel G. Wolf brings this action for employment discrimination against his former employer, Ferro Corporation, under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff argues that he was subjected to disparate treatment under the Act when he was discharged, at the age of fifty-seven, during a reduction-in-force ("RIF") at the plant where he worked on January 31, 1986. Defendant chose to retain Michael Maddex, then twenty-five years old, in plaintiff's former position. Mr. Maddex, with six years seniority, had been trained by Mr. Wolf, who had accumulated nearly forty years of seniority. Defendant moves for summary judgment on plaintiff's claim. Plaintiff opposes the motion.


Ferro Corporation ("Ferro") manufactures specialty ceramics at its plant in Buffalo, New York. Ferro bought the plant from Electro-Refractory and Abrasives ("Electro") in 1967. At that time, the plant consisted of four main divisions and several service units. Due to adverse economic conditions, in February, 1984, Ferro began a series of RIFs at the plant. In 1984, one of the main divisions was completely eliminated. The plant continued to lose money, and a series of RIFs followed in 1985 and

772 F. Supp. 140
1986. The final reduction occurred in January, 1986. Between February 1, 1984, and February 1, 1986, twenty-six salaried employees were discharged for cause or as part of the reductions

Bruce Tarquino was Plant Engineer during these RIFs. His responsibilities included overseeing the engineering, maintenance, and industrial engineering service units. As of January, 1985, those units had approximately thirty salaried employees. Tarquino was responsible for recommending who should be released as part of the RIFs. Plaintiff was one of the salaried employees under Tarquino's supervision who was recommended for termination.

At the time of his discharge on January 31, 1986, plaintiff was fifty-seven years old. Plaintiff had originally been hired by Electro on September 26, 1946. Plaintiff started as a draftsman, designing production molds in the machine shop. He left briefly for U.S. Army service in 1950-52, but then returned to Electro. In 1958, plaintiff became Machine Shop Foreman. From 1973 to 1978, plaintiff also served as Maintenance Department Foreman. In 1978, plaintiff became Mold Design and Fabrication Supervisor in the engineering department while maintaining his position as Machine Shop Foreman. He supervised two draftsmen and three machinists. He held these positions into early 1985.

In July, 1979, Ferro hired Michael Maddex as a Draftsman I. Mr. Maddex was one of two draftsmen supervised by plaintiff. One of Mr. Wolf's primary responsibilities during this time was to train Mr. Maddex in mold design and machine shop practices. Beginning as early as 1982, Ferro managers began to express their concern that Mr. Maddex might leave the company. Accordingly, promotion and wage increases were discussed and implemented for Mr. Maddex.

In January, 1985, Plant Engineer Tarquino implemented a new maintenance system. This maintenance system required a new position: Maintenance Planner. Tarquino chose plaintiff for the position on the basis of his experience. This was considered a lateral move with no change in plaintiff's salary. Just prior to plaintiff's February 1, 1985, reassignment as Maintenance Planner, Mr. Maddex was promoted to Maintenance Foreman I. This position represented the same responsibilities then being performed by Mr. Wolf as Mold Supervisor, but under a different title.

On May 24, 1985, during a RIF at the plant, plaintiff's Maintenance Planner position was eliminated. Rather than return plaintiff to his former position as Mold Supervisor (or Maintenance Foreman I, the new name for the position), plaintiff was assigned the title of Drafter III, with no loss in pay, under the supervision of Mr. Maddex, who remained as Maintenance Foreman I. A twenty-one-year-old draftsman hired in November, 1984, was laid off to make room for Mr. Wolf. One of the reasons for "demoting" Mr. Wolf to a position below his former trainee, Michael Maddex, was: "The expectation, also, that Dan was going to retire as early as he can and we would continue to develop with Maddex." Item 19, Exh. V at 75 (second Tarquino deposition). Despite this "demotion," plaintiff earned a four-percent merit pay increase in September, 1985.

On January 31, 1986, during another RIF at the plant, plaintiff was terminated. Michael Maddex was retained. As of February 6, 1986, however, his title was changed to Drafter III, the position just vacated by plaintiff. This position relieved Mr. Maddex of his supervisory duties. There were no other employees in drafting, and Ralph Benson, Maintenance Foreman, had by that time already assumed supervision of the machine shop.

The pay differential between Messrs. Wolf and Maddex at Wolf's termination was pronounced. Mr. Wolf's salary was $32,160 per year. Mr. Maddex's salary was $21,288 per year. In addition, Mr. Wolf was a participant in the "Electro Refractories Pension Trust," which covered all former employees of Electro at a cost significantly higher than the Ferro pension plan of which Mr. Maddex was a participant. As Mr. Tarquino noted in his deposition, he and Plant Manager William F. Miley considered cost to the company when

772 F. Supp. 141
assessing who should be terminated during the 1986 RIF. "We talked in terms of dollars," he said. Item 19, Exh. U at 49 (first Tarquino deposition)

Defendant contends that Mr. Wolf was first placed under Mr. Maddex's supervision, and then laid off, while Maddex was retained, because Mr. Maddex was better qualified. Defendant alleges that shortly after plaintiff was transferred to his new position as Maintenance Planner in February, 1985, Mr. Tarquino began noticing deficiencies in plaintiff's performance. The deficiencies cited by defendant include: a shortfall in the volume of maintenance work scheduled, the inability to communicate with the Maintenance Foreman and other members of the maintenance staff, and excessive socializing with employees not involved in maintenance or engineering. After counselling plaintiff on March 15, 1985, Mr. Tarquino noticed improvement in plaintiff's work. Nevertheless, during the January, 1986, RIF, Mr. Tarquino recommended that plaintiff, rather than Mr. Maddex, be let go. In support of this decision, defendant argues that Mr. Maddex (1) cut down on the number of trips taken outside the plant to mold design shops, (2) fostered better morale with employees under his supervision, and (3) turned out a greater quantity of drafting work during the period in 1985 when both Wolf and Maddex were drafting. Plaintiff counters these contentions with evidence to show that defendant's stated reasons for terminating him were pretextual. Plaintiff argues that (1) the alleged deficiencies in his performance as Maintenance Planner can be attributed to the experimental nature of the position, the brief period in which it existed, the fact that plaintiff was required to work with newly hired foremen, and the resistance of hourly workers, (2) trips taken by plaintiff to outside shops were usually taken on plaintiff's own time, (3) performance reviews of himself and Mr. Maddex rated plaintiff higher, and (4) the claims of higher productivity and morale under Mr. Maddex are unsupported by the record.


Under Title VII, 42 U.S.C. § 2000e et seq., as under the ADEA, 29 U.S.C. § 621 et seq., the Supreme Court has parsed two methods of proving the ultimate fact required in each case of employment discrimination: namely, that the defendant intentionally discriminated against the plaintiff. The most common method of proving discrimination is by the three-step procedure set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and affirmed in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

Id. 450 U.S. at 252-53, 101 S.Ct. at 1093-94 (citation omitted) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). The other method of proof comes into play when plaintiff has direct evidence sufficient to prove that a discriminatory reason more likely than not played a motivating or substantial role in an employment decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 244, 109 S.Ct. 1775, 1787, 104 L.Ed.2d 268 (1989) (plurality opinion); Barbano v. Madison County, 922 F.2d 139, 145 (2d Cir.1990); Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1568 (2d Cir. 1989); George v. Frank, 761 F.Supp. 256, 269 (S.D.N.Y.1991); E.E.O.C. v. National Broadcasting Co., 753 F.Supp. 452, 465 (S.D.N.Y.1990), aff'd without opinion, 940 F.2d 648 (2d Cir. June 11, 1991); Danna v. New York Tel. Co., 752 F.Supp. 594, 613 n. 6 (S.D.N.Y.1990). Once plaintiff has directly established that an illegitimate reason played a role in the employment decision,

772 F. Supp. 142
"the burden falls to the defendant to prove by a...

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