Fink v. Western Elec. Co.
| Decision Date | 19 May 1983 |
| Docket Number | 82-1272,Nos. 82-1214,s. 82-1214 |
| Citation | 708 F.2d 909 |
| Parties | 31 Fair Empl.Prac.Cas. 1299, 32 Empl. Prac. Dec. P 33,619 Gerald E. FINK, Appellee, v. WESTERN ELECTRIC COMPANY, Appellant. Gerald E. FINK, Appellant, v. WESTERN ELECTRIC COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
George R. Hodges, Charlotte, N.C. (Moore & Van Allen, Charlotte, N.C., Robert W Benson, Greensboro, N.C., on brief), for appellant in 82-1214, and for appellee in 82-1272.
David C. Pishko, Winston-Salem, N.C. (Pfefferkorn & Cooley, P.A., William G. Pfefferkorn, Winston-Salem, N.C., on brief), for appellee in 82-1214 and for appellant in 82-1272.
Before RUSSELL, WIDENER and SPROUSE, Circuit Judges.
The plaintiff in this action seeks recovery of damages for alleged age discrimination on the part of the defendant under the Age Discrimination in Employment Act of 1967 (ADEA). 29 U.S.C. Sec. 621, et seq. After discovery, the cause came on for jury trial. Both at the conclusion of plaintiff's evidence and at the close of all the evidence, the defendant moved for a directed verdict on the ground of insufficiency of the evidence. The motions were denied. After submission of the cause, with appropriate interrogatories, the jury returned its verdict, finding that the defendant had violated the Act in discharging the plaintiff and that such violation was wilful. It awarded plaintiff actual damages in the amount of $64,139. Judgment for actual damages was entered in accordance with the jury's verdict and the district court fixed the award of liquidated damages under the Act as "nothing." 1
The defendant thereafter filed a timely motion for judgment notwithstanding the jury's verdict and the plaintiff moved at the same time to amend the judgment to provide for an award of liquidated damages and for reinstatement of the plaintiff, with restoration of pension benefits. The district court denied both motions. It reserved for later determination a motion of the plaintiff for an allowance of attorneys' fees but provided in connection with the request for liquidated damages that, if on appeal it should be held that the district court was without discretion to fix liquidated damages at "nothing," a new trial on the issue of wilfulness would be granted. Both parties have appealed. We reverse, holding that the motions of the defendant for a directed verdict should have been granted. Such decision makes unnecessary consideration of plaintiff's appeal.
The defendant in this action, a corporate subsidiary of the American Telephone and Telegraph Company (AT & T), is engaged in research and manufacturing, primarily in the electronic or telephone field. Sometime prior to 1967 it had undertaken under a contract with the Department of Defense to design a defensive anti-ballistic missile system. The Department determined in 1967 to construct and deploy such system and the defendant was selected by the Department as the primary contractor for what was referred to as the Safeguard Anti-Ballistic Missile System (ABM). After being awarded the contract, the defendant entered into a number of substantial subcontracts with, among others, General Electric Company, Raytheon and Martin-Marietta. The subcontract with Martin-Marietta, with which this proceeding is concerned, contemplated the construction of that part of the system known as the Sprint missile at its plant in Orlando, Florida. While the actual construction of the Sprint Missile was committed under the subcontract to Martin-Marietta, the defendant as the primary contractor had the responsibility of following both technically and administratively Martin-Marietta's performance under the subcontract. To perform this function the defendant assigned administrative and engineering personnel to the Martin-Marietta plant. This personnel, housed in the facilities of Martin-Marietta, operated under the over-all supervision of the defendant's Project's headquarters at Guilford Center in Greensboro North Carolina. 2 One of its senior engineers assigned to the Martin-Marietta project by the defendant in 1967 was the plaintiff.
While work under the Project progressed, negotiations were begun between Soviet Russia and the United States for arms limitations. The employees on the Safeguard Project, including those in Orlando, knew of these negotiations and it is freely conceded that they recognized that the continuance of the Project and consequently their continued employment would be affected by the results of such negotiations. As one of plaintiff's fellow employees and witnesses put it, "we [referring to himself and the other employees on the project] were aware of the ramifications of [the negotiations]" and knew that, if a treaty were signed, it "meant the end of the Safeguard program because that was part of the negotiations on SALT I." In late 1972, SALT I was signed. With that news, the employees involved with the Safeguard program understood without being expressly told by the defendant that, as one of plaintiff's co-workers-witnesses testified they "had to find a new home, a new job" and "[p]lacement was on the minds of everyone [at the Project] at that time."
Before the end of 1972, as the employees on the project apprehended, the contract for Safeguard was cancelled by the Government and the defendant was ordered expeditiously to phase out the work. One of the difficult problems caused by the cancellation was the need to terminate all the employees on the project. The defendant immediately began to formulate plans to provide assistance to the Safeguard employees in securing other jobs, if possible, with other Bell companies. To perform this function it created two Groups or Committees and assigned to each adequate personnel to perform their respective functions.
One of these Groups was known as the Engineering Personnel Relations Group (ERP Group). This ERP Group had responsibility for two specific tasks. First, it was required to visit the various facilities in all the Bell companies. The purpose of such visits was to acquaint the responsible personnel officers in those other Bell companies with the availability of the Safeguard employees for consideration for any future job vacancies which such companies might have and to promote consideration of such employees for vacancies that might develop. The Group also arranged, in connection with such visits, to receive from these companies prompt notification of any vacancies that might be expected in their organizations, with description of the qualifications required in filling such vacancies as well as information on the salary range for the job. As notifications of such impending vacancies were received from these other companies, the Group was charged with the duty of providing lists (known as JBIs) of these vacancies, with appropriate identifications of the duties, title, required qualifications and pay levels of the job vacancies to be filled. These JBIs were to be distributed to each Safeguard facility and one of the Safeguard employees at each such facility or operation was designated to "keep this job book up-to-date, to file the new [job vacancies], and to remove those that had been filled." At the Martin-Marietta plant, the employee to whom this responsibility was later committed was the plaintiff's witness, Conilogue. 3 The purpose of securing this information and incorporating it in listings made available at each facility having Safeguard employees was, as explained by the head of the Group, "[t]o make every technical supervisor and employee within the Safeguard Program aware of every single possible job opening that we could locate anywhere in the Bell System."
At the same time that it was setting up this procedure for identifying, and for making available information relating to all impending job vacancies in the Bell System, the Group was expected to take steps to acquaint the employees of the procedure to be followed by Safeguard employees in applying for these vacancies and to invite their use of such procedures.
The other Group created by the defendant, known as the Technical Employee Placement Committee (TEPC), had the responsibility of reviewing the record of every employee about three months before the date finally fixed for his actual termination under the planned phasing-out of the operation in order to determine whether, on the basis of his employment record, particularly his length of service and performance rating, there was within the defendant's own defense operations any other job for which the employee was qualified and to which he would be entitled to "bump" an incumbent employee under the defendant's employee procedures. In carrying out this task, the Committee sought to classify all the employees to be terminated in four categories, classified in relation to length of service and job performance. Those found in the classifications to be but "marginal" in performance were treated as terminable in accordance with the established schedule for employee terminations in the phasing-out of the project. The others were considered on the basis of their standing in their respective classification, both on the basis of length of service and on job performance ratings.
As soon as the EPR Group was constituted, it arranged to bring to the attention of all Safeguard employees the functions of the Group and to invite their cooperation and assistance. In line with this plan, Chesson, who was the Engineering Personnel Relations department chief on the Safeguard project, visited the Martin-Marietta facility "in the fall of 1972, probably October, November time frame" and interviewed all the Safeguard employees at that facility. He alerted these employees not only to the purposes of the Group but he also discussed with each employee the latter's own employment resume, qualifications and job preferences or interests. He explained to them the procedure...
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