Carden v. Westinghouse Elec. Corp., s. 87-1292

• Decision Date: 11 August 1988
• Docket Number: Nos. 87-1292,87-1296,s. 87-1292
• Citation: 850 F.2d 996
• Parties: 47 Fair Empl.Prac.Cas. 446, 46 Empl. Prac. Dec. P 38,080, 57 USLW 2099, 26 Fed. R. Evid. Serv. 148 CARDEN, Raymond C., Appellee, v. WESTINGHOUSE ELECTRIC CORPORATION, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 996

850 F.2d 996

47 Fair Empl.Prac.Cas. 446,

46 Empl. Prac. Dec. P 38,080, 57 USLW 2099,

26 Fed. R. Evid. Serv. 148

CARDEN, Raymond C., Appellee, v. WESTINGHOUSE ELECTRIC CORPORATION, Appellant.

Nos. 87-1292, 87-1296.

United States Court of Appeals Third Circuit.

Argued Jan. 7, 1988.

Decided June 28, 1988.

Order on Denial of Rehearing Aug. 11, 1988.

Dona S. Kahn (argued), Carol E. Tracy, Alison Pease, Harris & Kahn, Philadelphia, Pa., for appellant/cross appellee.

John P. Hergt (argued), Beth M. Rivers, Donnelly, Huizenga, Wahl & Hagan, P.C., Detroit, Mich., Mark D. Turetsky, Miller, Turetsky & Rule, Norristown, Pa., for appellee/cross appellant.

Before SEITZ, HUTCHINSON and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

This appeal arises from an age discrimination complaint filed by Raymond C. Carden, a former employee of Westinghouse Electric Corporation, against that company. Carden's job was eliminated by a reduction in force. He contends that he should have been hired for a new position which consolidated his former job with the job held by another Westinghouse employee, Diane Follett. He claims that Westinghouse's refusal to hire him for this new "consolidated" position was unlawful.

Carden brought suit in the Eastern District of Pennsylvania on December 17, 1984. Carden received a favorable verdict from the jury, which found that Westinghouse had willfully violated the Age Discrimination in Employment Act ("ADEA"), and also found that Carden had properly attempted to mitigate his damages.

The district court subsequently denied Westinghouse's motion for a judgment notwithstanding the verdict and a new trial but granted Westinghouse's motion to vacate the jury's finding of willfulness. Accordingly, on April 23, 1987, the district court entered judgment in favor of Carden for $86,554 and for $25,000 in attorney's fees and costs.

Westinghouse appealed at 87-1292 on a number of issues, the primary issue being liability. Carden has cross-appealed at 87-1296. Carden's cross-appeal is from the district court's order which vacated the jury's finding of willfulness. We reverse the judgment in favor of Carden, remand for a new trial and dismiss the cross-appeal which challenged the district court's order vacating the finding of willfulness.

I.

Raymond Carden was employed by Westinghouse as the manager of Westinghouse's Records and Micrographics Department in its plant in Lester, Pennsylvania. He had been with the company for eighteen years. In the early 1980's, because of a downturn in business, Westinghouse began to transfer a number of its operations which had been performed in the Lester plant, to a plant in Orlando, Florida. ¹ This transfer of operations eventually rendered it impractical to maintain both a Records and Micrographics Department and a Engineering Document Control Department in the Lester Plant. The manager of Engineering Document Control was Diane Follett. Westinghouse, therefore, decided to consolidate the two departments. At the time the decision to consolidate was made, Carden was 46 years old and Follett was 37.

In January 1983, Westinghouse notified Carden that the company was eliminating his position as manager. On June 28, 1983, Westinghouse announced that Follett would assume responsibility for the consolidated departments. The announcement was made by Joseph Clark, who was both Carden's and Follett's immediate supervisor. ² Carden testified that when he asked Clark why he did not get the job, Clark said, "he thought they wanted a younger person for the job." (A215). Carden was eventually laid off on August 1, 1983.

Westinghouse raises a number of issues on appeal; the most important of which from our standpoint is the asserted error that the district court had improperly received into evidence Carden's testimony that Clark said "he thought they wanted a younger person." We regard the admission of that testimony as critical because our reading of the record reveals no other direct testimony as to age as a factor in Westinghouse's treatment of Carden. ³

II.

Westinghouse argues that there was insufficient evidence to support a judgment in favor of Carden. As we understand that argument, it depends on our holding that the statement attributed by Carden to Clark was erroneously admitted in evidence. Without that statement, Westinghouse contends that the judgment against it must be reversed.

In developing this argument, Westinghouse recognizes that a judgment in favor of Carden could be predicated not only on a direct finding of intentional discrimination, but also as the district court charged, by proof through circumstantial evidence, that the three-part McDonnell Douglas ⁴ test had been met. Indeed, the district court charged, among other things:

"Now, the plaintiff may prove his claim either by direct or by circumstantial evidence. By direct evidence, I mean a statement that may be evidence of discriminatory intent. And in this particular case, plaintiff claims that such a statement was made by Mr. Clark ...

Plaintiff may also prove his claim by circumstantial evidence. In order to prevail on this basis, plaintiff must prove his claim by a preponderance of the evidence and in the following manner that I will outline to you at this time. This is a three-part procedure.

First, the plaintiff must prove four different things. First, that he was in the protected age group, that is between the age of 40 and 70.

Second, that he was qualified to do the job.

Third, that his employment was terminated despite the fact there remained work he was qualified to perform.

Fourth, that a younger individual outside the protected age group was selected to do the work.

If you find that the plaintiff has established these facts by a preponderance of the evidence, you will then come to second part of this procedure and you will consider defendant's reasons for terminating plaintiff's employment.

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Now, these reasons--this moves us to the third part. Do these reasons dispel the inference created by circumstantial evidence that the defendant intentionally terminated the plaintiff's employment because of his age unless you find that the defendant's explanation was a pretext. That is, that the defendant's explanation was not credible or that the plaintiff's age most likely motivated the defendant.

Let me go over some of these concepts again.

In considering the reasons given by the defendant for terminating Mr. Carden, and in determining whether the plaintiff has fulfilled his burden in proving age discrimination in this case, you are to take into consideration the reasons given by the witnesses for the defendant, for the decision to reduce and then either fold in or consolidate or eliminate plaintiff's job and transfer the remaining duties, which have not been moved to Orlando to Diane Follett.

Under the law, the defendant is not required to prove that the reason for its decision was a good reason or that it was a justifiable reason or that it was one that you would agree with. The fact that an employer made an unwise business decision or had other alternatives is not a sufficient basis for finding age discrimination.

Under the law, the defendant may state some non-discriminatory reason for its decision. If you find those reasons credible, then you may accept these reasons as legitimate, non-discriminatory reasons and return a verdict in favor of Westinghouse unless the plaintiff has proven to you by a preponderance of the evidence that the reasons given by the company were merely a pretext for age discrimination. That the reasons given by the company were merely a pretext for age discrimination.

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* * *

Plaintiff must show that but for his age, he would not have lost his job".

Tr. Transcript, February 19, 1986 at 65-67.

The jury returned a verdict as follows:

THE DEPUTY CLERK: ... has the jury agreed upon their verdict?

FOREPERSON: Yes, we have.

THE DEPUTY CLERK: Do you find that age was a determining factor in the decision to terminate plaintiff, effective August 1, 1983, yes or no?

FOREPERSON: Yes.

DEPUTY CLERK: Do you find that the defendant acted willfully, in deciding to terminate plaintiff, did the defendant show reckless disregard when its conduct was prohibited by the Age Discrimination in Employment Act?

FOREPERSON: Yes.

Id. at 73.

Significantly, the jury's liability interrogatory, and hence the jury's answer, is in effect a general verdict. It did not distinguish between the two theories on which the district court charged: i.e. liability predicated on a finding of intentional discrimination, or liability predicated on an indirect finding grounded in the three-part McDonnell Douglas formula. Thus, unless we are satisfied that Carden proved both direct and indirect liability on the part of Westinghouse, we are compelled to reverse the judgment because the jury's verdict, general in nature, may have rested exclusively on a ground that is not supported

                by evidence.   See Avins v. White, 627 F.2d 637, 646 (3d Cir.), cert. denied, 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1980)
                

A.

Under the three part procedure of McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) an ADEA plaintiff has the burden of establishing a prima facie case of age discrimination. The plaintiff must show that he was laid off from a job, or not hired for a job, for which he was qualified. He must also show that a younger person was hired in his stead. After a plaintiff has thereby established a prima facie case, the burden shifts to the defendant to dispel the adverse inference by articulating "some legitimate, non-discriminatory reason for the employee's rejection." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

If the defendant satisfies the requirement of articulating a non-discriminatory reason for the defendant's action, the ultimate burden then...