Grant v. Hazelett Strip-Casting Corp.

• Citation: 880 F.2d 1564
• Decision Date: 26 July 1989
• Docket Number: D,No. 1165,STRIP-CASTING,1165
• Parties: 50 Fair Empl.Prac.Cas. 622, 51 Empl. Prac. Dec. P 39,245 Walter W. GRANT, Plaintiff-Appellant, v. HAZELETTCORPORATION, Defendant-Appellee. ocket 89-7148.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1564

880 F.2d 1564

50 Fair Empl.Prac.Cas. 622,

51 Empl. Prac. Dec. P 39,245

Walter W. GRANT, Plaintiff-Appellant, v. HAZELETT STRIP-CASTING CORPORATION, Defendant-Appellee.

No. 1165, Docket 89-7148.

United States Court of Appeals Second Circuit.

Argued May 18, 1989.

Decided July 26, 1989.

Heather Briggs, Burlington, Vt. (Downs Rachlin & Martin, Anita R. Tuttle, of counsel), for plaintiff-appellant.

John T. Sartore, Burlington, Vt. (Paul, Frank & Collins, Michael J. Harris, of counsel), for defendant-appellee.

Before LUMBARD, PRATT and ALTIMARI, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Walter W. Grant appeals from a judgment of the United States District Court On appeal Grant contends that the district court erred in granting his adversary's motion for judgment n.o.v. and in denying his own. Alternatively, he argues that the court improperly instructed the jury on the elements and relative burdens of proof applicable to his age discrimination claim. For the reasons below, we vacate the judgment and remand for further proceedings.

                for the District of Vermont, Franklin J. Billings, Jr., Judge, following a jury trial of his claims under the Age Discrimination in Employment Act of 1967 (the "ADEA" or "act"), 29 U.S.C. Sec. 621 et seq.    Grant claimed that defendant Hazelett Strip-Casting Corporation ("HSCC") discharged him because of his age and in retaliation for his opposition to conduct made unlawful by the ADEA.  The jury found (1) that HSCC did not discharge Grant because of his age;  (2) that HSCC did discharge Grant in retaliation for opposing conduct made unlawful by the act;  and (3) that the retaliation was not willful.  On cross-motions for judgment n.o.v., the district court set aside the jury's verdict as to retaliation but upheld its verdicts as to nonwillfulness and age discrimination
                

BACKGROUND

In the spring of 1974, Grant was hired as controller of HSCC, a position he retained until his dismissal from the company at the end of March 1987. Grant's yearly salary increased steadily during his tenure with HSCC, growing from approximately $17,000 to more than $50,000. As controller, Grant was a member of HSCC's management committee and worked closely with R. William Hazelett, the company's founder, president, and chief executive officer.

The circumstances giving rise to this litigation did not unfold until the months immediately preceding Grant's discharge, when a series of "incidents", as they are now described by HSCC, transpired among Grant, Hazelett, and other members of the management committee. Two of these incidents involved Grant's criticism of hiring and policy decisions made by members of the management committee; a third related to a program of management paycuts instituted in late 1986; and a fourth involved Grant's handling of insurance policies on Hazelett's personal aircraft. While these incidents appear relatively minor when considered separately, their cumulative effect on Hazelett was unfortunate for him. In late January 1987, Hazelett became so incensed over Grant's failure to find a cheaper insurance policy for his two seaplanes that he came into the office of Peter Regan, the company's vice-president for marketing, "literally shaking", and said "[t]his is just one more thing that I'm having to cope with here * * * I just can't go on like this", and that he "just couldn't work with Walter [Grant] anymore."

At some point during this conversation, Regan suggested that a different position for Grant within the company might be in order. Regan later explained that he believed Hazelett's relationship with Grant was deteriorating, and that Hazelett was becoming preoccupied with Grant, so "I felt it was best that perhaps that we try to find another--a situation where they wouldn't have to work so closely together." According to Regan, Hazelett "thought this was an excellent idea", and told Regan and Jerry Allyn, the vice-president for engineering, to pursue the matter further.

Regan and Allyn first broached the subject of a lateral transfer during two luncheon meetings with Grant in early February 1987. Regan and Allyn discussed Hazelett's reaction to the airplane insurance, and compared the relationship between Grant and Hazelett to "a marriage that's gone bad". Grant testified that he was surprised at these revelations, but nonetheless agreed to think about other positions within the company and to consider any proposals made by Regan and Allyn. Various options were discussed in the weeks that followed, including a three-year consulting arrangement that, in principle at least, appeared to satisfy Hazelett. As a condition of this agreement, however, Hazelett wanted Grant to withdraw from the company's health insurance plan.

Before an agreement was reached, Hazelett asked Grant to assist the company in recruiting a new controller. Grant first But of greater relevance to Grant's age discrimination suit, Hazelett also said that he wanted a younger person in the job. As Hazelett remembered telling Grant during this period, "I think it certainly should be a younger--a younger person." At trial, Hazelett and other members of the management committee gave various reasons for preferring a younger controller, including their perceptions that (1) older candidates would demand a higher salary; (2) older employees "won't be able to be as productive"; and (3) "a person with a lot of experience wouldn't want Bill [Hazelett] telling him what to do."

                recommended Carolyn Antone, an HSCC employee who had worked closely with Grant, but Hazelett responded that "I don't want a woman in this job.  A woman can't do the job."    At trial, Hazelett explained that he wanted his new controller to spend time in metal foundries in order to learn all aspects of the business, and that "I have been around the world and I really have never seen a woman in a molten metal plant handling molten metal.  * * *  So I think, in general, that would pretty well say that a woman would prefer not to--not to--not to get into that type of thing, as much as a man would."    There was also testimony from Allyn that no Jewish candidates would be considered because "many years ago the Hazelett family had a very unhappy experience with a group of Jewish financiers, and it left a very bitter taste in their mouth."
                

On March 23, 1987, after consulting with an attorney, Grant approached Hazelett with a memo listing the qualifications desired in the new controller. Hazelett discussed these qualifications with Grant, filled in the salary range, and signed the memo. It reads in full as follows:

March 23, 1987

Bill Hazelett:

With respect to the new controller for Hazelett Strip-Casting Corporation, a recap of the functions I am currently performing is attached.

Last week I discussed with Peter Reagan [sic], Jerry Allyn and yourself the additional qualifications you are looking for.

They are as follows:

A "hands-on" fellow who has enthusiasm and energy for a challenging position.

This young man will be between 30 and 40 years old, will have a CPA certificate, the ability to do tax returns, and hopefully a manufacturing background. (If he does not have manufacturing experience, Carolyn, as you pointed out, can train him.)

An optimistic outlook and skills in working with people as well as with numbers will be evident in his qualifications. Initiative will also be a strong point.

Bill, please indicate the salary range you have in mind:

Salary range--$30-45,000 [handwritten by Hazelett]

With your approval, I will get right to work on this.

Walt

Approved: /s/ R Wm Hazelett

RW Hazelett

cc: PCReagan [sic]

JBAllyn

A copy of this memo was given to the company's personnel director, Peter Rowan, who immediately told Grant "this is a no-no" because, as Rowan later testified, the document "was clearly in violation of EEO law." After Grant said that the memo reflected exactly what Hazelett was looking for in the new controller, Rowan replied that they must "protect Bill from himself". Later that day, Rowan and Regan edited the memo to remove any references to age and gender, and asked Grant to destroy all copies of the original memo. Grant refused. Before the day ended, Hazelett and Grant had an argument that the participants remembered as a "shouting match", resulting in a mutual decision that Grant would take the remainder of the week off as "a cooling off period". On March 30, 1987, the day Grant was to return to the office, Hazelett called Grant at home and told him he was no longer an employee of HSCC. The company replaced Grant with a 30-year-old man.

After satisfying the jurisdictional prerequisites for bringing suit under the ADEA, Grant commenced this action on July 14, 1987, alleging that HSCC willfully violated the ADEA by discharging him on account of his age and because he opposed practices made unlawful by the act. At the close of the evidence, the court instructed the jury in accordance with the McDonnell Douglas standard for proving discrimination in employment. So charged, the jury found that Grant was not discriminated against because of his age, but that he was retaliated against because of his opposition to conduct made unlawful by the ADEA. The jury also found that the retaliation was not willful. After both parties moved for judgment n.o.v., the district court set aside the jury's verdict as to retaliation, holding that, as a matter of law, Grant had failed to show participation in a protected activity. Judgment was therefore entered for HSCC and Grant appeals.

DISCUSSION

A. The Age Discrimination Claim.

Grant claims that the district court erroneously charged the jury as to the evidentiary burdens applicable to his claim of age discrimination. The ADEA protects individuals between the ages of forty and seventy from "arbitrary age discrimination in employment." 29 U.S.C. Secs. 621(b), 631(a). The act provides, in relevant part:

It shall be unlawful for an employer * * * to fail or refuse to...