Jardien v. Winston Network, Inc.

• Decision Date: 31 October 1989
• Docket Number: 88-3437 and 89-1153,Nos. 88-2700,s. 88-2700
• Citation: 888 F.2d 1151
• Parties: 52 Fair Empl.Prac.Cas. 1379, 51 Empl. Prac. Dec. P 39,447 Andrew N. JARDIEN, Plaintiff-Appellee, v. WINSTON NETWORK, INCORPORATED, a Delaware Corporation and American Media Network, a Delaware Corporation, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1151

888 F.2d 1151

52 Fair Empl.Prac.Cas. 1379,

51 Empl. Prac. Dec. P 39,447

Andrew N. JARDIEN, Plaintiff-Appellee, v. WINSTON NETWORK, INCORPORATED, a Delaware Corporation and American Media Network, a Delaware Corporation,

Defendants-Appellants.

Nos. 88-2700, 88-3437 and 89-1153.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 11, 1989.

Decided Oct. 31, 1989.

Steven M. Levin, Levin & Associates, Chicago, Ill., for Andrew N. Jardien, plaintiff-appellee.

John A. Dienner, III and Lydon & Griffin, Chicago, Ill., for Winston Network, Inc. and American Media Network, Inc., defendants-appellants.

Andrew N. Jardien, Chicago, Ill., pro se.

Before BAUER, Chief Judge, WOOD, Jr., and FLAUM, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Andrew Jardien sued defendant, Winston Media Network ("Winston"), ¹ under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 ("ADEA"). After a jury trial and verdict for the plaintiff, the district court awarded Jardien stipulated damages of $39,673.00. The district court denied Winston's motions for a new trial and judgment notwithstanding the verdict. Jardien was then allowed to file an updated attorneys' fees petition for time spent on post-trial motions. The district court awarded Jardien the full amount of his requested fees of $76,046.00 and costs in the amount of $2,252.22. For the reasons stated below, we affirm on the merits but remand for a new determination of attorneys' fees. ²

I. AGE DISCRIMINATION CLAIM

A. Factual Background

In 1962, plaintiff Jardien began work for the John T. O'Flaherty Co. ("O'Flaherty Co."). Jardien's job was to find suitable billboard locations along railroad rights-of-way. Once Jardien secured a billboard location and the display was installed, the O'Flaherty Co. would enter into rental agreements with advertisers for the use of the displays. Thus, Jardien basically functioned as an intermediary between owners of land and advertisers looking for suitable billboard locations. In the industry, Jardien's trade was known as "railroad land leasing." Jardien covered some 75,000 miles of rail for the O'Flaherty Co.

Winston performs railroad land-leasing services through its wholly owned subsidiary, Transportation Displays, Inc. ("TDI"). On August 1, 1981, Winston purchased the O'Flaherty Co. and incorporated it into TDI. On that same day, Steve Hawkins offered Jardien, then 58 years old, a landleasing job in TDI's Chicago office. Hawkins, 60 years of age at the time of trial, was a senior vice president at Winston and head of the TDI division.

Jardien earned approximately $63,000.00 in his last year with the O'Flaherty Co., receiving commissions on new locations he secured as well as commissions for renewed leases on billboard locations he had secured in previous years. When Jardien accepted Hawkins's offer to work at TDI, Jardien agreed to a flat salary of $35,000.00 per year. After Jardien had been working at TDI for five months, TDI began to pay its land-leasing employees a commission of five percent on the first year rental for new locations.

Hawkins assigned Jardien to work at the Chicago office under the supervision of Thomas Kreidler. Approximately two months later, Barbara Stolowski-Bridge, age 24, transferred into the Chicago office from TDI's Philadelphia office. Stolowski-Bridge's transfer brought the total number of persons performing land-leasing services out of TDI's Chicago office to three.

Effective September 1982, Hawkins transferred Jardien to work out of TDI's Denver office. For various bookkeeping and budgetary reasons, Jardien moved to TDI's Philadelphia office in January 1984, where his immediate supervisor was John Roberts. While Jardien worked out of TDI's Denver and Philadelphia offices, he continued to reside in Chicago.

In April 1984, Stolowski-Bridge transferred out of TDI's Chicago office back to Philadelphia. Because TDI needed another person in Chicago, Hawkins hired Mitchell Mattson, age 27. Hawkins had also recently hired Thomas Parsons, age 26, and Edward Altieri, age 30. Although Hawkins originally hired Parsons and Altieri to do railroad land leasing, both men eventually transferred to other divisions of Winston.

During this time, beginning in early 1984, Winston was experiencing a "budget shortfall." Marc Winston, president of Winston, informed Hawkins that TDI's budget would have to be cut. Although payroll cuts were discussed as a method of budget cutting, the exact nature of the budget cuts was evidently left to Hawkins. On May 19, 1984, Hawkins informed Jardien that, because of these budget cuts, Jardien would be let go. At the time of his dismissal Jardien was 61.

Subsequently, on June 26, 1984, Hawkins offered Jardien his previous job back, with compensation of $1,000.00 per new location that Jardien secured. On September 10, 1984, Hawkins offered to reinstate Jardien and pay him one month's vacation pay. Finally, on February 18, 1986, Hawkins again offered Jardien his old job if Jardien would bring with him a contract he had previously secured. For various reasons, Jardien rejected all of these offers.

B. Discussion

1. Sufficiency of the Evidence

Winston first contends that Jardien failed to put on sufficient evidence to establish a claim of age discrimination under the ADEA. For Jardien to prevail, he had to establish that Winston discharged him because of age. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988); La Montagne v. American Convenience Prods., 750 F.2d 1405, 1409 (7th Cir.1984). Jardien could have pointed to direct or circumstantial evidence indicating that age was the determining factor. Oxman, 846 F.2d at 452. Alternatively, Jardien could have used the more common indirect, burden-shifting method of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Under the McDonnell Douglas method, a plaintiff may set forth a prima facie case of age discrimination by showing (1 ) the plaintiff was in the protected age group; (2 ) the plaintiff met the employer's legitimate performance expectations; (3 ) the plaintiff was discharged despite an adequate job performance; and (4 ) the employer sought a replacement for the plaintiff. Overgard v. Cambridge Book Co., 858 F.2d 371, 375 (7th Cir.1988). The McDonnell Douglas test is difficult to apply in cases where the plaintiff was discharged as a result of a reduction in the employer's work force. Thus, in a reduction-in-force case, the plaintiff does not have to show that the employer sought a replacement. Oxman, 846 F.2d at 455-56.

Winston devotes much of its argument to the issues of whether this case qualifies as a reduction-in-force case and whether Jardien has made out a prima facie case. However, analysis of the issues using the terminology of the prima facie case would not be fruitful. After a trial on the merits, the ultimate issue of age discrimination subsumes the elements of the prima facie case. See Overgard, 858 F.2d at 376 ("After a trial on the merits, disputes about the prima facie case fall away."); Kier v. Commercial Union Ins., 808 F.2d 1254, 1257 (7th Cir.1987) (same); Morgan v. South Bend Community School Corp., 797 F.2d 471, 480 (7th Cir.1986); see also United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (where the district court has all the evidence relevant to the decision regarding the defendant's discrimination, the issue of a prima facie case is irrelevant). Often, when sufficiency of the evidence is at issue in an employment discrimination case, it is less confusing to examine the evidence in its totality rather than trying to sort out which pieces of evidence support specific elements of the prima facie case. Thus, we shall assess whether Jardien presented sufficient evidence that age was a determining factor in Winston's decision to discharge him. See Mathewson v. National Automatic Tool Co., 807 F.2d 87, 90 (7th Cir.1986) (particular method of proof is irrelevant, the main issue is whether plaintiff's age was a determining factor in defendant's decision to terminate).

Our role in reviewing the sufficiency of the evidence presented at the trial court is a limited one. This court will not weigh the evidence as a jury would but will only look for substantial evidence to support the jury verdict. Id. In making this determination, we will draw all reasonable inferences that can be drawn from the evidence, and we will view the evidence in the light most favorable to the prevailing party. Christie v. Foremost Ins. Co., 785 F.2d 584, 585-86 (7th Cir.1986).

Using this standard, we find abundant evidence in the record to support the jury verdict for Jardien. Through admissions of the defendant's own employees, the plaintiff presented evidence showing that he was meeting the legitimate business expectations of his supervisors. ³ Kreidler, plaintiff's supervisor while at the Chicago office, admitted that Jardien produced the amount of business that Kreidler reasonably expected of him. Hawkins, the man who ultimately discharged Jardien, offered conflicting testimony as to whether he was told that Jardien was a poor business producer. In addition, Hawkins could not state with any certainty what records he looked at to determine Jardien's performance. Finally, the jury could reasonably infer that Hawkins's willingness to offer Jardien his old job back indicated that Hawkins believed Jardien to be an adequate business performer. ⁴

Perhaps most damaging to the defendant's case was its hire of three younger employees in the months before Jardien's discharge. Jardien even trained several of these employees. On the basis of Hawkins's testimony, Winston asserts that two of these employees transferred out of the TDI division before Jardien's discharge and are therefore irrelevant to this case. Jardien, however, offered a previous statement by Hawkins that these same two employees had worked at...