Hybert v. Hearst Corp.

• Citation: 900 F.2d 1050
• Decision Date: 23 May 1990
• Docket Number: No. 89-1576,89-1576
• Parties: 52 Fair Empl.Prac.Cas. 1238, 53 Empl. Prac. Dec. P 39,897, 30 Fed. R. Evid. Serv. 249 George F. HYBERT, Plaintiff-Appellee, v. The HEARST CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1050

900 F.2d 1050

52 Fair Empl.Prac.Cas. 1238,

53 Empl. Prac. Dec. P 39,897,

30 Fed. R. Evid. Serv. 249

George F. HYBERT, Plaintiff-Appellee, v. The HEARST CORPORATION, Defendant-Appellant.

No. 89-1576.

United States Court of Appeals Seventh Circuit.

Argued Oct. 24, 1989.

Decided April 20, 1990.

As Corrected May 9, 1990.

Rehearing and Rehearing En Banc Denied May 23, 1990.

Wilfred F. Rice, Jr., Chicago, Ill., for plaintiff-appellee.

Jeffrey Ross, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., Jeffrey Bernbach, New York City, for defendant-appellant.

Before BAUER, Chief Judge, WOOD, Jr. and COFFEY, Circuit Judges.

BAUER, Chief Judge.

Plaintiff George Hybert brought an action against the Hearst Corporation, his former employer of thirteen years, for wrongful discharge in violation of the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. ("ADEA"). Following a trial, the jury returned a special verdict in favor of Hybert and awarded him a total of $170,000 in damages. Hybert also received additional equitable relief from the court in the form of front pay. For the reasons stated below, we affirm the jury's verdict and damages award, but remand for a recalculation of the amount of front pay to which Hybert is entitled.

I.

Hybert began working in Hearst's Chicago office in 1972 selling advertising space in Good Housekeeping Magazine. He served continuously in that capacity until his discharge in February, 1985. Throughout his years with Hearst, Hybert received steady increases in his base salary and experienced similar increases in his sales-based commissions, so that, by 1984, his total yearly income from Hearst was over $50,000. In mid-1984, just over nine months before his termination, Hybert received a $2,000/year increase in his base salary. Prior to late 1984, all evaluations of Hybert reflected that he was performing his job adequately. In fact, on several occasions Hybert received praise from his publisher, Ray Peterson, and his immediate supervisor, Chicago sales manager Des Dardenne, for his handling of particular accounts.

Hybert's difficulties at Hearst appear to coincide with the arrival, in July, 1984, of new publisher Lou Porterfield. Prior to Porterfield's arrival at the New York headquarters of Good Housekeeping, Hybert had not received any memoranda or evaluations critical of his job performance. Shortly thereafter, however, Hybert was informed by his supervisor Dardenne of several "complaints" regarding his handling of certain accounts. ¹ On October 18, 1984, Hybert received his first formal notice of such complaints. On that date, Dardenne sent Hybert a memorandum that listed three specific complaints that had apparently resulted in Hybert being removed from the subject accounts. On the first of these accounts, Hybert was accused of improperly making direct contact with senior executives of the target companies instead of their advertising agency; on another, of similarly making direct contact with product managers instead of advertising personnel; and on the third, of "negative selling" (i.e. making disparaging comments about other magazines). ² Hybert responded to these allegations with explanatory memoranda and letters to both Dardenne and Porterfield.

Hybert's employment situation deteriorated rapidly in late 1984. On December 19, after an apparently confrontational Christmas party in New York, Porterfield sent Hybert a letter criticizing his "attitude and approach toward business." Nine days later, Porterfield followed up with another letter "to add some clarification," in which he warned Hybert that any further complaints would "indeed be cause for your termination." Such a further complaint apparently came a few short weeks later. In January, 1985, Hybert's new manager Ron Saba ³ informed Hybert that another advertiser had voiced a complaint regarding his performance and that he (Saba) had informed Porterfield of the complaint. As threatened in his December correspondence, Porterfield viewed this last complaint as the last straw. He fired Hybert on February 28, 1985, the stated grounds being "inability to meet the requirements of his position." At the time of his discharge, Hybert was 63 years old.

Along with the foregoing, the jury received two additional, important and hotly disputed pieces of evidence. First, over the hearsay objection of Hearst's counsel, Hybert testified that Dardenne told him: "there is a concern with the people in New York that, with a new publisher, which we expect, there are a number of people up in their sixties [who] are going to be replaced, because they [later described as 'the people in New York'] feel that younger people of ours could call on these younger people in the agency media departments a lot more effectively." Hybert testified that Dardenne made such statements to him four or five times in early- to mid-1984. Second, Hybert's counsel presented evidence that, contemporaneous with Hybert's firing, the three other employees in Good Housekeeping 's Chicago office who were near or over sixty years old were forced to retire, transfer, or otherwise relinquish their prime business, their work uniformly taken by much younger men. ⁴

The jury returned a special verdict finding that Hybert had been discriminatorily discharged because of his age. The jury awarded Hybert $150,000 in compensatory damages and, because it found that Hearst willfully violated the ADEA, an additional $20,000 in "liquidated damages." ⁵ Hearst moved for judgment notwithstanding the verdict ("JNOV"), repeating the unsuccessful arguments it made in its motion for directed verdict regarding the state of the evidence and attacking the jury's damages award. In a memorandum opinion and order dated March 8, 1989, Judge Parsons denied this motion.

Hybert, too, filed a post-verdict motion, requesting additional equitable relief. Judge Parsons ruled that Hybert was entitled to such relief and granted him, in lieu of reinstatement, "front pay" in the amount of $189,266, as well as costs and reasonable attorney's fees. Hearst here appeals the finding of liability, the damages award, and Judge Parson's front pay award.

II.

Hearst's challenges to the district court's conduct of the trial and to the jury verdict are wholly predictable--and wholly meritless. First, Hearst attacks the admission of the most incriminating piece of evidence against it: the statements made by Dardenne to the effect that "the people in New York" (i.e. Porterfield and Co.) were bent on replacing older salesman with younger salesmen. As it is attacking an evidentiary ruling, Hearst must establish that the district court abused its substantial discretion in making these types of rulings. See Jardien, 888 F.2d at 1156; FTC v. Amy Travel Serv., Inc., 875 F.2d 564, 572 (7th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 366, 107 L.Ed.2d 352 (1989). To this end, Hearst argues on appeal that Dardenne's statements were "double hearsay," contending that they were mere repetitions of the statement(s) of others. Even if Dardenne's statements to Hybert are admissible under Fed.R.Evid. 801(d)(2)(D) as admissions by the agent of a party, the argument goes, there is no applicable hearsay exception or definitional exclusion that covers the first link in the chain: the statements from the people in New York to Dardenne. Thus, Hearst concludes, it is entitled to a new trial because the jury was obviously tainted by this heavily damaging piece of "inadmissible double hearsay."

We do not dispute Hearst's assertion that Dardenne's statements likely had a great impact on the jury. Hybert's testimony recounting Dardenne's statements was the most direct evidence supporting Hybert's contention that the management of Good Housekeeping fired him for age-based reasons. Further, while on the stand, Hybert was permitted (through the objections of Hearst's counsel) to repeat the statement several times, and Hybert's counsel (understandably) dwelled at length on these statements in his argument to the jury. Hearst's error lies in its classification of the statements as hearsay. As much as Hearst would like to read them as such, Dardenne's statements were not "people (or a particular person) in New York told me that ...;" but rather "it's a concern of some of the guys in New York that some of our people in their sixties are going to be replaced," and "there is a feeling in New York that, with the arrival of a new publisher, the people we have in their sixties will probably be replaced." Attention to the precise wording of the statements reveals that they were not "second-hand repetitions" by Dardenne of the statements of others. They were direct warnings by Dardenne, himself a member of management, given to Hybert, his subordinate, as to the attitude, intentions and/or policy of the higher-ups in management. Thus, Judge Parsons' ruling that the statements were admissible as admissions by an agent of Hearst was not an abuse of discretion. ⁶ Cf. Oxman v. WLS-TV, 846 F.2d 448, 456-57 (7th Cir.1988); McNeil v. Economics Laboratory, Inc., 800 F.2d 111, 116-17 (7th Cir.1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 823 (1987).

Second, in an attempt to here re-argue the evidence, Hearst asserts that Hybert failed adequately to prove his case. More precisely, Hearst claims that Hybert failed to establish the requisite prima facie case of age discrimination, and/or that, even if Hybert did meet his prima facie burden, Hearst came forward with a valid, non-discriminatory reason that Hybert did not adequately show to be pretext. Thus, Hearst concludes, the jury's verdict is unsupported and the district court erred in denying its JNOV motion.

Hearst devotes much of its argument to how Hybert fared at the various stages in the indirect, burden-shifting method of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Jardien, 888 F.2d at...