29 F.3d 274 (7th Cir. 1994), 92-3947, Watson v. Amedco Steel, Inc.

Docket Nº:92-3947.
Citation:29 F.3d 274
Party Name:Richard D. WATSON, Plaintiff-Appellant, v. AMEDCO STEEL, INCORPORATED, doing business as Amedco Casket Stamping Company, Defendant-Appellee.
Case Date:July 11, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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29 F.3d 274 (7th Cir. 1994)

Richard D. WATSON, Plaintiff-Appellant,


AMEDCO STEEL, INCORPORATED, doing business as Amedco Casket

Stamping Company, Defendant-Appellee.

No. 92-3947.

United States Court of Appeals, Seventh Circuit

July 11, 1994

Argued Feb. 22, 1994.

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Thomas F. Phalen, Jr., Logothetis & Pence, Cincinnati, OH, Dena E. Benson (argued), Law Offices of Dena Elliott Benson, Lima, OH, for plaintiff-appellant.

Jack H. Rogers (argued), Barnes & Thornburg, Indianapolis, IN, for defendant-appellee.

Before POSNER, Chief Judge, and COFFEY and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

After a five-day trial, a jury found in favor of defendant Amedco Steel, Inc. ("Amedco") on Richard Watson's claim under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634. In this appeal, Watson challenges neither the jury's verdict nor the sufficiency of the evidence supporting it. He focuses instead on the district court's pre-trial denial of his motion for summary judgment. Watson maintains that if the district court had correctly interpreted our precedents, it would have granted summary judgment in his favor. Because we conclude that Watson cannot challenge the denial of summary judgment after a full trial on the merits of his claim, we affirm the judgment below.


On November 14, 1986, at the age of forty-four, Watson was terminated from his position as the superintendent of Amedco's tool and die and maintenance departments. He had been employed by Amedco since 1982, when that company purchased the casket parts manufacturing plant in Richmond, Indiana where Watson had worked since 1964. 1 Watson's termination resulted from a reduction in Amedco's work force that took place after the company purchased its competitor, Wallace Metal Products of Anniston, Alabama ("Wallace"). A former Wallace principal, Ian MacKenzie, became general manager of the new Amedco division that resulted from the transaction, and he was charged with facilitating the integration of the two companies by consolidating overlapping product lines and eliminating unnecessary personnel. In March 1986, MacKenzie appointed Ray Mayberry, another former Wallace employee, to the position of plant engineer, which provided Mayberry

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with supervisory responsibility over major tool and die work at the Richmond, Indiana and Anniston, Alabama plants. As plant engineer, Mayberry assumed some of the supervisory responsibilities at the Richmond facility that previously had been assigned to Watson.

Throughout the summer of 1986, MacKenzie gradually reduced the Richmond plant's hourly payroll, and by August, he was considering the elimination of several salaried positions. He began at the top, firing the plant's president and promoting Mayberry to that position in November 1986. MacKenzie then directed that his new president recommend further reductions in the plant's salaried labor force. When Mayberry assured MacKenzie that he could fulfill Watson's responsibilities himself, MacKenzie eliminated Watson's salaried position and terminated his employment. Watson was forty-four at the time, whereas Mayberry was forty-six.

The week following Watson's termination, Mayberry promoted two younger, hourly employees (Paul Heis and Jerry Morefield) to group leader positions in their respective departments. These "group leader" positions had not existed previously. As group leaders, Heis and Morefield remained hourly employees, but they received an increase in their hourly wage. As group leader of the tool and die and maintenance departments, Heis gradually took on some of Watson's former tasks, although he never was given the administrative authority that Watson possessed as a superintendent. In large measure, Heis acted as an intermediary between Mayberry and the employees in his departments. Watson maintains that he was capable of performing either group leader position but that he was never offered that opportunity.

In December 1986, Amedco recalled another younger employee, Terry Hebenstreit, from an earlier lay-off. Hebenstreit initially was assigned to the pressroom, where Watson had once been foreman, but he gradually began to perform maintenance work. By May 1988, Hebenstreit was working full-time in the plant's maintenance department. Watson maintains that he also was capable of performing Hebenstreit's responsibilities.

After exhausting his remedies with the Equal Employment Opportunity Commission, Watson filed this suit in federal court under the ADEA, alleging an unlawful discharge on the basis of age. Amedco defended on the ground that Watson's position had been eliminated pursuant to a reduction in force because his responsibilities had duplicated those of other salaried personnel. When Amedco moved for summary judgment, Watson responded with a cross-motion challenging the adequacy of Amedco's proffered reason for the discharge. Watson maintained that Amedco's stated reason was insufficient as a matter of law because even if true, the company still had not articulated a legitimate reason for terminating him, as opposed to a younger co-worker whose job he could perform. The district court was unwilling to conclude that an explanation addressed solely to the plaintiff's position, as opposed to characteristics of his job performance, was inadequate as a matter of law. Proceeding then to the issue of pretext, the court found that factual issues predominated, and it accordingly set the case for trial, where a jury returned a verdict for Amedco. Significantly, Watson never renewed at trial his challenge to the legitimacy of Amedco's stated reason for the discharge by moving for judgment as a matter of law either before or after the jury's verdict.


We are faced today with the curious circumstance of a plaintiff who appeals after an unfavorable jury verdict but who does not contest that verdict. Instead, Watson's briefs adamantly state that his lone challenge on this appeal is to the district court's denial of his motion for summary judgment. Indeed, Watson's brief chides Amedco for even addressing the sufficiency of the evidence supporting the jury's verdict at trial, explaining that that issue "is not directly appealed." (Watson Reply Br. at 2; see also id. at 11 n. 5 & 24.) Watson instead affirms that the "sole issue on this appeal is whether Amedco gave an inadequate response as a matter of law to Watson's prima facie case." (Watson

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Br. at 12.) Yet the response at issue is not the company's response at trial, but its response to Watson's prima facie case on summary judgment. (Id.) 2 Thus, although the district court conducted a full trial on the merits in which a jury found that Watson's age was not a determining factor in his discharge, Watson now asks that we reverse that verdict and enter judgment in his favor because the district court should have granted his motion for summary judgment prior to trial. For the reasons that follow, we must decline his request.


As a general rule, the denial of a motion for summary judgment is not subject to review once the district court has conducted a full trial on the merits of a claim. See EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 353 n. 55 (7th Cir.1988); Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1358 (9th Cir.1987); see also generally Annotation, Reviewability of Order Denying Motion for Summary Judgment, 15 A.L.R.3d 899, 922 (1967 & Supp.1993). The denial of summary judgment is not appealable when entered as an interlocutory order (Switzerland Cheese Ass'n, Inc. v. E. Horne's Mkt., Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966); Sears, Roebuck, 839 F.2d at 353 n. 55; Locricchio, 833 F.2d at 1358), and after trial, whether or not summary judgment should have been granted generally becomes moot. A trial court's task on summary judgment is specific and limited--"to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994). In denying such a motion, the court "decides only one thing--that the case should go to trial;" that denial "does not settle or even tentatively decide anything about the merits of the claim." Switzerland Cheese, 385 U.S. at 25, 87 S.Ct. at 195; see also Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573 (Fed.Cir.1986), cert. dismissed, 479 U.S. 1072, 107 S.Ct. 1262, 94 L.Ed.2d 124 (1987). For this reason, the overwhelming majority of reviewing courts have held that they need not consider the propriety of an order denying summary judgment once there has been a full trial on the merits below. See, e.g., Black v. J.I. Case Co., 22 F.3d 568, 570-71 (5th Cir.1994); Johnson Int'l Co. v. Jackson Nat'l Life Ins. Co., 19 F.3d 431, 434 (8th Cir.1994); Lama v. Borras, 16 F.3d 473, 476 n. 5 (1st Cir.1994); Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1250-51 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1417, 122 L.Ed.2d 787 (1993); Bottineau Farmers Elevator v. Woodward-Clyde Consultants, 963 F.2d 1064, 1068 n. 5 (8th Cir.1992) ("Denial of summary judgment is not properly reviewable on appeal from a final judgment entered after a full trial on the merits"); Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir.1990) ("where summary judgment is denied and the movant subsequently loses after a...

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