Age bias award let stand by court

Tuesday, February 24, 1998

By Marylynne Pitz, Post-Gazette Staff Writer

The U.S. Supreme Court yesterday refused to hear an appeal by CBS Corp. of a $241,000 age discrimination verdict awarded to a former Sewickley man in 1996.

The high court's refusal to hear the case lets stand a 1997 decision by a federal appeals court.

On Sept. 30, 1997, the 3rd U.S. Circuit Court of Appeals upheld a Pittsburgh jury's award to John M. Ryder, now 57 and a resident of Sun City West, Ariz.

The appeals court also ruled that in age discrimination cases, "stray remarks" made by supervisors are relevant and may be admitted as evidence of a corporation's culture if they show intentional discrimination.

Ryder's case turned on a memo that summarized comments made by senior Westinghouse Electric Corp. managers who complained that older workers with higher salaries prevented younger executives from advancing. Westinghouse changed its name to CBS on Dec. 1.

During the 1996 trial in federal court, jurors learned about a series of meetings, called the Chairman's Initiative, hosted by Michael Jordan, the Westinghouse chairman and CEO.

During the meetings, held at hotels away from corporate headquarters, senior managers complained that older workers blocked opportunities for younger executives.

A meeting summary quoted an unnamed manager as saying, "We have to get the 'blockers' out of the way."

Ryder was a former financial planning manager for the company's Power and Environmental Systems Group. He was 53 and earning a salary of $93,000 a year when he was fired in 1993.

The loss of his income and pension made it difficult to continue living here.

"I could not afford to live where I lived in Allegheny County," Ryder said. His wife sold her child day care business and they moved to Arizona because it had lower taxes and more job opportunities, he added.

Since then, Ryder has worked as a bus driver, a census taker for Maricopa County and is now employed as an income tax preparer for H&R Block.

With no other avenue of appeal, CBS is obligated to pay the award to Ryder as well as his legal fees, which are more than $200,000. In federal civil rights cases, losers pay the winner's legal fees.

Reached by telephone yesterday, Ryder said he felt "half-elated and half-relieved."

"There's a lot of sorrow out there for what has happened to Westinghouse. I have no fondness for the company at all. There are still co-workers out there I call my friends," Ryder said.

Samuel J. Cordes, who represented Ryder at trial and on appeal, is suing CBS on behalf of four other Westinghouse employees who have age discrimination claims.

"There has now been 13 different federal judges who have recognized that this memo is probative evidence of age discrimination and is evidence of a policy at Westinghouse that favors younger people over older people. We're extremely happy," Cordes said.

Jack Bergen, senior vice president for corporate relations at CBS in New York, said yesterday that in two other age discrimination cases tried recently, the memo was introduced but jurors found in the corporation's favor.

Bergen insisted that managers were discussing people who were not performing their job duties instead of attacking older employees.

"We were talking about job performance, not age. We stand by our position that there was no age discrimination. Two juries have considered the same memo and the same atmosphere at Westinghouse. They've looked at it and agreed with us," Bergen said.

Bergen said he did not know how many similar cases were pending against the company.

Westinghouse appealed, Bergen said, because "we believed and still believe that as a matter of law the introduction of the memo was wrong."

Tom Osborne, a staff lawyer for the American Association of Retired Persons in Washington, D.C., wrote a friend of the court brief in the Ryder case.

Discrimination cases, Osborne said, are often built largely on circumstantial evidence such as "stray remarks" by managers because nobody is going to tell somebody, 'I'm firing you because you're too old.' "

In the past, some federal judges have refused to admit stray remarks. The Ryder case, Osborne said, will give lawyers for plaintiffs, a stronger basis to argue for their admission.

Jerome Shestack, who argued the case on behalf of Westinghouse, could not be reached for comment.