180 F.3d 791 (7th Cir. 1999), 97-2902, Wichmann v. Board of Trustees

Docket Nº:97-2902
Citation:180 F.3d 791
Opinion Judge:PER CURIAM.
Attorney:For THEODORE F. WICHMANN, Plaintiff - Appellee: Gene Gross, REED, HELLER, MANSFIELD & GROSS, DuQuoin, IL USA. For BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY AT CARBONDALE, Defendant - Appellant: Carla J. Rozycki, Julia H. Perkins, JENNER & BLOCK, Chicago, IL USA. Shari R. Rhode, SOUTHERN I...
Judge Panel:Before CUMMINGS, FLAUM and ROVNER, Circuit Judges.
Case Date:June 07, 1999
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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180 F.3d 791 (7th Cir. 1999)

THEODORE F. WICHMANN, Plaintiff-Appellee,



No. 97-2902

United States Court of Appeals, Seventh Circuit

June 7, 1999 [*]

Argued September 11, 1998

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Appeal from the United States District Court for the Southern District of Illinois. No. 95 C 4134. Philip M. Frazier, Magistrate Judge.

For THEODORE F. WICHMANN, Plaintiff - Appellee: Gene Gross, REED, HELLER, MANSFIELD & GROSS, DuQuoin, IL USA.


For UNITED STATES OF AMERICA, Intervenor: Seth M. Galanter, DEPARTMENT OF JUSTICE, Washington, DC USA.

Before CUMMINGS, FLAUM and ROVNER, Circuit Judges.


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In August 1994, Theodore Wichmann, then 48 years old, was fired from his job at Southern Illinois University (the " University" ), a state institution of higher education. Wichmann had been employed by the University for about 20 years and had been promoted to Associate Director of the University's Touch of Nature Environmental Center (the " Center" ) in 1985. His primary duties were the management of " experiential educational" programs, which involved taking various sorts of groups ranging from troubled youth to corporate executives to secluded areas for up to a month at a time. Wichmann would then conduct exercises meant to promote particular educational goals. Wichmann was apparently very good at his job. Every evaluation of his performance was glowingly positive. Two younger experiential educators whom he had mentored resigned at least partly because of his dismissal.

In the spring or summer of 1994, Wichmann's supervisor, Dr. Phillip Lindberg, decided to reduce the staff. Lindberg obtained the University President's approval for this decision. Lindberg fired Wichmann and Karen Hand, then age 35, Wichmann's subordinate in one of the programs for which Wichmann was responsible, the Wilderness Program, on August 15, 1994. He notified them that they each would be given a 12-month terminal contract and transferred to another University department. A terminal contract gives a dismissed employee a nonrenewable job for a specified period, here, one year. Such terminal contracts are common in academia, where hiring operates on an annual cycle rather than continuously. Lindberg is no longer with the University.

The University avers that Lindberg's sole reason for the firing was to resolve a budget deficit in the Wilderness Program. Wichmann's age was not a motivating factor in the decision, according to the University, as shown by the decision to fire the then 35-year-old Hand. Wichmann argues that he was fired solely because of his age and that the University's cost-cutting rationale was a pretext. The Center's accountant, Allen Bratten, testified that the accounting at the Center was unreliable. Apparent surpluses in Wichmann's programs, Bratten said, would be made to disappear by changing the accounting methods so that surplus funds would not have to be repaid to another state agency. Wichmann argued, accordingly, that the Center's books were manipulated to provide a pretext for his termination. Lindberg himself admitted that accounting documents at the Center were sometimes misleading. Bratten bolstered Wichmann's pretext argument by testifying that Wichmann's termination in fact jeopardized the financial situation of the Center.

After the terminations, Lindberg approved a restructuring plan for the Wilderness Program. A meeting was held on September 13, 1994 to explain the restructuring to the staff. When Lindberg was asked at that meeting by Susan Campagno, a Center employee, why he had chosen to fire Wichmann, Lindberg replied: " Susan, think of it like this. In a forest you have to cut down the old, big trees so the little trees underneath can grow." This statement is undisputed, as is the fact that Lindberg knew that it was illegal to fire someone because of age. Lindberg admitted that the " little trees" were younger employees.

Several of these younger employees who had helped develop the restructuring plan benefitted from its implementation. Will Marble, then age 30, was given a promotion,

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a raise, and some of Wichmann's former duties; Tim Humes, then age 28, was promoted twice, once immediately after the firings; Joe Moore, then also under 40, was also given a promotion and raise. Some employees 40 or over were also given some of Wichmann's management responsibilities. The University says Wichmann's and Hand's positions were simply eliminated as part of the restructuring plan, their duties being in part assumed by other employees, some younger and some older than Wichmann, or in any case that the positions remained unfilled. Wichmann argues that the restructuring involved in effect filling the position by redistributing its main duties to younger employees. Accountant Bratten testified that job descriptions at the Center were meaningless and had been manipulated for various purposes and that no positions had been eliminated in connection with Wichmann's discharge.

Wichmann had little chance of obtaining comparable work as an experiential educator, a rare speciality, in or near Southern Illinois or indeed elsewhere. While working in his terminal job, Wichmann pursued reinstatement. There was some dispute about whether he investigated a position in his new unit. Wichmann also testified that, while still at the University, he applied for 42 job positions and received no interviews. The University asserts that he applied for only two positions. This apparent factual discrepancy arises because the University's position is that the trial court improperly relied, in calculating damages, upon oral evidence of Wichmann's job search after it excluded written evidence as a discovery sanction. Wichmann is now self-employed on a winery he owns in Southern Illinois.

Wichmann sued the University in May 1995 under the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § 621 et seq. 1 The trial was bifurcated. In the liability phase, a jury found that the University had willfully violated the ADEA, firing Wichmann because of his age, though knowing that firing him for that reason was illegal. The remedy was tried by consent of the parties before Magistrate Judge Philip Frazier, exercising jurisdiction under 28 U.S.C. § 636(c)(1) and pursuant to Fed.R.Civ.P. 73. Wichmann was awarded back pay, liquidated damages, costs, and attorney's fees, and the University was ordered to reinstate him in his former job. The University appeals on the grounds that (1) Wichmann's lawsuit is barred by the Eleventh Amendment; (2) the evidence was legally insufficient to support the jury verdict; (3) the trial court improperly refused a proposed " business judgment" instruction to the jury; (4) Wichmann failed to mitigate his damages; and (5) it was an abuse of discretion to award Wichmann liquidated damages, which the University characterizes as " front pay." We affirm.

I. The Eleventh Amendment and the ADEA

The Eleventh Amendment denies a federal court jurisdiction in any suit " against one of the United States by Citizens of another State." U.S. Const., amend. XI. It has been construed to bar suits against a state by its own citizens without its consent or unless the immunity has been waived. See Hans v. Louisiana, 134 U.S. 1, 15, 33 L.Ed. 842, 10 S.Ct. 504 (1890). The University, a state institution, here has not consented to be sued nor waived its immunity. However, Congress may abrogate a state's immunity if it has (1) " 'unequivocally expressed its intent to abrogate . . . '" and (2) " acted 'pursuant to a valid exercise of power.'"

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Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 134 L.Ed.2d 252, 116 S.Ct. 1114 (1996) (internal citations omitted). The University argues that in enacting the ADEA, Congress either did not in fact abrogate the states' sovereign immunity or lacked the constitutional power to do so under the Fourteenth Amendment. This Court has rejected these arguments previously, see Goshtasby v. Bd. of Trustees of the Univ. of Ill., 141 F.3d 761, 766, 772 (7th Cir. 1998); Davidson v. Bd. of Govs. of State Colleges & Univers., 920 F.2d 441, 443 (7th Cir. 1990); EEOC v. Elrod, 674 F.2d 601, 606 (7th Cir. 1982), as have all but two Circuits that have considered the matter. 2 The University asks us to reconsider in view of Humenansky v. Regents of the Univ. of Minnesota, 152 F.3d 822 (8th Cir. 1998), and Kimel v. Florida Bd. of Regents, 139 F.3d 1426 (11th Cir. 1998), cert. granted, 119 S.Ct. 901 (1999). We reaffirm our previous view.

Wichmann's contention that the University has waived the Eleventh Amendment argument because it was not raised below in a timely way is without merit. State sovereign immunity " 'sufficiently partakes of the nature of a jurisdictional bar' that it may be raised by the State for the first time on appeal." Patsy v. Bd. of Regents of Florida, 457 U.S. 496, 516 n.19, 73 L.Ed.2d 172, 102 S.Ct. 2557 (1982) (internal citations omitted).

Congressional intent to abrogate Eleventh Amendment immunity must be " unmistakably clear in the language of the statute." Dellmuth v. Muth, 491 U.S. 223, 228, 105 L.Ed.2d 181, 109 S.Ct. 2397 (1989); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 87 L.Ed.2d 171, 105 S.Ct. 3142 (1985); Seminole Tribe, 517 U.S. at 55. As originally enacted in 1967, the ADEA did not mention the States or their subdivisions. In 1974 the statute was amended to expand the definition of " employer" to expressly include " a State or political subdivision of a state or any instrumentality of...

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