Downes v. Volkswagen of America, Inc.

• Decision Date: 07 December 1993
• Docket Number: No. 93-3758,93-3758
• Citation: 41 F.3d 1132
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 11 Robert J. DOWNES, Plaintiff-Appellee, v. VOLKSWAGEN OF AMERICA, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1132

41 F.3d 1132

69 Fair Empl.Prac.Cas. (BNA) 11

Robert J. DOWNES, Plaintiff-Appellee, v. VOLKSWAGEN OF AMERICA, INC., Defendant-Appellant.

No. 93-3758.

United States Court of Appeals Seventh Circuit.

Submitted Dec. 7, 1993 ^*.

Decided Dec. 2, 1994.

L. Steven Platt, Arnold & Kadjan, Chicago, IL, for plaintiff-appellee.

Linzey D. Jones, Jr., Scott E. Gross, Sidley & Austin, John W. Norris, Byrdges, Riseborough, Morris, Franke & Miller, Chicago, IL, Steven C. Berry, Franklin, Bigler, Berry & Johnston, Troy, MI, for defendant-appellant.

Before WOOD, Jr., CUDAHY and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

This appeal arises from Downes' suit against his former employer, Volkswagen of America (VW), alleging willful age discrimination and retaliation under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634. The district court denied VW's motion for summary judgment, holding that, viewing the facts in a light most favorable to Downes, the intake questionnaire Downes filed with the Equal Employment Opportunity Commission (EEOC) satisfied ADEA's charge-filing requirement. ¹ Subsequently, despite the fact that a jury determined that VW had not acted willfully, it found in favor of Downes and awarded him back pay of $108,500, an amount roughly equivalent to Downes' salary and benefits for one year beyond his severance pay period. In addition, the court awarded three years' front pay, prejudgment interest and reimbursement for certain costs (including attorney travel expenses). The court subsequently denied VW's motion for relief from judgment, j.n.o.v. or a new trial. We affirm in part and reverse in part.

I.

Downes, a sixty-year-old white male, worked for VW for over 25 years, holding various sales and management positions and ascending eventually to the rank of Midwest Zone Manager. During his tenure, Downes received substantial pay raises, regular performance bonuses and above average performance evaluations. The record reflects that Downes never received any negative feedback on his performance prior to June of 1989. On June 22, 1989, however, Downes was informed by VW vice president Bill Young that he would be terminated and replaced by an employee fifteen years younger. The terms of the termination made it effective one year later, on July 1, 1990, at which time Downes' one year of severance pay would commence. Until then, Downes could remain at VW to work as a consultant on "special projects."

Despite VW's policy of giving a written explanation of the grounds for an employee's termination, Young did not, according to Downes, offer any specific reasons why VW decided to demote and terminate him. Tr. 116-17, 456-57, 459-62. In particular, Downes testified that he was not, at the time he was informed of VW's move, also told that he was being terminated as part of any workforce reduction. Tr. 204. Moreover, Young did not respond to Downes' suggestion that VW wanted to terminate him because of his age. Tr. 117. After repeated requests, however, Downes did receive a written explanation for VW's actions, which purportedly resulted from "a corporate-wide reduction in force and a pressing need to improve performance in the field to insure [VW's] continued presence in the automotive marketplace." Pl's Ex. 151. But this general explanation came nearly a year after Downes' demotion and VW offered no further written explanation until this suit was commenced. Testimony by both Downes and Young suggests that the standards used in deciding to terminate Downes varied from those VW historically had used and, in any event, there is no evidence that the termination standards were ever communicated to Downes prior to June of 1989. Tr. 159-69, 170, 395-96, 404-05, 485-87.

During the months following Downes' demotion and notice of termination, he spoke frequently with Young about continuing with the company. Tr. 127-28, 131-32. As the district court noted, the general tone of these conversations focused on the reasons for the removal of Downes as Midwest Zone Manager, his new responsibilities as a consultant and the possibility of extending his employment with VW. Downes testified that Young told him that Young was quite certain that he could have VW extend Downes' employment. Tr. 131. Ultimately, however, Young informed Downes that Guy Mollet, a VW personnel director, had disapproved the request. Tr. 131, 425-26. Downes then contacted Mollet and met with him in April of 1990 to discuss the reasons for his termination, at which time Mollet commented that "[VW] is a young company." Tr. 132. Downes persuaded Mollet to reconsider but, on April 11, 1990, Mollet told Downes that VW would not extend his employment. Id. at 133. VW's workforce reduction and restructuring ultimately led to the elimination of three Zone Manager positions. However, the record (1) indicates that Young did not know when precisely, the three Zone Manager positions were eliminated, ROA Doc. 150--Weidman at 71; (2) includes evidence that at least one of the three zone managers was not fired when his zone was eliminated, Joint Ex. 15; and (3) includes evidence that Downes' old position of Midwest Zone Manager continued in existence through the time of trial, Tr. 276-78, 288, 294, 297; ROA Doc. 150--Weidman at 5, 12, 73.

Downes contends, based in part on Mollet's "young company" remark and the comments of another personnel director, that VW terminated him because of his age. ² VW claims that Young did not involve Mollet and the other personnel director in the decision to terminate Downes, but there appears to be substantial evidence to the contrary. ³ Moreover, VW contends that application of the new performance standards indicated that Downes had an aloof and dictatorial management style, which posed a barrier to VW's new, customer-oriented approach to business.

In April 17, 1990, Downes completed a form labelled "Intake Questionnaire" for the EEOC. He told the agency that he had asked VW for an additional year of paid employment but there is some dispute as to whether Downes told the intake officer that he would return to file a "Charge of Discrimination" form if VW denied this request. When his negotiations for one extra year of employment proved unsuccessful, Downes returned to the EEOC, on July 26, 1990, to file an age discrimination charge form. The EEOC then notified VW that Downes had filed an age discrimination charge. The charge eventually formed the basis for a three-count complaint filed in district court. The complaint alleged that VW discriminated against Downes when he was relieved of his duties as Midwest Zone Manager (Count I); that VW retaliated against Downes for filing a discrimination charge in September 1990 when it ordered him to vacate his office (Count II); and that VW's conduct was willful (Count III). Other facts will be related as the need arises.

II.

A. Denial of Summary Judgment

VW based its summary judgment motion entirely on the contention that, since Downes did not file an age discrimination charge form until July of 1990, he failed to file a "charge" of age discrimination within the 300-day ADEA limit. See 29 U.S.C. Sec. 626(d)(2). The trial court denied that motion because it determined that Downes' EEOC intake questionnaire constituted an age discrimination charge. ⁴ On appeal, VW contends that the court erred both in denying the motion and by "precluding" it from presenting evidence that Downes' questionnaire did not constitute a charge.

VW's argument that it was "precluded" from presenting evidence is without merit. The district court denied VW's motion for summary judgment, correctly "reading the facts in a light most favorable to the party opposing summary judgment." Br. Aplt.-App. A at 9. That decision did not necessarily prevent VW from presenting evidence at trial. However, despite VW's assertion that it possessed evidence relevant to whether Downes' questionnaire constituted a charge, it made no effective effort to present this evidence to the trier of fact. ⁵ Because VW neither attempted to present evidence, nor objected at an appropriate time to any exclusion of evidence on this issue, it has waived its right to raise this issue on appeal. See Heller v. Equitable Life Assurance Society of the United States, 833 F.2d 1253, 1261 (7th Cir.1987) ("if a party fails to press an argument before the district court, he waives the right to present that argument on appeal").

VW also contends that the district court erred as a matter of law in denying its motion for summary judgment. This court reviews denials of summary judgment de novo. Martin v. Garman Construction Co., 945 F.2d 1000, 1003 (7th Cir.1991). We have declined to interpret the charge-filing requirement of Sec. 626(d)(2) in a way that would hold persons to elaborate pleading requirements or that would let the form of the purported charge prevail over its substance. Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 542-44 (7th Cir.1988) (holding that intake questionnaire nonetheless constituted a "charge" under ADEA); see also Philbin v. General Elec. Capital Auto Lease, Inc., 929 F.2d 321, 324-25 (7th Cir.1991). Rather, we have construed Sec. 626(d)(2) so as to effect the broad remedial purposes of the Act. "The purpose of the charge-filing requirement is to provide the EEOC with sufficient information to notify an employer that it has been charged with discrimination and to provide the EEOC with the opportunity to investigate the alleged unlawful practice as well as to provide the EEOC with the opportunity to eliminate any unlawful practice through informal conciliation." Steffen, 859 F.2d at 542. In order to constitute a charge, notice to the EEOC must be of a kind that would convince a reasonable person that the plaintiff manifested an intent to activate the Act's machinery. Id. In assessing whether the plaintiff manifested such intent, the district court may consider, inter alia, whether the questionnaire...