Cleverly v. Western Elec. Co., Inc.

• Decision Date: 14 April 1978
• Docket Number: Civ. A. No. 74CV566-W-B.
• Citation: 450 F. Supp. 507
• Parties: John E. CLEVERLY, Plaintiff, v. WESTERN ELECTRIC COMPANY, INC., Defendant.
• Court: U.S. District Court — Western District of Missouri

450 F. Supp. 507

John E. CLEVERLY, Plaintiff, v. WESTERN ELECTRIC COMPANY, INC., Defendant.

Civ. A. No. 74CV566-W-B.

United States District Court, W. D. Missouri, W. D.

April 14, 1978.

William F. Burns, Norman Humphrey Jr., of Burns & Humphrey, Independence, Mo., David H. Jeter, of Edwards, Markey, Ely & Lambert, Blue Springs, Mo., for plaintiff.

Joseph J. Kelly, Jr., Sandra L. Schermerhorn, Jack L. Whitacre, Spencer, Fane, Britt & Browne, Kansas City, Mo., for defendant.

FINAL JUDGMENT AND ORDERS DENYING DEFENDANT'S MOTIONS FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND, IN THE ALTERNATIVE, FOR A NEW TRIAL, RETROACTIVELY REINSTATING PLAINTIFF THROUGH AUGUST 1, 1975, AND AWARDING ATTORNEYS' FEES

WILLIAM H. BECKER, Senior District Judge.

Introduction

In August 1976, before the jury trial in this action, it was concluded in a pretrial ruling that plaintiff was entitled to a jury trial on the issues raised by plaintiff's claims (1) for lost wages in the form of actual damages (described as "back pay" by plaintiff and hereinafter referred to as "lost wages" or "actual damages"), and (2) for liquidated (partially punitive) damages. Cleverly v. Western Electric Company, 69 F.R.D. 348 (W.D.Mo.1975). This conclusion was based on the right to jury trial guaranteed by the Seventh Amendment to the Constitution of the United States. It was further concluded in that opinion that plaintiff's claims for reinstatement and for attorneys' fees were not triable by jury. Cleverly v. Western Electric Company, supra.

Thereafter the issues determined to be triable by a jury were first tried by a jury. The plaintiff prevailed on the issue of lost wages. The defendant prevailed on the issue of liquidated (or partially punitive) damages.

Defendant filed post-trial motions for (1) judgment in accordance with the motion for directed verdict, and (2) for new trial.

At the time the post-trial motions were filed there was no controlling decision on the right to jury trial of the issues of lost wages and liquidated damages. Great uncertainty on the final resolution of the right to jury trial existed. Within a comparatively short time a conflict in the decisions of the Circuit Courts of Appeals developed. See Morelock v. NCR Corp., 546 F.2d 682 (C.A.6, 1976), vacated, 435 U.S. 911, 98 S.Ct. 1463, 55 L.Ed.2d 503, (1978); Rogers v. Exxon Research & Engineering Co., 550 F.2d 834 (C.A.3, 1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978); Pons v. Lorillard, 549 F.2d 950 (C.A.4, 1977), cert. granted, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1090 (1977). See also the cases cited in the comment in 44 U.Chi. L.Rev. 365, entitled The Right to Jury Trial Under the Age Discrimination in Employment and Fair Labor Standards Acts.

Because of this uncertainty the rulings on the post-trial motions in this action were deferred awaiting resolution of the jury trial questions.

The Supreme Court of the United States granted certiorari in Pons v. Lorillard, supra, as indicated above, and resolved the question of the right to jury trial on the issues raised by the claim for lost wages, relying on statutory construction rather than on the Seventh Amendment. Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978).

Because this action, in regard to the issue on which plaintiff prevailed, has been tried in accordance with the controlling decision of the Supreme Court of the United States in Lorillard v. Pons, supra, and because no error is found in the jury trial, the judgment on that verdict will now be approved.

The equitable issues were submitted on the record made in the jury trial and in a supplemental non-jury evidentiary hearing. The equitable issues and post-trial motions have been determined in the following part of these findings of fact and conclusions of law.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This is an action under the Age Discrimination in Employment Act of 1967, Sections 621 et seq., Title 29, United States Code (hereinafter "ADEA"). Plaintiff alleges that he was discharged from his employment as an engineer by defendant because of his age, in violation of the ADEA. He seeks reinstatement, lost wages, liquidated damages, and attorneys' fees.

Plaintiff requested a trial by jury on all issues. A determination was made that plaintiff was entitled to a jury trial on the issues of lost wages and liquidated damages, but that the issues of reinstatement and attorneys' fees were equitable in nature requiring determination by the Court without a jury. Cleverly v. Western Electric Company, supra.¹ A jury trial limited to the issues of actual damages and liquidated damages was held. The jury returned a verdict for plaintiff on the issue of actual damages in the amount of $14,769.74, and for defendant on the issue of liquidated damages. Thereafter, an adjourned plenary evidentiary hearing before the Court sitting without a jury was held on the equitable issues of reinstatement and attorneys' fees.

Defendant has moved for judgment notwithstanding the jury verdict and, in the alternative, for a new trial in respect to the jury-tried issues. The equitable and legal issues have been fully briefed and argued.

For the reasons stated below, defendant's motions for judgment notwithstanding the verdict and, in the alternative, for a new trial will be denied. Plaintiff will be retroactively reinstated only through August 1, 1975. An attorneys' fee of $9,603.00, and interest, will be awarded.

I. Motion For Judgment Notwithstanding Jury Verdict.

In ruling on a motion for judgment notwithstanding the jury verdict, the evidence must be viewed in a light most favorable to the party prevailing in the jury verdict, and it must be given the benefit of every reasonable inference which may be drawn from the evidence. Davis v. Burlington Northern, Inc., 541 F.2d 182 (C.A.8, 1976), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 613 (1976); Banks v. Koehring Co., 538 F.2d 176 (C.A.8, 1976); Nodak Oil Co. v. Mobil Oil Corp., 533 F.2d 401 (C.A.8, 1976). The verdict must be sustained if there is any substantial evidence to support it. However, judgment notwithstanding the verdict must be granted if the evidence, so viewed, was such that reasonable men could not differ with regard to the conclusion that plaintiff failed to meet his burden of proof. Davis v. Burlington Northern, Inc., supra; Hartman v. United States, 538 F.2d 1336 (C.A.8, 1976); Russ v. Ratliff, 538 F.2d 799 (C.A.8, 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977); Banks v. Koehring Co., supra.

In an action under the ADEA, the plaintiff bears the initial burden of making a prima facie case of unlawful discrimination. Once plaintiff has made a prima facie case, the burden of proof shifts to the defendant to show that plaintiff was discharged because of reasonable factors other than age. Moses v. Falstaff Brewing Corp., 550 F.2d 1113 (C.A.8, 1977); Hodgson v. First Federal Savings & Loan Ass'n, 455 F.2d 818 (C.A.5, 1972);² cf. Marshall v. Roberts Dairy Co., 572 F.2d 1271 (C.A.8, 1978). Whether the burden of proof in the sense of risk of non-persuasion or burden of going forward with the evidence shifted in this action, the result would be the same. The plaintiff has produced sufficient evidence to meet the risk of non-persuasion, the heaviest burden of proof. The jury was instructed in defendant's instruction No. 1 that this burden of proof was on the plaintiff.

To make a prima facie case of unlawful discrimination, plaintiff is required only to produce evidence to show that one factor behind his discharge was his age, and that his age in fact made a difference in determining whether he was to be retained or discharged. Laugesen v. Anaconda Company, 510 F.2d 307 (C.A.6, 1975). It is concluded that, weighing the evidence, the jury could reasonably have found that plaintiff's age was a factor which made a difference in the decision to discharge him based on all the evidence including, but not limited to, the following summary.

Plaintiff was employed in 1960 by defendant Western Electric Co. as a planning engineer in its Lee's Summit, Missouri plant. At that time, he was thirty-nine years of age. He remained continuously employed until he was discharged on February 8, 1974, at the age of fifty-three. Prior to this time, plaintiff's employment performance, while not rated the highest, was satisfactory. Plaintiff earned several merit raises during his employment by defendant. Plaintiff's salary steadily increased from the time of his employment by defendant until his discharge.

In the summer of 1973, as a consequence of declining economic conditions, the management of defendant directed that its engineering department begin to plan for a possible reduction in force. In accordance with that directive, the manager of engineering, Earl Long, directed his assistant managers, including Ted Merrell, to meet with their department chiefs to determine those candidates to be chosen for layoff if a reduction in force ensued.

Pursuant to these instructions, Merrell met with his four department chiefs, one of whom was Larry Jones, plaintiff's immediate supervisor, to determine an order of layoff. Each department chief supervised a subordinate group of engineers. After plaintiff was chosen as first candidate in Jones' department for layoff, other department chiefs were asked to find a place for plaintiff in their departments. Each of them refused to do so. Plaintiff was placed near the top of the proposed layoff list which included candidates from each of the four departments.

Thereafter, in November 1973, Jones, acting with authority, met with plaintiff to inform him that he was a candidate for layoff. One of the reasons given to plaintiff by Jones for the choice of plaintiff for layoff by defendant was that his layoff would make way for younger engineers in the department. Although defendant contends that the ultimate decision to discharge plain...