974 F.2d 1248 (10th Cir. 1992), 91-5069, Whalen v. Unit Rig, Inc.

Docket Nº:91-5069.
Citation:974 F.2d 1248
Party Name:, 24 Fed.R.Serv.3d 195 John W. WHALEN, Plaintiff-Appellee, v. UNIT RIG, INC., a Delaware Corporation; Terex Corporation, a Delaware Corporation; MRL Acquisition Corporation, a Delaware Corporation, Defendants-Appellants.
Case Date:September 10, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1248

974 F.2d 1248 (10th Cir. 1992)

, 24 Fed.R.Serv.3d 195

John W. WHALEN, Plaintiff-Appellee,


UNIT RIG, INC., a Delaware Corporation; Terex Corporation,

a Delaware Corporation; MRL Acquisition

Corporation, a Delaware Corporation,


No. 91-5069.

United States Court of Appeals, Tenth Circuit

September 10, 1992

On Rehearing Oct. 20, 1992.

Page 1249

J. Patrick Cremin of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C. (with Frank M. Hagedorn on the briefs) Tulsa, Okl., for defendants-appellants.

J. Douglas Mann of Rosenstein, Fist & Ringold (with Eric P. Nelson on the briefs) Tulsa, Okl., for plaintiff-appellee.

Before McKAY, Chief Judge, McWILLIAMS, Circuit Judge, and EISELE, District Judge. 1

McKAY, Chief Judge.

This age discrimination lawsuit arises from actions taken during a corporate acquisition.

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Plaintiff won a jury verdict and judgment for damages, attorney's fees, costs and expenses. Defendant companies appeal, arguing that plaintiff failed to prove his case and that the district court made various errors at trial. We affirm.

Unit Rig and Equipment Company ("URE"), after several years of financial troubles, was sold in 1988 to Terex Corporation ("Terex") with the assistance of MRL Acquisition Corporation ("MRL"). The newly acquired entity was named Unit Rig, Inc. ("URI"). As part of the acquisition process, all URE employees (approximately 500 people) were discharged on July 14, 1988, and all but forty-six were hired by URI on the following day without a formal job application process.

Plaintiff John Whalen was among the forty-six employees not hired by URI. He had been employed at URE since 1977 and had held the job of Controller for three years. He was sixty-three years old at the time of his discharge.

Frank Hill became president of URI when the acquisition was completed. He immediately merged the duties of Controller and Director of Finance, naming a Terex employee he knew to fill the new position of Vice President of Finance. This job merger lasted only two weeks, however, before the Vice President of Finance named another Terex employee as Controller. This new Controller was twenty-nine years old.

Shortly after Mr. Whalen heard that a new Controller had been hired, he filed documents with the Oklahoma Human Rights Commission ("OHRC") alleging that he had been the victim of age discrimination. 2 Mr. Whalen filed this lawsuit pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1982) ("ADEA"), after the sixty-day deferral period mandated by ADEA had expired. 3

Evidence was introduced at trial that a Terex vice president, Larry Skaff, had requested lists of URE employees in declining order of age and that these lists were delivered to Mr. Skaff and Mr. Hill at the time these two men made employment decisions regarding URI. One witness testified to hearing Mr. Hill describe his intent to hire a "young controller" during the acquisition process.

Defendants filed motions at various stages of litigation to challenge the sufficiency of the evidence to support a verdict of age discrimination. The companies now appeal from denial of these motions. Defendants also challenge the district court's decision to admit into evidence the lists of URE employees allegedly prepared at Mr. Skaff's request. Defendants further argue that the district court erred by allowing Mr. Whalen to dismiss his claim of willful age discrimination while the jury deliberated, and, finally, they raise various objections to the award of attorney's fees, costs and expenses.

As a preliminary matter, Mr. Whalen argues that the district court's denial of defendants' Motion for Summary Judgment is now moot and cannot be raised on appeal. He also argues that some issues raised in that motion were not preserved for appeal because they were not raised in defendants' Motion for Directed Verdict. This court has held that denial of a motion for summary judgment is not appealable. Boyles Galvanizing & Plating Co. v. Hartford Accident & Indem. Co., 372 F.2d 310, 312 (10th Cir.1967); cf. Grubb v. FDIC, 868 F.2d 1151, 1160 (10th Cir.1989) (issue of standing, first raised in summary judgment motion, could be addressed on appeal although summary judgment was denied).

Other circuit courts have recently adopted a rule that denial of summary judgment is not properly reviewable on an appeal from a final judgment entered after trial. Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir.1990); Holley v. Northrop Worldwide Aircraft Serv., 835 F.2d 1375, 1377-78 (11th Cir.1988); Locricchio v. Legal Services Corp., 833 F.2d 1352, 1358-59 (9th Cir.1987); Senza-Gel Corp. v. Seiffhart,

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03 F.2d 661, 669 (Fed.Cir.1986); Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573 (Fed.Cir.1986), cert. dismissed, 479 U.S. 1072, 107 S.Ct. 1262, 94 L.Ed.2d 124 (1987). As the Federal Circuit explained, a denial of summary judgment is not a judgment, but "merely a judge's determination that genuine issues of material fact exist." Glaros, 797 F.2d at 1573 (citing Switzerland Cheese Ass'n, Inc. v. E. Horne's Mkt., Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966) (denial of summary judgment "is strictly a pretrial order that decides only one thing--that the case should go to trial")). The Ninth Circuit has elaborated on the injustice of "depriv[ing] a party of a jury verdict after the evidence was fully presented, on the basis of an appellate court's review of whether the pleadings and affidavits at the time of the summary judgment motion demonstrated the need for a trial." Locricchio, 833 F.2d at 1359. 4

We agree with the Eleventh Circuit that "[s]ummary judgment was not intended to be a bomb planted within the litigation at its early stages and exploded on appeal." Holley, 835 F.2d at 1377-78. We now hold that even if summary judgment was erroneously denied, the proper redress would not be through appeal of that denial but through subsequent motions for judgment as a matter of law ("JAMOL") and appellate review of those motions if they were denied. 5

Defendants challenged the legal sufficiency of the documents Mr. Whalen filed with the OHRC in their Motion for Summary Judgment, claiming that the documents did not constitute a proper charge within statutory requirements. Summary judgment was denied. Defendants subsequently made an oral Motion for Directed Verdict and explicitly declined to revisit the issue of the OHRC documents. 6 This court has held that "[o]nly questions raised in a prior motion for directed verdict may be pursued in a motion for judgment notwithstanding the verdict." Dow Chem. Corp. v. Weevil-Cide Co., 897 F.2d 481, 486 (10th Cir.1990) (citation omitted). Defendants' decision not to address the issue in the Motion for Directed Verdict thus barred them from raising it in subsequent motions JAMOL. Because the issue was not properly raised below, we do not consider it on appeal. Farmers Ins. Co. v. Hubbard, 869 F.2d 565, 570 (10th Cir.1989). We now address other issues that were properly raised and preserved for appeal.

Defendants argue in their motions for directed verdict and judgment notwithstanding the verdict ("j.n.o.v.") that Mr. Whalen's case fails because he did not prove that he applied for a job with URI. Error in denying a motion j.n.o.v. will only be found if the evidence conclusively favors the moving party and is susceptible to no reasonable inferences that would sustain the non-moving party's position. Lucas v. Dover Corp., 857 F.2d 1397, 1400 (10th Cir.1988). In reviewing the district court's action, this court cannot assess credibility of witnesses or substitute its judgment for that of the jury. Id. The same standard of review applies to a motion for directed verdict. Zimmerman v. First Fed. Sav. & Loan Ass'n, 848 F.2d 1047, 1051 (10th Cir.1988) (citation omitted).

Employment discrimination law does not require that a plaintiff formally apply for the job in question. Rather, the law requires either that the employer be on specific notice that the plaintiff seeks employment or, where informal hiring procedures are used, that the plaintiff be in the group of people who might reasonably be interested in the particular job. Grant v.

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Bethlehem Steel, 635 F.2d 1007, 1017 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981); Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir.1984).

After thorough review of the record, we conclude that the evidence here does not conclusively favor defendants. Mr. Hill testified that no formal employment application procedures were followed. In addition, Mr. Whalen testified that he informed Mr. Skaff when he left his job as Controller that he needed work. A jury could reasonably infer from this evidence that even without a formal job application, Terex officials were on specific notice that Mr. Whalen was interested in the job of Controller. The jury could also have found that as the recently discharged Controller and the last person to hold that job, Mr. Whalen would certainly have been in the group of people who might reasonably be interested in the job when defendants filled it within two weeks of his departure. The jurors apparently found Mr. Whalen credible, and we cannot substitute our judgment for theirs. We therefore affirm the district court's denial of defendants' motions for directed verdict and for j.n.o.v. based on this claim.

Defendants next contend that Mr. Whalen failed to prove that age was a determining factor in defendants' actions and that their proferred reasons for the actions...

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