U.S. E.E.O.C. v. Massey Yardley Chrysler Plymouth, Inc.

• Decision Date: 24 July 1997
• Docket Number: No. 96-4129,96-4129
• Citation: 117 F.3d 1244
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 847, 71 Empl. Prac. Dec. P 44,871, 11 Fla. L. Weekly Fed. C 198 UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, Cross-Appellee, v. MASSEY YARDLEY CHRYSLER PLYMOUTH, INC., Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1244

117 F.3d 1244

74 Fair Empl.Prac.Cas. (BNA) 847,

71 Empl. Prac. Dec. P 44,871,

11 Fla. L. Weekly Fed. C 198

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, Cross-Appellee, v. MASSEY YARDLEY CHRYSLER PLYMOUTH, INC., Defendant-Appellee,

Cross-Appellant.

No. 96-4129.

United States Court of Appeals, Eleventh Circuit.

July 24, 1997.

Angelo Filippi, Eve Lowe, EEOC, Miami, FL, Barbara L. Sloan, EEOC-OGC/Appellate Services, Washington, DC, for Plaintiff-Appellant, Cross-Appellee.

Thomas Yardley, Cocoa, FL, for Defendant-Appellee, Cross-Appellant.

Appeals from the United States District Court for the Southern District of Florida.

Before CARNES, Circuit Judge, and CLARK and CAMPBELL ^*, Senior Circuit Judges.

CAMPBELL, Senior Circuit Judge.

The Equal Employment Opportunity Commission (the "EEOC") brought this action in the district court against Massey Yardley Chrysler Plymouth, Inc. ("Massey Yardley"), alleging a willful violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (the "ADEA"). The EEOC claimed that Massey Yardley unlawfully discriminated against Deloris P. Paigo ("Paigo") in her place of employment by subjecting her to a hostile work environment and harassing and constructively discharging her because of her age. After a trial lasting several days, a jury found that Massey Yardley had subjected Paigo to a hostile work environment because of her age and constructively discharged her, but that the ADEA violation was non-willful. Paigo was awarded back pay in the amount of $10,513.86 but, because the jury found the violation to be non-willful, did not receive liquidated damages. Both parties now appeal.

I.

Paigo was hired as a title clerk at Massey Yardley in 1987, at the age of 54. In the early 1990's, Paigo began going through menopause. Although her work performance remained good, she gained weight, had hot flashes, cried easily, and became nervous and sensitive about her age. She testified that most of her coworkers were supportive, but that James Cox ("Cox"), her immediate supervisor, and Bonnie Griffin ("Griffin"), the controller and general manager at the dealership, in particular, began making demeaning, age-related comments on a daily basis about her physical and mental condition. ¹

Cox's comments frequently involved intrusive observations about Paigo's appearance. ² While he had made comments before her menopause, Paigo explained, the tone changed thereafter, becoming angry and hurtful.

There was testimony that Paigo normally reacted to these remarks by turning red or otherwise indicating that she did not appreciate them. However, she once responded to one of Cox's comments about her bra by lifting her blouse, showing him that she was wearing a teddy, and demanding that he never ask about bras again. ³

Griffin's comments included demeaning statements about Paigo's mental capacity. ⁴ Paigo testified that she told Griffin she would understand how it felt when she went through menopause, whereupon Griffin responded that "she would never go through it and become an old lady like [Paigo] was."

According to Paigo, the comments of Cox and Griffin hurt and embarrassed her. As a result, she became depressed, felt nauseous, broke out in hives, cried often, and came to dread going to work. Two former coworkers, Jodie Krause and Carmela Rosenthal, confirmed that they had seen her cry or blush, and Krause added that Paigo had complained to her in tears that she could not get Cox and Griffin to stop making the remarks. Other coworkers testified, however, that they had never seen nor experienced age discrimination at the dealership.

On several occasions, Paigo testified, she told Cox and Griffin that she was going to complain directly to Herbert Yardley ("Yardley"), the president of the dealership. They warned her, in an "authoritative" tone of voice, against taking such action. Despite their warnings, Paigo testified, she twice attempted to talk to Yardley. But, as soon as she indicated that the problem was with Griffin, Yardley dismissed her, telling her to work it out with Griffin directly because he would not interfere between her and her supervisor. ⁵

The situation came to a head when Paigo returned from a week-long vacation on Monday, September 28, 1992, to find her office in a mess, with new files and mail strewn around, instead of stacked neatly on her desk. A short while later, Paigo drafted a letter, in which she demanded a large raise and an end to the age-related comments, and left copies in the offices of Cox, Griffin, and Yardley.

The next day, Tuesday, September 29, 1992, the switchboard operator showed Paigo a newspaper ad for a "title clerk" at Massey Yardley, and asked her whether she was "going to quit." Shortly thereafter, Paigo confronted Griffin in her office, where they were soon joined by Cox, and asked what they were doing about her letter, and demanded an explanation for the job ad.

According to Paigo, Griffin responded that a new title clerk would start the following Monday as Paigo's "helper", and that the company had just forgotten to tell her. Griffin then went on to deny Paigo's request for a raise in salary. As for the age-related comments, Griffin asserted that she had no authority to stop them, and that Paigo was "too sensitive" and would "just have to get used to it" since she was, after all, "an old lady." ⁶ At that point, Paigo told them to have the new person start right away because she was quitting.

Paigo's replacement, Dinorah David, started work almost immediately. She testified, and company records confirm, that she applied for and was hired as a "title clerk", not as a "helper" or "assistant", the day Paigo quit.

After her departure from Massey Yardley, Paigo searched for work without success for over two years. Finally, in June of 1994, she was hired as a service cashier at another car dealership, a position that pays less than what she was earning when she left Massey Yardley.

Paigo filed an age discrimination claim with the EEOC soon after leaving Massey Yardley. The investigator assigned to the case in March of 1993, Erica Lacour, found cause the following November. In January of 1994, Massey Yardley responded to a proffered conciliation agreement with an "unconditional offer of reinstatement", offering Paigo her old job, with no back pay or a raise, and a "policy statement reaffirming its policy not to discriminate." Paigo rejected the offer because she believed the harassment would continue, and she did not want to work under Cox and Griffin. Just before trial, in August of 1995, Massey Yardley offered to institute an anti-discrimination policy and to place Paigo at a dealership operated by Yardley's son, where she would seldom encounter Cox or Griffin. Paigo refused this offer largely, she testified, because she knew she would still run into Griffin, who went there periodically to do the books, and because she was happy at her new job, despite the lower pay.

II.

After the close of evidence, the EEOC moved for judgment as a matter of law on the issue of willfulness. Fed.R.Civ.P. 50(a). The EEOC argued that if liability were to be found under the ADEA, the violation was necessarily a willful one. Massey Yardley also moved for judgment as a matter of law, asserting that the EEOC had, in certain particulars, failed to make out a case of hostile environment age discrimination. The district court denied both motions.

The case was submitted to the jury by means of four questions set out in a so-called "Special Verdict Form." Responding to these, the jury found (1) that Paigo was subjected to a hostile work environment because of her age; (2) that a reasonable person would have found the hostile working conditions she was subjected to so difficult or unpleasant as to have felt forced to resign; (3) that Paigo lost $10,513.86 in back pay and fringe benefits because of her constructive discharge; but (4) that defendant's conduct with regard to Paigo was not done with knowledge or reckless disregard as to whether it was a violation of the ADEA.

After the verdict, the EEOC moved under Fed.R.Civ.P. 50(b) to renew its motion for judgment as a matter of law on willfulness. The EEOC further moved to conform the damages to the evidence (i.e. by increasing the $10,513.86 award), and for equitable relief that, among other things, would enjoin defendant from further employment discrimination. Massey Yardley renewed its motion for judgment as a matter of law. All motions were denied by the district court without comment.

The EEOC now appeals, and Massey Yardley cross-appeals, from the court's denial of the parties' post-judgment motions. We affirm in part, vacate in part, and remand.

III.

A. Massey Yardley's Motion for Judgment as a Matter of Law

Massey Yardley argues on appeal that the EEOC's evidence was inadequate, as a matter of law, to establish hostile environment age discrimination because the offending employees' conduct was not unwelcome to Paigo or, at least, was not indicated by her to be unwelcome. See Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 2406, 91 L.Ed.2d 49 (1986) (a Title VII claim alleging sexual harassment). See also Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir.1982) (same). ⁷

We find no merit in this argument. Paigo testified copiously that the challenged remarks hurt and upset her. She also testified to telling Cox and Griffin that she was going to complain to Yardley and to seeing him and attempting to convey her complaint. Others testified to her turning red or looking annoyed, thus indicating her resentment. Some remarks, moreover, were so patently offensive that a jury could have inferred from their very nature both that Paigo was offended by them and that those making them would have realized they were unwelcome.

The district court gave the jury an unobjected-to instruction on the need to find the remarks...