Verbraeken v. Westinghouse Elec. Corp.

• Decision Date: 29 August 1989
• Docket Number: No. 88-3109,88-3109
• Citation: 881 F.2d 1041
• Parties: 50 Fair Empl.Prac.Cas. 1099, 51 Empl. Prac. Dec. P 39,295 Marcel VERBRAEKEN, Plaintiff-Appellee, Cross-Appellant, v. WESTINGHOUSE ELECTRIC CORP., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1041

881 F.2d 1041

50 Fair Empl.Prac.Cas. 1099,

51 Empl. Prac. Dec. P 39,295

Marcel VERBRAEKEN, Plaintiff-Appellee, Cross-Appellant, v. WESTINGHOUSE ELECTRIC CORP., Defendant-Appellant, Cross-Appellee.

No. 88-3109.

United States Court of Appeals, Eleventh Circuit.

Aug. 29, 1989.

Thomas P. Moran, Kevin W. Shaughnessy, Subin, Shams, Rosenbluth & Moran, Orlando, Fla., for defendant-appellant, cross-appellee.

Joseph Egan, Jr., Tobe Lev, Richard Paul Siwica, Egan, Lev & Siwica, Orlando, Fla., for plaintiff-appellee, cross-appellant.

Appeals from the United States District Court for the Middle District of Florida.

Before POWELL ^*, Associate Justice (Retired), United States Supreme Court, RONEY, Chief Judge, and HILL, Circuit Judge.

HILL, Circuit Judge:

Mr. Marcel Verbraeken was an employee in the Renewal Parts Section of Westinghouse Electric Corporation's Power Generation Division Headquarters in Orlando, Florida. An economic downturn in the power generation business led Westinghouse to reduce its work force in 1983. A low score in an evaluation put Mr. Verbraeken below the cutoff to be retained. Mr. Verbraeken, then 61 years of age, retired pursuant to an advanced retirement program rather than be laid off.

Mr. Verbraeken then sued Westinghouse, claiming that his former employer had violated the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq., (ADEA). A jury found that Mr. Verbraeken's age was a determinative factor in his layoff from employment by Westinghouse and awarded him $99,446.00 in compensatory damages. Due to the jury's additional finding that Westinghouse's violation of the ADEA was willful, the district court in its final judgment doubled the sum to be recovered by Mr. Verbraeken as a statutory liquidated damages award. Interest and costs also were awarded.

Both parties filed motions after entry of final judgment. Westinghouse filed a motion for judgment notwithstanding the verdict and, alternatively, a motion for a new trial. Each motion was denied without comment. Mr. Verbraeken moved to alter or amend final judgment pursuant to Federal Rule of Civil Procedure 59(e), or alternatively to grant further relief. He requested reinstatement to employment or front pay in the alternative, attorney's fees, prejudgment interest, and restoration of all other employment benefits lost as a consequence of his termination (bridging of benefits). The district judge also denied his motion without comment.

Westinghouse appeals the denial of its motions for judgment notwithstanding the verdict and, alternatively, for a new trial. On cross-appeal, Mr. Verbraeken argues that the district court abused its discretion in denying, without explanation, his motion for supplemental relief which he insists is necessary for him to be made whole. Cross-appellant also has filed a motion for an award of appellate attorney's fees.

We affirm the district court's denial of appellant's motions. Regarding the cross-appeal, we remand to the district court with instructions that the court carefully articulate its rationale for denying Mr. Verbraeken's requested supplemental relief so that we may have a basis to review the district court's decision for an abuse of discretion. Cross-appellant is entitled to an award of attorney's fees for prevailing in an action under the ADEA. In addition, cross-appellant's motion for appellate attorney's fees is granted. The district court on remand is to assess the amount of attorney's fees to be awarded Mr. Verbraeken for the trial and appellate phases of this suit.

I. APPEAL

A. Motion for Judgment Notwithstanding the Verdict

In several recent cases, this court has reiterated the standard of review regulating a motion for judgment notwithstanding the verdict as set out in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969). ¹ District courts and reviewing courts should consider all of the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied.... A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question.

411 F.2d at 374-75.

1. Liability--Compensatory Damages

Westinghouse challenges the jury's finding that Mr. Verbraeken's age was a determinative factor for his being selected to be laid off. Appellant maintains that Mr. Verbraeken's evidence of age discrimination was based on speculation and conjecture and therefore does not support the jury's verdict.

In a case brought pursuant to the ADEA, the plaintiff bears the ultimate burden of proving that age was a determinative factor in the employer's decision to terminate his employment. See Young v. General Foods Corp., 840 F.2d 825, 828 (11th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989); Anderson v. Savage Laboratories, Inc., 675 F.2d 1221, 1224 (11th Cir.1982). Initially, the plaintiff must establish a prima facie case of age discrimination. If this is done, the defendant has the burden of going forward and articulating a legitimate, non-discriminatory rationale for the discharge. Finally, if the defendant rebuts the presumption of discrimination, the plaintiff must prove by a preponderance of the evidence that the employer's asserted reason is merely a pretext for a discriminatory dismissal. ²

There are three methods by which a plaintiff may establish a prima facie case of age discrimination: by direct evidence of discriminatory intent; by meeting the test originally set out for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); or by statistical proof of a pattern of discrimination. Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989); Young v. General Foods Corp., 840 F.2d at 828; Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525, 1529 (11th Cir.1985). Mr. Verbraeken did not produce direct evidence of discrimination nor submit statistical evidence.

Utilizing a modified McDonnellDouglas test, a prima facie case may be established with circumstantial evidence by proving that the plaintiff (1) was a member of the protected group of persons between the ages of 40 and 70, (2) was subject to adverse employment action, (3) was replaced with a person outside the protected group, and (4) was qualified to do the job. The prima facie criteria of the McDonnell Douglas test are not intended to be rigidly applied. See Carter, 870 F.2d at 582, 583. In reduction-in-force cases such as the one at hand, the McDonnell Douglas test has been further modified by eliminating the replacement requirement; because "[i]n situations involving a reduction in force, ... the employer seldom seeks a replacement for the discharged employee." Mauter v. Hardy Corp., 825 F.2d 1554, 1557 (11th Cir.1987). A plaintiff in a reduction-in-force case may establish a prima facie case (1) by demonstrating that he was in a protected age group and was adversely affected by an employment decision; (2) by showing that he was qualified for his former position or for another position at the time of being adversely affected; and (3) by producing circumstantial or direct evidence by which a factfinder might reasonably conclude that the employer intended to discriminate on the basis of age in reaching the decision at issue. Rollins v. TechSouth, 833 F.2d 1525, 1532 (11th Cir.1987); Mauter, 825 F.2d at 1557; Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir.1987); Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982).

Mr. Verbraeken, at age 61, was within the protected group, and he was adversely affected by Westinghouse's offering him the "choice" between being laid off and accepting early retirement. With the exception of his final evaluation, Mr. Verbraeken received ratings of satisfactory or better throughout his career at Westinghouse. ³ Mr. Verbraeken testified that his knowledge of old machinery and the outdated methods of labelling diagrams of old machinery was valuable in his division that made renewal parts to maintain machinery in working order. There was sufficient evidence that he was qualified for his former position.

Mr. Verbraeken also presented sufficient circumstantial evidence, some of which is reviewed below, to raise an inference of age discrimination. In March 1983, Westinghouse introduced a new appraisal process, the Team Evaluation and Management System ("TEAMS" process), that originally was not supposed to affect employment. The TEAMS process included a team or peer evaluation resulting in a team evaluation (TE) score and a management survey producing a management score (MS). The two scores were averaged to arrive at a composite TEAMS score. For the peer review, an employee was evaluated in eight categories by his supervisor and between three and nine of his fellow employees chosen by the employee. The management portion of the TEAMS process originally was supposed to involve a one-on-one review by the employee's supervisor of the TE score and the employee's performance. The peer evaluation was completed by June 1, 1983; Mr. Verbraeken...