that the employee has a right to sue at all under the Age Discrimination Act. Gebhard v. GAF, 59 F.R.D. 504 (D.D.C. 1973). In Gebhard, Judge Smith found he lacked jurisdiction because the employees failed to file proper notice with the Labor Department. However, he preliminarily and specifically found that the notice required by § 627 had been posted by the defendant-employer. Gebhard, supra, at 507, n. 7.
In view of the relative "newness" of the Act (at the time this suit was instituted), the plaintiffs' overall lack of sophistication, the defendants' failure to post any notice on the Act and the plaintiffs' oral representations to members of the Labor Department that the defendants were terminating large numbers of elderly employees, (Def. Ex. 69, pp. 33-34, 56-7) the Court has not dismissed the action for failure to comply with § 626(d).
5. Under the applicable statute of limitations, a civil action must be commenced within two years after the occurrence of the alleged unlawful practice, except in the case of willful violation which extends the limitations to three years. 29 U.S.C. §§ 626(e), 255.
Generally, willful violations have been found only where there has been a bad faith evasion of the Act and definite knowledge of its applicability. Hodgson v. Hyatt, 318 F. Supp. 390 (D.C. Fla. 1970); Krumbeck v. John Oster Mfg. Co., 313 F. Supp. 257 (D.C. Wisc. 1970); Dowd v. Blackstone Cleaners, 306 F. Supp. 1276 (D.C. Tex. 1969); Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139 (5th Cir. 1972). The Court does not find any such action by the defendants in this case. The Court, therefore, has applied the two-year statute of limitations.
6. Under the Act, the plaintiffs have the burden in the first instance to show a prima facie case of age discrimination, after which the burden shifts to the defendants to justify the existence of any disparities. Hodgson v. First Federal Sav. & Loan Assn., 455 F.2d 818, 822 (5th Cir. 1972).
7. Although there have been no decisions which define a prima facie case, the Court construes the statute as requiring the plaintiff to show more than simply the fact that he was within the protected age group and that he was adversely affected by an employment decision.
8. In construing the Act, the Court concludes that when the burden shifts to the defendant, such burden is discharged by the employer showing that its conduct was not motivated by age bias and was "reasonable" or rational. This conclusion is predicated upon the language of the statute which permits differentiation between employees based upon "reasonable factors" other than age. While the Act specifically exempts discharges for cause, the Court does not construe the statute as limiting lawful discharge to "cause" circumstances. Such a reading could prohibit layoffs necessitated by adverse business conditions or the discharge of a company officer or executive whose business views or abilities are considered faulty by management. Such questions of whether employee layoffs were actually required by business conditions, whether reductions of personnel contribute to rather than alleviate poor sales, and whether an executive in conflict with management is an able businessman are not the kind of judgments the courts are permitted or required to make under the Act. Thus, the Court holds that the statute is not violated in the case of terminations or other employer decisions which are premised upon a rational business decision made in good faith and not actuated by age bias. To conclude otherwise would make the federal courts a super board of directors reviewing bona fide management decisions, a procedure Congress clearly did not intend by passage of this Act.
9. Construing the statute broadly to effectuate its purposes, the Court finds that a prima facie case was presented by the plaintiffs. The defendants in presentation of their case carried their burden in negating age discrimination on the claims of those plaintiffs listed Nos. 8-21 and number 28. However, as set forth above, the defendants failed to negate the claim of age discrimination of those plaintiffs, Nos. 22-27.
10. Where "business judgment" exceeds those instances set forth above, and reductions are predominantly of older employees for no apparent, rational reason other than age, the Court concludes that the spirit of the statute has been violated.
11. The claims of Brown, Rhodes and Taylor are dismissed for failure to provide reasonable discovery after having been given opportunity to do so. Brennan v. Midwestern United Life Insurance Co., 450 F.2d 999 (7th Cir. 1971), cert. denied, 405 U.S. 921, 92 S. Ct. 957, 30 L. Ed. 2d 792.
12. The findings of fact with respect to the individual contract claim of plaintiff Gonsa are hereby incorporated as the Court's conclusions of law. Plaintiff Gonsa has not established the requisites to contract formation and is thus not entitled to relief on the theory of an oral contract.
13. With respect to the claims of the plaintiffs that employee benefits under the profit sharing and pension plans were reduced or eliminated by the defendants, these assertions are clearly in the nature of contract over which this Court, as it held early in this case, has no jurisdiction. See footnote 1, supra; See also Court's references at p. 4.
14. The Court having heard no testimony nor received any evidence on the issue of damages to the six plaintiffs listed in Nos. 22-27 shall schedule a hearing on that issue. This hearing is scheduled for March 29, 1974 at 10 a.m..