Aungst v. Westinghouse Elec. Corp.

Citation937 F.2d 1216
Decision Date22 July 1991
Docket NumberNo. 90-1849,90-1849
Parties56 Fair Empl.Prac.Cas. 928, 56 Empl. Prac. Dec. P 40,889 Robert D. AUNGST, Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Henry J. Price, Robert G. Barker, Sharon L. Groeger, Price & Shula, Indianapolis, Ind., for plaintiff-appellant.

Jay R. Larkin, Kenneth J. Yerkes, Barnes & Thornburg, Indianapolis, Ind., for defendant-appellee.

Before CUDAHY, FLAUM, and MANION, Circuit Judges.

MANION, Circuit Judge.

Engineer Robert D. Aungst, a 35-year Westinghouse employee, was terminated in 1983 during a reduction in force (RIF). He brought this action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq., alleging that Westinghouse: 1) terminated him because of his age; 2) refused to rehire him because of his age; and 3) retaliatorily refused to rehire him because he had filed an age discrimination claim with the Equal Employment Opportunity Commission (EEOC). Judge Noland granted summary judgment for Westinghouse on the latter two claims, holding they were barred by the statute of limitations. A jury found for August on the unlawful discharge claim, concluding that Westinghouse willfully discharged him in violation of the ADEA. However, Judge Noland, in a thorough and persuasive opinion, granted Westinghouse's motion for judgment notwithstanding the verdict (JNOV), holding that the evidence was insufficient to prove pretext and to support the jury's verdict of willful discrimination. Aungst appeals all of the district court rulings. We affirm.

I.

Aungst graduated in 1948 from Pittsburgh's Carnegie Institute of Technology with a bachelor's degree in electrical engineering, and immediately went to work for Westinghouse. After 10 years in East Pittsburgh, he was transferred to the Bloomington, Indiana plant, where he remained until his termination at the end of 1983.

Aungst worked with capacitor units, which are used by utilities in the transmission and distribution of electric power. Although he briefly worked with protective devices in 1949, that same year he was permanently assigned to the capacitor section and began designing capacitor units. He eventually found his niche in designing the "Autotrol," a particular kind of capacitor. Autotrol is a Westinghouse trade name for a polemounted capacitor unit. Autotrols are one of the least complicated forms of capacitor, and Aungst apparently mastered their design quickly. As he continued designing Autotrols year after year, he became comfortable with the nickname "Mr. Autotrol." His very infrequent forays into working on more complicated capacitor units were not always successful.

Aungst was a customer order Autotrol engineer, which meant that he assembled existing devices and components into a design that met customer specifications. By contrast, fundamental development or design engineers hypothesized, created and tested new uses for capacitors. The customers Aungst dealt with were utility companies. These companies generally would specify in detail the type of Autotrol they desired, and Aungst would then assemble the Autotrol to their specifications.

Pursuant to a 1983 company-wide reorganization, the Westinghouse Bloomington facility was ordered to make a 10 percent across the board reduction in "managed costs," thus requiring substantial reductions in its staff of 155 salaried employees. The Bloomington plant was restructured by William Westlake, the plant and division manager. He named Frank Frederick, formerly manager of the marketing department, to manage the new capacitor department, and Frederick was ordered to make staff reductions in both his old and new departments. In the marketing department, Frederick decided to terminate two employees who were each under 30 years old. In the capacitor department Frederick selected Aungst for termination. He discussed his decision with Don McClain, who managed the capacitor equipment and engineering section from 1975 to 1983, and John Brittain, engineering department manager from 1958 to 1983, and neither disagreed with the choice. Frederick claims to have wanted more versatility in the department; he concluded that although Aungst's work performance with Autotrols was good, he was the least versatile and creative engineer in the department, and his tasks were the easiest to perform. He also was aware that Aungst had more problems with employees on the shop floor than other engineers. Aungst was 60 years old at the time of his termination. Overall, during the Westinghouse RIF of December 1983, 15 employees were terminated. Eight were in the ADEA's protected age group (between age 40 and 70), seven were not.

Frederick chose Tom Wilkinson, also a 60-year-old engineer with an even longer tenure at Westinghouse and a higher salary than Aungst, to replace Aungst in responding to Autotrol orders. Wilkinson also continued to perform his other engineering responsibilities. Wilkinson worked on Autotrols until his retirement in 1986, and even after retirement was frequently used as a consultant. John Warkentin, 51, backed Wilkinson up on Autotrol orders. Warkentin's old job in another division was eliminated during the RIF, so Frederick brought him into the new capacitor department, where he spent about half his time on customer order engineering, including Autotrols. Two younger engineers were retained by Frederick: Steve Seaton, 27, and Joe Kile, 25. Both were fundamental development or design engineers, and neither worked on Autotrols.

Frederick made a number of other employment decisions during the reorganization, some of which resulted in older employees being retained over younger employees. The net result was this: prior to the reorganization, eight of 12 engineers in the capacitor department were in the ADEA's protected age group; after the reorganization, 11 of 14 were in the protected age group. (The capacitor department had been one of six divisions in the Transmission and Distribution Business Unit. Those six divisions were combined into three divisions during the reorganization, which explains why the new capacitor department had two more members despite the reduction in force.)

After Frederick told Aungst he was being terminated, Aungst met with Joe Kennedy from Westinghouse headquarters. Kennedy accepted a resume from Aungst for the Westinghouse placement service, and told Aungst the placement rate for discharged workers seeking employment was between 75 and 85 percent. Aungst's resume remained in the Westinghouse placement booklet for nine months, but no one inquired about his availability.

Shortly after his discharge Aungst filed a charge of discrimination with the EEOC on December 16, 1983. In 1985, while attending a regular weekly luncheon with retired and current Westinghouse engineers, Aungst gained access to an internal memorandum dated March 29, 1985, which listed two new engineers in the capacitor department. Another new engineer was hired in September 1985. Aungst claims he did not have knowledge that these three younger engineers were hired until November 8, 1986, when Wilkinson told him of the hirings. On November 13, 1986, Aungst filed additional charges with the EEOC, alleging that Westinghouse discriminatorily refused to rehire him.

A jury determined that Westinghouse willfully discriminated against Aungst by choosing him for the RIF. Aungst appeals from the district court's decision to grant Westinghouse's JNOV motion. He also appeals the district court's decision to grant summary judgment for Westinghouse on Aungst's refusal to rehire claims.

II.

A. Discriminatory Discharge Claim

Under the ADEA, it is unlawful "for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against an individual ... because of such individual's age." 29 U.S.C. Sec. 623(a). When reviewing an age discrimination case, a court must decide "whether there was sufficient evidence for a reasonable jury to find that age was a determining factor," or "in other words, a 'but-for' cause" of the employer's decision to fire the plaintiff. Brown v. M & M/Mars, 883 F.2d 505, 507 (7th Cir.1989). "[A] terminated plaintiff's ultimate burden in an age discrimination case is to prove that he was discharged because of his age." Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988), citing LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir.1984). But Aungst must clear another hurdle in this case--he must also prove that the decision by Westinghouse to unlawfully terminate him was made "willfully." That is because Aungst concededly did not bring this claim within two years of the firing; the ADEA provides that an action "may be commenced within two years after the cause of action accrued ... except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued...." 29 U.S.C. Sec. 626(e)(1); 29 U.S.C. Sec. 255.

We review de novo the district court's decision to grant judgment notwithstanding the verdict. We take the evidence and all reasonable inferences from it in the light most favorable to Aungst, the non-moving party. While we do not reweigh the evidence, we do determine " 'whether the evidence is substantial; a mere scintilla of evidence will not suffice.' " Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 15 (7th Cir.1987), quoting LaMontagne, 750 F.2d at 1410 (emphasis in original). In this case, therefore, Aungst needed to provide substantial evidence that Westinghouse willfully violated the ADEA. Before we discuss the separate, added burden on Aungst to prove willfulness, we first will address the question of whether there is any age discrimination here at all.

Aungst contends that he put forth sufficient evidence to support the jury's verdict of willful discrimination. Westinghouse concedes that...

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