Blim v. Western Elec. Co., Inc., 80-1973

• Decision Date: 03 April 1984
• Docket Number: No. 80-1973,80-1973
• Citation: 731 F.2d 1473
• Parties: 34 Fair Empl.Prac.Cas. 757, 34 Empl. Prac. Dec. P 34,300, 15 Fed. R. Evid. Serv. 1289 Raymond C. BLIM, Morris E. Kinghorn, J.F. Vukasovic, Ralph V. Oldham, Stanley L. Boarts, Eugene Firestone, Wallace S. Repetto, and Larry N. Stewart, Plaintiffs-Appellees, v. WESTERN ELECTRIC COMPANY, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1473

731 F.2d 1473

34 Fair Empl.Prac.Cas. 757,

34 Empl. Prac. Dec. P 34,300,

15 Fed. R. Evid. Serv. 1289

Raymond C. BLIM, Morris E. Kinghorn, J.F. Vukasovic, Ralph V. Oldham, Stanley L. Boarts, Eugene Firestone Wallace S. Repetto, and Larry N Stewart, Plaintiffs-Appellees, v. WESTERN ELECTRIC COMPANY, INC., Defendant-Appellant.

No. 80-1973.

United States Court of Appeals Tenth Circuit.

April 3, 1984.

Paul M. Thompson, Richmond, Va. (Christine H. Perdue also of Hunton & Williams, Richmond, Va., and William D. Curlee of Lytle, Soule, Curlee, Harrington, Chandler & Van Dyke, Oklahoma City, Okl., with him on the brief), for defendant-appellant.

James R. Moore and Philip F. Horning of Horning, Johnson & Grove, Oklahoma City, Okl. (Judson M. Fink, Norman, Okl., with them on the brief), for plaintiffs-appellees.

Before SETH, Chief Judge, and BREITENSTEIN and LOGAN, Circuit Judges.

PER CURIAM.

Eight individual plaintiffs brought this action against Western Electric alleging violations of the Age Discrimination in Employment Act of 1967 (ADEA). Prior to 1974 all eight plaintiffs were section chiefs at Western's Oklahoma City office. Due to a reduction in work force during 1974 and 1975 they were demoted to nonsupervisory positions. Beginning in October 1976, Western began to increase the number of section chiefs through promotions and repromotions of previously demoted supervisors. No plaintiff has been repromoted to section chief except Mr. Kinghorn who was repromoted on March 21, 1979. The plaintiffs claim that they were not repromoted because of age discrimination practiced by the defendant.

The jury found for the plaintiffs at trial. By special interrogatory the jury also found that the violations of ADEA were willful in each instance. The defendant made timely alternative motions for a new trial and judgment notwithstanding the verdict. The court denied both motions.

In a separate trial for damages the court entered a judgment for the plaintiffs in the amount of $901,440.78, 496 F.Supp. 818. This sum included back pay, front pay, a lump sum annuity for social security losses, damages for lost purchasing power on back wages, damages for losses due to payment of additional income taxes, and liquidated damages in an amount equal to each of the enumerated items of damages. Also, the trial court awarded $175,000 in attorney's fees.

The defendant appeals on numerous grounds, but we comment only on the primary issues, which are (1) whether the plaintiffs' evidence was properly admitted; (2) whether the evidence supported the verdict; and (3) whether the award of damages and attorney's fees was proper and reasonable.

The defendant claims that the trial court abused its discretion by admitting into evidence certain reports and testimony. The admission of evidence is discretionary with the trial court and will not be disturbed on appeal unless clearly erroneous. Keen v. Detroit Diesel Allison, 569 F.2d 547 (10th Cir.1978). There is no indication in the record that the trial court abused its discretion in admitting the Moore Report, the Conover Report, the testimony of Gerald Hollingsworth, or the statistical data presented by the plaintiffs' expert.

The Moore Report is an internal Department of Labor document that memorialized a conversation between a DOL investigator, G. VanDiver Moore, and the Equal Opportunity Coordinator at Western Electric, Audrey Burns. The document concerned the possibility of reconciliation between the defendant and the plaintiffs. The court properly admitted the report pursuant to Federal Rules of Evidence 803(6) and 803(8). Audrey Burns testified about the conversation and carefully reviewed the document for the jury, outlining phrases, words, and attitudes with which she did not agree. There could be some serious doubt as to the admissibility of the Moore Report had it not been so fully tested and developed through the testimony of the witness Burns, the Equal Opportunity coordinator for Western Electric, who had provided much of the information. This presented to the jury the source of the information and its context. The trial court has the discretion of balancing the prejudicial effect with the probative value. Texas Eastern Transmission v. Marine Office, Etc., 579 F.2d 561 (10th Cir.1978). We find no abuse of discretion.

The Conover Report is a report prepared by the defendant concerning the average age of engineers in the company. The report considered age to be a factor in unit costs and productivity. The defendant claims that the evidence was collateral and highly prejudicial. The report was admitted as evidence of an overall company policy of age discrimination. The court gave a limiting instruction to the jury advising them of the weight to be afforded to the report. The report was properly admitted. See Texas Eastern Transmission v. Marine Office, Etc., 579 F.2d 561 (10th Cir.1978), and John McShain, Inc. v. Cessna Aircraft Co., 563 F.2d 632 (3d Cir.1977).

Gerald Hollingsworth was the affirmative action officer for the defendant during the time of the reduction in force and the alleged discrimination. He testified that the defendant's sister company, Southwestern Bell Telephone Company (SWB), was interested in hiring only younger white male section chiefs from Western. As a result of SWB's request, a number of younger employees were laterally transferred into SWB, and were therefore not demoted or terminated in the subsequent reduction in work force at Western. The defendant claims the evidence is irrelevant and highly prejudicial. The court denied the defendant's objection to the Hollingsworth testimony. The evidence was offered to show motive for the transfer and the protection of a particular group. We find no error.

The defendant also claims that plaintiffs' statistical evidence lacked a sufficient factual foundation. Both the plaintiffs and defendant presented statistical data to the jury for consideration. We find no basis for the assertion that it was error to admit the evidence. Both parties developed a reasonable basis in the evidence for their respective statistical studies. The data and the methods were tested on cross-examination. The objections of the appellant appear to be directed in large part to the weight to be given the studies. Whether the evidence supported the plaintiffs' statistical conclusions and what weight should be accorded to those statistics are issues for the jury. Laugesen v. Anaconda Co., 510 F.2d 307, 317 (6th Cir.1975). Therefore, the trial court properly admitted the data.

The defendant argues that the trial court erred in denying its motion for judgment notwithstanding the verdict. In reviewing the evidence under prevailing standards in this circuit we find no error.

In this ADEA action the plaintiffs must make a prima facie showing that the defendant's failure to repromote them was due to unlawful age discrimination. Then the burden shifts to the defendant to rebut the presumption of discrimination by producing evidence that the plaintiffs were not repromoted for a legitimate, nondiscriminatory reason. The plaintiffs then have the ultimate burden of persuasion by showing that a discriminatory reason more likely motivated the employer or that the employer's proffered explanation is merely a pretext. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Mistretta v. Sandia Corp., 649 F.2d 1383 (10th Cir.1981). The standards were followed by the trial court and the trial court correctly instructed the jury.

The plaintiffs presented testimony, statistical data, and circumstantial evidence tending to prove the defendant's discriminatory conduct. The defendant provided statistical data and testimony from the plaintiffs' supervisors tending to prove that the plaintiffs lacked sufficient job performance records to be promoted. We must conclude that the jury, considering all the evidence and with all reasonable inferences, could properly find that the defendant failed to repromote the plaintiffs because of unlawful age discrimination. Therefore, the trial court properly denied the defendant's motion for a judgment NOV and motion for a new trial.

The defendant claims the trial court erred by awarding damages to the plaintiffs in the form of front pay, lost purchasing power, compensation for increased tax liability, an annuity for lost social security benefits, and liquidated damages.

The trial court awarded each plaintiff front pay from the date of judgment to the date of their respective projected dates of retirement. The amount equalled the difference between the salary being received at the time the judgment was entered and what each plaintiff would have made until the assumed retirement dates had they been repromoted. The plaintiffs originally requested the equitable remedy of repromotion to their desired section chief positions. However, at trial they indicated that they would prefer front pay damages over repromotion. Apparently all the plaintiffs except Mr. Kinghorn remain employed at Western Electric in nonsupervisory positions.

The district court has the equitable power to repromote the plaintiffs under the ADEA, 29 U.S.C. Sec. 626(b). The trial court must exercise its discretion in awarding equitable remedies in light of the objectives of the statute being enforced. Hecht Co. v. Bowles, 321 U.S. 321, 331, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944). The district court's decision not to order offers of reinstatement must be measured against the purposes of the ADEA. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975). The ADEA has a broad purpose of insuring that "older individuals who desire to work will not be denied employment opportunities solely on the basis of age." H.R.Rep No. 950, 95th Cong., 2d Sess., reprinted in [1978] U.S.Code Cong. & Ad.News 504. Therefore, equitable remedies fashioned by the trial court which further...