Gries v. Zimmer, Inc.

• Decision Date: 27 May 1992
• Docket Number: C-C-87-577-P.,No. C-C-87-576,C-C-87-576
• Citation: 795 F. Supp. 1379
• Court: U.S. District Court — Western District of North Carolina
• Parties: Wayne R. GRIES, Plaintiff, v. ZIMMER, INC., Defendant. Michael J. MORAN, Plaintiff, v. ZIMMER, INC., Defendant.

795 F. Supp. 1379

Wayne R. GRIES, Plaintiff, v. ZIMMER, INC., Defendant.

Michael J. MORAN, Plaintiff, v. ZIMMER, INC., Defendant.

No. C-C-87-576, C-C-87-577-P.

United States District Court, W.D. North Carolina, Charlotte Division.

May 21, 1992.

As Amended May 27, 1992.

Louis L. Lesesne, Jr., Gillespie Lesesne & Connette, Richard A. Vinroot, Robinson Bradshaw & Hinson, Charlotte, N.C., for plaintiffs.

Martin N. Erwin, Julie C. Theall, Smith Helms Mulliss & Moore, Greensboro, N.C., for defendant.

MEMORANDUM OF DECISION AND ORDER

ROBERT D. POTTER, District Judge.

THIS MATTER is before the Court on Motion of the Plaintiffs for Equitable Relief and Attorneys' Fees.

The procedural background and a summary of the evidence in the trial of this case appears at 742 F.Supp. 1309 (W.D.N.C.1990).

On appeal the Fourth Circuit Court of Appeals in unpublished opinion No. 90-2430 determined that this Court's grant of Defendant's Motion for Judgment Notwithstanding the Verdict was improper and the conditional grant of Defendant's Motion for a New Trial was an abuse of discretion 940 F.2d 652. (table) The Fourth Circuit affirmed this Court's denial of Plaintiffs' Motion for a Judgment Notwithstanding the Verdict, the Plaintiffs' Motion for a New Trial solely on the issue of damages and the Plaintiffs' Motion to Amend Judgment.

The Fourth Circuit also opined that it did not believe equity would be served by reinstatement and that equitable considerations led it to grant prejudgment interest on the damages from April 6, 1987.

FINDINGS OF FACT AS TO WAYNE R. GRIES' MOTION FOR EQUITABLE RELIEF

1. Wayne R. Gries "Gries", born July 31, 1946, started his employment with Defendant Zimmer, Inc. "Zimmer" on February 1, 1979 at salary of $28,000. This salary increased each year to $66,600 in 1987. PX 2¹ Zimmer terminated Gries on April 6, 1987.

2. Gries also received bonuses based on whether the division which employed him achieved over 75% of its budgeted earnings goal. The normal bonus for Gries was $13,320. This bonus was based on his grade and division earnings of 98.0% to 99.9% of its budgeted earnings goal. Thus, the bonus for Gries would vary according to the percentage of company earnings achievement shown in PX 3. Tr. 11, 12²

3. During the years of his employment at Zimmer, 1979 to 1987, Gries received a bonus in each year, except 1985, which was not less than 100% based on the performance incentive payout shown on PX 3. Tr. 12, 13

4. During the time Gries was employed by the Defendant, it had a savings plan. Pursuant to this plan, the company would match the employee's contribution at $.50 on the dollar up to the first 6% of the employee's salary. The employee could contribute an additional 10% of his salary up to 16%, but the company would not match the additional 10% paid by the employee. Tr. 13

5. The company's contribution increased in January of 1990. Tr. 14

6. An employee could choose several options for investment of monies contributed to the savings plan. Gries chose the fixed income plan. Tr. 16, 17

7. The company also had a retirement plan. Gries was vested under the plan and at age 65 will receive a pension of $9,849 a year. Tr. 18, 19

8. Subsequent to his discharge Gries attempted to obtain employment comparable to his Zimmer employment. PX 8; Tr. 21

ARC CORPORATION

9. His first employment with the ARC corporation began in December 1987, but was for a limited term of employment ending in September of 1988. Tr. 21, 22 Gries' salary was $55,000, without the pension or savings plan he had at Zimmer.

PELTON & CRANE

10. In November of 1988, Gries went to work at Pelton & Crane as a controller, at a starting salary of $52,000. He received a raise in October of 1989 in the amount of $10,000 and a one percent increase each quarter thereafter through the third quarter of 1990. In October of 1990 Gries received a $1950.00 increase bringing his salary to $66,534.00 Tr. 22, 23 Pelton & Crane is owned by Siemens Corporation, a German corporation. Tr. 23

11. Pelton & Crane also had a bonus plan, a savings plan similar to Zimmer's, and a pension plan. Tr. 24, 26

12. Gries' total compensation in 1990 was $69,555.00. PX 9, p. 1

13. Beginning at age 65, Gries will also receive a pension of $820.79 per month from Pelton & Crane. Tr. 37

14. Gries testified on direct examination that he left Pelton & Crane voluntarily. Tr. 24. Gries resigned in June of 1991. Tr. 36

15. From January 1991 to his resignation on June 21, 1991, Gries received total direct compensation of $33,267.00. PX 9, p. 2

16. Cross-examination revealed that at Pelton & Crane, Gries received a 16% bonus on the one occasion on which he was eligible for a bonus. That is, in November of 1990 for the fiscal year ending September 30, 1990. Tr. 35, 36

17. Cross-examination also revealed that while at Pelton & Crane, Gries complained about his failure to receive, in April of 1991, the job of Vice President of Finance. Rather than Gries, a Mr. Dobrowalski was named to that job; Gries considered himself better qualified than Dobrowalski. Gries sent a handwritten note to his superiors and complained to the President of the company that Pelton & Crane was discriminating on the basis of national origin because he thought "they were sending in too many German nationals." Tr. 37, 38, 39 Gries also complained about Mr. Dobrowalski's predecessor, Mr. Wolfgang Senne because "... he was brought in and I wasn't given the position after the President of the company got rid of the American Vice President of Finance." Tr. 40

18. Gries had a running battle with Mr. Senne. Tr. 40, 41 Gries complained to Senne about his evaluation by Senne and sent a copy of the letter to Gary Ross, the President of the company and to Rodney Wills, the Vice President of Personnel. Tr. 41, 42.

19. Gries complained about Mr. Dobrowalski to Mr. Werner Maly, and to Mary Sutton, stating that Dobrowalski didn't understand the problems of putting in a new computer system. Dobrowalski confronted him with the note. Tr. 42, 43 Gries took a vacation and then resigned. Tr. 43

FINDINGS OF FACT AS TO MICHAEL J. MORAN'S MOTION FOR EQUITABLE RELIEF

20. Michael J. Moran "Moran" was born August 17, 1942 and first became employed by Zimmer in September of 1975. Zimmer terminated Moran in April of 1987. Tr. 48

21. Moran's base salary without bonuses for the period 1975 through termination is set out in PX 1.

22. During the twelve year period Moran was at Zimmer, his average salary increase was 10.7%. Between 1981 and 1987, his average increase was in excess of 9%. His benefits at Zimmer functioned the same way as they did for Gries. Tr. 49, 50

23. In his last year with Zimmer Moran's base salary was $76,600. His total salary, including bonus, would have been $96,542.00. Tr. 50, 51

CREATION WINDOWS OF GEORGIA

24. In August of 1987, Creation Windows of Georgia at Athens, Georgia, hired Moran as General Manager at an annual salary of $75,000.00. Tr. 55

25. Moran was with Creation Windows until October of 1988. Tr. 55

26. On direct examination Moran testified that the job at Creation Windows "... had health and it had some bonus, but not of the nature that we had at Zimmer and had no pension and I think that would be about it." Tr. 55

27. On direct examination Moran testified as follows in response to the question of why the job at Creation Windows terminated:

A. When I first went to Creation Windows of Georgia, they were a company owned by an English firm. There was sic 7 locations of Creation Windows of Georgia. They were losing money in the majority of their locations. Creation Windows subsequently during the time that I was there we closed down 4 locations, 2 of which we absorbed in the Georgia facility. In 1988, the president of the company felt that he had to reduce his overhead even further. So he just assimilated general management of Georgia from Indiana. He took that job himself. He just continued to act as General Manager for Georgia from Elkhart. He would go down and assume that role. As I understand now, the company is also planning to shut the Georgia operation. Tr. 56

28. Robert Hotovy was President of Creation Windows during the time Moran served as General Manager for Creation Windows of Georgia. Tr. 77, 112

29. On cross-examination Moran again testified that the President of Creation Windows took over Moran's job of managing the Georgia operation. Tr. 77 30. Moran also testified on cross-examination that he had no difficulties with management nor with Hotovy. Moran also testified on cross-examination that Hotovy did not ask for his resignation, that Hotovy was going to eliminate the job and that Moran was not asked to resign because of performance difficulties. Tr. 77, 78

31. Hotovy testified that during Moran's employment with Creation Windows his salary was $75,000.00 a year, that Moran had a bonus available to him, and that in 1988 the bonus would have been a percentage of salary based on reaching an agreed profit level. According to this plan, if the company reached the agreed profit level, the bonus would be 30% of salary and that 25% more than that Moran could have received a maximum of 60% of his salary in 1988. Tr. 113, 114

32. Hotovy testified that he fired Moran because Moran did not live up to what Creation Windows expected from a manager paid as much as Moran was paid. TR. 114 In Hotovy's words:

A. When Mike was recommended to us, he was recommended as someone that was a good operations manager, would be able to help us turn the plant around that was in trouble and get it profitable again. When I talked to him in the beginning, he came with all the stories about all the Japanese production methods, just in time and all the things that could happen over a period of that year and none of those things came to fruition. The plant when he started was clean and organized. And over that 13, 15 month period whatever he worked for us, the place got dirtier each

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