Leichihman v. Pickwick Intern.

• Decision Date: 07 May 1987
• Docket Number: No. 86-5150,86-5150
• Citation: 814 F.2d 1263
• Parties: 43 Fair Empl.Prac.Cas. 583, 43 Empl. Prac. Dec. P 37,194 Mony LEICHIHMAN, Appellant, v. PICKWICK INTERNATIONAL and American Can Company, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1263

814 F.2d 1263

43 Fair Empl.Prac.Cas. 583,

43 Empl. Prac. Dec. P 37,194

Mony LEICHIHMAN, Appellant, v. PICKWICK INTERNATIONAL and American Can Company, Appellees.

No. 86-5150.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 9, 1986.

Decided March 24, 1987.

Rehearing Denied May 7, 1987.

Stephen T. Refsell, Minneapolis, Minn., for appellant.

Jon P. Parrington, Minneapolis, Minn., for appellees.

Before ROSS, JOHN R. GIBSON and FAGG, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Mony Leichihman appeals from a judgment entered on a jury verdict after the second trial of Leichihman's age discrimination claims brought under the Age Discrimination in Employment Act of 1967, 29 U.S.C. Secs. 621-634 (1982), and the Minnesota Human Rights Act, Minn.Stat.Ann Secs. 363.01-.14 (West Supp.1987). At the first trial, Leichihman obtained a jury verdict and judgment for $60,000, but the district court ¹ granted Pickwick's motion for a new trial on the ground that the verdict was against the weight of the evidence. On appeal, Leichihman argues that the district court erred in granting Pickwick a new trial after his favorable verdict; in granting summary judgment dismissing American Can Company, Pickwick's parent company, as a party prior to the first trial; and in denying Leichihman's motion for a new trial after he received an unfavorable verdict in the second trial. ² Finding no error in any of these rulings, we affirm.

Pickwick, a subsidiary of American Can Company since 1977, is one of the largest distributors of records, tapes and stereo products in the United States. Through its "rack" division, Pickwick stocks record departments in various discount and department stores. Through its retail division, Pickwick sells these items in its own retail chains, such as the Musicland stores.

In 1965, Leichihman emigrated with his wife and daughter from Romania to the United States. In 1966, he was hired by J.L. Marsh & Heilicher Distribution, a Pickwick predecessor, as an entry-level record packer, and within a few months was promoted to supervisor in the Customer Returns department. In 1978, he was promoted to the position of Quality Control Manager. He held this position until Pickwick was reorganized in 1981.

The reorganization was one of the cost-cutting measures implemented by Pickwick to help it recover from tremendous financial setbacks that it began to incur in 1980. In the reorganization, Pickwick split into two distinct companies; one operated the Musicland stores, the other was responsible for rack and distribution. Leichihman was assigned to the Musicland group. Leichihman testified that, because most of his work had been connected with rack and distribution, he lost about 95% of his responsibilities when the company split. The testimony also indicated that a substantial portion of Leichihman's functions were taken over by another younger Pickwick employee who had formerly reported to Leichihman, but who was assigned to the rack/distribution company in the reorganization.

In the spring of 1981, a company task force recommended further cost-cutting measures. The task force conducted a six-month study to identify areas of possible savings and came up with a number of ideas, including eliminating several jobs. One of the jobs recommended for elimination was Leichihman's new position in the retail company.

The recommendation to eliminate Leichihman's position came in March of 1981. Leichihman, however, was not fired until July. The parties strongly disputed the circumstances surrounding Leichihman's termination. Pickwick's stated policy is to place any laid-off employee in another position in the company that fits the employee's qualifications and needs. In June and July of 1981, two Operations Support Analyst positions became available. Joy Harris, the Pickwick employee who was interviewing candidates for these positions, testified that Ed Erdmann, head of the cost-reduction task force, told her that an "older man" was going to come by for an interview and to simply "go through the motions" of interviewing Leichihman without actually offering him the job. At trial, Erdmann denied making such a statement, except to admit that he used the term "older man" to describe Leichihman. Erdman and another Pickwick official also testified, contrary to Leichihman's testimony, that Pickwick offered Leichihman the opportunity to interview for these positions and he refused to do so.

At trial, Leichihman asserted two theories of liability. He claimed, first, that Pickwick's cost-cutting reduction-in-force policies had a disparate impact on Pickwick's older employees, including Leichihman. Second, he claimed that age discrimination was a determining factor in Pickwick's failure to give him a bona fide opportunity to relocate to another available position. The jury in the first trial returned a special verdict finding in favor of Leichihman on both theories and awarding him $60,000. Upon Pickwick's motion, the district court set aside the verdict as being against the weight of the evidence. The jury found for Pickwick in the second trial.

I.

A.

Leichihman's first argument is that Pickwick's motion for a new trial was untimely. This argument is meritless.

After the district court ordered entry of judgment on May 14, 1984, both parties jointly moved pursuant to Rule 60 of the Federal Rules of Civil Procedure to vacate the judgment. Rule 60 provides that errors in judgment arising from clerical mistakes or those arising from mistake, inadvertance, surprise, or excusable neglect may be corrected by the court. See Fed.R.Civ.P. 60(a), (b). As the parties stated in their motion, the district court had previously ruled that it would receive evidence on certain state, "front-pay," and liquidated damage claims after the verdict was returned. The clerk entered judgment, however, on May 9, 1984, before the presentation of this evidence. The motion further noted that in reliance on the Court's statement that further evidence would be received, Pickwick had not timely moved for judgment n.o.v. or for a new trial. The court granted the motion and vacated the judgment.

In his brief to this court, Leichihman claims that the statement in his motion to the district court that a clerical error had been made actually had no support, that it is clear that the entry of judgment "could not have been based on a clerical error," and that, in fact, the joint motion "amounted to nothing more than an agreement of the parties to enlarge the 10 day period set forth in Rules 50(b) and 59(b) for the filing of post-judgment motions." Appellant's Brief at 15. Leichihman then cites cases holding that neither the parties nor the court may extend the time for filing these post-trial motions, never acknowledging that in these cases no motion to vacate the judgment under Rule 60 had been made or granted. See Fairway Center Corp. v. U.I.P Corp., 491 F.2d 1092 (8th Cir.1974); Weir v. United States, 339 F.2d 82 (8th Cir.1964).

We are satisfied that the district court acted within its equitable authority under Rule 60 in vacating the judgment and that Pickwick's new trial motion was timely. Moreover, we find Leichihman's characterization of the Rule 60 motion as a post-trial motion made under Rule 50(b) or 59(b) to be inaccurate, at best.

B.

Leichihman asserts that the district court misapplied the proper legal standard in granting a new trial. He notes that the district judge denied Pickwick's motion for a judgment n.o.v., rejecting Pickwick's argument that there was no evidence to support an age discrimination claim. Appellant's Brief at 17. He then takes issue with the court's determination that Pickwick's evidence of financial hardship overwhelmed Leichihman's allegations of age discrimination. Leichihman claims that in making this judgment the court simply substituted its weighing of the evidence for that of the jury. Leichihman concludes that it is "clear there was sufficient evidence to support the jury's verdict." Id. at 22.

This argument simply fails to distinguish between the standard for granting a new trial and the standard for judgment n.o.v. In assessing the new trial motion, the judge was no longer required to ignore Pickwick's evidence and give Leichihman the benefit of every favorable inference; he was allowed to weigh the evidence for himself. See, e.g., Day v. Amax, Inc., 701 F.2d 1258, 1262-63 (8th Cir.1983). Nor was he required to deny the motion simply because there was sufficient evidence for the jury to have found in Leichihman's favor. Even when substantial evidence supports a verdict, the trial court may conclude that there has been a miscarriage of justice. See Brown v. Syntex Laboratories, Inc., 755 F.2d 668, 673 (8th Cir.1985).

The court recognized that the prevention of injustice is the overriding principle in deciding whether to grant a new trial on the ground that the verdict was against the weight of the evidence. See Leichihman v. Pickwick International, Inc., 589 F.Supp. 831, 833 (D.Minn.1984) (order granting new trial) (citing Fireman's Fund Ins. Co. v. Aalco Wrecking Co., 466 F.2d 179 (8th Cir.1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973), and Altrichter v. Shell Oil Co., 263 F.2d 377 (8th Cir.1959)). Also, the order accurately describes the parameters of the court's exercise of its discretion in setting aside the jury verdict. The order states that "[t]he court must be motivated by more than the fact that it would have come to a different conclusion had it been the trier of fact. The court must feel that the jury quite clearly reached a seriously erroneous result in spite of the clear weight of the evidence." At 834 (citing Day v. Amax, Inc., 701 F.2d 1258 (8th Cir.1983); Altrichter, 263 F.2d at 377).

A district court must also give its reasons for concluding that the verdict is against the great weight of the evidence. See Stafford v. Neurological Medicine, Inc., ...