Marston v. Presto Products, Inc.
| Decision Date | 03 March 1988 |
| Citation | 423 N.W.2d 881,143 Wis.2d 897 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. WALTER MARSTON, Plaintiff-Appellant and Cross-Respondent, v. PRESTO PRODUCTS, INC., a Wisconsin corporation, Defendant-Respondent and Cross-Appellant. 86-0998. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment of the circuit court for Outagamie county: James T. Bayorgeon, Judge.
Before DYKMAN, J., EICH, J. and SUNDBY, J.
Walter Marston appeals from a judgment granting Presto Products, Inc.'s motion for a directed verdict. Presto cross-appeals. The trial court concluded there was insufficient evidence to support the jury's finding that age had been a determining factor in Presto's decision to fire Marston in violation of the Age Discrimination in Employment Act, (ADEA), 29 U.S.C. sec. 621 et. seq. 1 As a result, the court did not consider whether credible evidence supported the jury's finding that Presto's termination of Marston's employment was willful or its finding that Marston was entitled to $55,000 for past wage loss and $75,000 for future wage loss.
The issues on appeal are: (1) Was there credible evidence that age was a determining factor in Presto's decision to fire Marston? (2) Was there credible evidence that Presto willfully fired Marston? (3) Are liquidated damages mandatory in willful ADEA violations? (4) What is the proper measure of liquidated damages? (5) Are future damages, or front pay, available under the ADEA? (6) Was there credible evidence to support the jury's damage awards? (7) Should $5,240, representing unemployment compensation, be added to the back pay award?
The issues on the cross-appeal are: (1) Did Marston file his ADEA claim with the Equal Employment Opportunity Commission (EEOC) within 300 days of his termination as required by 29 U.S.C. sec. 626(d)(2)? (2) Did the trial court abuse its discretion by extending the 300-day limit? (3) Did the trial court lack competence to decide Marston's ADEA claim because the record failed to show Marston had commenced proceedings under the Wisconsin Fair Employment Act, as required by 29 U.S.C. sec. 633(b)? 2
Regarding the cross-appeal, we conclude that the trial court had competence to exercise its subject matter jurisdiction and that the court did not abuse its discretion by extending the 300-day filing deadline. Because of our determination of these questions, we need not decide whether Marston filed his claim within the 300-day filing limit.
Regarding the appeal, we conclude that credible evidence supports the jury's finding that age was a determining factor in Presto's termination of Marston's employment. We also conclude that credible evidence supports the jury's finding that Presto willfully terminated Marston's employment and that credible evidence supports the jury's damage awards. We therefore reverse and remand with directions to reinstate the jury verdict, to exercise discretion regarding the $5,240 unemployment compensation and whether to reinstate Marston or to award him front pay, and to grant Marston liquidated damages equal to the amount of the past wage-loss award. The court should also determine the amount of attorney fees Presto should pay to Marston.
Presto, a manufacturer of plastic film products, hired Marston, then fifty-one years old, on May 20, 1981, as Consumer Product Manager of Presto's new Non-Foods Division. On March 22, 1982, Presto told Marston he was being fired for economic reasons and because the division could not support a full-time product manager. Marston's personnel file showed the reason for his termination as 'position eliminated.' Although Marston filed a signed ADEA claim against Presto with the EEOC after the 300-day statute of limitations had expired, the trial court extended this deadline.
The jury answered 'yes' to the following special verdict questions:
1. Was plaintiff's age a determining factor in the decision by Presto Products to terminate his employment?
2. Was the termination of plaintiff's employment by defendant willful?
3. At the time of his discharge did plaintiff have a contract of employment with defendant which was not terminable at will?
4. Did the defendant violate the conditions of the plaintiff's contract in discharging him?
On motions after verdict, the court granted Presto's prior motion for a directed verdict and awarded costs of $1,551.58 to Presto. Other facts will be discussed below.
We review the lower court's decision to grant a directed verdict de novo to determine whether any credible evidence supports the verdict. See Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 15 (7th Cir. 1987) (). A trial court may not direct a verdict unless there is no conflicting evidence, and the evidence permit only one inference. Millonig v. Bakken, 112 Wis.2d 445, 451, 334 N.W.2d 80, 83 (1983). We give great weight to a trial court's decision that a verdict must be directed as a matter of law, but we will set aside the court's action if credible evidence supports the jury's verdict. Holloway v. K-Mart Corp., 113 Wis.2d 143, 150, 334 N.W.2d 570, 574 (Ct. App. 1983). We search the record only for credible evidence which sustains the jury's verdict; we do not weigh the evidence. Sumnicht v. Toyota Motor Sales, 121 Wis.2d 338, 360, 360 N.W.2d 2, 12 (1984).
Presto argues that the trial court lacked subject matter jurisdiction over Marston's claim because the record fails to show that Marston commenced proceedings under the Wisconsin Fair Employment Act (WFEA), as required by 29 U.S.C. sec. 633(b).
29 U.S.C. sec. 633(b) provides in relevant part:
[N]o suit may be brought under . . . [29 U.S.C. 626] before the expiration of sixty days after proceedings have been commenced under the State law . . ..
Marston filed his ADEA claim with the EEOC. 29 C.F.R. sec. 1601.13(a)(3) (1981), which applies to the EEOC, provides that '[c]opies of all [ADEA] charges wil l be forwarded to the appropriate 706 Agency.' 29 C.F.R. sec. 1601.74(a) (1981), provides that '[t]he designated 706 agenc[y is] . . . Wisconsin Equal Rights Division [ERD], Department of Industry, Labor and Human Relations . . ..'
Nogar v. Henry F. Teichmann, Inc., 640 F. Supp. 365, 369 (W.D. Pa. 1985), aff'd, 800 F.2d 1137 (3rd Cir. 1986) (citations omitted).
Filing with the EEOC constitutes filing with the ERD. If the EEOC filing was valid, the trial court had competency to exercise its subject matter jurisdiction.
The filing requirements of the ADEA and Title VII are almost identical; therefore Title VII decisions are persuasive precedent for interpreting the ADEA's filing requirements. Stearns v. Consolidated Management, Inc., 747 F.2d 1105, 1111 (7th Cir. 1984). The filing limits in Title VII cases are subject to tolling 'when equity so requires.' Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982). This honors 'the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer.' Id.
Presto claims that Marston did not file an ADEA claim with the EEOC within 300 days after Marston's discharge, as required by 29 U.S.C. sec. 626(d)(2). 4 Marston disputes this claim. 5 The trial court extended the 300-day deadline because 'no purpose of the ADEA would be significantly advanced by strict adherence to the 300-day filing requirement in this case.' Presto claims that the trial court abused its discretion by applying an erroneous view of the law.
. . . .
We will reverse a discretionary act if the trial court applies an erroneous view of the law. Overson v. Overson, 125 Wis.2d 13, 17, 370 N.W.2d 796, 799 (1985). '[A] discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination.' Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981).
The trial court determined that Marston filed his signed ADEA charge with the EEOC at most ten days after the expiration of the 300-day filing period, but noted that the limitation is subject to equitable tolling. The court observed that the EEOC had treated Marston's claim as timely filed and that Presto had not raised this issue before the agency. Further, the court observed that any filing delay was at least partly due to EEOC actions. The court also noted that Presto was aware of Marston's intent to pursue the ADEA claim from his correspondence with Presto. Because of these reasons, the court found that no purpose of the ADEA would be advanced by a strict adherence to the 300-day filing requirement.
Presto claims positive misconduct on the part of the employer is required before one may invoke the doctrine of equitable tolling. Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 357, 359 (8th Cir.), cert. denied, 469 U.S. 1036 (1984); Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir. 1982). However, in Love v. Pullman Co., 404 U.S. 522, 526 (1972), relied on in Zipes, 455 U.S. at 397, the Supreme Court implied that where the purposes of the filing requirement had been achieved, and there is no showing of prejudice by the employer, a court may extend the filing deadline. 6 Because the trial court did not rely on an erroneous view of the law,...
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