Dabrowski v. Warner-Lambert Co.

• Decision Date: 02 May 1987
• Docket Number: 85-1626,Nos. 85-1590,WARNER-LAMBERT,s. 85-1590
• Citation: 815 F.2d 1076
• Parties: 43 Fair Empl.Prac.Cas. 906, 43 Empl. Prac. Dec. P 37,030, 106 Lab.Cas. P 55,738, 2 Indiv.Empl.Rts.Cas. 99 Richard DABROWSKI, Plaintiff-Appellee, Cross-Appellant, v.COMPANY, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1076

815 F.2d 1076

43 Fair Empl.Prac.Cas. 906,

43 Empl. Prac. Dec. P 37,030,

106 Lab.Cas. P 55,738,

2 Indiv.Empl.Rts.Cas. 99

Richard DABROWSKI, Plaintiff-Appellee, Cross-Appellant, v. WARNER-LAMBERT COMPANY, Defendant-Appellant, Cross-Appellee.

Nos. 85-1590, 85-1626.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 12, 1986.

Decided April 10, 1987.

Rehearing and Rehearing En Banc Denied May 2, 1987.

Gary E. Murg, Russell J. Thomas, Jr., Nancy S. Katz, Pepper, Hamilton & Scheetz, Detroit, Mich., Stanley Godofsky (argued), Rogers & Wells, Michael F. Coyne, New York City, for defendant-appellant, cross-appellee.

Marvin D. Sharon (argued), Detroit, Mich., for plaintiff-appellee, cross-appellant.

Before ENGEL, NELSON and RYAN, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

This is a diversity action in which defendant Warner-Lambert appeals from a judgment entered on a verdict for plaintiff Dabrowski. The jury found that Warner-Lambert discriminated against Mr. Dabrowski on the basis of age, thereby violating Michigan's Elliott-Larsen Civil Rights Act, and also found that the company broke an implied employment contract, thereby incurring liability under the rule of Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980). Mr. Dabrowski cross-appeals, asserting that the trial court erred by not awarding him attorney fees and by letting the jury offset his pension benefits against his damages. We think there was insufficient evidence to support a jury verdict based on either age discrimination or implied contract, and we shall therefore reverse the district court's judgment. This disposition of the case renders the cross-appeal moot.

I

Richard Dabrowski went to work for the Parke-Davis Company in Detroit in 1952. He obtained a Bachelor of Science degree in chemistry in 1957, at which point Parke-Davis gave him a position as a laboratory analyst. Mr. Dabrowski received numerous promotions over the next twenty years, and ultimately became the Quality Assurance Manager at Parke-Davis' Detroit production facility.

Parke-Davis was merged into Warner-Lambert Company in the 1970's. By the end of the decade, the combined enterprise had begun to cut back its Michigan operations. One result of this economic retrenchment was that the Detroit facility where Mr. Dabrowski worked was closed and its operations moved elsewhere. Anxious to stay in the Detroit area, Mr. Dabrowski applied for a position as Product Administrator in the Capsule Manufacturing Division. Mr. Dabrowski was chosen for that job out of 30 applicants, but Warner-Lambert subsequently announced that the Capsule Manufacturing Division would be moved to South Carolina. Instead of going to South Carolina, Mr. Dabrowski accepted a "temporary" position in Rochester, Michigan. Mr. Dabrowski claims that he was assured by the hiring supervisor that he would be hired for a "permanent position" as soon as one became available, but Mr. Dabrowski also testified at trial that this supervisor told him that a permanent position could not be "guarantee[d]."

The temporary position was scheduled to last for only a few months. During the period in which he held the temporary position Mr. Dabrowski applied for a total of five permanent jobs with Warner-Lambert. The circumstances of the first two applications were not allowed to go to the jury; those of the last three were.

The jury learned that in March of 1982 Mr. Dabrowski applied for a position as section head of "Drug and Chemical." Instead of hiring the 55 year old Mr. Dabrowski, Warner-Lambert selected a 37 year old person with 18 years less seniority. In April of 1982 Mr. Dabrowski applied for a position as section head of the "Isolated Antibiotic Facility." A 30-year-old man whom we shall call "N.R." was selected, even though he was known to have difficulty in dealing with certain documentation aspects of the job. By July of 1982 N.R. had been discharged because of his deficiencies in handling documentation. In May of 1982 Mr. Dabrowski applied for a position as a supervisor in "Sterile Filling;" a 29-year-old man who had less than six years seniority was selected instead.

After his employment was terminated by Warner-Lambert, as scheduled, in July of 1982, Mr. Dabrowski attempted for a time to find work elsewhere. Eventually he stopped looking, however, because he found it necessary to care for his aging mother.

On January 10, 1984, Mr. Dabrowski filed a complaint in the Circuit Court for Wayne County, Michigan, alleging that in failing to place him in one of the permanent positions for which he had applied Warner-Lambert had violated its contractual obligations and had discriminated against him on the basis of age in violation of state law. ¹ The case was removed to federal district court pursuant to 28 U.S.C. Sec. 1441 and ultimately went to trial. Finding that Warner-Lambert had discriminated on the basis of age and had broken an implied contract, the jury awarded Mr. Dabrowski damages of $437,980; the bulk of this award was designated as compensation for "loss of future wages." The trial judge denied timely motions for a directed verdict and judgment notwithstanding the verdict. On appeal Warner-Lambert asserts that there was insufficient evidence for the case to go to the jury and that the award of damages was excessive in any event.

II

"Strictly speaking, this Court does not review the actions of juries. Our review of the sufficiency of the evidence is by the review of a trial judge's rulings on motions for directed verdict or JNOV. In diversity cases within this Circuit, this Court resolves questions of the sufficiency of the evidence by applying the test of sufficiency under state law."

Moran v. Johns-Manville Sales Corp., 691 F.2d 811, 813 (6th Cir.1982). Under Michigan law a court reviewing a denial of a motion for a directed verdict or judgment non obstante veredicto "is limited ... to the question of whether the party opposing the motion offered evidence about which reasonable minds could differ." Perry v. Hazel Park Harness Raceway, 123 Mich.App. 542, 332 N.W.2d 601, 604 (1983).

The evidence presented by Mr. Dabrowski shows little more than that Warner-Lambert hired people younger than Mr. Dabrowski for the positions he wanted. This court has long recognized that the mere fact that a younger employee or applicant receives better treatment than an older one is insufficient to carry the burden of proof in a case under the federal Age Discrimination in Employment Act. See Locke v. Commercial Union Insurance Co., 676 F.2d 205, 206 (6th Cir.1982); Sahadi v. Reynolds Chemical Co., 636 F.2d 1116, 1118 (6th Cir.1980). Michigan courts do not take an opposite view regarding the age provision of Elliott-Larsen. In what appears to be the most recent statement by the Michigan Supreme Court on the law of that state regarding age discrimination, it was held that "[e]vidence that a competent older employee was terminated, and a younger employee was retained, is insufficient standing alone to establish a prima facie case when the employer reduces his workforce because of economic necessity." Matras v. Amoco Oil Co., 424 Mich. 675, 385 N.W.2d 586, 590 (1986).

The rationale for such a rule was explained in the seminal opinion of Laugesen v. Anaconda Co., 510 F.2d 307 (6th Cir.1975), a decision often cited by the Michigan courts. In that case it was stated that

"[t]he progression of age is a universal human process. In the very nature of the problem, it is apparent that in the usual case, absent any discriminatory intent, discharged employees will more often than not be replaced by those younger than they, for older employees are constantly moving out of the labor market, while younger ones move in. This factor of progression and replacement is not necessarily involved in cases involving the immutable characteristics of race, sex and national origin. Thus, while the principal thrust of the Age Act is to protect the older worker from victimization by arbitrary classification on account of age, we do not believe that Congress intended automatic presumptions to apply whenever a worker is replaced by another of a different age."

Id. at 313 n. 4. In accord with this view is Eliel v. Sears, Roebuck and Co., 150 Mich.App. 137, 387 N.W.2d 842, 844 (1985), where plaintiff relied on

"testimony that Sears hired more young people than old people. As the court explained in Laugesen v. Anaconda Co., 510 F.2d 307, 313 fn. 4 (CA 6, 1975), such a circumstance, without more, will not support a claim of age discrimination. A natural consequence of the aging process is that younger employees are constantly replacing older employees as younger persons enter the job market and older persons leave."

The people hired in preference to Mr. Dabrowski appeared to the selecting supervisors to be qualified, and all had characteristics that compared favorably to Mr. Dabrowski's. Regarding the Drug and Chemical position, the hiring supervisor testified at trial that the person hired had the basic qualifications for the job and exhibited a great deal of enthusiasm in the interview. Warner-Lambert's personnel policies state that a person's "interests" are to be considered along with "ability, skills, performance, education, ... and other non-discriminatory qualifications directly related to successful job performance." An applicant's enthusiasm and general performance in an interview situation are obviously relevant to the decision-making process of any employer; Warner-Lambert's personnel policies reflect that fact.

As far as the Isolated Antibiotic Facility position awarded to N.R. is concerned, it is true that N.R. was discharged after four months for inability to do the job. The relevant question, however, is whether N.R. was known to be unqualified at the time he was hired. An employer...