Haun v. Ideal Industries, Inc.

• Citation: 81 F.3d 541
• Decision Date: 11 April 1996
• Docket Number: No. 94-60496,94-60496
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 923, 44 Fed. R. Evid. Serv. 414 Philip J. HAUN, Plaintiff-Appellee, Cross Appellant, v. IDEAL INDUSTRIES, INC., Defendant-Appellant, Cross Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 541

81 F.3d 541

70 Fair Empl.Prac.Cas. (BNA) 923, 44 Fed. R.

Evid. Serv. 414

Philip J. HAUN, Plaintiff-Appellee, Cross Appellant, v. IDEAL INDUSTRIES, INC., Defendant-Appellant, Cross Appellee.

No. 94-60496.

United States Court of Appeals Fifth Circuit.

April 11, 1996.

Jerrald L. Shivers, M. Curtiss McKee, Tim W. Lindsay, Daniel, Coker, Horton & Bell, P.A., Jackson, MS, for appellant.

Charles E. Ross, Natie P. Caraway, Wise, Carter, Child & Caraway, P.A., Jackson, MS, for appellee.

Appeals from the United States District Court for the Southern District of Mississippi.

Before SMITH, WIENER and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

The jury found that Defendant Ideal Industries (Ideal) fired, and subsequently refused to rehire, Plaintiff Philip Haun (Haun) because of his age. Ideal appeals from the judgment rendered against it on this verdict. Finding that the evidence was sufficient to support the jury's determination of age discrimination, we affirm the judgment of the district court.

Haun cross-appeals the district court's grant of judgment as a matter of law against him on his state law intentional infliction of emotional distress claims. We find that no reasonable juror could conclude that the conduct was so extreme and outrageous as to be utterly intolerable in a civilized community. White v. Walker, 950 F.2d 972, 978 (5th Cir.1991). Therefore, we affirm the district court's grant of judgment as a matter of law on that claim.

BACKGROUND

Haun was fired by Ideal in 1992, after 22 years of employment with the company. Haun was 51 years old when he was fired. Ideal manufactures and sells electrical products, including Strip Master and Original Equipment Manufacturer (OEM) products. Strip Master products are wirestrippers, while OEM products are wire-splicing machines used by electrical appliance makers in the manufacturing process.

Haun began working for a subsidiary of Ideal as a salesman in 1970. His job involved leasing and servicing OEM and Strip Master products. In 1984, Haun became a Regional Specialist, and began calling on architectural and engineering firms, encouraging them to specify Ideal products in their construction plans. He continued to sell OEM and Strip Master products. Haun became the Senior Area Sales Manager in Mississippi in 1986, which involved training less experienced sales people, as well as selling OEM and Strip Master products. Haun's supervisor during his first 18 months as Senior Area Sales Manager was Don Ambrose. In 1990, Ambrose asked Haun to join him in a new four salesperson division that he was managing which would specialize in OEM sales. Haun accepted the offer. Starting in January 1991, Haun sold OEM equipment in the southwestern United States, from Mississippi to California. During 1991, he increased OEM sales by 140%.

In January 1992, at Haun's annual performance review (called a Performance Appraisal and Development or "PAD"), Ambrose told Haun that there were several problems with his performance and withheld his merit pay increase for 90 days. Ambrose told Haun that to remedy the problem he should bring in two new accounts during the first quarter of 1992. Haun brought in four new accounts.

At his review, Haun specifically asked Ambrose if he was being placed on probation. He was told that he was not. However, in April 1992, Ambrose sent Haun his PAD, which indicated that Haun had been on probation for the previous three months. Haun was upset when he learned that he had been on probation, because probationary status meant that one's job was in jeopardy. Haun called Ambrose and asked him to remove the probationary language from his PAD and to remove all references to probation from his personnel records. Ambrose promised to do so. However, it was not until June 19, 1992 that, upon the vice president of human resources' prodding, Ambrose finally corrected the PAD.

Ambrose wrote Haun a letter on June 18, 1992, telling him that all references to the probation had been removed from his personnel file. This was not true. Probation references were still in Haun's personnel file as late as the trial of this case. Additionally, the corrected PAD was not put in Haun's file until after the decision to fire Haun had been made. At trial, Ambrose testified that his failure to timely correct the PAD and remove the probation references was a "goof."

During 1992, Ideal decided to combine the OEM and Strip Master Divisions into one six salesperson division. There were ten people selling OEM and Strip Master products before the reorganization (four OEM and six Strip Master), so four people had to be let go. Haun was one of those four.

Of the four discharged employees, three were over 40, and the only discharged employee under 40 received another job with the company. Both Haun and his prior supervisor, John Vander Pan, testified that Haun was qualified for the OEM and Strip Master sales positions. Haun was never informed of four sales positions for which he was qualified that became available after July 1, 1992. The jobs were not advertised internally over voice mail, even though the company handbook said that it was policy to do so.

In mid-August 1992, Haun learned, through informal means, of a sales position with Ideal in Virginia. The job had been held by Glenn Morgan, age 42, until Morgan was fired in early August 1992. When Haun learned that the job was open, he called Wes Fritsche, Morgan's supervisor, and applied for the job. Fritsche told him that the job was not available, because Morgan's position was being eliminated and Fritsche would take over the duties. However, Morgan's job was not eliminated and, three weeks later, Ideal advertised the position in the Richmond, Virginia, newspaper. The job was filled by a 26 year old with no prior sales experience.

When Morgan was terminated, he was told that it was because of reorganization, as opposed to lack of performance, and that he could reapply. Yet when Morgan reapplied after seeing the newspaper ad for his old position, he was rebuffed. Morgan was told "Ideal is changing ... you are not a part of it." Ideal later told the Equal Employment Opportunity Commission ("EEOC") that Morgan was fired due to lack of performance. When Morgan was terminated, he was told that "[t]his is the best; that this happens, now that--you know, you wouldn't want to be in your 50's trying to find a job. You wouldn't want to wait ten years down the road, like Phil Haun ... and try and find employment."

John Vander Pan, another Ideal employee, also testified that age entered into Ideal's employment decisions. In 1991, Vander Pan and Gary Ottaviano, an Ideal human resources official, interviewed prospective sales people for Ideal. The most qualified applicant was a man in his fifties, who Ottaviano called "the best guy we've seen so far." Vander Pan testified that he wanted to hire the man, but Ottaviano said they could not because Vince Nall, president of Ideal, would not approve him "because of his age."

Vander Pan also testified that the company tried to force him out because of age. Vander Pan, who was in his early fifties, worked as a Regional Director for Ideal, a management position, until mid-1992. During 1991, his region was the best, out of nine, in sales in the country. Nonetheless, in July 1992, he was demoted to a sales person position. Vander Pan testified that in 1992, shortly after his fiftieth birthday, his boss told him "[w]ell, you know, happy birthday. You are 50 years old. You know, have you thought about your--your career choices?" When Vander Pan asked him what he meant by this, his boss told him that it was time for him to "maybe look elsewhere for employment."

On July 1, 1992, Haun was told that he was being dismissed from Ideal, effective September 5, 1992. Ambrose told him about the reorganization and that Haun was not one of the sales people who was being retained. Ambrose told Haun that his termination was not performance related, but rather, "strategic and business" factors were used to determine who was kept.

At the meeting, Ambrose offered Haun a severance package. However, to qualify for it he had to sign a "Termination Agreement and Release." The agreement released Ideal from any claims Haun might have had regarding the termination. The agreement also required Haun to "speak well" of Ideal. Haun did not sign the agreement.

Haun told Ambrose that he wanted to remain with Ideal and asked to be informed of other sales jobs in the company. Haun was told that he would be informed of any sales openings at Ideal, both before and after his September 5 termination date. ¹

Ideal put on testimony that it had hired several people near Haun's age around the time that he was fired.

Haun filed suit against Ideal in federal district court, alleging that Ideal, in firing him, violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Haun also brought a state law claim that Ambrose's actions regarding the probation constituted intentional infliction of emotional distress.

The case was tried to a jury and the jury found that Ideal wilfully violated the ADEA. Haun was awarded back pay of $58,447.60 and liquidated damages of the same amount. Haun also received $73,643.02 in attorneys' fees, $242,321 in front pay and post-judgment interest. The district court granted judgment as a matter of law in favor of Ideal on Haun's state law intentional infliction of emotional distress claim.

DISCUSSION

Sufficiency of the Evidence

"On appeal of a jury's verdict of age discrimination, we need not address the sufficiency of [the plaintiff's] prima facie case, but proceed to determine whether there was sufficient evidence upon which a jury could find that discrimination occurred." Weaver v. Amoco Production Co., 66 F.3d 85, 87 (5th Cir.1995); Walther v. Lone Star Gas Co., 952 F.2d 119, 122-23 (5th Cir.1992). That is so because, once the employer articulates its...