1. What options did the employer have at its disposal to improve the performance of the sales department other than the massive terminations of its older employees?
2. Speculate as to why Gfeller and McMorrow favored younger employees over older employees.
3. If a person, wrongfully forced to take early retirement, signs a release not to sue the company for violation of the ADEA, is that release a defense in a subsequent ADEA lawsuit?

MERHIGE, D. J.…
Plaintiff's case rests upon its contention that pursuant to a plan or pattern, a large number of defendant's employees were discriminated against by the defendant company by reason of each being 40 years of age or older.
Defendant, on the other hand, denies any such plan or pattern and indeed that any employee has been discriminated against, by reason of age or any other reason, in either being terminated from his or her respective position or not being offered another position….
The sad saga seems to have begun in February 1971 when the Company appointed J. C. Gfeller, then 35 years of age, as its director of sales. Shortly thereafter, he also became vice president in charge of the Sales Department. At the time, the Company's sales had declined from a high 68.9 billion in 1952 to 33.5 billion in 1970. Cigarette sales continued to decline, as did the Company's percentage share of the market.
The sales quota for 1971 was established at 39 billion cigarettes, but it was reduced to 35 billion in September, and 32 billion was the actual amount sold in 1971.
The Hiring of New Top Management
The Company hired Ken McAllister as president of the cigarette and tobacco division, and Jack Southard as vice president of marketing. Both had consumer package goods backgrounds.
In February 1971 the Company hired John Gfeller as vice president of sales. His business background was consumer package goods. Gfeller's charge was to help turn around the decline in the Company's cigarette sales. He was expected to show a dramatic improvement in sales within 18 months.
As senior sales officer it was Gfeller's responsibility to achieve and maintain the distribution of the product line-to make sure the right amount of the product line was in the right place at the right time, properly priced and displayed. The sales responsibility ended at the retail shelf. Inducing the consumer to take the product off the shelf once the sales department got it there was the responsibility of marketing….
Manpower Planning and Analysis-Age and Minority Reports
In late February 1971, Gfeller requested an analysis of field sales personnel showing ages and minority representation. He requested for each management level an age breakout in five-year groups and the average age for each level. For minority groups he asked for a breakout showing the numbers of each level and the percentage they represented.
In April 1971, Gfeller hired Tom McMorrow as Director of Sales Planning. His job was to maximize promotion effectiveness and coordinate all promotion activities. Also he reviewed all communications between field and headquarters and put a new Headquarters Communication Program into effect.
Gfeller requested and received two updates of the age report-one dated July 31, 1971, and another dated September 30, 1971. This information showed the average age of sales representatives to be 33 and that of first-line managers to be 42.…
McMorrow was appointed National Field Sales Manager on June 21, 1971, and was instructed by Gfeller to find out what the problems were in the field that were causing the continuing sales decline. McMorrow went into the field and worked with all levels of the sales force and called on customers….
… Based on his visits and investigation, McMorrow concluded that field sales had an inferior management team compared to those of companies he had formerly worked for.
Personnel Changes-Sales Department
Thus, the Company set out on an intensive program of personnel changes. Gfeller and McMorrow instructed top management personnel to move against certain older managers working under their supervision. If the top manager delayed or sought to justify keeping the older manager, he was informed that he was "not getting the message." The key phrase used was that certain individuals were "not able to adapt" to the new procedures to be used by the Company. Throughout this period, Gfeller and McMorrow emphasized that they wanted young and aggressive people, that older individuals were not able to conform or adapt to the new procedures. In specific reference to R. E.
Moran, the defendant's top division manager for the year 1971, they made statements such as "he is over the hill" and "he is too old to learn." They also had a frequent saying when it was suggested that an employee had numerous years of experience: that it was not twenty years' experience, but rather one year's experience twenty times. Gfeller also commented in specific reference to L. D'Erasmo, who was 27 years of age in 1971, and who replaced R. E. Moran as area sales manager on September 1, 1972, that he was just the type of young man needed.