because they both indicated that they would retire after the
1983-1984 school year. (Plaintiff's Exhibit 14). Although
Terry Salem and Frank Kraus both testified that they made the
initial recommendations to Mr. Davis, and that Bartels and
Noeth's performance in relation to the other administrators
was the determining factor, this testimony is inconsistent
with Mr. Davis' affidavit and the fact that both Bartels and
Noeth had excellent employment records. Salem and Kraus
testified that Bartels and Noeth were adequate administrators,
but that because some of the administrators had to be
reclassified, a ranking of the administrators had to be done.
Both Salem and Kraus indicated that Bartels and Noeth were
placed on the lower end of their respective rankings. However,
the Court finds that the defendant had to choose among a
number of well qualified administrators, and in the case of
Bartels and Noeth, the determining factor was not their
performance in relation to the other administrators but rather
the fact that they intended to retire in one year.
Based on this finding the Court must determine whether the
defendant's decisional process with respect to Bartels and
Noeth involved discrimination. Placed in the legal framework,
the Court must determine if defendant's desire for continuity
was a reasonable factor other than age.
The ADEA provides that it shall not be unlawful to take any
otherwise prohibited actions "where the differentiation is
based on factors other than age. . . ." 29 U.S.C. § 623(f)(1).
Theoretically, this defense can be defeated by showing that the
factor is not reasonable or that the factor is so inexorably
linked with age that cannot be viewed as a separate factor. The
plaintiff has argued that notification of an intent to retire
is so inexorably linked with age that it cannot be viewed as a
The courts construing this defense have held that seniority
is inexorably linked with age, and cannot be viewed as a
separate factor; E.E.O.C. v. City of Altoona, PA., 723 F.2d 4
(3d Cir. 1983) cert. denied, 467 U.S. 1204, 104 S.Ct. 2386, 81
L.Ed.2d 344 (1984); that retirement status is not a factor
other than age, E.E.O.C. v. Borden's Inc., 724 F.2d 1390 (9th
Cir. 1984); and that, a need for a "younger image" was not a
factor other than age, Rose v. National Cash Register Corp.,
703 F.2d 225 (6th Cir.). cert. denied, 464 U.S. 939, 104 S.Ct.
352, 78 L.Ed.2d 317 (1983).
Likewise, the Court holds here that notification of an
intent to retire is so inexorably linked with age that it
cannot be viewed as a separate factor. Obviously, the older
the individual gets, the more likely he is to retire.
Therefore, the continuity argument could be made against any
older employee. The Court cannot envision a common situation,
other than retirement, where the employer would know that an
employee intended to resign in the future and would use that
fact in its employment decision. Additionally, such a factor
has the effect of penalizing an employee for giving in advance
to his employer the date he intends to retire. The undisputed
evidence at trial indicated that employees such as Bartels and
Noeth gave their notification of their intent to retire after
a given school year so that the defendant could pay them their
unused sick pay over the last few years of their employment
and thereby increase their pension benefits which were based
in part on their salary in these last few years. Bartels and
Noeth gave their notification in advance to take advantage of
this procedure, but were penalized for doing so. Finally, an
employee could always revoke his decision to retire. The ADEA
was designed in part to allow an employee maximum freedom of
choice when deciding to retire. See S.Rep.No. 493, 95th Cong.,
2d Sess. 3, reprinted in 1978 U.S.Code Cong. & Ad.News 504,
Therefore, the Court finds that the defendant violated the
ADEA when it reclassified Bartels and Noeth from
administrators to teachers because they intended to retire a
The Court also finds that this violation was not wilful.
Section 7(b) of the ADEA, 29 U.S.C. § 626(b) provides that the
plaintiff is entitled to double damages for a
wilful violation. A violation is "wilful" if the employer
either knew or showed reckless disregard for the matter of
whether its conduct was prohibited by the ADEA. See Trans World
Airline Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83
L.Ed.2d 523 (1985). To support its contention that the
violation here was wilful, the plaintiff points to the fact
that the defendant, at all relevant times, retained the
services of an attorney for advisory purposes, but that the
defendant did not consult this attorney prior to its decision
regarding Bartels and Noeth even though Mr. Davis was aware of
the ADEA. The Court disagrees. The defendant has convinced the
Court that it was truly concerned with the fact that these
individuals in question would be leaving after the next year.
Notwithstanding this fact, the Court has made the determination
that this amounts to age discrimination. Such an issue was one
of first impression and one that the Court feels is very close.
While it may have been more prudent for Mr. Davis to consult
with the defendant's attorney prior to making the decision, the
Court refuses to label such inaction as "reckless disregard."
Therefore, the Court concludes that the defendant's violation
was not wilful within the meaning of § 7(b), and that the
plaintiff is not entitled to liquidated damages.
With respect to damages, the plaintiff asks this Court to
find that the defendant's reclassification of Bartels and
Noeth amounted to a constructive discharge and that damages
should be calculated based on the fact that they both did not
work the 1983-1984 school year. The defendant contends that
Bartels and Noeth had a duty to mitigate their damages and
that this duty required them to take the teaching positions
for the 1983-1984 school year.
As an initial matter, the Court notes that the constructive
discharge cases are distinguishable from the case at hand.
Those cases do not deal with the situation where and adverse
employment decision is made by the employer, but rather where
the employee's working conditions become so intolerable that
it forces him to quit his job. The intolerability is generally
created by the type of discrimination alleged to have
occurred. In other words, the sexual harassment or racial
harassment becomes so intolerable that the employee resigns.
See Goss v. Exxon Office Systems Co., 747 F.2d 885 (3rd Cir.
1984). Here, the alleged intolerability is caused by the
embarassment and humiliation from being reclassified to
teachers. There is no allegation that the humiliation was
caused by age harassment. In fact, the Court can find no
constructive discharge case involving age discrimination.
Therefore, the Court believes that the legal framework involved
in the constructive discharge cases does not apply here.
As a practical matter, however, the question in both a
constructive discharge case and for mitigation purposes boils
down to reasonableness. The standard the Court would adopt if
this were a constructive discharge case is whether "the
employer knowingly permitted conditions of discrimination in
employment so intolerable that a reasonable person subject to
them would resign." Goss, 747 F.2d at 886. In the mitigation
context, the plaintiff's failure to mitigate losses will reduce
recovery if the defendant can show the employee refused
reasonable employment opportunities. Orzel v. City of Wauwatosa
Fire Dep't, 697 F.2d 743 (7th Cir.), cert. denied,
464 U.S. 992, 104 S.Ct. 484, 78 L.Ed.2d 680 (1983).
In this case, the question becomes whether it was reasonable
for Bartels and Noeth to teach during the 1983-1984 school
year. In support of its contention that it would have been
unreasonable for Bartels and Noeth to teach, the plaintiff
pointed to three concerns. First, both Bartels and Noeth felt
that it would have been very difficult for them to resume
teaching after so many years away from the classroom. Second,
both Bartels and Noeth testified that they believed they would
have lost their $5,000.00 paid death benefit. Finally, both
indicated that it would have been very humiliating for them to
return to the classroom, having served in an administrator
position for so many years. They perceived that others in the
school district and
the community would look down upon them and think they were
demoted for bad performance.
The Court finds that it would not have been unreasonable for
Bartels and Noeth to return to the classroom. Although
teaching is by no means any easy profession, the Court is
confident that Bartels and Noeth could have done an adequate
job at it during the 1983-1984 school year. Davis testified
that the defendant would have assigned them to a year and
subject with which they would have been comfortable. With
respect to the $5,000.00 paid death benefit, the testimony
revealed everything but clarity as to what happened to this
benefit when an administrator retired as a school teacher. The
Court believes that Bartels and Noeth would have received the
benefit had they retired as teachers. More importantly,
however, neither Bartels nor Noeth made an inquiry into their
entitlement to the benefit. Finally, the Court can sympathize
with Bartels and Noeth's feelings of humiliation. Both were
very proud of their accomplishments in the school district and
their status in the community. However, teaching is an
admirable profession. Further, the Court does not believe that
Bartels and Noeth's perception was justified. The defendant
district was facing hard economic decisions. These decisions
resulted in the closing of Bartels and Noeth's schools. The
logical inference the public would have drawn would have been
that Bartels and Noeth were reclassified because their schools
were closed. Finally, accepting the plaintiff's argument would
be paramount to finding that in every demotion the employee
does not have to mitigate his damages by taking the new job
because it would be humiliating. Therefore, the Court
concludes that Bartels and Noeth had a duty to mitigate their
damages. They breached that duty by not taking the teaching
positions for the 1983-1984 school year.
With this conclusion in mind, the Court turns to specific
amount of damages. As a general rule, the goal of the ADEA is
to restore the victim of discrimination to the economic
position he would have occupied but for the employer's
unlawful conduct. Rodriguez v. Taylor, 569 F.2d 1231, 1238 (3d
Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56
L.Ed.2d 414 (1978). Accordingly, Mr. Bartels is entitled to
damages in the amount of $6,643.95, which is the difference
between what he would have earned as an administrator
($32,892.62), plus pension contributions by defendant
($2,860.21) for a total administrative salary of $35,752.83,
less the amount he would have earned as a teacher ($26,843.76),
plus pension contributions by defendant ($2,334.24) for a total
teacher's salary of $29,178.00, which equals $6,574.83, plus
$69.12, which is the difference between amounts of the life
insurance premium payments defendant would have made for Mr.
Bartels as an administrator ($126.72) and as a teacher
($57.60). Mr. Noeth is entitled to damages in the amount of
$4,718.22, which is the difference between what he would have
earned as an administrator ($31,124.48), plus pension
contributions by defendant ($2,706.46) for a total
administrative salary of $33,830.94, less the amount he would
have earned as a teacher ($26,843.76), plus pension
contributions by defendant ($2,334.24) for a total teacher's
salary of $29,178.00, which equals $4,652.94, plus $65.28,
which is the difference between the amount of life insurance
premium payments defendant would have made for Mr. Noeth as an
administrator ($122.88) and as a teacher ($57.60).
The Court's decision in this case was not an easy one. Mr.
Bartels and Mr. Noeth were good administrators and both served
their employer well for a number of years. Their job was
important to them and they cherished the respect that the job
and their performance at it achieved for them. In all
likelihood, both approached retirement with the confidence
that they had earned it by hard work and good performance. As
stated earlier, both men were proud of their accomplishments
and the fact that they were instrumental in shaping their
community. Justifiably, the defendant's decision to reclassify
Mr. Bartels and Mr. Noeth was viewed by them as a "slap in the
By the same token the defendant's decision was difficult.
The practicalities of the situation mandated that some
administrators had to be reclassified. The defendant based its
decision on the fact that some of the administrators intended
to retire in a year and on its desire to maintain some
continuity in the face of economic turmoil. While the Court
understands the defendant's concern, the ADEA prohibits age
via the label of retirement date from being the determining
factor. However, the law also requires these individuals to
take reasonable steps to mitigate their damages. Teaching may
have been a bit uncomfortable, but under the circumstances it
was not unreasonable.
Accordingly, the Court DIRECTS the Clerk to enter judgment
for the plaintiff and against the defendant. The Court further
ORDERS the defendant to pay Mr. Bartels and Mr. Noeth the
amounts in accordance with the above memorandum. The Court
also ORDERS the defendant to make the additional contributions
to the Teachers Retirement System for the State of Illinois.
Finally, the Court ORDERS the defendant Board of Trustees of
the Teachers Retirement System of Illinois to make the
appropriate adjustments in light of this memorandum to Mr.
Bartels and Mr. Noeth's pension benefits.
IT IS SO ORDERED.
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