E.E.O.C. v. Prudential Federal Sav. and Loan Ass'n

• Citation: 763 F.2d 1166
• Decision Date: 28 May 1985
• Docket Number: 83-1073,Nos. 82-2444,s. 82-2444
• Parties: 37 Fair Empl.Prac.Cas. 1691, 37 Empl. Prac. Dec. P 35,275 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. PRUDENTIAL FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1166

763 F.2d 1166

37 Fair Empl.Prac.Cas. 1691,

37 Empl. Prac. Dec. P 35,275

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. PRUDENTIAL FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellant.

Nos. 82-2444, 83-1073.

United States Court of Appeals, Tenth Circuit.

May 28, 1985.

Clark Waddoups, Salt Lake City, Utah (Stephen G. Crockett and Steven D. Smith, Salt Lake City, Utah, with him on the briefs), of Rooker, Larsen, Kimball & Parr, Salt Lake City, Utah, for defendant-appellant.

Jeffrey C. Bannon, Atty. (David L. Slate, Gen. Counsel, Philip B. Sklover, Associate Gen. Counsel, and Vella M. Fink, Asst. Gen. Counsel, with him on the briefs; Johnny J. Butler, Acting Gen. Counsel, Vella M. Fink, Asst. Gen. Counsel, and Stephen P. O'Rourke, Atty., appearing on supplemental brief on remand), E.E.O.C., Washington, D.C., for plaintiff-appellee.

Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

The Equal Employment Opportunity Commission (EEOC) brought this action against Prudential Federal Savings and Loan (Prudential) alleging that Prudential violated the Age Discrimination in Employment Act (ADEA or the Act), 29 U.S.C. Secs. 621 et seq. (1982), when it discharged six employees and demoted a seventh. The case was tried to a jury, which found that one employee, Douglas Tanner, had been illegally terminated because of his age and awarded him $34,200 in past lost wages and benefits. ¹ The jury found that the violation had not been willful and accordingly did not award liquidated damages. As additional equitable relief, the trial judge granted Tanner $17,000 in lost future retirement and pension benefits in lieu of reinstatement. Both parties appealed. Our initial decision in this case was vacated by the Supreme Court and remanded for reconsideration in light of Trans World Airlines v. Thurston, --- U.S. ----, 105 S.Ct. 613, 83 L.Ed.2d 523. See --- U.S. ----, 105 S.Ct. 896, 83 L.Ed.2d 913. Thurston is expressly considered in Part V infra.

The EEOC contends that the district court erroneously instructed the jury on the meaning of "willful" as used in the section of the ADEA authorizing the award of liquidated damages for willful violations. In its cross-appeal Prudential asserts that: (1) the district court should have dismissed the action because the EEOC failed to conciliate as required by the ADEA; (2) the court erroneously failed to instruct the jury that the EEOC was required to prove pretext; (3) the evidence was insufficient to support the verdict in favor of Tanner; and (4) the court's award of future damages was erroneous. We affirm in part, reverse in part, and remand for further proceedings.

The facts giving rise to this litigation are briefly as follows. In the late 1970's economic conditions had an adverse impact on the operations of the savings and loan industry. In response, Prudential instituted a reduction in force designed to eliminate all non-essential positions and personnel. Douglas Tanner was one of several employees involuntarily terminated under the reduction in force. Tanner was fifty-four when he was discharged, and he had been with Prudential twenty-seven years. At the time of his termination he was an Acquired Property Manager, responsible for foreclosing on defaulted real estate loans and for managing and selling foreclosed properties. After his termination, two or three other employees performed his work along with their own duties. Prudential did not offer Tanner a position elsewhere in the company.

I. CONCILIATION

Prudential vigorously argues on appeal that the EEOC failed to satisfy its statutory This court has recognized that the "ADEA is remedial and humanitarian legislation and should be liberally interpreted to effectuate the congressional purpose of ending age discrimination in employment." Dartt v. Shell Oil Co., 539 F.2d 1256, 1260 (10th Cir.1976), aff'd per curiam by an equally divided court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977). Accordingly, we have refused to dismiss cases where the EEOC failed to exhaust fully its duty to conciliate because to do so would severely hamper enforcement of the ADEA and would be "incompatible with the humanitarian nature of the Act." Sun Oil I, 592 F.2d at 566. We have concluded instead that when the EEOC initially makes a sufficient albeit limited effort to conciliate, the minimal jurisdictional requirement of the Act is satisfied and the action is therefore properly before the court. Id. Once this initial effort is made, "if the district court finds that further conciliation efforts are required the proper course is to stay proceedings until such informal conciliation can be concluded." Id.

                duty to conciliate in good faith and consequently the trial court erred in failing to dismiss the action on this ground.  The ADEA states that "[b]efore instituting any action under this section, the [EEOC] shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion."    29 U.S.C. Sec. 626(b).  This jurisdictional provision embodies "the congressional intent that enforcement be effected wherever possible without resorting to formal litigation."   Marshall v. Sun Oil Co., 592 F.2d 563, 565 (10th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979) (Sun Oil I )
                

Courts have recognized that "[b]ecause conciliation involves at least two parties, we must evaluate one party's efforts with an eye to the conduct of the other party." Marshall v. Sun Oil Co., 605 F.2d 1331, 1335 (5th Cir.1979) (Sun Oil II ); see also Marshall v. Hartford Fire Insurance Co., 78 F.R.D. 97, 103 (D.Conn.1978). Conciliation is thus a flexible and responsive process which necessarily differs from case to case. The EEOC may make a sufficient initial effort without undertaking exhaustive investigations or proving discrimination to the employer's satisfaction, Sun Oil II, 605 F.2d at 1334-35, so long as it makes a sincere and reasonable effort to negotiate by providing the defendant an "adequate opportunity to respond to all charges and negotiate possible settlements." Hartford Fire Insurance Co., 78 F.R.D. at 107.

In this case the EEOC informed Prudential of the identity of the charging parties, the specific allegations of misconduct, and the remedy sought by each party, and on several occasions it invited conciliation. The record reveals a series of overtures by the EEOC to which Prudential made no meaningful response. Prudential obviously was aware both that litigation could follow failure to conciliate and of the requirements of the Act. We conclude that the EEOC's initial effort was sufficient under Sun Oil I, 592 F.2d at 566-67, particularly in view of Prudential's insistent refusal to undertake any significant dialogue, its outright rejection of the EEOC's initial settlement proposals, and its refusal to offer any serious counterproposals. The trial court properly refused to dismiss the action because, under the circumstances, Prudential was given a reasonable opportunity before suit was filed to respond and negotiate.

In line with Sun Oil I, the court exercised its discretion to stay the suit forty-five days to provide the parties an additional opportunity to conduct conciliation. The conciliation proceedings were recorded at Prudential's insistence. The trial court found that the record of these talks was relevant to Prudential's claim that the EEOC had failed initially to negotiate in good faith because this record revealed the pre-filing conciliation in a new light. Based on Prudential's conduct at the recorded meeting, the court observed that the "maneuvering in the correspondence that was

                submitted by Prudential" regarding pretrial conciliation was misleading.  Rec., supp. vol. I, at 19-20.  The court noted "Prudential's almost intransigent resistance to any good faith negotiation and the efforts of the Commission attorney to at least open the door for meaningful conciliation."    Id. at 19.  The court justifiably concluded that Prudential's conduct at this meeting was an accurate reflection of its attitude in the earlier conciliation, and held that Prudential was in no position to object to a lack of good faith conciliation by the EEOC.  We agree with this conclusion
                

II.

THE PROPOSED PRETEXT INSTRUCTION

Prudential requested the court to instruct the jury that if it found Prudential had offered reasonable factors other than age for the termination or demotion of the complaining employees, the jury had to find for Prudential unless it found that the EEOC had proven that Prudential's explanation for the termination or demotion was a pretext for age discrimination. The court refused "on the theory that even though the jury finds that the explanation of financial difficulties and the necessity for reorganization or other explanations were not mere pretext, if they also find that age discrimination was a determinative factor, the jury could not be peremptorily instructed to decide for the defendant." Rec., vol. VIII, at 956.

In reviewing Prudential's allegation of error we must consider the instructions given as a whole. McGrath v. Wallace Murray Corp., 496 F.2d 299, 301 (10th Cir.1974). "[N]o particular form of words is essential if the instruction as a whole conveys the correct statement of the applicable law." Perrell v. Financeamerica Corp., 726 F.2d 654, 656 (10th Cir.1984); see also Blackwell v. Sun Electric Corp., 696 F.2d 1176, 1181 (6th Cir.1983).

In discussing the proper instructions in an ADEA action, we recently stated that

"The essence of the correct formulation of the standard of proof is that it requires the jury to focus on the effect of the factor of age. The jury must understand that it is not enough that age discrimination figure in the decision to demote or discharge; age must 'make a difference' between...