Hamilton v. 1st Source Bank

• Decision Date: 19 April 1990
• Docket Number: No. 89-2615,89-2615
• Citation: 895 F.2d 159
• Parties: 51 Fair Empl.Prac.Cas. 1874, 52 Empl. Prac. Dec. P 39,619, 58 USLW 2453 J.D. HAMILTON, Plaintiff-Appellee, v. 1ST SOURCE BANK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 159

895 F.2d 159

51 Fair Empl.Prac.Cas. 1874,

52 Empl. Prac. Dec. P 39,619, 58 USLW 2453

J.D. HAMILTON, Plaintiff-Appellee, v. 1ST SOURCE BANK, Defendant-Appellant.

No. 89-2615.

United States Court of Appeals Fourth Circuit.

Argued Oct. 4, 1989.

Decided Feb. 5, 1990.

Rehearing In Banc Granted April 19, 1990.

Philip Marshall Van Hoy (Van Hoy & Reutlinger, on brief), for defendant-appellant.

William L. Auten, for plaintiff-appellee.

Before SPROUSE, Circuit Judge, BUTZNER, Senior Circuit Judge, and MACKENZIE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

SPROUSE, Circuit Judge:

1st Source Bank appeals from a judgment of the district court awarding J.D Hamilton damages for discriminatory pay and discharge in violation of the Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. Secs. 621 et seq. The jury found that the 1st Source Bank (hereinafter "Bank") discriminated against Hamilton because of his age by paying him less than younger vice-presidents in the same job category and by discharging him. The district court denied the Bank's motion for judgment notwithstanding the verdict or alternatively for a new trial. We affirm in part and reverse in part.

I Facts

On March 3, 1980, David L. Herring, chairman of the Bank's Truckers Bank Plan division, hired Hamilton, then fifty-three years old, to work as a vice-president in the Truckers Bank Plan division. In 1984, the Bank increased his base salary from $36,400 to $39,000 after a "standard to above standard" performance appraisal. On April 21, 1986, the Bank terminated Hamilton's employment without forewarning, indicating "Failure to Perform" on its termination form. On May 19, 1986, well within the statutorily prescribed 180-day period, Hamilton filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discriminatory discharge because of age. When the EEOC did not commence enforcement proceedings within sixty days, Hamilton filed this action in the district court in North Carolina on February 13, 1987. After pretrial discovery in May 1987 revealed he was paid a lower salary than much younger vice-presidents in the same job category, Hamilton filed another charge with the EEOC on September 16, 1987, alleging pay discrimination. After the EEOC again did not institute enforcement actions, the district court granted Hamilton's motion to amend his complaint by adding this claim.

Trial was held to a jury. At trial Hamilton presented evidence of the higher compensation paid vice-presidents in his division who were eleven to eighteen years younger and the Bank's procedures for evaluating and handling unsatisfactory performance by these employees. The two younger vice-presidents in the same job category as Hamilton were paid starting salaries of $39,000 and $47,000, respectively, and received regular salary increases and bonuses despite lower performance evaluations. In addition, Hamilton's replacement was a younger man who was hired at a salary of $60,000, plus a $5,000 guaranteed bonus, rather than the salary of $39,000 a year which Hamilton was earning at the time of his discharge.

The jury returned a special verdict finding that the Bank paid Hamilton a lower salary on account of his age, that he was therefore entitled to $15,135, but that this discrimination was not willful. The jury also found that the Bank discharged Hamilton on account of his age, that he was entitled to $99,000 in back pay, and that this discrimination was willful. The district court accordingly entered judgment for $114,135 actual damages on the two counts ($15,135 plus $99,000), $99,000 liquidated damages on the willful discriminatory discharge count, $5,218.32 as prejudgment interest on the pay discrimination award, and $14,705.83 as prejudgment interest on the discriminatory discharge award. The Bank appeals, contending there was not sufficient evidence to uphold the discriminatory discharge claim; that the pay discrimination claim was time-barred; that damages on the pay discrimination claim could not be awarded for any period prior to two years before the filing of the amended complaint; that pay discrimination evidence was improperly included in plaintiff's exhibit regarding damages for the discharge claim; and that the district court erred in awarding prejudgment interest in addition to liquidated damages on the discharge claim.

II The Discriminatory Discharge Claim

The Bank argues that the district court erred in refusing to grant its motion for a judgment notwithstanding the verdict or a new trial on the issue of an age-based discriminatory discharge because there was not sufficient evidence to have permitted that issue to go to the jury. We disagree.

It is well settled that a motion for judgment notwithstanding the verdict should be denied if there was substantial evidence presented to convince a jury of reasonable persons to arrive at its finding. Wyatt v. Interstate & Ocean Trans. Co., 623 F.2d 888, 891 (4th Cir.1980). Neither the district court nor an appellate court in making this determination weighs the evidence or assesses the credibility of the witnesses. Lust v. Clark Equip. Co., 792 F.2d 436, 437-38 (4th Cir.1986); Taylor v. Home Ins. Co., 777 F.2d 849, 854 (4th Cir.1985), cert. denied, 476 U.S. 1142, 106 S.Ct. 2249, 90 L.Ed.2d 695 (1986); Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1432-33 (4th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986). In determining whether to grant a new trial, the district court may weigh the evidence, and its decision to grant or deny the motion for new trial is reversed only for abuse of discretion. Taylor, 777 F.2d at 855; Wilhelm, 773 F.2d at 1433. Here, we are persuaded that there was sufficient evidence relating to age-discrimination motivation on the part of the Bank to convince a reasonable juror that the Bank impermissibly discharged Hamilton because of his age, and we do not find the district court abused its discretion in denying the motion for a new trial.

The Bank contended at trial that Hamilton was fired because he consistently refused to follow orders in the processing of a loan to a trucking company, his actions contributing considerably to the $2 million loss sustained by the Bank because of this bad loan. Hamilton, however, elicited testimony from the chairman of the Truckers Bank Plan division, David Herring, that after Herring's request that Hamilton get titles to equipment to secure that loan, Hamilton could not in fact have acquired such titles, because the Bank had been defrauded.

In addition, Hamilton produced evidence that in his case the Bank failed to follow established procedures for handling perceived deficiencies in the performance of its employees. The Bank's employee handbook describes its policy for dealing with unacceptable performance as "constructive review ... a disciplinary procedure consisting of a series of progressive steps" beginning with "constructive counseling," followed by a "written warning" and culminating in "termination" for lack of improvement. The Bank followed these procedures when it rated another vice-president's performance as "marginal": the Bank notified him, gave him ninety days to improve, and subsequently raised his salary when his performance did improve. Hamilton was discharged, however, without written warning or counseling; the reason given was "Failure to Perform" on the Bank's termination report.

Hamilton also presented evidence of the Bank's "age-consciousness" in its dealings with employees generally and with him specifically. The performance appraisal and confidential management skills inventory forms both prominently record the employee's age at the top of the form. Thomas P. Riley, president of the Truckers Bank Plan division and Hamilton's immediate supervisor, had asked Hamilton his age and his retirement intentions and had commented on his baldness. The jury could have believed it was Riley who made the decision to terminate Hamilton, based on intra-office memorandum correspondence about his termination between Riley and Herring. Also, the personnel notice terminating Hamilton's employment was dated as approved by Riley on April 21, 1986, but was not dated as approved by Herring until June 6, 1986 (after Hamilton had filed his EEOC complaint).

In our view, the above constitutes substantial evidence to support the jury's finding of a discriminatory discharge. We also do not think the district court abused its discretion in denying the motion for a new trial.

III The Pay Discrimination Claim

The jury found that the Bank had discriminated against Hamilton by paying him considerably less than it paid younger executives performing the same duties and that this discrimination was based on age. The Bank contends that Hamilton's pay discrimination claim was statutorily time-barred and that the district court therefore erred in allowing the claim to be submitted to the jury. Section 626(d) of the ADEA states:

No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed--

(1) within 180 days after the alleged unlawful practice occurred....

The Bank's position is that the 180-day period began to run on April 21, 1986, when Hamilton was discharged. Hamilton's position is that the period did not begin to run until May 1987, when, through pretrial discovery on the discriminatory discharge claim, he first became aware that younger vice-presidents were paid significantly higher salaries than himself.

The question of when the 180-day period begins to run on a claim of pay discrimination has not been previously presented to this court. A number of United States Supreme Court and Fourth Circuit opinions have dealt with the question of when the 180-day period begins to run on a claim of...