Full opinion text
OPINION MURRAY M. SCHWARTZ, Senior District Judge. Plaintiff David G. Finch has filed suit against defendant Hercules Incorporated, alleging he was discriminated against because of his age in violation of the Age Discrimination in Employment Act [“ADEA”], 29 U.S.C. § 621-34. Finch contends Hercules discriminated against him when it terminated his position following a reduction in force at corporate headquarters. In response to Finch’s claim of disparate treatment under the ADEA, Hercules moved for summary judgment. Docket Item [“D.I.”] 117. Prior to oral argument on Hercules’ motion for summary judgment, Finch moved the Court allow him to amend his complaint to allege a claim of disparate impact under the ADEA. D.I. 147. The Court reserved decision on Hercules’ motion for summary judgment, but granted Finch leave to amend the complaint and extended the discovery deadline, solely as to the issue of disparate impact. Hercules then moved for partial summary judgment on Finch’s claim of disparate impact. D.I. 166. On August 18, 1994, the Court entertained oral argument on Hercules’ motion. For the reasons which follow, the Court will deny Hercules’ motion for summary judgment on Finch’s disparate treatment claim and grant Hercules’ motion for summary judgment on Finch’s claim of disparate impact. I. FACTUAL BACKGROUND Hercules hired Finch in 1962 as a Systems Analyst. In 1974, he became Financial Director of Hercules’ Organics Department and was later promoted to manager of the financial analysts for all Hercules’ business groups. D.I. 121 at B45-50. From 1980 until his termination, Finch held the position of General Auditor at Hercules. D.I. 119 at A102. As General Auditor, Finch reported to the Audit Committee of the Board of Directors and Arden B. Engebretsen, Hercules’ Chief Financial Officer. D.I. 121 at B50-51. In the mid 1980’s, responding to its declining economic performance, Hercules began a program of restructuring, including several employee reductions in force [“RIFs”]. D.I. 119 at A15. Hercules lowered its total employment from approximately 25,450 employees in January 1985 to approximately 17,300 employees in January 1991. D.I. 121 at B388-89. In 1988, David Hollingsworth, Hercules’ Chief Executive Officer [“CEO”] at that time, appointed Vice President of Operations Support James D. Beach, Jr. to address a perceived staff imbalance between Hercules’ headquarters and its other locations. D.I. 119 at A227, A270-71. Beach hired the accounting firm of Coopers & Lybrand [“C & L”], Hercules’ outside auditors, to study staff functions and make recommendations for improvements. Beach then hired Thomas S. Litras to help implement C & L’s recommendations, the Indirect Productivity Improvement [“IPI”] study. Id. at All, A203-04, A480-84. Among other things, the IPI study indicated Hercules needed a more proactive, involved audit department. Id. at A485-86. Titan Missile Problems In late 1989, Hercules was forced to take a $300 million write-off because of a cost overrun at its Titan IV missile plant in Bacchus, Utah. Id. at A55-56, A322. The costs for the Titan were spread over two contracts: a quality development contract which Hercules had, and a production contract it hoped to secure. D.I. 121 at B42-43. According to Arthur C. Nielsen, Jr., the former Chairman of Hercules’ Audit Committee, this accounting treatment was proper, so long as Hercules would realize a profit from the two contracts together. Id. at B139-43. Likewise, both Engebretsen and Francis J. Van Kirk of C & L stated internal audit could not have discovered the Titan problem earlier and was not responsible for the write-off. Id. at B37, B165, B446-61. Defendant, however, contends this write-off led to the first annual loss in Hercules’ history and created a “great uproar” among members of the Audit Committee. D.I. 118 at 9; D.I. 119 at A56-57, A408-09. The Titan cost overrun led to heightened scrutiny of financial areas of the company, with some members of Hercules’ Board of Directors concluding Hercules needed higher quality senior management in internal audit. D.I. 119 at A57-59, A64-65, A408-09. The 1991 Reduction In Force In September 1990, Hercules determined it needed to make additional reductions in its workforce to lower its indirect costs. D.I. 121 at B310. As part of a planned 1991 RIF, Litras conducted a demographic study of Hercules’ corporate headquarters. This study compared the number of employees before the RIF who were under forty years of age and over forty years of age, and the number under fifty and over fifty, with the projected numbers after the proposed RIF. Id. at B276-77. In implementing the RIF, Hercules created a policy designed to retain better employees and avoid discrimination. Hercules also created a Policy Compliance Committee [“PCC”], which was intended to assure both compliance with the law and the retention of qualified personnel. D.I. 119 at A23, A61, A165-67, A193-94, A475. The PCC had authority to approve all RIF decisions, but could not order corporate restructuring or elimination of positions. D.I. 119 at A22, A471; D.I. 121 at B305. Litras also helped Hercules identify positions which could be eliminated and met with the managers of each Hercules’ unit to agree upon a number of persons to be eliminated through the RIF. D.I. 119 at A230. He then published a list for each department of the agreed number, the number he recommended, and a “stretch number” that Litras thought was the outside limit for a feasible RIF. Id. at A235-A235-1. Litras contended the performance appraisal process then in use at Hercules was not helpful in determining which individuals should be terminated through the proposed RIF. D.I. 121 at B313. As a result, he proposed a process of forced ranking and paired comparison by which employees would be grouped into functional categories and then ranked against each other. Starting from the bottom of the list, Hercules would terminate lower ranked employees in the RIF. Id. at B9, B369-71. In ranking employees, Litras proposed considering “performance, education, versatility, flexibility, and continuous service. Age to be the last factor considered, and then only if a ‘tie-breaker’ is required.” D.I. 119 at A488 (emphasis in original). If there was a tie, Hercules was to retain the older employee. Id. at A217-18. Job performance was to be measured through the performance appraisal system and dialogue with the supervisor. D.I. 121 at B6. Gossage Becomes Hercules’ Chief Executive Officer (CEO) In late 1990, CEO David Hollingsworth announced his plans to retire. In its search for a replacement, Hercules’ Board of Directors interviewed Thomas L. Gossage, the president of a Hercules’ subsidiary, Aqualon. D.I. 119 at A263, A398. During the interview process, Gossage informed the Board that the financial side of the company, including the Audit Department, was weak and that as CEO, he would downsize and cut expenses. Id. at A64, A268-69, A292, A296. After being selected as Hercules’ new CEO, Gossage instructed Beach to proceed with the planned RIF based on Litras’ stretch number. Id. at A14-15, A270. Finch’s position, General Auditor, was not identified in Litras’ January 4,1991 report as a position to be eliminated in the RIF. D.I. 121 at B312-15. Gossage asserts that other than approving the adoption of the stretch number, he had minimal involvement in the RIF. D.I. 119 at A273; see D.I. 159 Ex. 1 at 60 (other than approving its costs and terms, Gossage was not involved in the RIF process). In December 1990, Hercules placed the estimated cost of the RIF, $17,000,000, on its corporate books. Id. at A272, A298. Plaintiff has proffered statements Gossage made during an interview with a local newspaper as evidence of age bias at Hercules. The article quotes Gossage as saying: The young people in the company want us to bring Hercules back to where it ought to be again.... Older people will see friends impacted and will feel bad about it. But we’ll get this behind us. Id. at A539; D.I. 121 at B327. Gossage subsequently stated that the article “captures the spirit of what I said, at least, if it’s not a direct quote.” D.I. 121 at B71. Likewise, at a Hercules’ question and answer session, an employee asked Gossage to explain his statement to the local newspaper. He responded that: What I said was that younger employees want to know when the company will get up and turn itself around, and I acknowledged that to those with long service to the company, it was painful to watch what was going on. I’d say it again. Id. at B288. Defendant contends plaintiff has taken these statements out of context because they refer to Hercules’ voluntary early retirement program. The reference to “older people,” according to defendant, merely indicates more senior employees would qualify for the early retirement program. D.I. 118 at 47. Promotions and Succession Planning To further support his claim that Gossage was motivated by age bias, Finch has proffered deposition testimony of William E. Hosker and C. Doyle Miller. In January 1992, Hosker, the head of Hercules’ Resins Group, asked to meet with Gossage to find out why he had not been promoted to Group Vice President. D.I. 158 Exhibit [“Ex.”] 1 at 19. According to Hosker, Gossage informed him that he had promised the Board of Directors that Hercules would have a cadre of trained people in their early 50s as CEO candidates by the time Gossage retired. Hosker also stated that Gossage informed him that although Hosker was perhaps a better candidate than some of the persons selected for promotion to Group Vice President, Hosker was disadvantaged because of Gossage’s commitment to the Board and the fact Hosker was already 54 years old. Id. at 20-21. Gossage allegedly explained that “someone in their late 50s typically looks, expends their energies in preparing their retirement.... [while] younger people have perhaps more energy and a longer period of time in which they can perform their duties.” Id. at 27. Finch has also proffered testimony from Hosker’s deposition in which Hosker relates statements that Gossage made to C. Doyle Miller. Hosker testified that during a May 1992 meeting, Miller relayed Gossage’s comments that the Chemical Specialties Group had not aggressively or creatively addressed the problem of “tired warriors.” Id. at 39-40. According to Hosker, Miller stated that tired warriors referred to Hercules’ employees who are in their mid-fifties, contributing to the corporation and who want to work until age 65, “but in so doing are blocking the movement of younger, high potential people into development positions in the corporation.” Id. at 40. In his deposition, Miller testified he did not recall Gossage ever using the phrase “tired warriors,” but acknowledged Gossage was concerned that there were people in Hercules’ management who lacked leadership capability, foresight and “enthusiasm to aggressively lead the business where they needed to go.” D.I. 158 Ex. 3 at 48-49. Miller denied that Gossage ever suggested Hercules needed younger employees. Id. at 50. Hosker also testified that other than his own experience, he was not aware of any Hercules’ employment decisions being made based on age. D.I. 159 Ex. 1 at 67-68. Rather, Hosker asserted that based on his role in the 1991 RIF in the Resins Group, Hercules based its RIF decisions on performance, not age. Id. at 60-61. Finch’s Termination Shortly after assuming responsibilities as CEO, Gossage asked for the resignation of then Vice Chairman of the Board and Chief Financial Officer [“CFO”] Arden Engebret-sen. D.I. 119 at A265-66, A398, A416-17. As part of the search for a new CFO, Gos-sage met with Vice President and Controller George MacKenzie, Treasurer Alex Searl, and Thomas Ciconte, Treasurer of Aqualon. On January 14,1991, Gossage sent a memorandum to MacKenzie and Searl directing that during the search for a new CFO, the Audit Department and the Trading Company would report to MacKenzie, and Hercules’ economist would report to Searl. Id. at A501. Plaintiff asserts that at the time Gos-sage had the Audit Department report to MacKenzie, Gossage was unaware of any deficiencies in Finch’s performance as General Auditor. D.I. 121 at B80-81. Defendant, however, maintains Gossage was aware that the Audit Department and Finch had reputations for poor performance. Id.; D.I. 119 at A416-17. The same day Gossage ordered the new reporting system, MacKenzie met with Gossage and recommended the General Auditor position be eliminated on an interim basis. D.I. 119 at A295, A332, A338, A344. After meeting with Gossage, MacKenzie arranged to meet with Audit Committee Chairperson Joan E. Spero to seek her approval. Id. at A321. MacKenzie informed Spero that Finch’s position as General Auditor would be eliminated and that he would assume those duties until a new CFO was selected. Id. at A343-44, A405-07. After Gossage and Spero approved the plan, MacKenzie included Finch in his forced ranking of Financial Managers. Id. at A334, A367-69; D.I. 121 at B128-29. Plaintiff notes that MacKenzie had supervised Finch for only two days at the time he made his ranking decision and did not consider Finch’s personnel file or seek the opinion of Engebretsen. D.I. 121 at B104-05. Defendant, however, contends MacKenzie had long worked with Finch and the Audit Department and regularly attended Audit Committee meetings. D.I. 135 at C2-3. Of seven financial managers MacKenzie ranked, Finch was sixth. D.I. 119 at A502. The two highest ranked managers were 51 and 55 years old. Id. On January 26, 1991, MacKenzie met with the PCC, which approved his recommendations. Id. at A24, A472-73. Plaintiff asserts, however, that this did not constitute meaningful review because the PCC had no authority to review organization changes such as eliminating the position of General Auditor; its authority was limited to terminations based upon forced ranking decisions. Id. at A22, A471; D.I. 121 at B187, B305. While the decision does not appear in the minutes of the Audit Committee’s January 29, 1991 meeting, defendant contends the Audit Committee also approved MacKenzie’s recommendations. D.I. 119 at A70. Shortly thereafter, on February 2, Mae-Kenzie and James J. Woods, the Director of Operational Reporting at Hercules, informed Finch his position was being eliminated. Id. at A453-56. According to plaintiff, neither MacKenzie nor Woods suggested he was being terminated for poor performance. D.I. 121 at B54-55, B183-84. Further, plaintiff has offered evidence which suggests that at the time he was terminated, the elimination of the General Auditor position was considered permanent. Id. at B13-15; B382. Defendant disputes this evidence, asserting that MacKenzie’s organizational chart indicated that the arrangement was “interim” and that Finch was aware of this fact. D.I. 135 at C47A. Defendant also asserts Finch knew his termination was performance related because he was aware that he had been ranked sixth of seven. Shortly after Hercules decided to terminate Finch, Gossage selected R. Keith Elliott to replace Engebretsen as CFO in March 1991. In May 1991, Elliott talked to Mac-Kenzie about becoming Treasurer and decided that Hercules should hire a Certified Public Accountant [“CPA”] for the now to be reinstituted General Auditor position. D.I. 119 at A33-36, A168-69, A324, A373. Hercules retained an executive search firm to find a new General Auditor. Id. at A43-44, A168-69. While Finch allegedly was considered, Elliott determined Finch should not be interviewed because he was not a CPA and because of his poor performance. Id. at A43-44, A173-79, A180-82, A187. Hercules hired Curtis Tomlin, a 38 year old CPA with an MBA from Harvard University, to be its new General Auditor. Id. at A515-17. Finch’s Job Performance Defendant has placed extensive evidence in the record which tends to question the quality of Finch’s work performance. First, the 1989 IPI study commented that Hercules needed a more proactive and involved audit department. Id. at A485-86. Likewise, C & L’s auditors criticized the timeliness of internal audit reports. Id. at A438, A441. MacKenzie criticized the work of Finch and the Audit Department and noted that one afternoon he found Finch sleeping in his office. Id. at A326-27, A346-52. Further, James Woods, a member of the Controller’s Department who often worked with Finch, stated Finch’s job performance was satisfactory, but felt Finch was too passive. Id. at A465-66. Fred Laquinta and Tom McCarthy, both of Human Resources, also questioned Finch’s ability and that of the Audit Department. Id. at A195-97, A374. Spero, Chairperson of the Audit Committee, stated that she and the other members of the Audit Committee felt Finch was not the type of innovative, proactive person needed in the position of General Auditor. Id. at A418, A424, A433-35; see id. at A65. Some members of the Audit Committee also maintained that Finch and the Audit Department were responsible for the write off of $300 million at the Titan missile plant. Finally, at about the time of the RIF process, Hercules was reviewing personnel at headquarters to determine the amount of incentive bonuses for senior staff employees. Id. at A152, A289-2. The Audit Department was ranked among the three lowest departments at Hercules. Id. at A157, A200. Audit was informed it needed to improve timeliness of audits, risk assessments, and make audits less confrontational. Id. at A188-91, A362-63, A510. Plaintiff, however, has placed evidence in the record indicating that he was a “very good” employee with long-range potential to be a member of senior management. D.I. 121 at B405-29. Finch received above average salary increases, which also suggests above average performance. Id. at Bl, B20-22. Likewise, Engebretsen, who was Finch’s immediate supervisor for most of his time as General Auditor, stated: Mr. Finch is an effective leader, communicates well, is quiet but decisive, shows strong decision-making capacity and good judgment. He is also a hard worker, and understands the needs of his employes, [sic] Id. at B431. Engebretsen reiterated this view in his statement to the EEOC, noting that he “did not recall hearing any criticism or correction of [Finch’s] work by the Audit Committee, and I was always present at these meetings and discussed Mr. Finch’s performance with them.” Id. at B432-33. Engebretsen also stated he thought Finch was a proactive auditor and gave him credit for expanding Hercules’ global auditing, developing standards for computer auditing and developing risk analysis. Id. at B219-20. Further, Engebretsen stated he was aware of friction between Finch and MacKenzie, attributing it to Finch’s action of pointing out deficiencies in MacKenzie’s performance as Controller. Id. at B32-33. Finally, Nielsen, the former chairperson of the Audit Committee, remarked that he had “high regard for [Finch] as a professional in this field.” Id. at B135; see id. at B230. Like Engebretsen, Nielsen could not recall anyone criticizing Finch’s abilities as General Auditor. Id. at B135-37. Lies, Damned Lies, and Statistics On March 10, 1994, Finch amended his complaint to allege a claim of disparate impact based on Hercules’ RIF process. D.I. 162. The RIF process consisted of several steps. First, Hercules set reduction targets and developed position or functional groupings for implementing forced rankings. Next, Hercules forced ranked persons within each group. RIF recommendations were made at the department level, with lower ranked employees subject to termination. Finally, the PCC either accepted, rejected or modified the department recommendations. D.I. 168 at A7-13, A36-38. Bernard R. Siskin, Ph.D., Hercules’ expert, completed a statistical analysis of the effects of the RIF. By affidavit dated April 29, 1994, Siskin stated that the “bottom-line” results of the RIF indicated that employees ages 40 and over “had a lower likelihood of involuntary termination than did employees less than 40 years of age.” Id. at Al-2 (emphasis in original). Siskin, therefore, concluded the data were inconsistent with Finch’s claim that the 1991 RIF had an adverse impact on age-protected employees. Id. at A2. Finch’s statistical expert, Thomas N. Day-mont, Ph.D., however, concluded there was “strong statistical evidence that the forced ranking process was not age neutral and, instead, that age was a factor in the ranking process.” D.I. 171 at B2 ¶ 5. Daymont compared the likelihood of being ranked near the bottom of a functional group for employees ages 50 and over with the likelihood an employee under age 50 would be ranked near the bottom. He observed that of the 183 employees 50 and over, Hercules ranked 31.7 percent of them in the bottom 25 percent. Of the 289 employees under age 50, Hercules ranked only 22.5 percent of them in the bottom 25 percent of the forced rankings. Employees ages 50 and over were, therefore, “1.41 times or 41 percent more likely to be ranked in the lowest quarter of their ranking group.” Id. at B6. Applying the Fisher’s Exact Test to account for random variations, Daymont calculated a difference of 2.16 standard deviations. Id. at B7. Daymont also criticized the report Siskin prepared for Hercules. First, Daymont contended Siskin inappropriately restricted his analysis by only comparing employees 40 and over with those under age 40. Such an approach, according to Daymont, fails to consider the possibility that Hercules’ RIF process might have affected employees 50 and over and 55 and over more adversely than younger employees within the protected group. To support his critique, Daymont used a hypothetical company with 200 employees: all of the 50 employees ages 50 and over were terminated; 25 of 100 employees ages 40 to 49 years were terminated; and 25 of 50 employees under age 40 were terminated. Id. at B9-10. Under the facts of this hypothetical, an employee age 50 or older would be three times as likely to be terminated as an employee under 50. In this same hypothetical, however, a comparison of employees 40 and over with employees under 40 “yields the conclusion that the RIF process had no adverse impact on older employees, despite the fact that every single one of the 50 employees 50 and over was RIF’d.” Id. at B10-11. Secondly, Daymont criticized Siskin’s report for analyzing both exempt and nonexempt employees in the same pool. Exempt employees are “management and professional employees who tend to have college degrees and who perform a variety of technical and management functions throughout the Hercules organization. The non-exempt employees tend to be non-degreed employees who perform clerical jobs.” Id. at B14-15 ¶ 5. Further, Hercules evaluated the performance of employees in the two groups differently. Id. at B13 ¶3. Whereas Hercules evaluated exempt employees based on such factors as management perspective, leadership, business ethics and creativity, it evaluated nonexempt employees based on attendance, quality and quantity of work. Id. at B14 ¶4. Finch stated in a sworn affidavit that in the RIF process, Hercules ranked exempt employees against exempt employees and nonexempt employees against nonexempt employees. Id. at B15 ¶ 8. Finally, the PCC, the body which made the final decision to terminate Finch, “monitored only the reduction-in-force of the salaried ‘exempt employees.’” D.I. 53 ¶2. According to Daymont, even Siskin’s analysis recognized that the likelihood of being terminated in the RIF varied significantly with exempt status. D.I. 171 at Bll. By affidavit dated June 13, 1994, Siskin responded to Daymont’s analysis and critique. In addition to criticizing Daymont for ignoring “the legal definition of the age-protected group,” Siskin concluded Daymont’s report erred by comparing apples to oranges. In analyzing the effects of the RIF, Daymont excluded employees who opted for voluntary separation from Hercules. In his study of the impact of forced rankings, however, Day-mont included the employees who opted for voluntary separation. Id. at C2 ¶3. Secondly, Siskin noted that, based on his understanding from Hercules’ counsel, the difference in criteria applied to evaluate exempt versus nonexempt employees referred to historical performance evaluations, not the criteria used by the department heads in making forced ranking decisions. Siskin concluded any difference in criteria used for historical evaluations was irrelevant. Id. at C3 ¶ 5. Further, assuming there was a difference in the criteria applied in the forced ranking of exempt and non-exempt employees, Siskin concluded the reasoning which would require exclusion of nonexempt employees would require the Court to consider differences among exempt employees. Thus, according to Siskin, excluding nonexempt employees would require the exclusion of exempt employees who were not evaluated by the same decisionmakers. Id. Siskin also stated that there were several rating groups which included both exempt and nonexempt employees, further refuting Day-mont’s assertion that nonexempt employees should be excluded from the analysis. Id. at C4 ¶ 6, C6. Finally, Siskin observed that after examining all employees subject to the same general process and taking statistical recognition of factors such as exempt status and department or functional group, there was no statistically meaningful difference by age of employees ranked in the bottom 25 percent. Even after including persons who opted for voluntary separation and selecting an age break of 50, Siskin computed a difference of only 0.11 standard deviations. Id. at C4 ¶ 9. II. APPLICABLE LAW A. SUMMARY JUDGMENT Federal Rule of Civil Procedure 56 governs motions for summary judgment. Rule 56 requires courts to enter summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “Material facts” are those which, under applicable law, might affect the outcome of the case. Id. A party moving for summary judgment bears the burden of demonstrating the absence of material issues of fact, regardless of which party has the burden of persuasion. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). If the nonmoving party bears the burden of persuasion at trial, “the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant’s burden of proof at trial.” Id. To oppose successfully the motion for summary judgment, the nonmoving party must go beyond the pleadings by introducing affidavits and other evidence which will create a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). When the moving party bears the burden of persuasion, however, “the standard is more stringent.” National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir.1992). Under this more stringent standard, if the moving party does not establish the absence of a genuine issue of material fact, the court must deny the motion for summary judgment, even without opposing evidentiary matter. Id. In deciding a motion for summary judgment, “[ijnferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion.” Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). In short, the court presumes that the nonmoving party’s version of any disputed issue of material fact is correct. Eastman Kodak Co. v. Image Technical Servs., Inc., — U.S. -, -, 112 S.Ct. 2072, 2077, 119 L.Ed.2d 265 (1992). In drawing these inferences, however, the court does not weigh evidence or make credibility determinations. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993). B. THE ADEA The ADEA prohibits an employer from discharging or otherwise discriminating against an employee “because of such individual’s age.” 29 U.S.C. § 623(a)(1). The Act’s protection, however, is “limited to individuals who are at least 40 years of age but less than 70 years of age.” Id. § 631(a). Further, it is not unlawful for an employer to terminate an employee based on legitimate factors other than age. Id. § 623(f)(1); see Hazen Paper Co. v. Biggins, — U.S. -, -, 113 S.Ct. 1701, 1707, 123 L.Ed.2d 338 (1993) (“because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily ‘age-based.’ ”). 1. Disparate Treatment In construing claims of disparate treatment under the ADEA, courts, where appropriate, apply the methods of proof used under Title VII of the Civil Rights Act of 1964. See, e.g., Armbruster v. Unisys Corp., 32 F.3d 768, 778 n. 10 (3d Cir.1994); Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 48 n. 6 (3d Cir.1989). Accordingly, courts analyze disparate treatment claims under one of two different modes of analysis: mixed motives or pretext. a. Mixed Motives Cases Under the first mode of analysis, the so-called “mixed motives” case, the evidence as a whole suggests that both permissible and impermissible considerations played a role in the employer’s decision and plaintiff offers “direct evidence” that the discriminatory motive was a substantial or motivating factor in the challenged action. Price Waterhouse v. Hopkins, 490 U.S. 228, 244, 276, 109 S.Ct. 1775, 1787, 1804, 104 L.Ed.2d 268 (1989). To qualify as a mixed motives case, the plaintiff must, at a minimum, introduce circumstantial evidence “ ‘of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude.’ ” Griffiths v. CIGNA Corp., 988 F.2d 457, 470 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 186, 126 L.Ed.2d 145 (1993) (quoting Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.1992)). If plaintiff satisfies this burden, then the defendant may avoid liability only by establishing an affirmative defense, i.e., “that it would have made the same decision even if the forbidden consideration had played no role in the employment determination.” Id. 988 F.2d at 469. At an appropriate “point in the proceedings, of course, the District Court must decide whether a particular case involves mixed motives.” Price Waterhouse, 490 U.S. at 247 n. 12, 109 S.Ct. at 1789 n. 12. If a plaintiff who intends to advance a mixed motives case fails to provide direct evidence of discrimination, the court should employ the second mode of disparate treatment analysis, “pretext” analysis. Griffiths, 988 F.2d at 470 n. 13 (citing Price Waterhouse, 490 U.S. at 247 n. 12, 109 S.Ct. at 1789 n. 12). b. Pretext Cases In a pretext case, the plaintiff establishes discriminatory intent through the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). This framework proceeds as follows: First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden [of production] shifts to the defendant to articulate some legitimate nondiscriminatory reason for the employee’s rejection. Third, should the defendant carry this burden, the plaintiff must then have the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093 (citations omitted). To establish a prima facie case, the first step in the pretext mode of analysis, a discharged employee alleging age discrimination must show: “(1) that he belongs to the protected class, i.e., is older than forty; (2) was qualified by training and experience for the job from which he was discharged; and (3) was replaced by a person sufficiently younger to permit an inference of age discrimination.” Turner v. Schering-Plough Corp., 901 F.2d 335, 342 (3d Cir.1990) (citing Sorba v. Pennsylvania Drilling Corp., 821 F.2d 200, 202 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988)). If a discharged employee’s job is eliminated and he or she is not replaced, whether through a reduction in force or otherwise, “the employee need only show that he was laid off from a job for which he was qualified while other workers not in the protected class were retained.” Id. (citing Heady v. New York Life Ins. Co., 860 F.2d 1209, 1214 n. 1 (3d Cir.1988), cert. denied, 490 U.S. 1098, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989)); see Just v. James River, II, Inc., 784 F.Supp. 1145, 1150 (D.Del.1992) (rejecting defendant’s argument that a plaintiff terminated in a reduction in force must show he or she was qualified for another job with the employer). If the plaintiff succeeds in proving a prima facie ease, the burden of production shifts to the defendant to articulate a legitimate nondiscriminatory reason for the employee’s termination. That is, the “defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” St. Mary’s, — U.S. at -, 113 S.Ct. at 2747 (internal quotations and emphasis omitted). The Supreme Court has emphasized, however, that while the burden of production shifts, the burden of persuasion at all times remains with the plaintiff. Id. In fact, “the determination that a defendant has met its burden of production (and has thus rebutted any legal presumption of intentional discrimination) can involve no credibility assessment. For the burden-of-production determination necessarily precedes the credibility assessment stage.” Id. at -, 113 S.Ct. at 2748 (emphasis in original). If the defendant articulates a legitimate nondiseriminatory reason for the challenged employment action, plaintiff has the burden of persuading the trier of fact that the proffered reason is a pretext for discrimination. Plaintiff must show “both that the reason [is] false, and that discrimination [is] the real reason.” Id. at -, 113 S.Ct. at 2752 (emphasis in original). The Supreme Court has also cautioned, however, that “[t]he 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.” Id. at -, 113 S.Ct. at 2749. Because the burden of proof remains with the plaintiff in pretext analysis, St. Mary’s does not preclude summary judgment in all cases in which the plaintiff has made out his or her prima facie case. Armbruster, 32 F.3d at 782. Finally, while the extent of plaintiffs ultimate burden in a pretext case is currently in dispute within the Third Circuit, the Court concludes plaintiff must prove by a preponderance of the evidence that a protected characteristic played a role in the employer’s decisionmaking process and that it was a determinative factor in the outcome of that process. Compare D.1.181 (Hercules urging a plaintiff must prove age was the “sole cause” of the employment decision) with D.I. 180 (Finch contending he need only prove age was “a determinative factor” to prevail in a pretext case). Much of the current debate about the standard in a pretext case focuses on Griffiths v. CIGNA Corp., 988 F.2d 457, in which a panel of the Third Circuit Court of Appeals observed that “the plurality in Price Waterhouse [v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989),] specifically noted that the analysis in pretext cases remains unchanged.” Id. 988 F.2d at 471. Shortly after making this observation, the Griffiths court concluded that “it is clear that in pretext eases the claim is that the discriminatory motive was the sole cause of the employment action and therefore it is inappropriate to state that the plaintiff only need show that the discrimination played ‘a motivating’ or ‘a substantial’ role.” Id. at 472 (emphasis in original). The Griffiths court’s conclusions that Price Waterhouse did not affect pretext cases and that a mixed motives standard is inappropriate in pretext cases are both correct. Hercules and others, however, assert Griffiths also requires a plaintiff in a pretext case to prove the discriminatory motive was the sole cause of the employment action. While Griffiths may be read as imposing such a requirement, there are strong reasons it should not be so read. First, the court’s holding was that it is improper to charge the jury that the plaintiff need only show that discrimination was “a motivating” factor in a pretext case. Secondly, under the Internal Operating Procedures of the Third Circuit, only the court sitting in banc may overrule the published opinion of a previous panel. See Third Circuit I.O.P. 9.1; Siegel v. Alpha Wire Corp., 894 F.2d 50, 53 n. 2 (3d Cir.), cert. denied, 496 U.S. 906, 110 S.Ct. 2588, 110 L.Ed.2d 269 (1990) (“a panel of this court may not overrule a decision of another panel.”). As a general proposition, therefore, the Griffiths court lacked the power to overturn a long line of previous panel decisions which provided that the plaintiff must prove the discriminatory motive was a determinative factor, not the sole cause. See, e.g., Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir.1992); Billet v. CIGNA Corp., 940 F.2d 812, 816 (3d Cir.1991). This is especially true with regard to Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, an opinion in which the Third Circuit Court of Appeals, in banc, stated that a plaintiff under the ADEA “need not prove that age was the sole or exclusive consideration, but must prove that age made a difference in the decision.” Id. at 897. Nonetheless, in the absence of compelling circumstances, a district court owes blind fealty to the latest precedent of the circuit court. See Vujosevic v. Rafferty, 844 F.2d 1023, 1030 n. 4 (3d Cir.1988) (“It is, of course, patent that a district court does not have the discretion to disregard controlling precedent simply because it disagrees with the reasoning behind such precedent.”). This is so even if the circuit panel failed to follow its own internal operating procedures or the district judge concludes the panel’s pronouncement is both “bad law” and a departure from settled precedent. See May v. Hobart Corp., 839 F.Supp. 309, 315 (E.D.Pa.1993) (granting a new trial because the Third Circuit, in Griffiths, “disapproved its own apparently well-settled jurisprudence_”). In this ease, however, there is a well-recognized basis for declining to follow the latest Third Circuit precedent. Thus, even if Griffiths did require plaintiff to prove a protected trait was the sole cause of the employer’s action, such a standard would not be consistent with subsequent decisions of the United States Supreme Court. See Frangos v. Doering Equip. Corp., 860 F.2d 70, 72 (3d Cir.1988) (“Although a cogent argument could have previously been waged based on past precedent within this circuit, the Supreme Court has recently rendered a decision making the Appellee’s position untenable.”). According to the Supreme Court, a finding that an employer’s proffered nondiscriminatory explanation is a pretext permits, but does not compel, a ruling for the plaintiff. Thus, the trier of fact is free to reject both the plaintiffs claim of discrimination and the defendant’s proffered nondiscriminatory reason. St. Mary’s Honor Ctr. v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407. Because the pretext mode of analysis does not require an either/or determination, it is improper to require plaintiff to prove the discriminatory motive was the sole cause of the employer’s decision. Likewise, the Supreme Court, after Grif-fiths, has instructed that “a disparate treatment claim cannot succeed unless the employee’s protected trait actually played a role in that process and had a determinative influence on the outcome.” Hazen Paper, — U.S. -, 113 S.Ct. at 1706. In Hazen Paper, the Supreme Court unanimously held a plaintiff under the ADEA can establish a willful violation and a right to liquidated damages if he or she proves the employer acted with knowledge or in reckless disregard of whether its conduct was prohibited by the statute. The Hazen court specifically noted that the plaintiff need not “prove that age was the predominant rather than a determinative factor in the employment decision.” Id., — U.S. at-, 113 S.Ct. at 1710. If a plaintiff need not show that age was “the predominant factor” to establish a claim for liquidated damages, surely he or she need not prove age was the “sole cause” of the employer’s action to prove a nonwillful violation of the Act. Finally, the Court notes that no other circuit has required a plaintiff in a pretext case to prove a protected trait was the sole cause of the employer’s action, suggesting such a standard is inconsistent with the Supreme Court’s pronouncements in St. Mary’s and Hazen Paper. See, e.g., Kralman v. Illinois Dep’t of Veterans’ Affairs, 23 F.3d 150, 156 (7th Cir.1994) (a determining factor); Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 529 (10th Cir.1994) (the determinative factor); Mitchell v. Data General Corp., 12 F.3d 1310, 1317 (4th Cir.1993) (a determinative factor); Atkin v. Lincoln Property Co., 991 F.2d 268, 272 (5th Cir.1993) (a determinative factor); Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir.1993) (a determining factor). I conclude Griffiths does not require a plaintiff in a pretext case to prove age was the sole cause of the employer’s action. First, the language in Griffiths was directed at distinguishing the mixed motives mode of analysis from the pretext mode of analysis. Secondly, a sole cause requirement is inconsistent with the Supreme Court’s subsequent decisions in St. Mary’s and Hazen Paper. I conclude, therefore, Finch need only show age was “a determinative factor” in Hercules’ decisionmaking process. 2. Disparate Impact In contrast to a claim of disparate treatment, a claim of disparate impact requires no inquiry into the employer’s intent. Rather, the court examines “the consequences of employment practices, not simply the motivation.” Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971) (emphasis in original). For this reason, the focus in a disparate impact case is usually “on statistical disparities, rather than specific incidents, and on competing explanations for those disparities.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987, 108 S.Ct. 2777, 2785, 101 L.Ed.2d 827 (1988). Despite these differences, however, disparate impact cases employ a burden shifting analysis which is similar to that used in disparate treatment pretext cases and, like disparate treatment claims, can be used to challenge both objective and subjective employment practices. See id. at 991, 108 S.Ct. at 2787. To establish a prima facie case of age discrimination under the disparate impact theory, the plaintiff must “show that the employer’s selection process results in unfavorable treatment of a disproportionate number of members of the protected group to which the plaintiff belongs.” Massarsky v. General Motors Corp., 706 F.2d 111, 120 (3d Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983). In making this showing, the plaintiff must: (1) identify the specific employment practice that he or she is challenging; (2) show disparate impact; and (3) prove causation by introducing “statistical evidence of a kind and degree sufficient to show that the practice in question has caused the [termination of employment or] exclusion of applicants for jobs or promotions because of their membership in a protected group.” Watson, 487 U.S. at 994, 108 S.Ct. at 2789. If the plaintiff succeeds in establishing a prima facie case of disparate impact, courts proceed to analyze “whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer.” Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659, 109 S.Ct. 2115, 2126, 104 L.Ed.2d 733 (1989). As in a disparate treatment pretext case, the “employer carries the burden of producing evidence of a business justification for his employment practice. The burden of persuasion, however, remains with the disparate-impact plaintiff.” Id. While the proffered legitimate business justification need not be “essential” or “indispensable,” it must be more than merely rational. The Third Circuit Court of Appeals has explained that an employer satisfies its burden of production only when it proffers some proof that the device serves identified legitimate and substantive business goals. That is, the defendant’s burden [is] to identify the particular employment goal and to present evidence of how the [challenged practice] “serves in a significant way” the identified goal. Merely being abstractly rational, as opposed to arbitrary, would not suffice. The defendant, therefore, has some burden of presenting objective evidence ... factually showing a nexus between the selection device and a particular employment goal. Without evidence of such a relationship it cannot be said that the defendant has presented any evidence that the “challenged practice serves, in a significant way, the legitimate goals of the employer.” Newark Branch, NAACP v. Town of Harrison, 940 F.2d 792, 804 (3d Cir.1991) (quoting Mack A. Player, Is Griggs Dead? Reflecting (Fearfully) on Wards Cove Packing Co. v. Atonio, 17 Fla.St.U.L.Rev. 1, 32 (1989)). Defendant must, therefore, produce evidence both of its legitimate employment goal and evidence of how the challenged practice significantly serves that goal. Finally, if defendant satisfies its burden of production, “the plaintiff must ‘show that other tests or selection devices, without a similarly undesirable [discriminatory] effect, would also serve the employer’s legitimate interest in efficient and trustworthy workmanship.’ ” Watson, 487 U.S. at 998, 108 S.Ct. at 2790 (quoting Albemerle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975)). The plaintiff can “discredit the legitimate business justification asserted ... [or] suggest a viable alternative to the challenged practice which has the effect of reducing the disparate impact and the employer refuses to adopt the alternative.” Newark Branch, NAACP, 940 F.2d at 798 (emphasis in original) (citing Wards Cove, 490 U.S. at 660-61, 109 S.Ct. at 2126-27). Accord Abbott v. Federal Forge, Inc., 912 F.2d 867, 876 (6th Cir.1990) (“Once the employer identifies a legitimate, non-diseriminatory business reason for the employment practice in question, the burden shifts back to the plaintiff to show that the reason is pretextual or to show the existence of an alternative employment practice that reduces the disparate impact but serves the employer’s legitimate interests.”). In determining whether plaintiffs proposed alternative would be equally effective in serving the employer’s legitimate business concerns, courts should compare the cost and other burdens of the proposed alternative with those of the challenged practice. See Watson, 487 U.S. at 998, 108 S.Ct. at 2790-91. III. FINCH’S DISPARATE TREATMENT CLAIM Finch asserts he has proffered direct evidence of age discrimination which entitles him to the special burden-shifting treatment of the mixed motives mode of analysis. Finch also asserts he has introduced evidence which suggests Hercules’ proffered legitimate nondiscriminatory reason is a pretext for discrimination. The Court will address Finch’s assertions seriatim. If there are genuine issues of material fact as to either mode of analysis, Hercules’ motion for summary judgment on Finch’s claim of disparate treatment must be denied. Further, even if there are no genuine issues of material fact as to one of the two modes of analysis, plaintiff still may present evidence at trial which makes that mode of analysis appropriate. See Armbruster, 32 F.3d at 781 n. 17 (“While the evidence here presented to us at the summary judgment stage does not trigger the Price Waterhouse framework, the evidence presented during trial may.”). A. MIXED MOTIVES To withstand a motion for summary judgment under the mixed motives mode of analysis, a plaintiff under the ADEA must, through the introduction of direct evidence, show that there is a genuine issue of material fact as to whether age was a substantial or motivating factor in the employer’s adverse employment action. Price Waterhouse, 490 U.S. at 244, 276, 109 S.Ct. at 1787, 1804. At a minimum, direct evidence consists of circumstantial evidence “ ‘of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude.’ ” Griffiths, 988 F.2d at 470 (quoting Ostrowski, 968 F.2d at 182.). Finch points to several statements made by Gossage, Hercules’ CEO, which he asserts directly reflect age bias by a decision-maker. First, Finch notes Gossage’s statement to the press that “[t]he young people in the company want us to bring Hercules back to where it ought to be again.... Older people will see friends impacted and will feel bad about it.” Gossage repeated the substance of this statement at a Hercules’ question and answer session when he observed “that younger employees want to know when the company will get up and turn itself around, and I acknowledged that to those with long service to the company, it was painful to watch what was going on.” Hercules contends these statements constitute mere stray remarks which are not indicative of age bias. Hercules explains that Gossage’s comments were about Hercules’ recently announced voluntary early retirement program, not about the involuntary RIF. Because only “older,” i.e. more senior employees, could qualify for early retirement, the statement does not constitute evidence of age bias. D.1.118 at 47. Hercules also cites decisions in other circuits in which courts have held a decisionmaker’s stray remarks are insufficient to establish age discrimination. Id. at 48 (citing Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir.1993) (reference to the plaintiff as “an old fart” and statements that a younger person could do faster work did not preclude grant of employer’s motion for summary judgment)). The Court disagrees that Gossage’s statements must be deemed mere stray remarks. A reasonable trier of fact could infer either that the statements referred solely to the voluntary early retirement program, as Hercules argues, or that they are indicative of age bias by Gossage, Hercules’ CEO. The Court may not weigh competing inferences on a motion for summary judgment. See Siegel, 894 F.2d at 54-55 (competing inferences from statement that “old dogs won’t hunt” preclude summary judgment). Hercules also asserts that even if the remarks are indicative of age bias, there is no evidence in the record that Gossage was a decisionmaker in Hercules’ decision to terminate Finch. The RIF process had begun before Gossage became CEO and he merely approved use of the “stretch number” for the RIF. D.I. 134 at 3. According to Hercules, MacKenzie was the principal decisionmaker in Finch’s termination. D.I. 163 at 63-64. The Third Circuit Court of Appeals, however, has observed that [w]hen a major company executive speaks, “everybody listens” in the corporate hierarchy, and when an executive’s comments prove to be disadvantageous to a company’s subsequent litigation posture, it can not compartmentalize this executive as if he had nothing more to do with company policy than the janitor or watchman. Lockhart, 879 F.2d at 54. Because of Gos-sage’s central role as Hercules’ CEO, the Court holds that a reasonable jury could infer MacKenzie and other Hercules’ personnel “listened” to Gossage’s statements about young people and older people at Hercules. As additional direct evidence in support of his mixed motives claim, Finch points to the deposition testimony of William E. Hosker. Hosker testified that when he questioned Gossage about why he had not been promoted in January 1992, Gossage acknowledged that Hosker had been disadvantaged because of his age and that employees in their late fifties tended to spend their energy preparing for retirement. Hosker also testified about May 1992 statements Gossage had allegedly made to C. Doyle Miller, relayed by Miller to Hosker, regarding the failure of the Chemical Specialties Group to address the problem of “tired warriors” who blocked the movement of younger, high potential people into development positions at Hercules. Hercules argues the Court must not consider Hosker’s testimony because it is irrelevant to Finch’s claim that he was terminated because of his age and because it is hearsay. First, Hercules objects that Hosker’s testimony is irrelevant because it refers to isolated remarks which are unrelated to, and remote in time from, Finch’s termination. D.I. 134 at 22-23. Specifically, Hercules observes that Hosker’s testimony alleges Gossage considered proximity to retirement age in making promotion decisions for senior executive positions. This issue, according to Hercules, is irrelevant to Finch’s claim. Further, Hercules notes that Hosker alleges Gossage made these statements twelve to eighteen months after Hercules terminated Finch, making the statements too remote to be probative of age discrimination in Finch’s termination. In support of its position that Hosker’s testimony is irrelevant, Hercules has cited several cases from other circuits holding that vague and temporally remote statements are inadmissible. See, e.g., Phelps v. Yale Security, Inc., 986 F.2d 1020, 1025-26 (6th Cir.), cert. denied, — U.S. -, 114 S.Ct. 175, 126 L.Ed.2d 135 (1993) (affirming the district court’s grant of judgment notwithstanding the verdict, the court observed that statements that plaintiff “was too old” and that her fifty-fifth birthday was a cause for concern, made one year before her termination, were too remote and too ambiguous to establish age discrimination); Turner v. North American Rubber, Inc., 979 F.2d 55, 59 (5th Cir.1992) (ruling that a reference to “three young tigers” was irrelevant because it did not refer to plaintiffs age, was not related to his discharge and was made more than a year before his termination); Haskell v. Kaman Corp., 743 F.2d 113, 120 (2d Cir.1984) (holding the district court erred by admitting employer’s references to “old ladies with balls” and “young turks,” where the statements did not refer to the plaintiff and were made three to eighteen years before his termination). The Court begins by noting that evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would' be without the evidence.” Fed.R.Evid. 401. The appropriate inquiry, therefore, is whether the evidence makes the existence of age-bias in Hercules’ decision to terminate Finch more or less likely. In Lockhart, an age discrimination case, the Third Circuit Court of Appeals ruled that the plaintiff, who was terminated in May 1983, could introduce a high-ranking manager’s statement, made in January 1984, that “Westinghouse Credit was a seniority driven company with old management and that’s going to change, ‘I’m going to change that.’ ” 879 F.2d at 54. The Lockhart court reasoned “it would be reasonable for the jury to conclude that his statement of January 1984 was not a recent managerial viewpoint, but that it was merely a cumulative statement of managerial policies that had been sanctioned or favored by top executives at WCC for a considerable time.” Id. While the Court concludes it would be reasonable for the jury to infer Gossage’s views at the time of his January 1992 conversation with Hosker were the same at the time Hercules terminated Finch, Finch has not demonstrated how age bias in promotion decisions makes the existence of age bias in Hercules’ decision to terminate his employment more likely. The statement in Lockhart about a seniority driven company with old management suggests an employee’s termination may have been age-based. In contrast, Gossage’s statements to Hosker that Hosker was not promoted because of his age do not make the existence of age bias in Hercules’ decision to terminate Finch more likely. Age bias in promotion decisions simply does not make age bias in termination decisions more likely. Further, to the extent this portion of Hosker’s testimony is minimally relevant, the Court concludes its probative value is substantially outweighed by the danger of unfair prejudice. See Fed.R.Evid 403. The Court will not consider this portion of Hosker’s testimony. Hosker’s testimony about Gossage’s conversation with Miller, however, may be relevant to Finch’s disparate treatment claim. Hosker testified that Miller relayed Gos-sage’s concern about the failure to address the problem of “tired warriors,” people in their mid-fifties who were “blocking the movement of younger, high potential people.” A jury could fairly conclude that these statements implied Hercules should terminate employees who, like Finch, were in their mid-fifties. Such an inference would also be consistent with Finch’s claim, based on statistical evidence, that age bias infected Hercules’ entire RIF process. It is not clear, however, when Gossage allegedly made these comments to Miller. Further, the Court notes that Miller has testified he does not recall using the term “tired warriors” and Gossage has yet to be questioned about the term. Likewise, while Hosker testified that Miller defined the term tired warriors, there is no indication of what meaning, if any, Gossage ascribed to the phrase. Finally, there is no indication in the record whether the problem of “tired warriors” was limited to the Specialty Chemical Group or applied to Hercules generally. In sum, these issues raise genuine concerns that the probative value of Hosker’s testimony may be substantially outweighed by the danger of unfair prejudice. Hercules also argues the Court must not consider Hosker’s testimony because it is inadmissible hearsay. At this stage of the proceedings, it appears Hosker’s testimony may fall within the exclusion to the prohibition against hearsay contained in Federal Rule of Evidence 801(d)(2)(D). Hosker, the declarant, testified under oath. Gossage’s statements to Miller, Vice President of Chemical Specialties, were made during the course of Gossage’s employment by Hercules and concerned promotion and succession planning within the Chemical Specialties Group, a matter within the scope of Gos-sage’s employment. Likewise, it appears Miller’s statements to Hosker were made within the scope and during the course of Miller’s employment by Hercules. Each layer of hearsay fi