Laugesen v. Anaconda Co.

Decision Date10 January 1975
Docket NumberNo. 73--2205,73--2205
Citation510 F.2d 307
Parties10 Fair Empl.Prac.Cas. 567, 9 Empl. Prac. Dec. P 9870 Thor C. LAUGESEN, Plaintiff-Appellant, v. The ANACONDA COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Jan. 10, 1975.

Donald H. Vish, James E. Milliman, Louisville, Ky., for plaintiff-appellant.

John E. Tarrant, Bert T. Combs, Martin V. Roach, Charles R. Simons, Louisville, Ky., for defendant-appellee.

Before PHILLIPS, Chief Judge, and McCREE and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

On October 29, 1971 plaintiff-appellant Thor C. Laugesen was permanently discharged from employment with defendant-appellee Anaconda Company. Fifty-six years old at the time of his discharge, Laugesen had worked for Anaconda since 1958 and for its predecessor in Louisville since 1954. Laugesen brought suit against Anaconda in the district court claiming that he was unlawfully discharged because of his age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621--634.

Laugesen appeals from a judgment rendered upon a jury verdict in favor of Anaconda, raising important questions concerning the extent to which the guidelines set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) are applicable in a single plaintiff age discrimination case tried to a jury, and equally important, the nature of instructions appropriate in such a case.

We reverse and remand, not because of the McDonnell Douglas contentions, but because the jury instructions taken as a whole failed to make it clear that even if more than one factor affected the decision to discharge Mr. Laugesen, he could nevertheless recover if one factor was his age and it in fact made a difference in determining whether he was to be retained or discharged.

At the time Laugesen was selected for a permanent lay-off and declared ineligible for rehire by defendant Anaconda, he was a purchasing manager whose principal duties were to oversee the purchase of materials used by Anaconda's Louisville, Kentucky plant to produce aluminum foil and containers. Laugesen's duties also included purchasing materials for another plant in Fairlawn, New Jersey, which engaged in similar work and was under the general jurisdiction of the Louisville plant. Laugesen had been previously employed by Cochrane Foil Company in Louisville on April 19, 1954 and remained on when that company was acquired by Anaconda in 1958.

The evidence is undisputed that in 1969 and 1970, Anaconda experienced its share of industry-wide economic difficulties which were reflected adversely in its profit and loss picture. Determining that drastic steps to reduce its work force and achieve other economies would be required, it decided in early 1971 to shut down the Fairlawn plant and also to reduce substantially both the hourly rated and salaried personnel in Louisville. The general retrenchement commenced with a re-examination of all of the functions and staff of the company, particularly its older operations. At the same time Anaconda set about to build new plants and engage in other activities which gave promise of more balanced and profitable operations in the future.

Victor B. Torasso, manager, was responsible for all aspects of manufacturing at Louisville including costs and personnel. The immediate implementation of company policy was in his hands. Torasso determined to reorganize the Louisville Division, reduced in scope by elimination of the Fairlawn plant, by consolidating the functions of purchasing agent with those of traffic manager. This and other economies would, he hoped, result in a reduction of salaried personnel at Louisville from 15 to 9. Torasso also evaluated all of the existing personnel with a view to retaining those best qualified to fit into the new organization.

The evaluation of Thor Laugesen, as set forth in the Separation Notice at the time he was discharged on October 29, 1971, forms the principal basis for his claim that he was discharged on account of his age, and hence illegally under the Act.

The Separation Notice form contained evaluations covering seven personal characteristics and included ratings from 'excellent' to 'poor.' Torasso scored Laugesen 'good' in reliability and conduct, and 'fair' in terms of quality of work, quantity of work, initiative, attendance and punctuality. Under a section of the report marked 'primary cause of separation and additional comments' Torasso listed the primary cause as 'reduction in force' and thereafter noted 'too many years in job. Became too close with vendors. Lacks personal strength.'

The case was tried before a jury. In his case-in-chief, Laugesen himself testified and also called Torasso for cross-examination. He further introduced an extensive stipulation of facts, prepared jointly by counsel for the parties and covering many of the particulars of Laugesen's employment history, pay, and the Separation Notice.

Laugesen testified to his own opinion that he was discharged because of his age. He brought out that the combined job which was left after reorganization was filled by an employee who was at the time 39 years of age. He introduced evidence that the reduction in salaried personnel reporting directly to Torasso had the effect of lowering the average age, 43 to 37 years. The case which Laugesen made was essentially a circumstantial one. He was unable to offer or provide any evidence which directly indicated a policy or intention of using age as a factor in the process of selecting those employees who would be terminated and those who would remain.

I. Application of McDonnell Douglas v. Green

Laugesen makes two claims of error in which he relies principally upon McDonnell Douglas v. Green, supra. These relate to the trial court's denial of his motion for directed verdict and to its jury instructions on burden of proof.

We note at the outset that McDonnell Douglas addresses itself to '. . . the proper order and nature of proof in actions under Title VII of the Civil Rights Act of 1964, 78 Stat. 253.' 411 U.S. at 793, 93 S.Ct. at 1820. We are not, of course, dealing here with Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., but with an entirely separate legislative enactment of the Congress. 1 The similarity, however, between Title VII and the Age Discrimination in Employment Act is hardly accidental. As observed by Judge Tuttle in Hodgson v. First Federal Savings and Loan Association, 455 F.2d 818, 820 (5 Cir. 1972), 'With a few minor exceptions the prohibitions of this enactment are in terms identical to those of Title VII of the Civil Rights Act of 1964 except that 'age' has been substituted for 'race, color, religion, sex, or national origin'.'

McDonnell Douglas, a non-jury case, involved an allegation of racial discrimination in the failure to rehire. Justice Powell, writing for the majority, held that the plaintiff bears the initial burden to establish a prima facie case, a burden met in that case by a showing that (1) plaintiff belonged to a racial minority, (2) that he applied and was qualified for a job for which the employer was seeking applicants, (3) that despite his qualifications he was rejected, and (4) that, after his rejection the position remained open and the employer continued to seek applications from persons with complainant's qualifications. The Court held that after such a prima facie case had been made out, the burden shifted to the employer to 'articulate some legitimate, nondiscriminatory reason for the employee's rejection.' 411 U.S. at 802, 93 S.Ct. at 1824. Where the employer has done so, the Court held, he has 'discharged his burden of proof at this stage' and met the employee's prima facie case of discrimination. However, the Court held that 'the inquiry must not end here.' The employee, at that point, must be 'afforded a fair opportunity to show that (the employer's) stated reason . . . was in fact pretext.' 411 U.S. at 804, 93 S.Ct. at 1825.

Laugesen claims first that the trial court erred in denying his motion for a directed verdict, asserting that he made out a prima facie case of discrimination under McDonnell Douglas v. Green, which shifted the burden to Anaconda to prove non-discrimination, a burden which he claims was not met here.

There is, of course, a difference between that state of facts which, if unrebutted, requires the court to direct a verdict and that which merely passes the threshold test of sufficiency, leaving to the jury the ultimate decision based upon its determination of the weight and credibility of the evidence. Laugesen's evidence was at best equivocal. We are convinced that it presented no more than a jury question. The burden was upon him to prove by a preponderance of the evidence that he was unlawfully discharged because of his age. Upon the record here, the question of whether he had met this burden was for the jury. Further, if it was incumbent upon Anaconda to 'articulate some legitimate and nondiscriminatory reason' for the discharge, such evidence was in fact introduced by the showing that Laugesen received less favorable ratings than the employee who was retained.

The trial judge did not err in denying Laugesen's motion for directed verdict.

Laugesen next claims that if he was not entitled to a directed verdict on the basis of McDonnell Douglas v. Green, he was entitled at least to an instruction charging the jury that he had 'made out a prima facie case and the burden of proving non-discrimination shifted to the defendant.'

While it may not be unreasonable to assume that in a proper case the guidelines established in McDonnell Douglas v. Green can be applied in age discrimination jury cases, we believe it would be inappropriate simply to borrow and apply them automatically.

In the first place, the Supreme Court in that case did not attempt to deal with the problems and procedures inherent in the submission of issues to a jury. 2 Further, in...

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