Kier v. Commercial Union Ins. Companies, 86-1319

Decision Date02 February 1987
Docket NumberNo. 86-1319,86-1319
Citation808 F.2d 1254
Parties42 Fair Empl.Prac.Cas. 1127, 41 Empl. Prac. Dec. P 36,684, 22 Fed. R. Evid. Serv. 442 Morton A. KIER, Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE COMPANIES, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Leonard M. Ring, William J. Jovan, Leonard M. Ring & Assoc., Chicago, Ill., for plaintiff-appellant.

Keith C. Hult, Matkov, Griffin, Parson, Salzman & Madoff, Chicago, Ill., Dana S. Connell, for defendant-appellee.

Before BAUER, Chief Judge, WOOD, Circuit Judge, and CAMPBELL, Senior District Judge. *

BAUER, Chief Judge.

The jury returned a verdict for plaintiff in his age discrimination suit, and awarded $77,227.00 against his employer. Plaintiff claimed that his employer violated the Age Discrimination and Employment Act, 29 U.S.C. Sec. 621 et seq. ("ADEA"). The district court found the jury verdict unsupportable and entered judgment for the defendant notwithstanding the verdict. Plaintiff, Morton Kier, appeals. We find that a reasonable jury could not conclude that the defendant had violated ADEA and we therefore affirm the order of the district court.

I.

The decision of a district court judge to enter judgment notwithstanding the verdict must be reviewed de novo. Kunzelman v. Thompson, 799 F.2d 1172, 1179 (7th Cir.1986). We must view all evidence and any reasonable inferences that may be drawn therefrom, in a light most favorable to the party winning the verdict. La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1410 (7th Cir.1984); Syvock v. Milwaukee Boiler Mfg. Co., Inc., 665 F.2d 149, 153 (7th Cir.1981). Accordingly, the facts which follow are presented in a light most favorable to Kier. Ultimately, we must determine whether there was substantial evidence to support the jury verdict. La Montagne, 750 F.2d at 1410.

Morton Kier was hired by the Chicago Office of Commercial Union Insurance Companies ("Commercial") as a staff attorney in 1973; at that time, Kier was 45 years old. The office employed four staff attorneys and one managing attorney. In May of 1981, the managing attorney for the Chicago office left and Commercial began its search for a replacement. On the suggestion of the departing managing attorney, Kier was asked to run the office until a replacement could be found. J. Kenneth Griffin, an assistant vice president, handled the search for a new managing attorney and invited all current staff attorneys, including Kier, to apply. Kier and two other staff attorneys in the Chicago office applied for the position of permanent managing attorney. Only Kier was called in for a second interview.

At trial, Kier presented the testimony of John Milano, an executive of another insurance company, who said he was contacted by an unidentified employment recruiter. The recruiter was searching on behalf of a major Chicago insurance company for a managing attorney who was "40, 45, 50 at most." (Tr. 205). The recruiter never divulged the name of the company, but various circumstantial evidence supported a finding that the recruiter called on behalf of Commercial.

While still apparently under consideration, Kier heard the unfortunate and false rumor that the managing attorney position had been filled. Just prior to hearing the rumor, Kier had received a memo from Joseph Ravich, sent to all managing attorneys, regarding the preparation of a training manual for new attorneys. Acting on the rumor and feeling slighted, Kier testified that he chose the training manual project as a "convenient vehicle" (Tr. 63, 98, 99) to express his disappointment in being passed over for the managing attorney position. He told Ravich that he would not work on the manual, and sent a copy of the letter to J. Kenneth Griffin, who was in charge of hiring a new managing attorney. Approximately one week after sending the letter, Griffin called Kier and told him he was fired. According to Kier, Griffin said, "You believe in rumors, and I can't have a man working for me who believes in rumors or who takes action on the strength of rumors. You are insubordinate, and you are fired." (Tr. 64-65). Kier, in fact, was not fired until two or three months later, after Griffin had secured the agreement of his superiors to fire Kier. Kier testified that he knew that termination might result from his refusal to cooperate in the preparation of the training manual (Tr. 127, 142). In the meantime, Kier had apologized and asked to be retained as a staff attorney. Sometime in November, Griffin told Kier that he would not be fired and that if the new managing attorney requested it, Kier could stay on.

II.

Although ADEA prohibits employers from discriminating against employees based on age, in this case Commercial was more than Kier's employer. Kier was Commercial's attorney and Commercial was Kier's client; nothing in this opinion should be read to limit the clear right of a client to discharge his or her attorney for any reason, or for no reason. This principle reflects an understanding that the relationship between attorney and client is based on trust and cannot function unless the client has complete confidence in his or her attorney. However, although defendant submitted a jury instruction on this issue, it did not press any objection to the district court's failure to instruct on the issue. Nor did Commercial submit any memoranda of law in support of its assertion, presented for the first time below as a jury instruction, that an in-house attorney should be treated the same as a non-employee attorney for the purpose of discharge. More importantly, the defendant did not present this issue on appeal. Accordingly, we deem the argument waived. See, United States v. Markowski, 772 F.2d 358, 362-63 (7th Cir.1985); Goldblatt Bros., Inc. v. Home Indem. Co., 773 F.2d 121, 126 (7th Cir.1985).

A plaintiff may show age discrimination either through direct or circumstantial evidence of discharge based on age. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985); Dale v. Chicago Tribune Co., 797 F.2d 458 (7th Cir.1986). The analytic framework appropriate for cases arising under ADEA is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1212 (7th Cir.1985). Under McDonnell and Burdine, a plaintiff must first establish a prima facie case of discrimination. To establish a prima facie case under ADEA, an employee must show (1) that he belongs to the protected class, (2) that his job performance was sufficient to meet his employer's legitimate expectations, (3) that he was discharged in spite of his performance, and (4) that the employer sought a replacement for him. Dale, 797 F.2d at 462. The burden of production then shifts to the employer to articulate a legitimate, non-discriminatory reason for discharge. Once such a reason is advanced, the employee must prove by a preponderance of the evidence that the reason is a mere pretext for discrimination. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94. Although McDonnell provides for shifting burdens of production, it is important to note that the ultimate burden of persuasion remains with the plaintiff at all times. Dale, 797 F.2d at 462.

There is a general dispute here as to whether Kier ever made a sufficient showing to support a prima facie case of age discrimination. Commercial argues that he did not and that the burden of production to articulate a legitimate reason for firing never shifted to the defendant. The source of these opposing contentions is whether Kier's failure to work on the training manual is properly an element of the prima facie case or merely the articulated reason for discharge. The district court denied a motion for summary judgment based on Kier's failure to present a prima facie case of discrimination. We need not resolve this issue. After a trial on the merits, "disputes about the prima facie case fall away." Morgan v. South Bend Community School Corp., 797 F.2d 471, 480 (7th Cir.1986); See also United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). We need resolve only the ultimate question of whether there was sufficient evidence for a jury to conclude that age was a determinative factor in Kier's discharge.

III.

Before addressing the sufficiency of the evidence presented to the jury, we will review Kier's two remaining contentions of error. First, Kier contends it was error for the district court to refuse to allow him to amend his complaint on the eve of trial to allege failure to promote. Second, Kier argues that the district court erred in refusing to admit statistical evidence to show that the average age of Commercial's attorneys dropped dramatically in two years time. We disagree with both contentions.

Kier filed his complaint alleging a violation of ADEA on October 5, 1982. Discovery was completed in the fall of 1983 and defendant's motion for summary judgment was filed on September 9, 1983. The final pre-trial order was entered on October 17, 1983. Kier filed his motion to amend his complaint on January 22, 1985 pursuant to Fed.R.Civ.P. 15(b) which provides for amendment of the pleadings to conform them to the evidence. The trial began on January 24, 1985. A motion to amend a complaint is addressed to the sound discretion of the district court and will not be reversed absent an abuse of that discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971). While the Federal Rules of Civil Procedure envision a liberal policy toward amending pleadings (see Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)), Rule 15(b)...

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