Cullen v. Olin Corp., 98-4277

• Decision Date: 30 November 1999
• Docket Number: No. 98-4277,98-4277
• Parties: (7th Cir. 1999) ROSALIE CULLEN, Plaintiff-Appellee, v. OLIN CORPORATION, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 317

195 F.3d 317 (7th Cir. 1999)

ROSALIE CULLEN, Plaintiff-Appellee, v. OLIN CORPORATION, Defendant-Appellant.

No. 98-4277

United States Court of Appeals, Seventh Circuit

Argued April 14, 1999

Decided October 25, 1999

Rehearing Denied November 30, 1999

Appeal from the United States District Court for the Southern District of Illinois. No. 97 C 31--G. Patrick Murphy, Judge. [Copyrighted Material Omitted] Before COFFEY, FLAUM and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

Plaintiff-Appellee Rosalie Cullen ("Cullen") was forty-nine years of age and was employed by the Defendant-Appellant Olin Corporation ("Olin") as a manager of marketing administration when she was terminated in February of 1996 because, according to Olin, a Reduction in Force ("RIF") was necessary due to a turn in the economy.¹ Cullen brought suit against Olin alleging she was discharged, not because of any need for a RIF, but because of her age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. sec. 621 et seq. ("ADEA").² The case went to trial and the jury rendered a verdict finding that Olin had discriminated against the Plaintiff in violation of the ADEA. The trial judge entered judgment in favor of Cullen in the amount of $850,000, consisting of actual and liquidated damages, front pay, and attorney's fees. On appeal, Olin alleges that the Plaintiff presented insufficient evidence to support the jury's verdict and that the judge abused his discretion in admitting certain evidence. We vacate the judgment and remand for a new trial.

BACKGROUND

For over 25 years, from March of 1969 thru February of 1996, plaintiff-appellee Cullen was employed by Olin at its Winchester Division in East Alton, Illinois,³ as the manager of marketing administration. Cullen's position required that she: 1) function as a liaison between the Winchester Division and hunter education groups, youth groups, consumers, retailers and distributors (60-65% of her time); 2) procure promotional items and materials (10-15% of her time); 3) administer two buildings which housed the marketing department (10-15% of her time); 4) monitor the marketing department budget (5-10% of her time); and 5) occasionally perform special projects (5% of her time). The record also demonstrates that during the last few years of her employment, Cullen repeatedly received "superior" rankings in her performance reviews.

On December 5, 1995, Doug Cahill ("Cahill"), the president of the Winchester Division, met with Olin senior management and thereafter held a meeting with the salaried employees at the East Alton facility. Cahill advised the employees that the Winchester Division was in the midst of a financial downturn and warned that cost cutting and personnel reductions were inevitable. At trial, four former Olin employees who attended the Cahill meeting testified about additional remarks that they claim Cahill made, including statements that the older people at Winchester "were old fashioned and couldn't adjust to the changing times and that in the near future some of them would be gone" and that "older people have trouble with change and that they were gonna have to learn to go with the change or conform or they were going to be out." Another former employee testified that "[Cahill] gave the state of the business, so to speak, and where losses were and about equipment being antiquated and people being antiquated, that a lot of people didn't like to go with new procedures or updated things, and there would be a great many of us that was [sic] in that room at that time who would not be with Olin after the first of the year." Cahill denied making any statements concerning the age of Olin's employees or suggesting that older employees would be likely candidates for termination.

On February 6, 1996, as part of the RIF necessitated by the decline in ammunition sales, Cullen and seventy-three other Winchester Division employees were terminated. The RIF involved terminations in all but two departments and required a complete review of all the talents, skills, duties, and responsibilities of approximately 350 employees. To best implement the RIF, Cahill assigned the vice-presidents of each department to a committee known as "VAR".⁴ The VAR committee prepared a list of employees recommended for termination. Vice-presidents were neither instructed to select any particular number of employees for termination, nor were they required to achieve any designated savings from each department. In fact, the vice- presidents were given neither written nor verbal guidelines upon which to base their decisions.

According to Harlan Kent ("Kent"), the vice- president in charge of the sales and marketing department (where Cullen was assigned), he was ultimately responsible for the decision to terminate Cullen. Kent also described the role Cahill played in the selection process. He stated that Cahill "set parameters for the general process of making the decisions . . . in [the] respective departments" and Kent would update Cahill "on a regular basis as to the decisions he was making . . ." but that Cahill "was not making those decisions per se."⁵ Kent further testified that Cahill reviewed the personnel selections as part of the VAR.

At trial, Kent explained the process he utilized in selecting employees he chose to recommend for discharge. Initially, he testified that his strategy to cut costs in the marketing department was to implement a new organizational structure and assign the most appropriate and qualified personnel to the proper jobs within the newly created structure. The new organization eliminated Cullen's position as manager of marketing administration. Kent created two new positions for "event marketers" which were filled by Judy Eberhart and her associate Maryann Ventress (ages 43 and 42 respectively); two- thirds of Cullen's duties were reassigned to these two positions. Cullen's remaining duties were spread among other employees at Olin, contracted to outside agencies, or eliminated.

Cullen's case focused on attempting to establish that because of her age she was passed over for an event marketer position, and that Eberhart and Ventress were not as qualified as she was to perform in the newly created position. Kent testified that his decision to terminate the Plaintiff was based on direct discussions with her, interaction with her on the job, and discussions with her superiors. In contrast, Cullen testified that she only met with Kent on two occasions: 1) when she submitted a "booklet" detailing her goals and objectives in an attempt to inform Kent what her responsibilities included; and 2) on the date she was terminated. Kent further stated that he had not reviewed Cullen's personnel files. Kent testified that he chose Eberhart and Ventress over Cullen by examining "what jobs people had held and what were their skills and their experience." He believed that Eberhart and Ventress were better suited for the positions because they had "retail experience and selling experience," something that Kent believed necessary to be successful at the job. Cullen, on the other hand, "did not have that direct experience working with retailers." At trial, Cullen argued that these explanations were pretextual and covered up the real reason she was terminated: her age.

In support of her argument that Olin's reasons for her termination were pretextual, Cullen argued that she was more qualified than Eberhart. To prove her contention, Cullen pointed to the fact that she was rated as a "superior" employee even up to the date of her termination. She also produced numerous letters from conservation groups and youth hunter organizations which commended her on her performance with the Winchester Division. Cullen contrasted her performance evaluations with those of Eberhart, whose personnel file contained a memorandum, authored in August of 1995, wherein Eberhart memorialized a recent conversation with one of her supervisors. In the memo, Eberhart expressed her "extreme concern" over the events of the past few weeks after twenty-one years of "problem-free employment." While the memo does not describe "the events" Eberhart is referring to, she states that "a few minor comments were unnecessarily magnified . . . ." In addition, she wrote that her supervisor had "assured me that my reputation had not suffered because of the problems" and told her that she was not on probation and her future with Olin was not in jeopardy. This memorandum constitutes the only evidence containing adverse information in Ms. Eberhart's personnel files prior to the date of the RIF and Cullen's termination. Furthermore, Kent stated that he had not seen Eberhart's memorandum at the time he made the decision to terminate Cullen and transfer Eberhart to the newly created "event marketer" position.

In addition to the memorandum and performance evaluations prepared prior to the February 6, 1995 reduction in force, Cullen introduced evidence of Ms. Eberhart's work-related problems which occurred following the RIF. Olin objected, both in pretrial proceedings and at trial, to the admission of any testimony or documents concerning Eberhart's post-RIF performance, on the ground that such evidence was irrelevant to Olin's state of mind in deciding to terminate Cullen. The district court rejected those objections, simply stating that "[o]ne theory advanced by the defense in this case, it is a theory for the jury to consider, is that [Eberhart] was better suited for [the event marketer position]. Now the jury can look at this and make up their own mind." The evidence admitted included a review of Eberhart's job performance written by Kent in May of 1996 wherein Kent stated that "well thought out analysis is lacking"; that Eberhart's understanding of financial analysis is "a major weakness"; and that she had a "tendency to bulldoze people." The review also discusses Eberhart's decision to accept an airline ticket from an...