Farber v. Massillon Bd. of Educ.

• Decision Date: 28 September 1990
• Docket Number: 89-3456,Nos. 87-4035,s. 87-4035
• Citation: 917 F.2d 1391
• Parties: 54 Fair Empl.Prac.Cas. 1063, 55 Empl. Prac. Dec. P 40,414, 63 Ed. Law Rep. 786 Therese A. FARBER, Plaintiff-Appellant, v. MASSILLON BOARD OF EDUCATION, * Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1391

917 F.2d 1391

54 Fair Empl.Prac.Cas. 1063,

55 Empl. Prac. Dec. P 40,414, 63 Ed. Law Rep. 786

Therese A. FARBER, Plaintiff-Appellant, v. MASSILLON BOARD OF EDUCATION, ^* Defendants-Appellees.

Nos. 87-4035, 89-3456.

United States Court of Appeals Sixth Circuit.

Argued Feb. 2, 1990.

Decided Dec. 11, 1990.

Rehearing and Rehearing En Banc

Denied Sept. 28, 1990.

Leonard F. Lybarger, Cleveland, Ohio, for plaintiff-appellant in Nos. 87-4035 and 89-3456.

Ronald J. James, argued, Carolyn K. Seymour, Ronald J. James, Squire, Sanders & Dempsey, Cleveland, Ohio, James P. Burnes, John E. Britton, Means, Bichimer, Burkholder & Baker, Columbus, Ohio, for defendants-appellees in No. 87-4035.

James P. Burnes, Columbus, Ohio, Carolyn K. Seymour, Ronald J. James, Squire, Sanders & Dempsey, Cleveland, Ohio, for defendants-appellees in No. 89-3456.

Before KEITH and KRUPANSKY, Circuit Judges, and TAYLOR, District Judge. ^**

ANNA DIGGS TAYLOR, District Judge.

The first of these two consolidated appeals is of Appellant's claims that the Massillon Board of Education (and certain individuals not parties here) discriminatorily denied her promotional appointment to two positions on the basis of her age and her sex. The second consolidated appeal concerns attorney fees. For the reasons discussed below, we reverse and remand for further proceedings consistent herewith.

Appellant, who was born in 1930 and holds a Master's Degree in educational administration, taught in several parochial schools, was principal of a parochial school for six years, and holds numerous certificates including those of teacher and provisional elementary principal, as well as numerous commendations for her teaching skills. She began teaching in the Massillon school district in 1972. By 1978 Appellant had a total of 27 years of experience in teaching grades 1-8, the last six of which were in the Massillon system. She also coordinated, directed, and taught in the Massillon Adult Basic Education Program (ABE).

In 1978, Appellant applied for the newly vacant combined position of Principal of Lincoln Elementary, Director of ABE, and Director of the Title I Remedial Reading Program. Superintendent Louis Young rejected her application in favor of Robert Otte, a male teacher, and Appellant thereafter filed a complaint of sex discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).

Superintendent Young resigned because of illness in 1980. Darnell Cheyney, Director of Instruction, was appointed Interim Superintendent and was therefore required to fill the vacancy he had left in the Director's post. Of at least thirty-two candidates for that job, only two were female and one of those was Appellant. She became one of four finalists in the competition, but ultimately lost to a younger male; James Gides.

Appellant filed another complaint with EEOC, alleging sex and age discrimination. In due course, EEOC issued Right-To-Sue Letters, and Appellant filed this action. Her complaint below charged two counts of sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq.; two counts of sex discrimination in violation of 42 U.S.C. Sec. 1983; and one count under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. Other claims were included, but subsequently withdrawn.

The trial court dismissed Appellant's two Sec. 1983 claims prior to trial, for having been filed beyond the statute of limitations. It then tried the Age Discrimination Act claim to a jury, which awarded Appellant damages of $76,383.00. After trial, the court remitted the damage award to $38,817.36, on Appellee's motion, and denied Appellant's motion for either front pay or appointment to the position wrongfully denied. Thereafter, it held a bench trial on Appellant's two Title VII claims and rendered judgment on both for defendants. This appeal is from each of those rulings, and the second appeal complains of the amount of attorney fees awarded Appellant for her successful prosecution of the ADEA claim.

Remittitur

The district court granted Appellee's post-trial motion to remit the jury verdict for Appellant's ADEA back pay loss, finding the evidence insufficient to support the jury's award. Appellant was given no opportunity, moreover, to opt for a new trial in lieu of the remittitur. She contends that both the remittitur itself, as well as the failure to offer an alternative thereto were erroneous, and we agree.

As a general rule, this court has held that "a jury verdict will not be set aside or reduced as excessive unless it is beyond the maximum damages that the jury reasonably could find to be compensatory for a party's loss." Green v. Francis, 705 F.2d 846, 850 (6th Cir.1983); Jones v. Wittenberg University, 534 F.2d 1203, 1212 (6th Cir.1976).

A trial court is within its discretion in remitting a verdict only when, after reviewing all evidence in the light most favorable to the awardee, it is convinced that the verdict is clearly excessive, resulted from passion, bias or prejudice; or is so excessive or inadequate as to shock the conscience of the court. Jones v. Wittenberg University, supra; Hines v. Smith, 270 F. 132 (6th Cir.), cert. denied, 255 U.S. 576, 41 S.Ct. 448, 65 L.Ed. 794 (1921). If there is any credible evidence to support a verdict, it should not be set aside. Wertham Bag Co. v. Agnew, 202 F.2d 119 (6th Cir.1953). The trial court may not substitute its judgment or credibility determinations for those of the jury. Moreover, it abuses its discretion in ordering either a remittitur or new trial when the amount of the verdict turns upon conflicting evidence and the credibility of witnesses. Hewitt v. B.F. Goodrich, 732 F.2d 1554 (11th Cir.1984); Cross v. Thompson, 298 F.2d 186 (6th Cir.1962); Duncan v. Duncan, 377 F.2d 49 (6th Cir.1967), cert. denied, 389 U.S. 913, 88 S.Ct. 239, 19 L.Ed.2d 260 (1967).

When examined in light of the settled law outlined above, the remittitur in this case will not pass muster. The damages which the jury awarded were the exact amount which Appellant had testified were the maximum due her. Under such circumstances, they should not be disturbed by the court. U.S. v. 329.73 Acres, 666 F.2d 281 (5th Cir.1982). Although evidence was conflicting, the jury apparently chose to give full credit to Appellant's testimony that she could serve both as Director and teacher in the ABE program, and her evidence that she would have been compensated, if appointed Director in 1980, at the tenth and highest level of the salary scale. Although Appellee presented evidence to the contrary on both points, we note that the district court itself stated, during trial, that the level of pay scale which Appellant would have attained was "a jury question," because "there is evidence in the record from which the jury could draw" the conclusion that she would have started at level ten. There was, indeed, sufficient evidence to support the jury's verdict, and remitting it constituted an abuse of discretion, under the circumstances.

Moreover, even if remittitur had been appropriate here, a forced remittitur without the offer of the option of a new trial on the issue of damages constitutes error, requiring this court to reverse and reinstate the verdict. Brewer v. Uniroyal, Inc., 498 F.2d 973 (6th Cir.1974); Staplin v. Maritime Overseas Corp., 519 F.2d 969 (2d Cir.1975).

Appointment or Front Pay

After Appellant's success before the jury on her ADEA legal claim, she applied to the district court for equitable relief as authorized by Sec. 7(b) of that statute, 29 U.S.C. Sec. 626(b). The courts have been charged by that section to be mindful of the statutory intent of "... recreating the circumstances that would have existed but for the illegal discrimination." Gibson v. Mohawk Rubber Co., 695 F.2d 1093 (8th Cir.1982). On such a petition, the district court is to be mindful of the admonition of Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975), and its numerous progeny, that equitable relief is to "... be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Id. at 421, 95 S.Ct. at 2373. Accordingly, a district court must carefully articulate its rationale for refusing to compel employment of a plaintiff who has suffered discrimination.

The basis upon which reinstatements, or an appointment in this case, may be denied must be more compelling than the personal preferences and distrusts which accompanied the initial discriminatory activity. "It is not enough that reinstatement might have 'disturbing consequences,' that it might revive old antagonisms, or that it could 'breed difficult working conditions' [because] [r]elief is not restricted to that which will be pleasing and free of irritation." In re Lewis v. Sears, Roebuck & Co., 845 F.2d 624, 630 (6th Cir.1988). The district court, on such petition, is of course bound by the jury's decision of the issue of prior discrimination.

Such exceptional circumstances as would justify denial of Appellant's petition should be found only upon the facts presently obtaining and not based upon historical circumstances which may no longer be present when the proposed reinstatement occurs. Dickerson v. Deluxe Check Printers, Inc., 703 F.2d 276 (8th Cir.1983). For that reason, an evidentiary hearing as to the present circumstances of the parties is appropriate where, as here, the passage of time since trial has been substantial. In this case, the ADEA trial was completed on December 13, 1985, and the district court decided the petition for appointment on October 13, 1987. Moreover, where a petition is denied on the basis of workplace tensions, those tensions must be so serious as to manifest themselves in the public function of the employer. I...