Abuan v. Level 3 Communications, Inc.

Citation353 F.3d 1158
Decision Date30 December 2003
Docket NumberNo. 02-1015.,No. 01-1471.,No. 02-1029.,01-1471.,02-1015.,02-1029.
PartiesJohn ABUAN, Plaintiff-Appellee/Cross-Appellant, v. LEVEL 3 COMMUNICATIONS, INC., Defendant-Appellant/Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Edward P. Lazarus (William A. Norris, L. Rachel Helyar and Jessica M. Weisel, with him on the briefs), of Akin, Gump, Strauss, Hauer & Feld, L.L.P., for Defendant-Appellant/Cross-Appellee, Level 3 Communications, Inc.

John R. Olsen, Olsen & Brown, L.L.C., Niwot, CO, for Plaintiff-Appellee/Cross-Appellant, John Abuan.

Before SEYMOUR, Circuit Judge, HOLLOWAY, Senior Circuit Judge, and EBEL, Circuit Judge.

SEYMOUR, Circuit Judge.

John Abuan brought this employment discrimination suit under 42 U.S.C. §§ 2000e, et seq. (Title VII), and the Age Discrimination in Employment Act, 29 U.S.C. §§ 623, et seq. (ADEA) against his former employer, Level 3 Communications, Inc. Mr. Abuan, who is of Hispanic and Filipino heritage and was over fifty years of age at the time of the alleged discriminatory acts, asserted that he was subjected to national origin discrimination and retaliation in violation of Title VII and age discrimination in violation of the ADEA. The case was tried to a jury, which found in his favor and awarded back pay along with compensatory and punitive damages. On Level 3's post-trial motion, the district court reduced the back pay and damages but awarded front pay. Both sides appeal. We affirm in part, reverse in part, and remand for further proceedings on the amount of front pay and appellate attorney's fees.

I BACKGROUND

In reviewing a jury decision, "we view the record in the light most favorable to the prevailing party and give that party the benefit of all reasonable inferences to be drawn from the evidence." Webco Indus., Inc. v. Thermatool Corp., 278 F.3d 1120, 1123 (10th Cir.2002). Read in that light, the record reflects the following facts.

Level 3 is a telecommunications company that began operations around the time Mr. Abuan commenced working there on December 16, 1997. Mr. Abuan had previously been employed with Pacific Bell for over twenty-five years, acquiring experience in telecommunications, strategic and practical planning, project management, and network and data center operations. He was one of the first people hired at Level 3. He was given the position of team leader and project manager directing the development of the NetExpert network management system. His compensation was determined by his band level, a classification used by the company to determine salary range, bonus percentage, and the ability to acquire stock in the company. Mr. Abuan was placed in Band 5, and his initial salary was $100,000 a year. He was also eligible for a bonus of twenty-five percent upon achievement of target goals and stock options that would become valuable only if Level 3's capital stock outperformed Standard & Poor's 500 stock index.

Mr. Abuan presented testimony at trial from other employees who had worked with him on the NetExpert project and who had the technical ability to evaluate his performance. These witnesses testified that Mr. Abuan's work was exemplary, that there had never been any criticism of the project, and that the project had been implemented unusually quickly due in large part to the work of Mr. Abuan. The project was scheduled for completion in September 1998, and Mr. Abuan presented evidence that all goals were met on schedule. At the end of 1998, Mr. Abuan's performance was rated as completely satisfactory, resulting in a large salary increase and a twenty-five percent bonus. Mike Jones, the company's Chief Information Officer, reviewed and praised the team's work in front of the entire information technology department, describing NetExpert as an exemplar in information technology.

In March 1999, Mr. Abuan was informed by Rob Hagens, his new supervisor, that he was being removed from his position as team leader of the NetExpert project and given the lower title of individual contributor on a new and different project. Mr. Abuan presented evidence that his demotion under these circumstances was unusual and possibly unique. The managers responsible for making the decision to demote and move Mr. Abuan originally told him and others who questioned the decision that it was not performance-related.

Witnesses testified that Mr. Abuan's duties on NetExpert had to be divided up because no one person was able to replace him. The NetExpert position was originally filled by Tom Hoople and Jonathan Mitchell, both of whom had credentials inferior to those of Mr. Abuan. Mr. Mitchell had previously been Mr. Abuan's peer and was then thirty-three years of age, while Mr. Hoople, who had been working under Mr. Abuan, was thirty-four. The workforce at Level 3 was primarily under forty. One witness stated: "It is a young company [with] ... a lot of kids, a lot of smart kids running around here with not a lot of senior direction." Supp.App. vol. II, at 340-41.

After Mr. Abuan was assigned to his new position, he was excluded from meetings at which his presence was necessary to enable him to perform his job. When he questioned his immediate supervisor, Mr. Mitchell, about the situation, Mr. Mitchell took his duties away from him without explanation and suggested that Mr. Abuan begin looking for another job in the company. In May 1999, Mr. Hagens informed Mr. Abuan that as a result of his demotion he would be rebanded, and that his salary, bonus, and stock options could be reduced. When Mr. Abuan asked if the issue was his performance, Mr. Hagens assured him that it was not and that he was valuable to the company. Mr. Abuan subsequently discovered that while his salary remained the same, his stock options and bonus percentage had been reduced.

At this point Mr. Abuan decided that if perceived problems with his performance were not the reason for his demotion and the reduction in his compensation, discrimination may have played a part in his treatment. Accordingly, he first sent a memo to the Human Resources department on July 2, 1999, stating his belief that he had been treated differently and requesting that his treatment be investigated. He followed up with a memo on July 21 asserting that he had been the victim of discrimination and requesting an investigation. Mr. Abuan testified that the news of his internal discrimination complaint, which was supposed to be kept confidential by Human Resources personnel, was disseminated throughout the company within a week. Mr. Hagens testified that he received a copy of the discrimination complaint the third week in July and also heard about it from Human Resources. Mr. Hagens discussed the matter with a variety of individuals. They included: Jack Waters, to whom Mr. Hagens answered; Mr. Mitchell, who answered to Mr. Hagens; Douglas Leas, who was a peer of Mr. Hagens; various people in Human Resources; Dan Caruso, the company vice president over Mr. Abuan's unit and Brent Bourne, who subsequently became Mr. Abuan's supervisor. In conversations with Mr. Leas, Darrell Gallo of Human Resources, Mr. Mitchell, and Mr. Waters, Mr. Hagens criticized the fact that Mr. Abuan had filed the complaint.

Mr. Abuan never received a report from Human Resources on the results of the investigation into his discrimination complaint. Mr. Gallo, who was in charge of the investigation, testified that he spoke with Level 3 Vice President Van MacAtee, who stated that Mr. Abuan's performance was the reason for his removal as team leader of the NetExpert project. However, Mr. Gallo did not speak with any of the people whose names were provided by Mr. Abuan and who were in a position to evaluate his work on the project. Moreover, hand-written notes of an interview Mr. Gallo had with Mr. Hagens on July 26 indicate that Mr. Hagens told Mr. Gallo the NetExpert problems were "nothing regarding John's perf." Aplt. Add. of Ex., doc. 13, at 40.

On July 14, Mr. Abuan received a memo directing him and other company employees to report to the provisioning department for a temporary assignment filling orders to activate service. It is undisputed that the provisioning department needed help in reducing its backlog and in bringing in the revenue generated by service activation, and that other employees with experience comparable to that of Mr. Abuan were also sent to help out. Mr. Abuan's first supervisor in provisioning, Shelli Hurd, who managed Mr. Abuan's work for three or four weeks, testified that after the backlog problem had been remedied, she spoke to the senior director, Deniece Stacy, about returning Mr. Abuan to his permanent position. Ms. Hurd suggested he should be the first to return because he had more experience than others and was higher up in the company. Ms. Stacy said no. When Ms. Hurd asked why, Ms. Stacy got very angry with her and said it was none of her business. Ms. Hurd also told Mr. Hagens that Mr. Abuan should go back to his original job. Ms. Stacy subsequently transferred Mr. Abuan to a different manager, Christi Dalitz, who assigned him to filing. Mr. Abuan remained in the provisioning department and was one of the last employees to be returned to his permanent position. Shortly after Mr. Abuan left provisioning, the contents of the file cabinets he had been filling were loaded into bags and shredded.

Mr. Abuan also presented the testimony of Mr. Leas, who developed a high opinion of Mr. Abuan based on Mr. Abuan's work as the NetExpert team leader. Mr. Leas testified that the vice president to whom Mr. Abuan originally reported as team leader, Paul Roberts, also had a very high opinion of Mr. Abuan and the two had discussed Mr. Abuan's demotion. Mr. Roberts, who left the company, told Mr. Leas that a good part of the reason he was resigning was the unethical treatment of Mr. Abuan....

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