FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING TRIAL

Judge John D. Tinder

A bench trial has been held in this cause. This entry constitutes the court's findings of fact and conclusions of law.

FINDINGS OF FACT

When Clarence first began running the business, he did so on a part-time basis while continuing his employment at Alcan. At that time, WVHD had only 3 full time employees. Two of those original employees were Crow family members, his wife Marie and his son (from a previous marriage) Clarence L. Crow, IV (who is known as Butch and will be referred to by that name hereafter.) As of the time period relevant to this case, Marie ran the "Business Office" of WVHD, which meant that she was essentially responsible for bookkeeping, payroll, timekeeping and other related functions. Butch worked in a number of jobs at WVHD since its inception. As of 1998, he was referred to as a co-operations manager along with his counterpart, Brian Butts. Brian was responsible for the motorcycle sales part of the business and Butch was responsible for the service, clothing, parts and employment aspects of the operation. As the owner, it could be said that Clarence functioned as general manager of WVHD.

In operating WVHD, Clarence had a free hand to do what he wanted to do. That included hiring who he wanted, regardless of who was formally responsible for employment decisions. That is how the Plaintiff, Dan Doherty came to work at WVHD in 1998. Dan had a checkered employment history, consisting of about 14 years of selling insurance, and a series of other jobs, none of which lasted more than a few years. He was fired approximately five other times in his career. As of 1998, Dan had been working at Columbia House Records for about four years. He was 51 years of age, having been born on October 21, 1946. He had no background in motorcycle sales or service but he was a cycling enthusiast. His interest in motorcycles first took him to WVHD in about 1986 when he purchased a used Harley. His visits to WVHD led to a friendship with Clarence. They began having lunch together virtually every Saturday and their common interests even resulted in social engagements, such as dinners with their spouses. As things developed, Dan and Clarence even discussed the possibility of opening a satellite location of WVHD in Vincennes, Indiana. At one point, Dan, Clarence and Butch even traveled to Vincennes to look at a location. This did not pan out, though, because Harley Davidson did not want to place another sales location so near the one in Terre Haute. Eventually, in March of 1998, a "service writer" position opened up at WVHD. Clarence sensed that Dan would enjoy working in the motorcycle business and offered him the position. Clarence had discussed this with Butch and Marie and it was understood that Dan would be given the job. Before accepting the position, Dan mentioned that he was actually making about $2000 a year more at Columbia House than the service writer position paid. Clarence assured Dan that his compensation would be increased so that within a year he would be raised up to what he had been making at Columbia House.

Dan accepted the job at WVHD because he liked the idea of working for a friend and because it was involved with the motorcycles he greatly enjoyed. The fact that he could get discounts on purchases of Harley Davidson equipment and gear was an added bonus. He described it as his "dream" job. He anticipated getting salary increases so that he would equal or exceed his Columbia House salary within about a year. He started at approximately $435 (gross) a week.

The employment process at WVHD was very casual. Dan did not have to fill out a job application or go through any sort of interview. He just started to work. He was provided certain training, principally through a videotape/correspondence type course offered by Harley Davidson for service writers. As for Dan's day-to-day duties as a service writer, his first responsibility was to greet customers when they came to or called the service desk. He was expected to question the customers to ascertain the nature of the difficulty they were experiencing with their cycles or their other needs. Using his basic knowledge of motorcycles, he was then to determine, at least preliminarily, what needed to be done to the cycles, and to schedule the repairs or other service. He would also counsel the customers regarding parts and accessories so that they could order the things they needed to modify their bikes as they pleased. He would also have to serve as a liaison between the customers and the mechanics to facilitate the scheduling of timely service on the cycles. In addition to the Harley service writer course, Dan was expected to learn the nuances of the job on the job as he went along.

From the moment he started at WVHD, it was made clear to Dan that Butch Crow was to be his immediate supervisor.

In the latter part of the 1990s, Clarence was approaching the age of 60 and developed an interest in reducing his involvement in the day-to-day operations of WVHD. This intersected with Butch's interest in expanding his responsibilities and authority in the business. Clarence, Marie and Butch had some informal discussions about shifting responsibilities to Butch and as time progressed, this did evolve. The transition was not entirely smooth, though, and there were occasional disagreements and arguments. Nonetheless, as of May 1999, Butch was named general manager of WVHD. He then was responsible for the day-to-day operations of the dealership. Clarence planned to stay involved in major decisions, such as matters that involved expenses exceeding $10,000, but other than that, the operational decisions were to be made by Butch.

From Dan's perspective, the most difficult part of his job was scheduling motorcycles for repair. He had no line authority over the mechanics, so he could not order them to work at a particular pace or in a specified order. He had to use his negotiating and cheerleading skills to get things done at the times he wanted them done. Dan felt that he was doing his job well. He felt that his performance was only evaluated twice. The first occasion was in January 1999 when he met with Butch Crow and Don Harris, the service shop manager. This was an informal meeting which did not result in any paperwork to memorialize the event. Dan was told that things seemed to be going pretty well. There was some discussion about the low scores on the customer surveys ("CSI"). Apparently, Harley Davidson surveys customers of its dealers and seeks their input on performance of the dealership. These are compiled in 18 month segments, and are updated about every 4 months so that each report indicates the scores received in the preceding 18 months. Dan was told that WVHD had some low scores and that it was something that all employees needed to work on to bring the scores up to an acceptable range. There was a general discussion of things that could be done to help raise the scores. Dan did not think he was being chastised or singled out for these comments. He was never told that he was the main problem causing the bad scores. After the evaluation, Dan received a raise, making his weekly gross salary $470.

The other matter that Dan considered an evaluation was the raise he received in April of 1999, at about his one year anniversary at WVHD. The memo reporting the raise to the Business Office came from Clarence (as General Manager) and stated: "Dan has been with Harley-Davidson for one year and has done very well at his job. He will be going to $500.00 a week pay rate for 4-12-99." After this raise, Dan was making about $1,000 more than he and Clarence had originally discussed, just a little more than he had been making at Columbia House. The memo was not preceded by any sort of meeting or discussion. Slightly more than a month later, he was fired.

Butch Crow testified that he had met with Dan on several occasions and had told him that he was doing a poor job. Dan disputes this testimony. Dan did concede that he had met with Butch on two or three occasions during which Butch told him that there had been customer complaints about him. Dan considered these to be constructive criticisms and indicated that these sessions usually ended with suggestions on how things could be corrected in the future or a resolution that the complaint had no bearing, that it was just a case of a disgruntled customer. He had not received any "write ups" about such matters. Dan was aware of at least one other employee who had been disciplined through a "write up."

Shortly before Dan's termination, a notice was sent around to the WVHD employees announcing that Butch Crow had been promoted to General Manager of the dealership. Clarence Crow had been gradually reducing his role in the activities at the dealership. At one point, Dan and Clarence had discussed the subject of the transition of authority to Butch. Clarence told Dan that he was thinking of making Butch General Manager and wanted to know what Dan thought about that. Dan responded that he thought it was a very good idea because Butch had a lot of good ideas and was industrious. Clarence wondered whether any of the employees would have any problem with it, especially Brian Butts. Dan responded that he didn't think that anyone would have a problem with it, including himself.

At about 3:00 P.M. on May 20, 1999, Dan learned of his termination in a rather impersonal way. He found a memo from Butch Crow on his computer console in the workplace which read:

Re: Termination

Dan,

Staff adjustments have been ordered by myself. You are officially terminated from employment at Wabash Valley Harley Davidson. The new upper-management programs I am going to install no longer require your services. Future references that need to be acquired for another prospective employer should be directed by you to the Business Office for a prompt reply.

Thank you,

[signed]

Clarence L. Crow IV

General Manager

Dan was shocked to receive this. Shortly after reading this, he went to Brian Butts and asked what was happening. Brian responded that he should not be blamed, he was just the messenger and that did not mean that he agreed with the decision. Brian also said that he had to hand out a couple more of these termination notices and that he was sick about it. Dan then cleaned his desk out at the end of the day and left.

Dan tried to get in touch with Clarence but was not able to meet with him for about two days. When they met, Dan told Clarence how shocked he was and that he did not understand why it had happened. Clarence indicated that there had been a late night meeting with Marie and Butch during which they pressed Clarence to allow the firing of Dan. Clarence said that he didn't want to let Dan go but by 2:00 A.M. or 3:00 A.M. in the morning, they finally wore him down. Clarence never said that it was his idea to fire Dan or that he wanted it to happen. Dan asked if Butch or Marie had told him the reasons for the firing to which Clarence responded that you would have to talk to Butch. Dan requested a meeting with Butch but it never took place.

Some other terminations occurred near the time of Dan's firing which the Plaintiff offered as relevant regarding the age discrimination claim.

Freddy Dale Pine was terminated near the end of January 1999. At the time of his termination, he was 52 years of age. He began as a part time employee when he was approximately 48. About two years prior to starting his employment at WVHD, he suffered a heart attack. He began working in the business office and then was moved to the parts department. He remained a part time employee during his tenure at WVHD. At one time, he asked Clarence whether he could go to full time employment. Clarence responded that Freddy would be a high risk on their employee health insurance plan. Full time employees were covered under the WVHD health plan but part timers were not. Near the end of his tenure, Freddy was told that he was to train a woman, Sherry Taggert, to take over his job and that he was going to be transferred to work with Dan in the service department. Freddy trained Sherry for about two weeks. At the end of that period, he was fired rather than transferred to the service department. He had never been disciplined or written up for policy violations. He had been given some raises, so that his rate of pay went from $6/hour to $8/hour during the time he was there. He had never been given a performance evaluation. Freddy conceded that WVHD was not a big "paperwork" company in terms of keeping track of evaluations or disciplines. He was also notified of his termination by Brian Butts, even though Butch was his supervisor.

Mary Renee Cunningham was also fired on May 20, 1999, and was notified of that by a memo like the one Dan received. She was the "motor clothes" manager, which meant that she was responsible for sales of the Harley Davidson clothing paraphernalia. She had received some raises while she was there and had not received any negative evaluations. However, Butch had paid some attention to her, perhaps inappropriately. He had "smacked" her buttocks on several occasions, had brushed up against her, made certain little gestures and directed comments of a sexual nature toward her. On at least one occasion, he suggested to her that they should go next door to a vacant church owned by WVHD to do certain sexual things in the baptismal pit. He made similar comments to other female employees of WVHD. Renee never gave Butch positive feedback on these overtures. Eventually, Butch and Renee had a run-in at work. Some of the Harley Davidson clothing was missing from the dealership, specifically a leather coat. Ms. Cunningham had overheard someone bragging that Butch had traded the coat for something he personally wanted. Renee confronted Butch about that and she was fired a week later.

Don Harris resigned before he was fired. He had been the repair shop foreman and was demoted to a "tech" position (essentially a mechanic). When he resigned, he was in his late 40s or early 50s. He and Dan were the only people fired from the service department. The others retained, Mike Detrick, Eric (last name unknown) and Chris (last name unknown) were all younger than Dan and Don.

Jason Harden was also to be fired in the May purge but he actually quit just before he was to be fired. Jason's firing was mentioned by Dan in his direct testimony when asked about others who were fired around the same time as he was and Butch confirmed that Jason was to be fired in connection with the upper management changes but quit first. Jason was approximately 25 at the time his employment at WVHD ended.

Brian Butts, former co-manager with Butch, also testified. He left WVHD shortly after Butch became general manager. He believes that the service writer at this dealership has a large impact on the sales manager because the ability to obtain prompt and good service affects the perception the buyer has on the dealership. He felt that Dan tried very hard to do a good job but that he was not doing a very good job. The CSI scores were not good on the service area. Some of Brian's customers would come back to him with complaints of being treated rudely on the telephone and an inability to get appointments for service and that the service was not done in a timely manner. He also observed Dan dealing with some customer requests during which Dan became argumentative. He felt that Dan had the tendency to become confrontational too easily. He had discussed these things in general at some staff meetings but never singled Dan out or confronted him with it. He had mentioned his dissatisfaction with Dan's performance to Butch and Clarence and assumed that they would take steps to improve him. Brian also discussed a particular matter which Dan was confronted about, the open wearing of a firearm at the dealership. It was decided by the upper management that Dan's practice of wearing his sidearm at the shop had to be stopped. Clarence and Butch met with Dan about it and told him that it had to stop. Dan was upset about that but he stopped wearing the firearm and there were no other incidents related to that.

Brian never thought that Dan was the right person for the service writer job. His performance never got any better as time went on. Brian made his concerns about Dan's performance, and the entire service department, known to Clarence and Butch. According to Brian, it was suggested that some corrective discussions be held with Dan about customer complaints, but he never observed that happening. Brian felt that it would be very difficult for Butch to reprimand Dan because of Dan's friendship with Clarence. He never observed arguments between Dan and Butch. He had seen Dan "butt heads" with Marie on some occasions, but he added that Marie can be very forceful and that a lot of people at the dealership had similar experiences with her. He did not indicate that Dan's run-ins with her were different in quantity or quality than those of a number of other employees'. Brian did not much care for Butch's management style, including the handling of these terminations, and frankly, he just doesn't trust the guy. Brian noticed that Butch had a primitive evaluation form that he used, and he believed that he was using during Dan's employment, but Brian had little input into those forms. When Brian had a problem with an employee he supervised, he documented the discipline in a fairly detailed way which would result in documentation in the employee's personnel file. He believed that Butch was doing the same thing.

Brian also did not think Renee was doing a very good job. Brian saw no indication of overt age discrimination at WVHD. He also testified about the hiring of Jim Trezise in February 1999, who was about 52 at the time of his hire. Jim was a personal friend of Butch and had worked at WVHD previously, from May of `98 until November of that year. He became operations manager about the time that Brian left. He worked in the parts department before his promotion to operations manager. He observed Dan's performance as service writer. He, too, did not think Dan did a very good job with the customers, despite sincere effort and hard work on his part. He observed Dan getting overzealous in his attitude which would often cause the customers to become irate. Jim had observed Butch and Brian counsel Dan about that and had even done some of that himself, offering to help in those situations. Jim thought Dan was receptive to the suggestions but the problems continued. Jim had not observed overt age discrimination at WVHD, nor the consideration of age in promotions, hiring or terminations. He also saw no signs of sexual harassment. After the firings in May of 1999, the workload for the remaining employees increased substantially. A number of individuals shared duties and covered the responsibilities that had been previously handled by others. Stephanie Rasner helped on the service writing and Samantha Williams did some computer work. Stephanie and Samantha were in their early 20s. Heather Scott, who was about 30, covered some of the work for a while. Even Butch did some of it. As of now, the confrontations with customers has diminished.

According to Trezise, Stacey Mack was hired to work as a sales person. She was in her early 30s or late 20s. He later equivocated, testifying that she was actually hired as a secretary. According to Trezise, WVHD was not in the practice of giving employees business cards that did not accurately list their jobs.

Brian fired Joe Brothers. Joe had been hired for the parts department and was shifted to sales. Brian had no input into that transfer. He simply did not work out. Brian documented the problems and met with Joe on several occasions about the problems. Finally, on the third meeting, Brian told him that WVHD could not use him anymore. Brian also did not think that Fred Pine did a good job.

After his termination, Dan applied for unemployment compensation benefits. He also filed a charge of age discrimination (he was 52 when he was fired) with the Equal Employment Opportunity Commission ("EEOC") about 20 days after the firing. WVHD initially challenged the unemployment compensation claim. The opposition response to the unemployment claim, dated June 11, 1999, which was signed by Butch and Marie Crow, indicated that Dan had been fired for violating WVHD policies of which he had been advised through a store handbook and staff meetings. The opposition response also indicated that Dan had been warned that his job was in jeopardy by Butch Crow and that the last occurrence of wrongdoing by Dan was on May 14, 1999. Several invoices and other WVHD papers which purported to document policy violations or other errors by Dan were attached to the opposition response. The opposition response also indicated that the owner had overheard Dan tell a customer that the store would replace a scratched exhaust shield at a cost to the store of $65.00 and had seen Dan riding a customer's motorcycle with a flat tire, stating that it was a little hard to steer but was otherwise O.K. Finally, the opposition response also indicated that Dan had told a customer that the rear wheel bearing on his motorcycle was greased at service, and the wheel subsequently locked at 65 miles per hour, ruining the wheel and creating a dangerous vibration. Purportedly, Dan then told the customer not to question the technician and charged the customer for parts that were not installed. Dan's review of these documents was his first awareness that WVHD had any problem with his performance on these particular jobs. These had not been called to his attention as they occurred.

During the first year after a sale of a new Harley Davidson, Harley Davidson was responsible for repairs and the cost of parts under what was referred to as a manufacturer's warranty. After the first year, WVHD would sometimes cover the cost of repairs and parts on what was referred to as an internal warranty. This informal warranty was discretionary with WVHD, and the dealer would essentially have to "eat" the costs associated with making a repair under the internal warranty. Dan was not supposed to approve repairs as internal warranty matters without higher approval at WVHD (Clarence, Butch or Marie), and did so only with prior approval from Butch. He was chastised for this and told that he had cost the company a bunch of money. Dan testified that Marie discussed several of these incidents with him, indicating that she felt that Butch was authorizing warranties incorrectly. During these discussions, they talked about how these situations could have been handled in different ways which would not cost as much, such as using merchandise to compensate the customer. However, he was never punished for these incidents.

At the time of termination, Dan was making $500 a week. He was unemployed until October 1, 1999. He received unemployment compensation during the time he was off in the amount of $240 per week until he got his new job. He initially applied for work in the Terre Haute area but could not find anything that paid close to what he was making at WVHD. He then began to look for work in Indianapolis and found a job that paid $400 a week. He seeks recovery of 21 weeks pay at $500 a week. After about 12 weeks at the Indianapolis job, his pay was raised to what it had been at WVHD, so he is seeking compensation of $100 a week for another 12 weeks. Additionally, he is seeking commuting expenses for traveling an extra 160 miles per day, 5 days a week for 37 weeks, or a total of $9,620, computed at 32.5 cents a mile.

Dan testified that he was devastated by the loss of his job, having the rug pulled out from under him in this way. This testimony went to his claim of intentional infliction of emotional distress. A judgment as a matter of law in favor of the defendant was granted on this claim.

Butch was called to testify by the Plaintiff. He could fairly be labeled as a hostile witness. He has worked continuously at WVHD since 1984, except for an extended period in 1990 when he was recovering from injuries he suffered in a motorcycle wreck. During the course of his employment, he has worked virtually every job in the store. He was promoted from co-operations manager to general manager in May 1999. He had been gradually assuming more and more of the day-to-day responsibilities at WVHD for the three years preceding his assumption of the general manager's duties. As general manager, he had full responsibility for the store, including firing and hiring, although he was still expected to consult with his father on big ticket items.

WVHD had an employees' handbook (Plaintiff's Exhibit 6) which had been in effect since 1996 or 1997. It included provisions which allowed for discipline to be rendered for unsatisfactory performance in conduct, violation of personnel policies, negligence and boisterous and disruptive behavior. The handbook also called for formal, written performance evaluations. Butch confirmed that he did have a written form that he used, but that it was not routinely used. It was utilized primarily for discipline, such as when an employee needed brushing up on something or when an employee was to be considered for a merit raise. Subsequent to Dan's firing, WVHD has become more formal about the evaluation process. Prior to that, most employee evaluations, criticisms and disciplines were done informally and orally.

Butch used a rather free wheeling style when it came to employee relations. He testified that he did not think it was a good idea for a manager to examine an employee's file before making a major decision about that employee. This attitude was confirmed by his handling of the terminations which have been referred to in this entry. He admitted that he could have reviewed Dan's file before firing him but that he had not.

Butch would not admit to having supplied the information contained in WVHD's opposition to Dan's request for unemployment compensation. He seemed to blame Marie for the information that was in the response, although he did concede that he signed it, and had read it before he signed it and did not request that anything be changed.

Butch insisted that he, Don Harris and Brian Butts had evaluated Dan and had filled out an evaluation form recording that. However, no such form was produced at trial and no such form was produced to counsel for the Plaintiff, despite numerous discovery efforts to obtain such a document. The only excuse Butch could come up with was that the completed form must have gotten lost. However, he maintained that they were really trying to help Dan improve, and he conceded that the evaluation may not have actually made it to paper or to Dan's file.

Butch was confused about which employees were terminated as part of his May 1999 purge. At trial, he testified that Dan, Don Harris, Jason Harden and Renee Cunningham were to be let go at that time. He added that Harden and Harris resigned just before they were terminated. In a prior deposition, he had added Fred Pine to the May purge list, but at trial, he realized that Fred had been terminated several months prior to that. He also testified in that deposition that Joe Brothers had been given a "staff adjustment" termination letter, but in reality, Joe had been fired earlier by Brian Butts. As for what the "staff adjustment" plan was, Butch never really explained that, either to his employees, or in his testimony at trial. All he really said about it was that it was "pretty much known." Butch contended that after these terminations and other departures, he and his operations manager, Jim Trezise, and some part-time employees assumed the responsibility for the work that had previously been done by the former employees. Of those employees who were fired, Dan, Joe Brothers, and Fred Pine were all in their 50s. Don Harris was between 40 and 45. Renee and Jason were only in their 20s.

With regard to Renee, Butch denied ever having had inappropriate physical contact with her or having ever made overtures to her to try to get her to go next door to the church. He also denied that Renee had confronted him about the missing Harley Davidson jacket.

Butch denied that Stephanie Rasner, a younger female, replaced Dan. He claimed that she merely answered phones and that he and Jim Trezise took over Dan's job functions. Butch did concede that about 3 months after Dan's firing, Heather Scott, who was then 31 years of age, was hired to perform the service writer function. After Fred Pine left, Sherry Taggert, 39 years of age, replaced him. With respect to the replacement of Don Harris, Butch reluctantly conceded that Lawrence McKean was hired and that he might have been as young as 35. Butch contended that he hired 2 mechanics at that time, but he had previously told Plaintiff's counsel that McKean was the replacement mechanic.

Butch vigorously contended that Stacey Mack, approximately 30 years of age, was hired in December of 1999 as a secretary rather than as a sales person, so that she was not a replacement for Joe Brothers. He said that she answered the telephone and occasionally would go onto the sales floor to show a motorcycle but that she really was not involved in sales. Butch admitted to using an employment agency called Employment Plus, and talking to Tammy Beck of that agency about the hiring effort, but he insisted that it was to find a secretary, not a sales person. He pointed to Stacey's prior experience as a dental technician as proof that she did not have sales potential. He agreed that his father was with him when he spoke with Ms. Beck but he denied that Clarence told Ms. Beck that they wanted to hire a sales person who was female and in her 20s. However, Butch did concede that they might have said that they wanted a female for a secretary.

As of the time of trial, the size of the staff at WVHD was about the same as it was prior to Dan's firing. Butch insisted that business growth was the reason that the staff had grown back to that size. As for the people he fired, he said that they hadn't worked out in his father's program and that he wanted to start out with a "fresh" team.

Butch claimed to have participated, at least a little, in the decision to hire Dan in the first place, but that the real impetus for it came from his father. During his testimony, Butch asserted that Dan was fired for unsatisfactory work performance and for approving internal warranty claims in February and March of 1999 that he should not have. However, these warranty claim approvals preceded the April raise Dan received. Butch insisted that the January 1999 raise was merely a cost of living adjustment. However, his father described that raise as having been "pre-decided" by him at the time he hired Dan. He had told Dan that his salary would be raised during the course of his first year of employment so that it matched his Columbia House earnings. Clarence testified that both of the raises were automatic for that purpose and he did not describe either of them as cost of living adjustments.

Butch claimed that he had many meetings with Dan and his manager during which Dan would scream at him when he was criticized and would deny that he had smarted off to and yelled at customers. He described Dan as a very hostile employee from the day that he began work. Butch claimed to have consistently lobbied his father about Dan's shortfalls, but was always coaxed by Clarence to try to bring Dan along and improve his performance. Yet, Dan's file contained no written criticisms of his performance. Even the termination memo did not mention Dan's alleged poor performance. The first negative comments about his work appeared in WVHD's opposition response regarding Dan's unemployment compensation claim. But the timing of this is, at best, suspicious. The notice from the EEOC about Dan's age discrimination claim was sent to WVHD on June 9, 1999. WVHD's opposition response to the Indiana Department of Workforce Development was dated June 11, 1999, but it actually appears to have been faxed to that office on June 14th. WVHD routinely would oppose the requests of former employees for unemployment compensation. Nonetheless, Dan's inadequate performance was not documented at all until after the employment discrimination and unemployment compensation claims had been made. Ultimately, WVHD did not follow through on its opposition to Dan's unemployment compensation claim.

At trial, Clarence insisted that the decision to fire Dan was his decision, and that he was advised to do it by 3 or 4 of his managers. He claimed that he had protected Dan's job for 6 months before the termination. However, despite his friendship with Dan, there is no indication that he ever told Dan that his job was in jeopardy. In his trial testimony, Clarence claimed that he had been told by his managers that Dan did not get along very well with Brian and that he would not listen to Butch. He was told that Dan had terrible problems with the Business Office, meaning, his wife Marie. He observed Dan arguing with the Business Office (including Marie and her secretary) and he even had to prevent him from leaving the dealership after one such argument. He had heard from his managers about Dan's rude treatment of customers and had observed him ignore a phone call from a customer. Yet, there is no indication that he ever talked with his friend Dan about these problems. Additionally, if he actually knew of and observed these things, they occurred before the April 1999 raise. Clarence did say that he told his managers that Dan is dependable and coaxed them to train him to improve. Also, when he spoke with Dan after the firing, rather than explain any reasons for the firing, he told Dan that he would have to talk to Butch if he wanted to know the reasons for the termination. If there were actually reasons for the termination, one wonders why he would not have had the courtesy to provide Dan with the reasons.

With respect to the Stacey Mack matter, Clarence also insisted that Stacey was hired as a secretary. He confirmed that a meeting had taken place with Tammy Beck of Employment Plus. During that meeting, Clarence asked Tammy to find someone with a "smiley" face to work in the sales department. He admitted to expressing a desire to Tammy that he wanted to hire her, but denied asking for a female in her late 20s. He also denied that Butch said that. He did admit that Stacey was given business cards with "Sales Department" on them.

Marie, as the business manager and custodian of the personnel files, confirmed that written evaluations of employees were rare but that there would be some "write ups" for violations of company policy, if they were severe enough. She also confirmed that the response to Dan's unemployment claim was not faxed out of WVHD until June 14, 1999 and the documents attached to it to show Dan's poor performance were reprints which were not created until June 11th. She also claimed to have given Dan many verbal warnings about the conduct referred to in the unemployment claim response. With her knowledge of the business records of WVHD, Marie confirmed the dates of the end of certain employees' tenure at WVHD: Fred Pine, January 1999; Joe Brothers, May 10, 1999; Don Harris, May 20, 1999 (quit); Jason Harden (quit at about the same time as Harris). She also related another problem that Dan had at WVHD. She claimed that he did not get all of the data into the computer correctly so that he was showing service department technicians that they were doing better than they actually were. She also complained that he would close out work orders too fast, or close the wrong ones. She testified that this would create accounting problems when customers would pay the bills. She also testified that he would list parts on invoices in connection with the wrong events. She said that she complained to Clarence about this on several occasions and expected him to talk to Dan about it. She said that Dan was not compliant with what she asked him to do and she saw no improvement in his accuracy. Marie conceded that although there were no "write ups" on Dan, the files of Joe Brothers, Carl Fudder and Stacey Mack did have some negative documentation in them.

CONCLUSIONS OF LAW

Under the ADEA it is unlawful "for an employer . . . to discharge any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). When a plaintiff alleges age discrimination, an employer's "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citations omitted); Wade v. Lerner New York, Inc., No. 00-1115, 243 F.3d 319, 2001 WL 210178, at *2 (7th Cir. Mar. 5, 2001). A plaintiff alleging age discrimination may attempt to prove his case either with direct evidence or through the familiar framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Reeves, 530 U.S. at 142 (assuming that the McDonnell Douglas framework applies to ADEA case); Wade, 2001 WL 210178, at *2; Gordon v. United Airlines, Inc., 99-4068, ___ F.3d ___, 2001 WL 322168, at *5 (7th Cir. 2001). Dan acknowledges that he has no direct evidence of age discrimination, so the court analyzes his claim under the McDonnell Douglas framework. Although this paradigm is ordinarily utilized when determining discrimination issues as a matter of law, such as on summary judgment, it is a useful method of evaluating whether the Plaintiff has proved his case in this court trial, too.

Under that framework a plaintiff must establish, by a preponderance of the evidence, a prima facie case of age discrimination. See Reeves, 530 U.S. at 142; Wade, 2001 WL 210178, at *2; Gordon, 2001 WL 322168, at *6. If the plaintiff satisfies his burden of establishing a prima facie case, then the burden of production shifts to the defendant to produce "`evidence of a legitimate and nondiscriminatory reason for the employment decision.'" Wade, 2001 WL 210178, at *2 (quoting Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000)); see also Reeves, 530 U.S. at 142; Gordon, 2001 WL 322168, at *6. If the defendant discharges this burden, then the plaintiff must prove, by a preponderance of the evidence, that the defendant's proffered reason is a pretext for age discrimination. See Wade, 2001 WL 210178, at *2; Gordon, 2001 WL 322168, at *6. "`The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves, 530 U.S. at 143 (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

To prove a prima facie case of discrimination under the ADEA, the plaintiff must present evidence to satisfy a four-pronged test. The first three prongs are that: (1) the plaintiff is a member of a protected class, that is, at least 40 years of age; (2) he was otherwise qualified for the position held; and (3) he was subject to an adverse employment action. See Reeves, 530 U.S. at 142; Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1011 n. 5 (7th Cir. 2000). Formulation of the fourth prong depends upon the context in which the discrimination claim arises. "In situations involving the simple termination of a single employee, normally the employee must establish that the employer sought a younger replacement for him." Miller v. Borden, Inc., 168 F.3d 308, 313 (7th Cir. 1999). In the reduction-in-force ("RIF") context, the fourth prong is that "similarly situated, substantially younger employees were treated more favorably." Ritter v. Hill `N Dale Farm, Inc., 231 F.3d 1039, 1043 (7th Cir. 2000); Pitasi v. Gartner Group, Inc., 184 F.3d 709, 716 (7th Cir. 1999). In the context of what has been described as a "mini-RIF," Ritter, 231 F.3d at 1043, or "fungibility" situation, id., where only one position is eliminated and the duties of that position are absorbed by other employees, the fourth prong is shown by evidence that the plaintiff's duties were absorbed by employees not in the protected class. See Ritter, 231 F.3d at 1043.

It is undisputed that Dan satisfies the first and third prongs of the prima facie case: His employment with WVHD was terminated and he was 52 years of age at the time of that termination. As for the second prong, a preponderance of the evidence supports the finding that Dan was otherwise qualified for the service writer position. He was, after all, hired for that position and served in it for a little over one year. During that time he received two raises, one in April just about a month before his termination. Along with that raise was a memo stating that "Dan . . . has done very well at his job." Acknowledging that one reason offered by WVHD for Dan's termination was poor performance, the court finds that he has established the second prong of his prima facie case.

Whether this case is considered a mini-RIF or a simple termination amongst other terminations, Dan has established the fourth element of the prima facie case. The only two employees terminated from the service department, Dan and Don Harris, were in the protected class. The others retained in the department were all younger. Further, the evidence shows that Dan's duties were originally absorbed by other employees, including Stephanie Rasner, Samantha Williams and Heather Scott, employees in their 20s and 30s and thus not in the protected class. Moreover, about 3 months after Dan's termination WVHD hired Ms. Scott (age 31) to perform the service writer function. An age difference of ten years is presumptively substantial. See, e.g., Hoffmann v. Primedia Special Interest Publ'ns, 217 F.3d 522, 524 (7th Cir. 2000); see also Radue v. Kimberly-Clark Corp., 219 F.3d 612, 619 (7th Cir. 2000) ("To satisfy the `substantially younger' requirement, the relevant individual must be at least ten years younger than the plaintiff."). Since Ms. Scott was 21 years younger than Dan, she is substantially younger than he. The court finds that Dan has established by a preponderance of the evidence all four prongs of a prima facie case of age discrimination.

So the burden shifts to WVHD to articulate a legitimate, nondiscriminatory reason for his termination. WVHD has done so by maintaining and offering evidence that Dan's employment was terminated for poor work performance and for violating WVHD policies. These would constitute legitimate, nondiscriminatory reasons for his discharge and thus, the burden reverts to Dan to show that these reasons are pretexts for age discrimination. That brings the court to the real dispute in this case-pretext.

To show pretext, a plaintiff must demonstrate that the defendant's reason for its employment decision is unworthy of credence. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Gordon v. United Airlines, Inc., 99-4068, ___ F.3d ___, 2001 WL 322168, at *8 (7th Cir. 2001); see also Ritter v. Hill `N Dale Farm, Inc., 231 F.3d 1039, 1044 (7th Cir. 2000) (stating that a plaintiff must show that the defendant did not honestly believe in the reasons given for the employment decision). A plaintiff may do so by producing "evidence tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the discharge." Gordon, 2001 WL 322168, at *8. If an employee "provides `[a] detailed refutation of events which underlie the employer's negative performance assessment,' the employee demonstrates `that the employer may not have honestly relied on the identified deficiencies in making its decision.'" Id. at *9 (quoting Day v. Colt Constr. Dev. Co., 28 F.3d 1446, 1460-61 (7th Cir. 1994)). "`If the employee offers specific evidence from which the finder of fact may reasonably infer that the proffered reasons do not represent the truth, the case then turns on the credibility of the witnesses.'" Id. (quoting Collier v. Budd Co., 66 F.3d 886, 893 (7th Cir. 1995)).

The court finds that Dan has shown by a preponderance of the evidence that WVHD's reasons for terminating his employment are pretextual, that is, unworthy of belief. He has presented evidence from which a reasonable inference may be drawn that WVHD's claims of poor performance and violations of company policy are false, or at the least, that those reasons did not motivate his discharge. The strongest evidence comes from Dan's performance evaluations in January and April 1999. Each evaluation was positive. In January, though discussion was had about low scores on the CSIs, Dan was not told he was the cause behind these low scores. In fact, he was told that things seemed to be going pretty well. And, the April evaluation was accompanied by a memo from Clarence stating that "Dan . . . has done very well at his job." Furthermore, each evaluation was followed by a significant raise (8% in January and over 6% in April). The April evaluation and raise were approximately one month before Dan's termination. It seems unlikely that Dan was performing "very well" through April 1999, in fact so well that he received two raises, but suddenly his performance became so poor as to justify his discharge.

Other strong evidence that WVHD's claim that Dan was fired for poor performance or violation of company policy is pretextual is the complete absence of any "write ups" or other written criticism of Dan for poor performance or misconduct prior to his termination. The evidence establishes other employees had negative documentation in their personnel files; Marie's testimony confirmed that though written evaluations were rare, an employee would be written up for violating company policy if said violation was severe enough. Certainly, violations that would justify an employee's termination would be considered "severe enough" to warrant a "write up." Notably, not even the memo notifying Dan of his termination contains any reference to poor performance or violations of company policy. Indeed, the memo nowhere states that Dan's termination is linked in any way to his performance, but rather, suggests that WVHD would provide references for prospective employers. Butch's testimony that he met with Dan on several occasions and told him that he was doing a poor job is belied by the lack of documentation of poor performance, the positive evaluations as well as the raises Dan received. Similarly, Marie's claim that she gave Dan many verbal warnings about the conduct referred to in the unemployment claim response is refuted by the lack of any write ups or other disciplinary action. The warranty claims in February and March of 1999 preceded the April 1999 raise and favorable note Dan received. Thus, one could not reasonably find that they motivated Dan's discharge. Curiously, the first documentation of any policy violations or other performance problems by Dan surfaced only in WVHD's opposition response to Dan's application for unemployment compensation-and this documentation consisted of reprints that were not created until June 11. Thus, they are dubious at best.

The court finds that Dan has produced sufficient evidence to establish that WVHD's reasons offered for his termination are false. Thus, the court must decide whether he has carried his ultimate burden of persuasion that WVHD intentionally discriminated against him because of his age.

Guidance in making this determination comes from the Supreme Court's recent decision in Reeves which held that in some cases a prima facie case and showing of pretext may permit a trier of fact to find unlawful discrimination even in the absence of independent evidence of discrimination. 530 U.S. at 146-47. The Court reaffirmed its decision in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993), that the factfinder may infer the ultimate fact of discrimination from the falsity of the employer's explanation. The Court said:

The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination. . . .

In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.

Having carefully considered the strength of Dan's prima facie case, the probative value of his evidence of the falsity of WVHD's reasons for his discharge, the credibility of the witnesses, and the other evidence presented at trial, the court infers that WVHD intentionally discriminated against Dan because of his age. The court notes that there is no evidence of age-based comments made by anyone involved in the decision to discharge Dan and the evidence shows that WVHD hired employees in the protected age class. But the undersigned does not believe the reasons advance by WVHD for Dan's discharge and strongly suspects that WVHD's witnesses are lying about those reasons. Clarence and Butch's testimony at trial about who was responsible for the decision to discharge Dan was inconsistent; each claimed the decision was theirs. On top of that inconsistency, Dan testified that Clarence told him that he had been pressured by Butch and Marie to allow his discharge. Dan's testimony in this regard is credible. Clarence's insistence that the decision was his seems inconsistent with the evidence that as of May 1999 operational decisions, other than major decisions, were to be made by Butch. Additionally, both Butch and Marie claimed to have counseled Dan about performance issues, but none of this had been documented prior to Dan's termination. Clarence claimed awareness of Dan's performance problems, yet failed to counsel Dan about them, a courtesy one would expect to be extended from one friend to another. And this, despite Clarence's claims that there had been discussions over a course of time to terminate Dan's employment. Further, Clarence gave Dan a raise despite his alleged performance problems and did not provide his friend the courtesy of explaining the reasons for his termination when they met shortly after that event. Finally, the court infers that WVHD made after the fact attempts to document poor performance by Dan as seen in the June 11 reprints of documents attached to WVHD's response to Dan's unemployment claim. This evidence leads to the logical conclusion that WVHD is trying to cover up something, and that something is most likely age discrimination.

Another matter tips the scales in Dan's favor-that is the hiring of Stacey Mack. Both Clarence and Butch testified that she was hired as a secretary rather than a sales person. Though he later recanted, Trezise initially testified that Mack was hired as a sales person and her business cards state "Sales Department" on them. Trezise also indicated that WVHD did not have a practice of giving employees business cards that did not accurately indicate their jobs. From this credible evidence the undersigned infers that Mack was hired as a sales person rather than a secretary. The testimony of Butch and Clarence on this matter simply is incredible. The lack of candor doesn't stop there. Both Butch and Clarence deny asking Beck of Employment Plus to find a female in her late 20s. However, Clarence admits asking Beck to find someone with a "smiley" face and expressing a desire to Beck to hire her. From this, as well as the evidence that WVHD did hire Mack, a young woman around age 30, the court infers that Butch and Clarence wanted to hire a young woman about that age. This preference to hire someone outside the protected class along with the lack of candor about Mack's hiring is suspicious and suggests that at least this hiring decision was based on age.

The determination of the ultimate issue of unlawful age discrimination turns on the credibility of witnesses at trial, and the court finds that WVHD's witnesses, particularly Butch, Clarence and Marie, testified with a lack of candor on a number of matters. Dan, on the other hand, was a credible witness. The lack of candor of WVHD's witnesses combined with Dan's prima facie case and the undersigned's rejection of WVHD's explanation for Dan's discharge leads the court to infer that Dan was discharged because of his age. Therefore, the court holds that WVHD is liable on Dan's ADEA claim, and the court proceeds to determine Dan's damages.

The court finds that Dan's damages should not be offset by the unemployment compensation Dan received prior to finding employment. The Seventh Circuit does not require that unemployment insurance benefits be offset against a back pay award. See E.E.O.C. v. O'Grady, 857 F.2d 383, 389 (7th Cir. 1988); Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1429 (7th Cir. 1986). Whether to deduct collateral benefits such as unemployment benefits is within the district court's sound discretion. See O'Grady, 857 F.2d at 390 ("If pension benefits are collateral, it is clear that a district court has discretion to deduct or not deduct them from an ADEA back pay award."); Hunter, 797 F.2d at (holding district court did not abuse its discretion in refusing to deduct unemployment benefits from back pay award to employee terminated because of her sex in violation of Title VII). Several district courts in the Seventh Circuit have declined to deduct unemployment benefits from back pay awards to prevailing plaintiffs in employment discrimination cases. See, e.g., Stein v. Forest Preserve Dist, No. 92 C 5567, 1994 WL 160563, at *2 (N.D.Ill. Apr. 28, 1994) (refusing to offset unemployment benefits against back pay award in ADEA case); E.E.O.C. v. Corinth, Inc., 824 F. Supp. 1302, 1311 (N.D.Ind. 1993) (holding unemployment benefits received by employee terminated because of her sex in violation of Title VII would not be deducted from back pay award); Certified Midwest, Inc. v. Local Union No. 738, 686 F. Supp. 189, 193 (N.D.Ill. 1988). In deciding whether to deduct unemployment benefits from a back pay award, a district court must choose between "conferring a windfall on [the discriminating employer] and a windfall on [the discriminated against employee]." Hunter, 797 F.2d at 1429. Because the employee is the victim of unlawful discrimination, he or she is "the logical choice." Id. The court agrees that deducting the unemployment benefits Dan received from the damages WVHD must pay Dan would be a windfall on WVHD, the wrongdoer in this case. Thus, the court in its discretion declines to deduct those benefits from the award to Dan.

That is not to say that Dan should receive a double recovery. The State of Indiana has a right to repayment of the unemployment benefits paid to him, and Dan has a commensurate duty to return the unemployment benefits to the State. See Ind. Code §§ 22-4-5-1, 22-4-13-1(e); Green Ridge Min., Inc. v. Ind. Unemployment Ins. Bd., 541 N.E.2d 550, 552 (Ind.Ct.App. 1989). The court fully expects that Dan will fulfill his obligations in this regard, but leaves recovery of the unemployment benefits to the State.

Dan seeks commuting expenses in the amount of $9,620 which represents the 160 extra miles he drove to his employment in Indianapolis. Commuting expenses, however, are consequential damages and thus unavailable under the ADEA. See Moskowitz v. Tr. of Purdue Univ., 5 F.3d 279, 283 (7th Cir. 1993) (interpreting ADEA as allowing awards only of wages and benefits); Farley v. Miller Fluid Power Corp., No. 94 C 2273, 1997 WL 757863, at *4 (N.D.Ill. Nov. 24, 1997) (granting motion in limine to exclude evidence of consequential damages in ADEA case); Drase v. United States, 866 F. Supp. 1077, 1079 (N.D.Ill. 1994) ("The only remedies available under the ADEA, then, are equitable relief, lost wages and benefits and, under limited circumstances, liquidated damages."); Lyons v. Allendale Mut. Ins. Co., 484 F. Supp. 1343, 1344 (N.D.Ga. 1980) (holding ADEA plaintiff not entitled to award of consequential damages including commuting expenses). Besides, the Plaintiff did not persuade the court that comparable work could not be obtained in the vicinity of Terre Haute. Consequently, Dan's damage award should not include commuting expenses.

The court finds that Dan should be awarded and WVHD is liable to Dan for damages in the amount of $11,700 ($500 gross per week X 21 weeks of unemployment plus $100 gross per week X 12 weeks). The unemployment benefits received by Dan are not deducted from this award and Dan receives no money for his commuting expenses.

Finally, as Dan seeks liquidated damages, the court must decide whether WVHD's violation of the ADEA in this case was willful. "`Willful' means that the employer `either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute'." Smith v. Borg-Warner Auto. Diversified Transmission Prods. Corp., IP 98-1609-C-T/G, 2000 WL 1006619, at *11 (S.D.Ind. Jul. 19, 2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993)). Absolutely no evidence was produced at trial which would support a reasonable finding that WVHD knew or recklessly disregarded whether its conduct in discharging Dan was prohibited by the ADEA. The court therefore finds that WVHD's violation of the ADEA in the instant case was not willful. As a result, Dan is not entitled to an award of liquidated damages.

CONCLUSION

The court finds that Dan Doherty has proven by a preponderance of the evidence that WVHD violated the ADEA by terminating his employment because of his age. The court further finds that Dan is entitled to a damage award in the amount of $11,700. The Plaintiff has 30 days from this date to petition for any other relief, such as attorney's fees and costs. The court will defer entering judgment until after all such matters have been decided so that a single judgment can be entered.