O'Donnell v. Georgia Osteopathic Hosp., Inc.

• Decision Date: 19 December 1984
• Docket Number: No. 83-8575,83-8575
• Citation: 748 F.2d 1543
• Parties: 36 Fair Empl.Prac.Cas. 953, 35 Empl. Prac. Dec. P 34,863, 1 Fed.R.Serv.3d 115, 17 Fed. R. Evid. Serv. 439 Marjorie O'DONNELL, Plaintiff-Appellee, v. GEORGIA OSTEOPATHIC HOSPITAL, INC., d/b/a Doctors Hospital, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1543

748 F.2d 1543

36 Fair Empl.Prac.Cas. 953,

35 Empl. Prac. Dec. P 34,863, 1 Fed.R.Serv.3d 115,

17 Fed. R. Evid. Serv. 439

Marjorie O'DONNELL, Plaintiff-Appellee, v. GEORGIA OSTEOPATHIC HOSPITAL, INC., d/b/a Doctors Hospital Defendant-Appellant.

No. 83-8575.

United States Court of Appeals Eleventh Circuit.

Dec. 19, 1984.

Martha C. Perrin, Atlanta, Ga., for defendant-appellant.

B. Lee Crawford, Jr., Atlanta, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before RONEY and ANDERSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

LEWIS R. MORGAN, Senior Circuit Judge:

Marjorie O'Donnell filed this suit pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. Secs. 623, 626(c) (West 1975 & Supp.1984). She alleged that her employer, Georgia Osteopathic Hospital, d/b/a Doctor's Hospital (the Hospital), demoted her and later denied her a promotion because of her age ¹ and constructively discharged her when she complained to the Equal Employment Opportunity Commission. ² The trial jury rendered a special verdict that the Hospital had either discriminated against O'Donnell because of her age or retaliated against her because she filed a complaint with the EEOC, that O'Donnell had attempted to mitigate her damages, and that the Hospital willfully violated the ADEA. ³ The Hospital moved alternatively for judgment non obstante veredicto or for a new trial. The district court denied both motions.

The district court, 574 F.Supp. 214, determined O'Donnell's damages, consisting of backpay, frontpay, liquidated damages and prejudgment interest, to be $74,466.35. The clerk entered judgment for this amount on July 5, 1983. O'Donnell served her motion for attorney's fees on the Hospital on July 14, 1983, and filed it on July 25. On August 18, O'Donnell filed an itemized petition for determination of reasonable attorney's fees. The Hospital resisted this motion as untimely. The court nevertheless awarded to O'Donnell attorney's fees of $29,471.00.

The Hospital posits three errors of the district court on this appeal: the denial of the Hospital's motion for JNOV or new trial, the inclusion of frontpay and prejudgment interest in the computation of damages, and the award of attorney's fees to O'Donnell. O'Donnell requests appellate attorney's fees.

I. DENIAL OF THE MOTIONS FOR JNOV AND NEW TRIAL

A. Facts

The Hospital hired Ms. O'Donnell as a clerk-librarian in March 1972, at which time she was fifty years old. In 1974, the Hospital promoted her to secretary to the medical director. She still held this position in July 1980 when Dr. Stuart Harkness became director of medical affairs. On Dr. Harkness' first day at the hospital, Ms. O'Donnell informed him that she was scheduled to leave for vacation in three weeks. Dr. Harkness assigned her some typing which she completed before she left but which Dr. Harkness insisted at trial was replete with errors. Upon her return from her vacation, Ms. O'Donnell discovered that Dr. Harkness had hired Neysa Sharpless, a woman of thirty-four years, to be his secretary. Ms. O'Donnell's supervisors moved her to a new location where she now worked only for the volunteer services coordinator, the hospital chaplain, and the hospital social worker. From the evidence elicited at trial, the jury could reasonably have found that the work for these three persons occupied only a few hours of Ms. O'Donnell's workday. Ms. O'Donnell considered this move a demotion.

Ms. O'Donnell applied for a job as secretary to the hospital administrator, Rhea Keene, in October 1980. Mr. Keene did not interview her but hired Debbie Wunderle, a 29-year old woman. Ms. O'Donnell then filed an age discrimination complaint with the EEOC and later testified that her employment situation deteriorated further after she filed the complaint. She resigned in January 1981, but she labels this resignation a constructive discharge.

B. Evidentiary Issue

In reviewing the propriety of the denial of a motion for JNOV, we must consider all of the evidence "in the light and with all reasonable inferences most favorable" to Ms. O'Donnell. Boeing Company v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc); see Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc) (decisions of the former Fifth Circuit Court of Appeals handed down prior to the close of business on September 30, 1981, are binding precedent in theEleventh Circuit until overruled en banc). We must therefore first decide the admissibility of certain testimony that the Hospital claims the district court erroneously admitted.

Ms. Neysa Sharpless testified that Dr. Harkness told her of statements made by Mr. Jack Sartain, the executive director of the Hospital. ⁴ For example, after O'Donnell complained to the EEOC, Mr. Sartain told Dr. Harkness that "he would handle the Marge O'Donnell situation" but that he "was going to need Dr. Harkness' assistance and support around the charges being filed." Dr. Harkness further informed Ms. Sharpless that "Mr. Sartain had blown the situation in the way he had handled Marge O'Donnell, and that he [Mr. Sartain] would personally take care of getting rid of her." Ms. Sharpless also testified as follows:

Dr. Harkness told me that I fit his needs as a secretary perfectly. I was young, I was attractive, I was personable, I had good communications skills, and he thought that I would be of great benefit to him in working interpersonally with the physicians on the staff, and that was very important to him. How I looked, how I behaved, and that I was a true reflection of medical affairs and all the work that he was doing there. So it was very important that I behave and I look a certain way.

The Hospital contends that the introduction of this testimony was error that requires remand for a new trial. To prevail on this issue, the Hospital must show (1) that the district court abused its discretion in erroneously admitting the testimony and (2) that the admission of the evidence affected the Hospital's substantial rights. See Perry v. State Farm Fire & Casualty Co., 734 F.2d 1441, 1446 (11th Cir.1984); Dietz v. Consolidated Oil & Gas, Inc., 643 F.2d 1088, 1093 (5th Cir.) cert. denied, 454 U.S. 968, 102 S.Ct. 513, 70 L.Ed.2d 386 (1981); Rozier v. Ford Motor Co., 573 F.2d 1332, 1348-49 (5th Cir.1978); Fed.R.Evid. 103(a). The testimony clearly may have influenced the jury's verdict. O'Donnell's counsel relied heavily upon it in his final argument to the jury. The district court also relied upon it to deny the Hospital's motion for new trial or JNOV. Thus, the admission of the testimony did affect the Hospital's substantial rights; if admission of the evidence was error, it was not harmless error. We must therefore determine if the district court abused its discretion in admitting the testimony. The Hospital argues that the testimony was irrelevant, ⁵ inadmissible hearsay ⁶ that should have been excluded also for O'Donnell's failure to supplement her discovery answers as required by Rule 26(e)(2) of the Federal Rules of Civil Procedure. ⁷

Rule 26(e)(2) provides in pertinent part as follows:

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except [that] [a] party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which ... he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

Thus a party must amend a discovery answer if (1) she learns that her original answer is no longer true and (2) a failure to amend amounts to a knowing concealment. The Hospital insists that these requirements are satisfied here because O'Donnell stated in her pretrial deposition that no one employed by the Hospital had said, intimated, indicated, acknowledged or otherwise asserted that she had been discriminated against because of her age. Because O'Donnell failed to amend this deposition answer, the Hospital continues that it was prejudicially surprised by the testimony of Ms. Sharpless. Ms. O'Donnell counters that the testimony came to her attention during the trial, the Hospital requested neither a continuance to examine the witness nor a mistrial, the Hospital did not cross-examine Ms. Sharpless, and the Hospital produced the testimony of Dr. Harkness to rebut Ms. Sharpless' statements.

The Hospital's argument neither satisfies the requirements of Rule 26 nor shows that the Hospital was impermissibly prejudiced by the disputed testimony. Ms. O'Donnell testified at her deposition that no hospital employee had told her that she was discriminated against because of her age. She did not testify that no hospital employee had intimated such information to anyone else. The testimony of Ms. Sharpless therefore did not render Ms. O'Donnell's deposition testimony false and thereby require its amendment. Further, Ms. O'Donnell's counsel told the district court that this testimony of Ms. Sharpless came to his attention the night before it was offered. The district court accepted this explanation, and we find no reason to disagree with him. Finally, Ms. O'Donnell did include Ms. Sharpless in her pretrial witness list. The Hospital objects, however, that Sharpless was listed only as a "may call" witness and that her address was given only as St. Louis, Missouri. Thus, the Hospital contends that the costs of discovering her possible testimony were prohibitive.

The Fifth Circuit Court of Appeals recently summarized the law pertinent to Rule 26(e)(2) as follows:

The standard under Rule 26(e)(2) is whether the party was "prejudicially surprised." Shelak v. White Motor Co., 581 F.2d 1155, 1159 (5th Cir.1978). The rule seeks to prevent "trial by...