Bruno v. Western Elec. Co.

• Decision Date: 18 September 1987
• Docket Number: 84-1572 and 84-1911,Nos. 84-1488,s. 84-1488
• Citation: 829 F.2d 957
• Parties: 44 Fair Empl.Prac.Cas. 1419, 44 Empl. Prac. Dec. P 37,406 Albert P. BRUNO, Plaintiff-Appellee/Cross-Appellant, v. WESTERN ELECTRIC COMPANY, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 957

829 F.2d 957

44 Fair Empl.Prac.Cas. 1419,

44 Empl. Prac. Dec. P 37,406

Albert P. BRUNO, Plaintiff-Appellee/Cross-Appellant, v. WESTERN ELECTRIC COMPANY, Defendant-Appellant/Cross-Appellee.

Nos. 84-1488, 84-1572 and 84-1911.

United States Court of Appeals, Tenth Circuit.

Sept. 18, 1987.

Alexander Halpern (Joseph J. Barnosky with him on briefs), of Caplan and Earnest, Boulder, Colo., for plaintiff-appellee.

Christine H. Perdue of Hunton & Williams, Richmond, Va. (Paul M. Thompson and Paul E. Mirengoff of Hunton & Williams, Lee Dale of Sherman & Howard, Denver, Colo., and Lawrence M. Joseph of AT & T Technologies, Inc., Berkley Heights, N.J., with her on briefs), for defendant-appellant.

Before McKAY, MOORE and BALDOCK, Circuit Judges.

McKAY, Circuit Judge.

Plaintiff, Albert P. Bruno, filed an action under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 (1982 & Supp. III 1985) (ADEA), against his employer, Western Electric Company. In a bifurcated trial, the issue of liability was tried by a jury and submitted on special interrogatories. The jury returned a verdict for plaintiff, and the district court denied defendant's motion for a judgment notwithstanding the verdict. The court then tried the damages issue and entered judgment for plaintiff, granting monetary damages for back pay, unpaid overtime, lost benefits and liquidated damages. Defendant and plaintiff appeal, raising issues in three different areas: (1) timeliness of plaintiff's Equal Employment Opportunity Commission (EEOC) filing, (2) validity of jury verdict on liability, and (3) correctness of the trial court's damages judgment.

I. Timeliness of EEOC Filing

Defendant claims that plaintiff failed to satisfy the filing requirements found in 29 U.S.C. Sec. 626(d) (1982). Section 626(d)(1), which both parties agree applies to this case, provides that plaintiff can maintain a civil action for an ADEA violation only if he files a discrimination charge with the EEOC "within 180 days after the alleged unlawful practice occurred." Plaintiff filed his charge with the EEOC on September 4, 1981; consequently, defendant argues that any claim concerning an act occurring before March 8, 1981 is barred. Plaintiff claims that he has satisfied the requirements of section 626(d)(1) because he has shown a continuing violation that extended into the statutory filing period.

Defendant first raised the timeliness issue at the summary judgment stage. The district court rejected defendant's motion for partial summary judgment, stating:

Defendant's motion is denied for failure to show that a [sic] genuine issue of material fact exists, or that it is entitled to partial summary judgment as a matter of law. Neither of the cases relied on by the defendant, Delaware State College v. Ricks, 449 U.S. 250 [101 S.Ct. 498, 66 L.Ed.2d 431] (1980), nor United Air Lines, Inc. v. Evans, 431 U.S. 553 [97 S.Ct. 1885, 52 L.Ed.2d 571] (1977), appears to foreclose the plaintiff's continuing violation theory. Nor has the defendant made a showing that no genuine issue of material fact exists regarding the existence of a continuing violation. For these reasons, summary judgment cannot be granted under Fed.R.Civ.P. 56.

Order, record, vol. 1, at 40-41. The case proceeded to trial.

Even though the case was tried before a jury, the continuing violation issue was never submitted to that jury. During the trial, the parties agreed that the continuing violation issue was one for the judge to decide and, accordingly, entered certain exhibits into evidence that related to the issue. The jury never saw those exhibits. At the conclusion of the trial, the case was submitted to the jury on special interrogatories, but those interrogatories included no reference to plaintiff's continuing violation claim. Neither party objected to the special interrogatories, and the jury returned a verdict for plaintiff. Thereafter, defendant moved for a judgment notwithstanding the verdict and raised, among other arguments, the timeliness issue. The district court again rejected the argument, explaining: "In my view the statute of limitations did not bar the action because the conduct complained of constituted a single, continuous, uninterrupted course of discriminatory activity from the outset to the time of trial." Order, id. at 52-53. On appeal, defendant renews its timeliness argument.

In general, a plaintiff cannot maintain an ADEA action for discriminatory acts that occurred more than 180 days (300 days under certain circumstances) before he filed his charge with the EEOC. This is true even if the discriminatory act continues to have an effect on the plaintiff within the statutory period. See Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); United Air Lines, Inc. v. Evans, 431 U.S. 553, 558-59, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). ¹ The key to recovery is for the plaintiff to show that a violation, and not just the effects of a violation, extended into the statutory period.

Under the continuing violation theory, a plaintiff who shows a continuing policy and practice that operated within the statutory period has satisfied the filing requirements. See, e.g., Higgins v. Oklahoma ex rel Okla. Employment Sec. Comm'n, 642 F.2d 1199, 1200 n. 2 (10th Cir.1981); Rich v. Martin Marietta Corp., 522 F.2d 333, 348 (10th Cir.1975). When the policy and practice is company-wide, the plaintiff can show that a violation occurred within the statutory period by showing some application of the policy within that period. Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1543 (10th Cir.1987); Abrams v. Baylor College of Medicine, 805 F.2d 528, 533-34 (5th Cir.1986). On the other hand, if the defendant can show that the policy was discontinued before the limitations period, then, as a matter of law, plaintiff's claim must be dismissed. Jewett v. International Tel. & Tel. Corp., 653 F.2d 89, 93 (3d Cir.), cert. denied, 454 U.S. 969, 102 S.Ct. 515, 70 L.Ed.2d 386 (1981).

Defendant argues that plaintiff cannot show a continuing violation because he has not alleged a company-wide policy and practice of discrimination. Defendant's interpretation of continuing violation is too narrow. "To establish a continuing violation [a plaintiff] would have to show 'a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period.' " Valentino v. United States Postal Serv., 674 F.2d 56, 65 (D.C.Cir.1982) (emphasis added) (quoting B. Schlei & P. Grossman, Employment Discrimination Law 232 (Supp. 1979)). The continuing violation can be either a company-wide policy of discrimination or a series of related acts taken against a single individual. "[T]he relevant distinction is between isolated and sporadic outbreaks of discrimination and a dogged pattern. Put another way, it is not the number of employees oppressed that matters, but the fundamental character of the oppression." Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 725 n. 73 (D.C.Cir.1978). The question in the present case thus boils down to whether sufficient evidence supports a determination that the "alleged discriminatory acts are related closely enough to constitute a continuing violation." Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir.1983). If the acts are merely individual violations, then we must remand for a determination of the amount of damages, if any, related to the acts that occurred within the statutory period. Conversely, if the acts are part of a continuing violation, then the district court decision on the statute of limitations issue must be affirmed.

Plaintiff alleges that the acts are related because they are part of defendant's plan to force plaintiff to take voluntary or involuntary retirement. The key, then, to determining whether plaintiff has shown a continuing violation is whether defendant's intent was to take any action necessary to get rid of plaintiff. The parties apparently recognized that this is a question of fact. In the stipulated pre-trial order the parties themselves listed, as a disputed fact, the question: "Did the actions of the Defendant constitute a continuing violation of the ADEA?" Record, vol. 1, at 25. The district court also recognized the issue as one of fact in its ruling on summary judgment. Although both parties and the court recognized that existence of the continuing violation may involve an issue of fact, they did not submit that issue as part of the special interrogatories given to the jury. As a result, both parties waived their right to a jury trial on that issue. See Rose Confections, Inc. v. Ambrosia Chocolate Co., 816 F.2d 381, 389 (8th Cir.1987). This circuit has specifically stated:

Rule 49(a), 28 U.S.C.A. permits the court to require a jury to return specific verdicts upon each issue of fact. These questions are to be submitted to the jury in written form, susceptible of brief answers. If in submitting these questions the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issues so omitted unless before the jury retires, he demands its submission to the jury. In case an issue of fact is omitted without such demand, the court may make a finding.

Merrill v. Beaute Vues Corp., 235 F.2d 893, 896-97 (10th Cir.1956). Defendant did not object to the special interrogatories in this case; therefore, the district court became the factfinder on the continuing violation issue. "The finding of the trial court on a factual issue absent from the special interrogatory form is subject to review pursuant to the clearly erroneous standard of Federal Rule of Civil Procedure 52(a)." Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1337 (10th Cir.1984). Thus, we may reverse the trial court's finding of a continuing violation only if it is clearly...