Giandonato v. Sybron Corp.

• Citation: 804 F.2d 120
• Decision Date: 29 October 1986
• Docket Number: No. 85-2629,85-2629
• Parties: 42 Fair Empl.Prac.Cas. 219, 41 Empl. Prac. Dec. P 36,669 Nunzio M. GIANDONATO, Plaintiff-Appellee, v. SYBRON CORPORATION, d/b/a Taylor Instrument Company, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 120

804 F.2d 120

42 Fair Empl.Prac.Cas. 219,

41 Empl. Prac. Dec. P 36,669

Nunzio M. GIANDONATO, Plaintiff-Appellee, v. SYBRON CORPORATION, d/b/a Taylor Instrument Company,

Defendant-Appellant.

No. 85-2629.

United States Court of Appeals, Tenth Circuit.

Oct. 29, 1986.

Ronald E. Gregson, Denver, Colo., for plaintiff-appellee.

Jeffrey T. Johnson of Holland & Hart, Denver, Colo., for defendant-appellant.

Before BARRETT and TACHA, Circuit Judges, and BROWN, ^* District Judge.

BARRETT, Circuit Judge.

Sybron Corporation (Sybron), formerly Taylor Instrument Company (Taylor), appeals from a jury verdict and judgment entered in favor of Nunzio M. Giandonato, a/k/a John Donato (Donato). Donato brought this action pursuant to the Age Discrimination In Employment Act (ADEA), 29 U.S.C. Sec. 621, et seq., alleging that he had been constructively discharged in violation of the Act.

Donato was employed by Taylor for over fourteen years between 1969 to 1983 as a salesman of process control instrumentation units. Donato worked out of Taylor's Denver office which covered Montana, Wyoming, Utah, Colorado, New Mexico and parts of Nebraska and Oklahoma. During his employment with Taylor, Donato exceeded his sales quotas by over $900,000.00 and in 1982, he received Taylor's Hall of Fame award.

During the fall of 1982, Donato reported to John Carlson (Carlson), Taylor's Western Regional Manager. 1982 was a slow year for the process controls industry and its problems continued into 1983. During this period, Carlson transferred one of Taylor's Denver based salesmen to California, fired June Johnson, Taylor's Denver office manager and inside salesperson, and was critical of Donato who had been unable to meet the sales quota set by Carlson. On Friday, May 13, 1983, Carlson and Donato met in Denver to review Donato's job performance. At that time Carlson gave Donato the choice of a three month probation or early retirement with severance pay and extended benefits. Carlson gave Donato until May 18, 1983, to reach a decision.

On May 16, 1983, Donato resigned from his job at Taylor and commenced receiving twenty weeks of severance pay at his normal weekly salary. At the end of twenty weeks, Donato began receiving Taylor's regular pension benefits. Donato also received extended medical insurance coverage for a period of eighteen months. The extended medical coverage was an exception to Sybron's normal policy and was granted to Donato in consideration for his fifteen years of service and because the company was aware that Donato's wife was terminally ill with cancer.

On May 16, 1983, Donato also filed an age discrimination complaint with the Equal Employment Opportunity Commission (EEOC) contending that he had been harassed and constructively discharged by Taylor on account of his age. During June and July, 1983, Taylor, while denying that any age discrimination had occurred, made several verbal and written reinstatement offers to Donato through the EEOC. These offers would have reinstated Donato to his former position on comparable terms. Donato rejected each reinstatement offer.

Donato's wife died on September 24, 1983. On December 15, 1983, the EEOC notified Donato that it had determined not to proceed further with his charge against Taylor. On May 4, 1984, Donato filed the amended verified complaint herein which alleged that Taylor had constructively discharged him in violation of the ADEA. Donato sought compensatory damages, liquidated damages under the ADEA, punitive damages, interest, attorney's fees, injunctive relief, and reinstatement. In its answer, Sybron alleged that: Donato's complaint failed to state a claim upon which relief could be granted; Donato's complaint failed to state a claim for punitive damages; Donato had failed to mitigate his damages; and because Donato had refused Sybron's unconditional offers of reinstatement, its liability for back pay, if any, was limited to the period between Donato's resignation and Sybron's offers of reinstatement.

On November 6, 1984, Sybron moved for partial summary judgment, seeking an order dismissing Donato's claims for back pay and reinstatement. In its brief in support of the motion, Sybron alleged that Donato, by rejecting its unconditional offers of reinstatement, had forfeited his rights to back pay and reinstatement. Sybron attached to its motion: a copy of a letter dated June 20, 1983, from Sybron to Lew Vigil, an EEOC investigator, in which Sybron stated that Donato "may return to active employment with no loss of service credit" on a probationary basis and that if Donato "wishes to return to active employment I will need his decision no later than July 1, 1983"; a copy of a letter of July 21, 1983, from Sybron to Vigil in which Sybron confirmed an oral offer of re-employment made on July 19, 1983, proposing to fully reinstate Donato without loss of service and without any probationary period; and a copy of a letter dated July 29, 1983, from Sybron to Vigil in which Sybron reiterated its earlier offer of July 21, 1983, and stated that Donato would not have to repay any of the severance pay he had received.

In his brief in opposition to Sybron's motion for summary judgment, Donato argued that he had acted reasonably in rejecting Sybron's offers of reinstatement because "uncertainties" in the offers left his future status and working conditions in substantial doubt. Donato argued that the offers lacked specificity and did not set forth sales quotas, goals, or territory.

On January 16, 1985, the district court entered an order denying Sybron's motion for partial summary judgment. The court's order provided:

Upon consideration of the defendant's motion for partial summary judgment, filed November 6, 1984, together with the briefs supporting and opposing that motion, and upon the conclusion that the question of the effect of the offers of reinstatement is a matter which can only be determined in the context of the trial, and is not subject to determination on a motion for partial summary judgment, it is

ORDERED, that the motion for partial summary judgment is denied.

(R., Vol. I at Item 7.)

At trial, Donato presented evidence in support of his theory that he was harassed and constructively discharged by Sybron because of his age. Donato, who was 57 years old when he resigned, testified, inter-alia: Carlson was critical of his performance as a salesman; Carlson's criticisms were based on Donato's age; in November, 1982, Carlson told him that he would be replaced by a younger and more aggressive person; in early 1983 Carlson told him that he was too old to change; and that, at their May 13, 1983, meeting, Carlson told him that he would make Donato's three month probationary period miserable and would find a reason to fire him.

Sybron defended on the basis that: Donato had voluntarily resigned; even though there had been no age discrimination surrounding Donato's resignation, Sybron thereafter made three reinstatement offers to Donato upon terms equal to or better than the terms he enjoyed prior to his resignation; Donato had rejected its reinstatement offers; and, Donato had failed to mitigate any damages which surrounded his resignation.

Donato, while acknowledging that he had rejected the reinstatement offers, asserted three reasons for rejecting the offers. He stated that he did not want to work under Carlson's supervision, he had uncertainties about Sybron's offers, and his wife was terminally ill with cancer. In response, Sybron presented evidence that it had agreed to have Donato work under a supervisor other than Carlson, and that Donato had acknowledged that although he had uncertainties about Sybron's reinstatement offers, at no time did he ask Sybron to address his uncertainties. At the close of all the evidence, Sybron moved for a directed verdict based on its affirmative defense of Donato's rejection of the reinstatement offers. The motion was denied.

The jury returned a verdict in which it found that: Sybron had discriminated against Donato because of his age; Sybron's violation of the ADEA was willful; and, Sybron did not prove its affirmative defenses of reinstatement offers or failure to mitigate. The district court entered judgment in favor of Donato in the amount of $327,357.00 representing: $83,951.00 in net back pay and benefits; $83,951.00 in liquidated damages for willful violation of the ADEA; $137,599.00 in front pay in lieu of reinstatement; and $21,856.00 in stipulated attorney's fees and costs.

On appeal Sybron contends, without challenging the jury's finding of age discrimination or the computation of damages, that: (1) the court erred in denying its motion for partial summary judgment; (2) the court erred in denying its motion for directed verdict at the close of all the evidence; (3) the jury's verdict on Sybron's reinstatement offer defense was not supported by substantial evidence; (4) the court erroneously instructed the jury on Donato's failure to mitigate; and (5) the jury's verdict on Donato's failure to mitigate is not supported by substantial evidence.

Because of their dispositive nature, our discussion will be limited to Sybron's first and second allegations of error. Sybron contends that the court erred in denying its motion for partial summary judgment and its motion for a directed verdict, both of which were predicated upon Donato's rejection of its offers of reinstatement. Sybron relies on Ford Motor Company v. EEOC, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982), for the proposition that an employer can toll the further accrual of back pay liability by making an unconditional offer of reinstatement to the claimant.

In reviewing a motion for summary judgment, we must view the case in the same manner as did the district court. R-G Denver, Ltd. v. First City Holdings of Colorado, Inc., 789 F.2d 1469 (10th Cir.1986). Thus, we must view the record in light most favorable to the party opposing the motion...