King v. General Elec. Co., s. 90-2583

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation960 F.2d 617
Docket NumberNos. 90-2583,90-3038,s. 90-2583
Parties58 Fair Empl.Prac.Cas. (BNA) 768, 58 Empl. Prac. Dec. P 41,383 Delbert KING, Plaintiff-Appellee, and Vernon Brickey, Plaintiff-Appellee, Cross-Appellant, v. GENERAL ELECTRIC COMPANY, Defendant-Appellant, Cross-Appellee.
Decision Date08 June 1992

Page 617

960 F.2d 617
58 Fair Empl.Prac.Cas. (BNA) 768,
58 Empl. Prac. Dec. P 41,383
Delbert KING, Plaintiff-Appellee,
Vernon Brickey, Plaintiff-Appellee, Cross-Appellant,
GENERAL ELECTRIC COMPANY, Defendant-Appellant, Cross-Appellee.
Nos. 90-2583, 90-3038.
United States Court of Appeals,
Seventh Circuit.
Argued Jan. 6, 1992.
Decided March 30, 1992.
As Corrected April 22, 1992.
As Amended on Denial of Rehearing
and Rehearing En Banc
June 8, 1992.

Page 618

George F. Galland, Jr. (argued), Davis, Miner, Barnhill & Galland, Chicago, Ill., Charles Barnhill, Jr., Davis, Miner, Barnhill & Galland, Madison, Wis., for Delbert King and Vernon Brickey.

Roy G. Davis (argued), Janet L. Jannusch, Keck, Mahin & Cate, Peoria, Ill., for defendant-appellant, cross-appellee.

Before BAUER, Chief Judge, CUDAHY and KANNE, Circuit Judges.

BAUER, Chief Judge.

In this appeal, we examine in detail trial procedures in two cases brought under the Age Discrimination and Employment Act, 29 U.S.C. §§ 621-634 (ADEA). We conclude that the district court erred in its management of these cases and reverse and remand for a new trial pursuant to the provisions of Circuit Rule 36.

A. Background

These cases arise from a reduction in force undertaken by General Electric (G.E.) at its Bloomington, Illinois manufacturing plant between 1982 and 1985. G.E. laid-off, demoted or transferred two hundred

Page 619

salaried-exempt, i.e., management and professional, workers pursuant to the reduction in force (RIF). Wilbur Hany and James Samsel, two employees fired in 1984, sued G.E. on behalf of themselves and others similarly situated in December 1985 ("the Hany suit"). As we discuss more fully below, when private employers are involved, ADEA provides this opt-in class action procedure that preempts the class-action procedure under Federal Rule of Civil Procedure 23(a). 29 U.S.C. § 626(b), (c), 216(b).

Ten other employees subjected to adverse action during the RIF joined the Hany suit as named plaintiffs. See Second Amended Complaint, Pleadings Vol. 1, Doc. 22. The Hany complaint alleged that during 1983 and 1984, G.E. discriminated against older G.E. employees on account of their age. Eleven plaintiffs alleged that they lost their jobs as a result of age discrimination, and the remaining plaintiff, Delbert King, alleged he was demoted for the same reason.

A second group of employees were fired in 1985. Donald Sobin and William Evelsizer filed suit in 1986, Ronald Monkman filed suit in 1987 (the "Sobin suits" or the "Sobin plaintiffs"). These plaintiffs were represented by a single attorney, but elected to file their own, individual lawsuits. G.E. targeted Monkman for demotion or layoff in 1984. Because he was only 39 at that time, Monkman was not protected by the Act. He was not actually terminated until 1985, when he was 40, and thus is entitled to ADEA protection.

Sobin's suit was set for trial for June 8, 1987. On May 10, 1987, Sobin moved for a continuance until after the September trial on the Hany suit. Before the court ruled on the continuance, 1 on June 9, 1987, Sobin moved to consolidate all three Sobin suits with the Hany suit under Federal Rule of Civil Procedure 42(a). In his motion, Sobin contended there was a common question of fact: whether there was a "pattern or practice of age discrimination" at G.E. Despite G.E.'s objections, the district court granted the motion. It ordered that the Hany and Sobin suits be consolidated to litigate the issue of whether G.E. engaged in a "pattern or practice" of age discrimination. See Order dated July 8, 1987, Vol. 2, Doc. 18.

The "pattern or practice" trial was held in January 1988. The Hany plaintiffs' expert testified that during 1983 and 1984, older employees were more likely to be hurt by the RIF than younger employees, and that the difference was statistically significant. When he controlled for the effect of performance and assignment, the expert still found that age was a statistically significant variable affecting the probability of an employee experiencing an adverse action during 1983 and 1984.

Plaintiffs also presented anecdotal evidence of discrimination. There was no statistical evidence supporting the Sobin plaintiffs' allegation that G.E. discriminated in 1985. Six plaintiffs, including Sobin, testified they were demoted or laid-off while G.E. continued to employ younger employees in their respective departments. Witnesses also testified that some G.E. managers made disparaging comments about older workers. The jury found that G.E. engaged in a pattern or practice of discrimination against employees over the age of 40 at the Bloomington plant. No dates appear on the jury verdict form. We assume, therefore, pursuant to the district court's instruction to the second jury, that the first jury found G.E. discriminated from 1982 until the end of the RIF in 1985.

G.E.'s motion for judgment notwithstanding the verdict was denied, and the district court held a scheduling conference to determine the course of the rest of the litigation. The court ruled that the burden of persuasion would shift to G.E. to show that its pattern or practice of discrimination was not responsible for the termination of each individual plaintiff. Because the district court believed trying all eleven individual claims together would be unwieldy, it divided the plaintiffs into groups for trial. The trial for the first group, Hany, Delbert King, Vernon Brickey,

Page 620

and Joseph Callahan, was set for June 1, 1989.

The district court subsequently issued an order resolving several pretrial motions. In response to a motion for clarification of that order, the court reversed its position on the burden of persuasion in the second set of trials. It announced that it would not shift the burden of persuasion to G.E.--the common result of a pattern or practice verdict against an employer. See, e.g., Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Instead, the district court stated it would continue to place the burden of persuasion on plaintiffs. Each plaintiff would have to establish a prima facie case under the framework set out in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Consistent with this change in burdens, in response to plaintiffs' motion, the court ruled that the plaintiffs would "go first" at trial.

The parties hotly contested the proper use of the first jury's verdict. The court determined that the second jury would be instructed of the first jury's finding at the outset. The first jury's "finding of fact" could be relied upon by the individual plaintiffs to establish their prima facie cases, and to show that the reasons given by G.E. for terminating the plaintiffs were mere pretexts for discrimination. See Order of May 10, 1985 at 5; Appellant's Supplemental Appendix ("S.A.") at 53. The instruction is set forth in full in the margin. 2

The second jury returned a verdict in favor of Hany and King, and against Brickey. 3 The jury also found that G.E. willfully violated the Act. The court ordered equitable relief (reinstatement) and King was awarded $34,806 in damages. Hany settled with G.E. after the judgment was entered. G.E. appeals the King verdict and damage award, the willfulness finding, as well as some of the court's procedural and evidentiary rulings. We shall discuss the factual background in more detail where necessary to our analysis.

B. Legal Framework

This court has considered ADEA actions in the context of a reduction in force ("RIF") in several cases. See Oxman v. WLS-TV, 846 F.2d 448 (7th Cir.1988); Ayala v. Mayfair Molded Prods. Corp., 831 F.2d 1314 (7th Cir.1987). The ADEA prohibits employer discrimination against any individual between the ages of forty and

Page 621

seventy with respect to compensation, terms, conditions, or privileges of employment, because of the individual's age. 29 U.S.C. § 623(a). Thus, in an age discrimination case, a terminated individual must prove that he would not have been discharged or demoted but for his employer's motive to discriminate against him because of his age. Oxman, 846 F.2d at 452; Ayala, 831 F.2d at 1318; LaMontagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1409 (7th Cir.1984).

The ADEA incorporates the enforcement provisions of the Fair Labor Standards Act, 29 U.S.C. § 216, by reference. See 29 U.S.C. § 626(d). Before commencing a civil action, a claimant must file a charge alleging unlawful discrimination with the Equal Employment Opportunity Commission ("EEOC"). 29 U.S.C. § 626(d). After filing the charge, the claimant must wait sixty days before filing suit. Id. The EEOC filing and waiting period is intended to give the EEOC an opportunity to investigate the alleged unlawful practice and seek to eliminate it informally through "conciliation, conference and persuasion." Id.

Once the administrative requirements have been satisfied, a claimant may bring a civil suit. The suit may be filed by "any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party...." 29 U.S.C. § 216(b). This procedure preempts the class action procedure under Federal Rule of Procedure 23. LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir.1975). See, e.g., Arnold v. Postmaster General, 667 F.Supp. 6, 15 (D.D.C.1987), rev'd on other grounds, 863 F.2d 994 (D.C.Cir.1988) ("The opt-in requirement is incorporated through section 626(b) of the ADEA and is mutually exclusive with Rule 23."), cert. denied, 493 U.S. 846, 110 S.Ct. 140, 107 L.Ed.2d 99 (1989); Behr v. Drake Hotel, 586 F.Supp. 427 (N.D.Ill.1984); Allen v. Marshall Field & Co., 93 F.R.D. 438 (N.D.Ill.1982). The Secretary of Labor may also bring suit under 29 U.S.C. § 216(b) and § 217.

A plaintiff in an age discrimination...

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