Graefenhain v. Pabst Brewing Co., 83-C-1670.

• Decision Date: 02 November 1985
• Docket Number: No. 83-C-1670.,83-C-1670.
• Citation: 620 F. Supp. 696
• Parties: Gunther GRAEFENHAIN, Philip Miller and Robert E. Loucks, Plaintiffs, v. PABST BREWING COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

620 F. Supp. 696

Gunther GRAEFENHAIN, Philip Miller and Robert E. Loucks, Plaintiffs, v. PABST BREWING COMPANY, Defendant.

No. 83-C-1670.

United States District Court, E.D. Wisconsin.

November 2, 1985.

COPYRIGHT MATERIAL OMITTED

Frank Schiro, Milwaukee, Wis., for plaintiffs.

Michael, Best & Friedrich by John Sapp, John Busch, Milwaukee, Wis., for defendant.

DECISION and ORDER

MYRON L. GORDON, Senior District Judge.

The plaintiffs brought this action under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. The liability issues were tried to a jury; the damage issues were tried separately to the court. The jury returned a special verdict finding that the defendant, Pabst Brewing Company (Pabst), willfully discriminated against plaintiffs Gunther Graefenhain and Philip Miller by terminating them on the basis of age. At the time of their termination, Mr. Graefenhain was 47 years old and Mr. Miller was 62 years old. The jury also found that Pabst did not terminate plaintiff Robert Loucks because of his age. On March 11, 1985, the court entered judgment in the case and issued a decision and order on the damage issues. Mr. Graefenhain was awarded nominal damages of $1.00. Mr. Miller was awarded $28,291.00 in liquidated damages and Pabst was ordered to reinstate him to his former position or a comparable one. In the event Mr. Miller refused reinstatement, Pabst was ordered to pay him damages of $56,582.00— $28,291.00 for his lost pension benefits and a like amount as liquidated damages.

Pabst has moved for judgment notwithstanding the verdict pursuant to Rule 50(b), Federal Rules of Civil Procedure, contesting the jury's findings that the company willfully discriminated against Mr. Graefenhain and Mr. Miller on the basis of age. Plaintiffs Graefenhain and Miller have moved to amend the judgment to award them front pay damages, pursuant to Federal Rule of Civil Procedure 59(e). They also have moved the court to fix a supersedeas bond or, alternatively, to order the judgment placed in an escrow account. The defendant's motion for judgment notwithstanding the verdict will be granted. The plaintiffs' motions will be dismissed as moot.

In support of its motion for judgment, Pabst contends that no reasonable jury could have found that Mr. Graefenhain and Mr. Miller were terminated because of their age or, alternatively, that no reasonable jury could have found that the discrimination was willful. In deciding a motion for judgment, the court must consider whether the evidence presented, combined with all reasonable inferences that can be drawn from it, is sufficient to support the verdict when viewed in the light most favorable to the prevailing party. Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 153 (7th Cir.1981). It is not the court's role to judge the credibility of the witnesses or to reweigh the evidence to find a preponderance on one side or the other. La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1410 (7th Cir.1984). The court, nonetheless, will consider whether the evidence to support the verdict is substantial; "a mere scintilla of evidence will not suffice." Id.

The plaintiff in an age discrimination case has the burden of proving that he was discriminated against in employment because of his age. Golumb v. Prudential Ins. Co. of America, 688 F.2d 547, 550 (7th Cir.1982). To do so, he need not prove that age was the sole factor motivating the employer to terminate him but that age was a determining factor in the sense that "but for" the discrimination he would not have been terminated. La Montagne, supra, 750 F.2d at 1409.

The plaintiff may attempt to meet this burden directly, by presenting direct or circumstantial evidence of discriminatory motive, or indirectly. Courts have generally employed modified versions of the formula set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to cases involving indirect proof of age discrimination. See Huhn v. Koehring, 718 F.2d 239, 243 (7th Cir.1983); Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1222 (7th Cir. 1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981).

In this circuit, a plaintiff claiming that he was terminated from his job because of his age must first prove a prima facie case of discrimination by showing that: (1) he was in the protected age class; (2) he was performing his job well enough to meet his employer's legitimate expectations; (3) he was discharged despite his performance; and (4) the employer sought to replace him with a younger person. La Montagne, supra, 750 F.2d at 1409. If the plaintiff establishes a prima facie case, the defendant then has the burden of articulating legitimate, nondiscriminatory reasons for the termination. Id. The defendant's burden is one of production only; the burden of persuasion remains with the plaintiff throughout the case. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). If the defendant satisfies its burden, then the plaintiff must prove that the reasons articulated by the defendant were a pretext, or cover-up, and were not its true reasons; this can be done by the plaintiff's showing either that a discriminatory reason more likely than not motivated the defendant or that the reasons offered by the defendant are not worthy of credence. La Montagne, supra, 750 F.2d at 1409. The indirect method of proof, which allows the plaintiff to prove his case by eliminating all lawful motivations rather than directly proving a discriminatory motivation, recognizes that age discrimination may be subtle and often very difficult to prove. Id. at 1409-10.

The plaintiffs claim that they intended to employ both the direct and indirect methods of proving age discrimination. In their proposed jury instructions, however, they included instructions only on the indirect method. In any case, if no reasonable jury could have found age discrimination under the indirect method, they certainly could not have found for the plaintiffs under the direct method.

The defendant first argues that neither Mr. Graefenhain nor Mr. Miller established his prima facie case because neither plaintiff proved that he was meeting Pabst's legitimate expectations when he was terminated. In United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983), the Supreme Court, applying the McDonnell Douglas test in a Title VII action, observed that the prima facie threshold is no longer a relevant issue once the defendant has proffered legitimate, nondiscriminatory reasons for its actions that would rebut the prima facie showing. See also Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132, 135 (7th Cir.1985). The only relevant issue in this situation is whether sufficient evidence is presented from which the trier of fact could find that the defendant intentionally discriminated against the plaintiff. Id.

In the present case, the defendant offered legitimate reasons for terminating the plaintiffs after its motion for a directed verdict at the close of the plaintiffs' case was denied by the court. Because this evidence was before the jury when it rendered its verdict, the court will not consider whether the plaintiff presented sufficient evidence to establish a prima facie case of age discrimination.

In response to the plaintiffs' discrimination claims, Pabst offered evidence that the plaintiffs were terminated as part of a reduction in its sales force due to declining sales and because of the company's dissatisfaction with their work. Even during a legitimate company reorganization or workforce reduction, however, a company may not choose an employee for termination because of his age. Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir.1983). At the same time, the ADEA does not place an affirmative duty on employers to afford special treatment to employees in the protected age class. Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1217 (7th Cir.1985). The key issue presently before the court is whether there is sufficient evidence from which a reasonable jury could find that Mr. Graefenhain and Mr. Miller were chosen for termination as part of Pabst's December 1981 sales force reduction because of their age.

First, as to Mr. Graefenhain, Pabst presented evidence that George Spencer, Mr. Graefenhain's immediate supervisor and the individual who recommended his termination, was dissatisfied with the plaintiff's performance in certain respects. Although Robert Lyons, Pabst's acting general manager of sales in December 1981, was ultimately responsible for the decision to terminate Mr. Graefenhain, the uncontested evidence is that Mr. Lyons relied on Mr. Spencer's recommendation in making the final termination decision. The record shows that Mr. Spencer and Mr. Graefenhain met on two occasions, in March and July of 1981, to discuss certain problems, most notably the latter's failure to submit the type of detailed information on pricing that Mr. Spencer sought. Mr. Spencer also told Mr. Graefenhain at these meetings that the latter's reputation at Pabst had been severely damaged. When asked by his immediate superior, Mr. Lyons, to evaluate employees in the company's western region in November 1981, Mr. Spencer rated Mr. Graefenhain as a four on a scale of one to nine and ranked him last among the four division managers in the western region.

Mr. Spencer also wrote to Mr. Graefenhain in March 1981 to express his concern that he had received only one program plan from Mr. Graefenhain after repeated requests. On July 8, 1981, Mr. Spencer wrote to Mr. Graefenhain noting that his division was $6,000.00 over its annual budget and asking him to reevaluate his expenses. Mr. Spencer followed this letter with two additional communications over the next several months which expressed continued dissatisfaction...