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Gray v. York Newspapers

filed: February 19, 1992; As Corrected February 24, 1992.


On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 89-1373).

Before: Greenberg and Cowen, Circuit Judges, and Green, District Judge*fn*

Author: Greenberg


GREENBERG, Circuit Judge.


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.*fn1 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."*fn2 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 Keeney one hour per day during Keeney's lunch and on Friday afternoons.

Keeney's immediate supervisor, Robert Merkert, testified that he was called into the office of Ed Magee, the Dispatch's finance director, and that Magee, who also was head of Keeney's department, said to Merkert, "John -- referring to Mr. Reynolds -- caught Dottie [Keeney] napping at the switchboard. Something has to be done. She's too old. She should have retired. Got to get her out." A few weeks after this conversation, Magee announced that the hours of the switchboard would be extended one hour to 6:00 p.m. and that the switchboard would thereafter be manned by two part-time operators, one working from 8:00 a.m. to 1:00 p.m. and the other working from 1:00 p.m. to 6:00 p.m., five days per week. When Magee offered one of the part-time jobs to Keeney, she asked if health insurance coverage, which she had as a full-time employee, would be provided to her if she accepted the offer. While Magee responded that he would check into the matter and get back to her with an answer, he never did so.

Keeney alleges that she would have accepted a part-time position if health insurance coverage were provided, but that she "assumed that Magee's failure to advise her that health insurance was provided meant that it was not." Keeney further alleges that she learned that she would be covered by health insurance if she retired, and for this reason decided to retire rather than accept the part-time position. Although several weeks transpired between the time Magee offered Keeney the part-time position and the time Keeney retired, Keeney made no further inquiries regarding whether insurance would be provided if she continued working. The two part-time switchboard operators, Freda Driscoll, who was then 58 years of age, and Rita Plath, then age 39, did not receive health insurance benefits.*fn3

3. George H. Laird, III

George H. Laird, III was employed at the Dispatch from September 16, 1963, to January 17, 1989, when at the age of 50 he ceased working for York. During his last 11 years at the Dispatch, Laird was a copy editor, writing headlines and editing stories for spelling, grammar, punctuation, content and factual discrepancies. He also edited errors from the newspaper's early edition to prevent their appearance in the final edition. Additionally, Laird laid out certain sections of the paper, and selected stories for print from the wire services. A former editor of the paper described Laird as "quite competent . . . dependable and precise . . . ." A co-worker stated that Laird had demonstrated knowledge and skill in the use of the Atex computer system. Sacks stated that Laird was "a brilliant man and an excellent and hard-working copy editor. He was such a perfectionist in his copy editing that he was sometimes referred to as a nit picker." Katherine Searle, a librarian in the editorial department, stated that she knew Laird "to be a very thorough and proficient copy editor," and that "he was regarded by me and almost everybody in the newsroom as a perfectionist," and was very hard working. Laird alleges that, until the last week of November 1988, there is no record of any blemish on his service to the Dispatch.

According to York, however, the new management at the Dispatch viewed things differently. Shortly after York bought the Dispatch, it implemented a number of changes to improve the newspaper's quality and appearance. Nelson Lampe, the deputy managing editor of the Dispatch, distributed a five-page memorandum to the editorial staff outlining the paper's "new look," and announced that the paper was adopting new styles for headlines, bylines, photo captions and jump lines. Additionally, York adopted the Associated Press Stylebook (AP Stylebook) to achieve clarity and consistency in writing style.

Lampe reviewed the paper on a daily basis, making editorial comments with a grease pencil and providing daily feedback by leaving the marked-up pages, or "tear sheets," in the news room for the staff to see. There is no dispute that Lampe had made numerous corrections to Laird's work. Laird would review the tear sheets with Donna Miskin, the day news editor and Laird's immediate supervisor. Additionally, on two or three occasions Lampe met with Laird to discuss Laird's performance. Lampe expressed dissatisfaction with Laird's attitude and ability to adapt to the format changes.

Laird was responsible for several errors that appeared in the Dispatch in late 1988 and early 1989. For example, in the November 30, 1988 edition of the paper, Laird incorrectly edited an obituary. The first edition of the paper stated that funeral services were scheduled for 2:00 p.m., but failed to indicate the date. Laird added the word "Friday," but this turned out to be erroneous as the service was to be held on Saturday. Laird's correction indicated that the funeral would take place before the viewing.

The next day, Laird failed to notice a misspelling of the word "gauge" in a front-page headline that read "Indicators Guage Up."*fn4 Two days later, Laird overlooked a misspelling of the word "noble" in the headline stating "Dog with a nobel lineage sparks events."

On December 1, 1988, Lampe orally warned Laird that York could not tolerate such mistakes and that Laird should not let such mistakes happen again. Laird was given a formal letter of reprimand on December 8, 1988, which stated that "any further such errors on your part could lead to further disciplinary action, up to and including dismissal." Following this reprimand, Lampe continued to observe deficiencies in Laird's work, including improper punctuation, improper capitalization, improper layout, misspelled headlines, failure to follow the AP Stylebook, poor allocation of space, poor news judgment, and misspelled names.

Lampe expressed concern about Laird's attitude, and again met with Laird on January 5, 1989. Lampe discussed Laird's recent editing errors and his accrual of what Lampe considered to be unnecessary overtime. On January 11, 1989, Laird was asked to complete a self-evaluation, which involved rating himself in nine categories relating to work performance, capacity and attitude toward job. There were five possible ratings: outstanding, above average, satisfactory, below average and unsatisfactory. There was also a question and answer portion. Laird rated himself "satisfactory" in all categories and gave terse answers in the question and answer portion. For example, in response to the question "Briefly appraise this employee's potential and future," Laird responded "limited only by my circumstances," and in response to the space for "performance objectives," he stated "personal satisfaction."

On January 16, 1989, Lampe evaluated Laird and rated him "unsatisfactory" or "below average" in all but the category for attendance, in which he rated Laird "satisfactory." In particular, Lampe gave Laird a "below average" rating in the areas of "quantity of work" and "judgment" and an "unsatisfactory" rating in the areas of "quality of work," "dependability," "initiative," "interest" and "cooperativeness." Lampe listed "attendance" as Laird's only strong point, and listed as Laird's weak points: "Lack of self-direction. Inability to lay out pages following our typographic style. Failure to perform duties in a professional manner. Failure to adhere to widely known and distributed stylistic guidelines." Lampe also stated that, "like other desk members, George has had 4 1/2 months to bring his performance and skills up to acceptable levels. He has not."

After evaluating Laird, Lampe determined that he should be terminated, and discussed this decision with Miskin and Bhatia, who both concurred. Laird was given a formal notice of termination on January 16, 1989, but was given an "early retirement offer" "because of [his] 25-plus years with the Dispatch . . ." which was contingent on Laird's submitting a letter of resignation the following day, which he did. York initially did not hire a replacement for Laird but instead assigned Edward "Turk" Pierce, who was then 49 years old, and who held a similar position on the night shift, to replace him. Approximately three and one-half months later, York requested resignations from three other copy editors who were ages 33, 38 and 31.

Laird does not dispute that he made the errors to which we refer. Rather, he produced an affidavit from a former reporter at the Dispatch who stated that "[a] copy editor's failing to catch errors in copy is an almost everyday occurrence. Errors in headlines and introducing an error into copy, while not everyday occurrences, were still quite frequent." Additionally, the reporter stated that all copy editors regularly made such errors but, with the exception of Laird, none were disciplined or reprimande d. The deputy news editor who, as a union official, is familiar with disciplinary matters, similarly stated that, "from September of 1989 to January 15, 1990, such errors were called to a copy ...

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