824 F.2d 1537 (10th Cir. 1987), 85-1998, Furr v. AT&T Technologies, Inc.

Docket Nº:85-1998, 85-2008.
Citation:824 F.2d 1537
Party Name:Edward S. FURR, Plaintiff-Appellee, Lynden E. Petersen, Daniel F. O'Connell, and James W. Hunt, Plaintiffs-Appellees/Cross-Appellants, and Jon A. Easter, Lee W. Fowler, and Marvin C. Brown, Plaintiffs-Appellants, v. AT & T TECHNOLOGIES, INC., Defendant-Appellant/Cross-Appellee.
Case Date:July 07, 1987
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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824 F.2d 1537 (10th Cir. 1987)

Edward S. FURR, Plaintiff-Appellee,

Lynden E. Petersen, Daniel F. O'Connell, and James W. Hunt,



Jon A. Easter, Lee W. Fowler, and Marvin C. Brown,



AT & T TECHNOLOGIES, INC., Defendant-Appellant/Cross-Appellee.

Nos. 85-1998, 85-2008.

United States Court of Appeals, Tenth Circuit

July 7, 1987

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Sander N. Karp (Shelley P. Dodge also of Karp & Dodge, with him on the briefs) Denver, Colo., for plaintiff-appellee Edward S. Furr.

Thomas J. Burke, Jr. of Jones, Meiklejohn, Kehl & Lyons, Denver, Colo., for plaintiffs-appellees/cross-appellants Lynden E. Petersen, James W. Hunt and Daniel F. O'Connell and plaintiffs-appellants

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Jon A. Easter, Lee W. Fowler and Marvin C. Brown.

David W. Carpenter (Rex E. Lee and Patrick S. Casey, also of Sidley & Austin, Chicago, Ill., and Lee Dale, Sherman & Howard, Denver, Colo., Joseph Ramirez and Laurel J. McKee, of counsel, with him on the briefs), for defendant-appellant/cross-appellee AT & T Technologies, Inc.

Before LOGAN and MOORE, Circuit Judges, and BROWN, District Judge. [*]

LOGAN, Circuit Judge.

Seven employees of AT & T Technologies, Inc., formerly Western Electric Co., Inc. (Technologies) brought this action against Technologies under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 (ADEA), alleging willful age discrimination in that company's failure to promote them to supervisory positions. A jury found that Technologies had not unlawfully discriminated against three plaintiffs, Jon A. Easter, Lee W. Fowler, and Marvin C. Brown, but found Technologies liable to four other plaintiffs, Edward S. Furr, Lynden E. Petersen, Daniel F. O'Connell, and James W. Hunt. In answers to special interrogatories, the jury found that each of these plaintiffs had been denied promotion because of his age, in willful violation of the ADEA; that Furr, Petersen, and O'Connell should have been promoted August 15, 1978; and that Hunt should have been promoted May 1, 1981. The United States District Court for the District of Colorado subsequently entered judgment for the four successful plaintiffs in the amount of $438,699.06, including back pay and liquidated damages totalling $331,256.56 and stipulated attorney's fees of $107,442.50. 1

On appeal, Technologies alleges that (1) the jury's finding of liability for age discrimination is fatally flawed because it was based on promotions that occurred outside the limitations periods applicable to the ADEA; (2) the award of liquidated damages must be reversed because the court improperly found that the ADEA violations at issue were willful; and (3) the entire award of damages must be set aside because the court utilized improper and incorrect earnings information.

The unsuccessful plaintiffs below, Easter, Fowler, and Brown, have also appealed to this court, alleging that the district court's jury instruction on the issue of liability for intentional age discrimination imposed too heavy a burden of proof on plaintiffs. Finally, the successful plaintiffs below, Petersen, O'Connell, and Hunt, cross-appeal, alleging that the court erred in refusing to authorize reimbursement of expert fees and certain deposition fees.

All seven plaintiffs are long-time Technologies employees born between 1925 and 1933, who began their careers as installers of telephone equipment at the lowest grade and rose to the position of installation supervisor by the early 1970s. Between 1973 and 1975, during a period of economic recession, all installers with less than ten years of service were discharged, and thirty-six of eighty-six supervisors, including the seven plaintiffs here, were demoted. 2

In 1978, Technologies created seventeen new installation supervisor positions, of which eight were filled by women or by

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black or hispanic men under an affirmative action plan, and five others by repromoted former supervisors. The ages of the four other promotees ranged from thirty-six to forty-two; plaintiffs' ages then ranged from forty-four to fifty-two. 3 In 1979 and 1980, a forty-three-year-old white man and a twenty-five-year-old woman, neither a former supervisor, were promoted to supervisory positions. During 1981, after Technologies had abandoned its affirmative action plan because the 1978 promotions had "so largely achieved its affirmative action goals," Brief for Defendant-Appellant at 10, Technologies filled four new installation supervisor positions with three white men and one woman, ranging in age from twenty-four to forty. Two white men and one woman were promoted May 1, 1981; one white man was promoted on August 17, 1981. None of these promotees was a former supervisor.

All plaintiffs except Furr filed EEOC charges on August 20, 1981; Furr filed his EEOC charge on January 27, 1982. Furr filed his ADEA suit in the District of Colorado on June 9, 1982; the remaining six plaintiffs filed suit on March 25, 1983, also in the District of Colorado. The court granted Technologies' motion to consolidate the suits for trial.


To establish a prima facie case of intentional age discrimination, each plaintiff must show that he (1) was within the protected age group at the time of the failure to promote; (2) was qualified for promotion; (3) was not promoted; and (4) was passed over for an available promotion in favor of someone younger. See Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983); see also Cockrell v. Boise Cascade Corp., 781 F.2d 173, 177 (10th Cir.1986); Higgins v. State of Oklahoma ex rel. Oklahoma Employment Security Commission, 642 F.2d 1199, 1201 (10th Cir.1981). The burden then shifts to the defendant to meet the presumption of discrimination created by a prima facie showing by articulating one or more legitimate, nondiscriminatory reasons for the plaintiff's nonpromotion. The plaintiff retains the ultimate burden of persuasion, which he may meet by showing directly that age was more likely a determining factor in the employment decision, or indirectly by showing that the employer's proffered explanation is merely a pretext. See U.S. Postal Board of Governors v. Aikens, 460 U.S. 711, 714-16, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); EEOC v. Prudential Savings and Loan Association, 763 F.2d 1166, 1170 (10th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985); Blim v. Western Electric Co., Inc., 731 F.2d 1473, 1477 (10th Cir.), cert. denied, 469 U.S. 874, 105 S.Ct. 233, 83 L.Ed.2d 161 (1984).

In the instant case, there is no dispute that the prevailing plaintiffs were within the class protected by the ADEA at all times relevant to our consideration. Although Technologies vigorously disputed the "qualified for promotion" factor, each successful plaintiff presented substantial evidence from which the jury could conclude that he was qualified for the supervisory position. Technologies also does not dispute that plaintiffs were not repromoted, and that promotions were available and were awarded to other individuals. An examination of the promotion history indicates that the jury fixed the date on which three successful plaintiffs, Furr, Petersen and O'Connell, should have been repromoted as August 15, 1978, the date of Technologies' first promotions after three individuals younger than all plaintiffs were promoted, excluding promotions made under an affirmative action plan and repromotions of other former supervisors. The jury fixed the date upon which successful plaintiff Hunt should have been promoted as May 1, 1981, when two younger individuals were promoted, neither of whom was a former supervisor or fell within an affirmative action category.

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Plaintiffs challenged Technologies' promotions to installation supervisor as evidence of a systematic company policy and practice of age discrimination, from the time it created new supervisory positions in 1978, and continuing at least through August 1981. Technologies offered three legitimate nondiscriminatory reasons for its promotion decisions: affirmative action, geographic considerations, and technical job qualifications. Finally, each plaintiff offered evidence to rebut the employer's alleged nondiscriminatory reasons. Plaintiffs also presented testimony of specific instances of discriminatory statements relevant to Technologies' failure to repromote them and introduced into evidence a Technologies' management report, the Conover Report, for the express purpose of showing an overall company policy of age discrimination.

Under the ADEA, plaintiffs have 180 days from the date of a discriminatory act to file a charge with the EEOC and two years from the date of a discriminatory act (three years if an act is willful) to file a complaint in federal district court. 29 U.S.C. Sec. 626(d)(1) and (e)(1); 29 U.S.C. Sec. 255(a). Technologies argues that the district court improperly allowed the jury to consider plaintiffs' challenges to promotions that occurred as early as January 1978, and that the verdicts for Furr, Petersen and O'Connell must be reversed, as based on promotions that occurred outside the statutory filing periods. AT & T also argues that the verdict for Hunt must be reversed because it was compromised by the jury's consideration of promotions outside the filing periods.

A claim of age discrimination, however, may be based on a continuing policy and practice of discrimination that began before the statutory filing period, as long as the employer continues to apply the discriminatory policy and practice to a point within the relevant filing period, and plaintiff is not merely complaining of the continuing effects of a...

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