Syvock v. Milwaukee Boiler Mfg. Co., Inc.

• Decision Date: 24 December 1981
• Docket Number: Nos. 80-2851,81-1022,s. 80-2851
• Citation: 665 F.2d 149
• Parties: 27 Fair Empl.Prac.Cas. 610, 27 Empl. Prac. Dec. P 32,255 Roman P. SYVOCK, Sr., Plaintiff-Appellant, Cross-Appellee, v. MILWAUKEE BOILER MANUFACTURING CO., INC., Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 149

665 F.2d 149

27 Fair Empl.Prac.Cas. 610,

27 Empl. Prac. Dec. P 32,255

Roman P. SYVOCK, Sr., Plaintiff-Appellant, Cross-Appellee, v. MILWAUKEE BOILER MANUFACTURING CO., INC. Defendant-Appellee, Cross-Appellant.

Nos. 80-2851, 81-1022.

United States Court of Appeals Seventh Circuit.

Argued May 15, 1981.

Decided Nov. 24, 1981.

As Corrected Dec. 24, 1981.

Arthur Heitzer, Milwaukee, Wis., for plaintiff-appellant, cross-appellee.

Willard P. Techmeier, Milwaukee, Wis., for defendant-appellee, cross-appellant.

Before FAIRCHILD and PELL, Circuit Judges, and LARSON, Senior District Judge. ^*

PELL, Circuit Judge.

The plaintiff, Roman Syvock (Syvock), sued his former employer, the Milwaukee Boiler Manufacturing Company (Milwaukee Boiler), for laying off and failing to rehire him in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976) (Act or ADEA). The liability phase of the case was tried to a jury which found that the employer had discriminated against Syvock and that its discrimination was willful. A finding of willfulness entitles a plaintiff to liquidated damages under section 7(b) of the Act, 29 U.S.C. § 626(b) (1976), which essentially doubles the award for backpay and benefits. Before commencing the damages phase of the trial, the judge responded to the defendant's motion for a judgment notwithstanding the verdict, or alternatively, for a new trial. The court upheld the jury's finding of discrimination, but withheld a decision on the willfulness finding until after the damages portion of the case was tried. After the bench trial on damages, the judge granted a judgment notwithstanding the verdict to the defendant on the jury's finding of willfulness. This prevented a doubling of damages. At the same time, the court determined that Syvock had failed to mitigate his damages, and accordingly reduced its damage calculations from $21,716.97 to $3,750.00. Subsequently, the court awarded $3,850 in attorney's fees although the plaintiff had requested over $30,000.

The plaintiff appeals the trial court's grant of judgment notwithstanding the verdict on the willfulness issue, its reduction of backpay, and the amount of attorney's fees awarded. Milwaukee Boiler cross-appeals the judge's denial of its motion for judgment notwithstanding the verdict or a new trial on the jury's finding of liability in the first instance.

I. Facts Adduced at Trial

Syvock was hired by the defendant company as a welder in 1974 and was laid off, ostensibly for lack of work, approximately two years later at the age of forty-five.

The parties' proof at trial as to Syvock's usefulness to the company was conflicting. To the extent that any consensus emerges from the testimony, Syvock was an above-average welder but not a particularly good fitter, ¹ he was less industrious and, as a result, less productive than some of the other employees, and he was less versatile than some of the other workers.

For example, James Oberhofer, a night supervisor, testified to his recommendation that Syvock be laid off due to lack of usefulness. Oberhofer evaluated the plaintiff's productivity as low and recounted Syvock's refusal to perform a particular job which the plaintiff perceived as dangerous. The witness also testified that Syvock was not qualified to perform one other specific task available during the work slowdown. Oberhofer felt that Syvock generally avoided work: "(W)hen he welded, he was welding all right but ... he was a worker that would be gone quite a bit, would be to me dodging work."

One temporary supervisor testified, by contrast, that Syvock was one of Milwaukee Boiler's better workers, and was far more accomplished than other welders retained when the plaintiff was laid off.

Gerhard Sell, who supervised the plaintiff for most of the balance of Syvock's employment with Milwaukee Boiler, had consistently rated Syvock's performance as at least "fair," and often "good," and had approved raises for Syvock on at least three occasions. Sell subsequently indicated that he could not explain these earlier positive evaluations in light of his deposition and trial testimony that Syvock's performance was below average and his production was poor.

The plaintiff presented evidence that other younger, less-accomplished welders who had not been employed by Milwaukee Boiler as long as Syvock ² were retained when Syvock was laid off even though several had disciplinary reprimands in their files and one had actually received a three-day suspension for absenteeism. Moreover, two younger welders, Reynolds and Cobb, who were laid off at the same time as the plaintiff, but who had received lesser overall performance ratings on their final layoff-dated evaluations, were subsequently recalled although Syvock was never rehired. The evidence did, however, suggest several possible nondiscriminatory reasons for their recall. Fisher testified that Reynolds and Cobb were rehired because of their versatility. He represented that those employees were certified to perform "procedure 13," but that Syvock was not. The company's certification log books did not list Syvock as being qualified on "procedure 13," although the plaintiff testified that he had been certified. Fisher also recalled that Cobb and Reynolds persistently requested reemployment. Syvock, on the other hand, did not ask to be rehired until January, 1977, eight months after his termination. The plaintiff did not request reemployment with Milwaukee Boiler at any time subsequent to January, 1977. Finally, both Syvock and a former coworker, Maurice Bates, expressed the belief that Reynolds and Cobb had considered suing Milwaukee Boiler for race discrimination which may have influenced the company's decision to recall them, but not Syvock.

When the company's workload began increasing again in the fall of 1976, the defendant hired seven new young welders, most of whom were poorly qualified and either quit or were terminated within a short time. Robert Hajduk, a former employee who was considerably younger than Syvock, however, was laid off for lack of work in February of 1977 and never rehired. Analogously, Royce Rhode and Matt Kupiecki, welders retained by the company after Syvock's discharge, were older than the plaintiff, but as Syvock demonstrated, they were also more senior. One of Syvock's supervisors, Gerhard Sell, also older than the plaintiff, was still employed by the company at the time of trial. Yet another welder older than Syvock, Mr. Paddock, had been laid off before the plaintiff, but was rehired in August 1976 after Syvock's discharge. Both Syvock and Paddock had been hired in 1974.

Although the plaintiff's layoff notice indicated by its terms that it was "permanent," and suggested that the recipient seek other employment, the plaintiff indicated that he regarded the layoff as only temporary. Perhaps based on this belief, Syvock did not vigorously search for work for approximately three weeks after his termination. Syvock testified that he subsequently undertook a much more aggressive search by reporting to the Wisconsin Job Service one to three times a week, screening newspapers, and personally visiting numerous employers. The plaintiff represented that from June, 1976, until he gained employment in 1977, ³ he spent approximately twenty-four hours per week searching for work. The defendant did not show that Syvock had declined any job offers, but its witness, an employee from the Wisconsin Job Service, testified that in 1977 there were approximately 275 job openings for the category of "welder and flame cutter" in the Milwaukee metropolitan area. The plaintiff's job opportunities may have been limited somewhat, however, since he did not own an automobile during his period of unemployment, and he possessed a criminal conviction record.

II. The Finding of Discrimination

The standard for determining whether a judgment notwithstanding the verdict (JNOV) should be granted is whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is insufficient to support the verdict when viewed in the light most favorable to the party against whom the motion is directed. Appleman v. United States, 338 F.2d 729, 730 (7th Cir. 1964), cert. denied, 380 U.S. 956, 85 S.Ct. 1090, 13 L.Ed.2d 972 (1965). Any conflicts in the evidence must be resolved in favor of the resisting party, and every permissible inference favoring that party which can be drawn from the evidence must be drawn. Wisconsin Liquor Co. v. Park & Tilford Distillers Corp., 267 F.2d 928, 930 n.1 (7th Cir. 1959). An appellate court applies the same standard as the trial court when reviewing the trial judge's ruling on a JNOV motion. C-Suzanne Beauty Salon, Ltd. v. General Insurance Co. of America, 574 F.2d 106, 112 n.10 (2d Cir. 1978).

We reject the defendant's argument that the district judge erred by not granting a JNOV on the issue of liability. Although the plaintiff's showing of age discrimination was not strong, especially in view of the conflicting nature of the evidence, the standards for granting the motion are stringent. After having thoroughly reviewed the record, we are satisfied that there was sufficient evidence from which a reasonable jury could find that Milwaukee Boiler discriminated against the plaintiff by reason of age. The same is not true, however, with respect to the jury's finding of willfulness.

III. The Finding of Willfulness

A. The Appropriate Standard

The ADEA is enforced in accordance with the powers, remedies, and procedures provided under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219 (1976), with certain specified exceptions. In contrast to the automatic doubling of damages for violations of the FLSA, 29 U.S.C. § 216(b), ⁴ section 7(b) of the ADEA, 29 U.S.C. § 626(b) (1976), allows liquidated damages only in the event of willful violations of the Act. If such liquidated damages are allowed, they are equivalent to...