McCann v. Litton Systems, Inc.

• Decision Date: 26 March 1993
• Docket Number: No. 91-1756,91-1756
• Citation: 986 F.2d 946
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 705, 61 Empl. Prac. Dec. P 42,140 Robert T. McCANN, Plaintiff-Appellee, v. LITTON SYSTEMS, INC., Ingalls Shipbuilding Division, Defendant. Ingalls Shipbuilding, Inc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 946

986 F.2d 946

61 Fair Empl.Prac.Cas. (BNA) 705,

61 Empl. Prac. Dec. P 42,140

Robert T. McCANN, Plaintiff-Appellee, v. LITTON SYSTEMS, INC., Ingalls Shipbuilding Division, Defendant.

Ingalls Shipbuilding, Inc., Defendant-Appellant.

No. 91-1756.

United States Court of Appeals, Fifth Circuit.

March 26, 1993.

Rehearing and Rehearing En Banc

Denied April 29, 1993.

Brooks Eason, Brunini, Grantham, Grower & Hewes, Jackson, MS, for defendant.

Linda Baggett Boozer, John H. Crouch, and William J. Powers, Jr., VP, Gen. Counsel, Pascagoula, MS, for Ingalls Shipbuilding, Inc.

Robert W. Smith and Catherine H. Jacobs, Biloxi, MS, for appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Robert T. McCann filed this action pursuant to the Age Discrimination in Employment Act (ADEA). ¹ McCann alleges that Litton Systems, Inc., ("Litton") ² forced him into retirement when he turned sixty-five years of age, thus engaging in unlawful age discrimination. A district court jury found for McCann and assessed damages at $246,000. Litton subsequently moved for judgment non obstante veredicto and, in the alternative, a new trial. The district court denied Litton's motion. Finding that the evidence does not support a finding of constructive discharge, we reverse the district court's denial of the motion for judgment n.o.v.

I

The evidence is uncontradicted that McCann was, and is, an excellent engineer. When he was hired by Litton in 1971 he had impeccable academic credentials and an excellent work record that encompassed twenty-five years of engineering experience. He extended that record at Litton and quickly ascended the engineering ranks there. In 1982, when he was sixty years of age, McCann was appointed Director of Design for the AEGIS Cruiser Program, a large government contract to build a class of ships for the United States Navy. McCann successfully performed the duties of that position for five years, earning above-average and outstanding performance reviews and receiving an award from the Navy for his work on the program.

As McCann's sixty-fifth birthday approached, however, the cruiser program evolved from its design, to its production stage. Consequently, the need for a Director of Design diminished. Francis Burger, the program manager for the AEGIS Cruiser Program and McCann's immediate superior, testified that the Navy had ordered 19 cruisers from the program and that the first seven of those had been delivered. As a result, "the design work was at an end. The field service and the construction was in its peak." Record on Appeal, vol. 2, at 89. Indeed, following McCann's retirement, the position of Director of Design for the AEGIS Cruiser Program was abolished. Although McCann's design staff dwindled to a quarter of its former size, he resisted transfer to a production position. ³

At the same time, Litton was preparing a bid for the Navy's AEGIS Destroyer Program, and it transferred in a young engineer from its Washington, D.C., office. Richard Schenk was 33 years of age when he transferred to the Litton shipyards. His engineering pedigree, although not as lengthy as McCann's, is also impressive. On his transfer to the shipyard, Schenk was promised the position of design director for the AEGIS Destroyer Program--a position nearly identical to the one then held by McCann in the AEGIS Cruiser Program.

McCann, meanwhile, was receiving letters from the Litton pension department concerning his approaching sixty-fifth birthday, as well as personal inquiries from his superiors regarding his plans for retirement. The letters appear to have been routine correspondence. ⁴ The personal inquiries originated with Mark Farnum, a Litton vice president, who testified that, due to an imminent company-wide reduction, he ordered his subordinates to "canvass all of your people, all of them, and see what their intentions are so if we have any planned or potential attrition, this will count against the [reduction in force]." Record on Appeal, vol. 4, at 410. McCann testified that he was questioned twice about his retirement plans, and that both times he responded that he had no intention of retiring at age sixty-five, that he planned to work until age seventy, "good work and health prevailing." ⁵ Id., vol. 3, at 138.

January 1987 marked the beginning of the end of McCann's sixteen-year career with Litton. On January 10, McCann's remaining staff were transferred to work under Schenk, who had accepted the waterfront production position McCann had resisted. McCann was given a newly created position of Staff Director--a position without a description and little in the way of job duties. Mark Farnum, a Litton vice president, testified that the position of Staff Director was created for McCann after the decision to include him in the reduction in force had been made. ⁶ See id., vol. 4, at 415.

Two weeks after being given the Staff Director position, McCann was told he was to be laid off as a part of a company-wide reduction in force. He was given the option of accepting three-weeks severance pay or working for three additional weeks. He chose to work.

During the next three weeks, he was told: (1) that he could work until March, when he would be eligible for retirement; (2) that he could accept a twelve percent pay cut and go to work for Schenk; or (3) that he could accept a transfer to Litton's Canadian division. McCann flatly rejected the transfer under Schenk, terming it an "insult" and complaining that the proffered position had no job description. Meanwhile, the Canadian transfer fell through, apparently as the result of a misunderstanding, and McCann decided to retire.

Before his retirement, however, McCann filed an age discrimination complaint through Litton's internal grievance procedure. Subsequent to his retirement, he filed a formal age discrimination complaint with the Equal Employment Opportunity Commission ("EEOC"). See 29 U.S.C. § 626(d) (1988). The EEOC did not resolve the complaint within 180 days, and McCann requested and received a right-to-sue letter.

McCann filed suit in district court alleging, inter alia, that he was born on February 4, 1922; that he had ably performed his duties for Litton; that, throughout 1986, his supervisors at Litton had repeatedly questioned him about his retirement plans; that in early 1987 he refused a transfer that entailed a decrease in pay; that he had been replaced by a younger man and forced to accept retirement in lieu of lay-off; and that Litton's actions in forcing his retirement constituted willful and unlawful age discrimination. See Record on Appeal, vol. 1, at 1-3.

The case was tried before a jury. At the close of McCann's case-in-chief, Litton moved for a directed verdict, arguing that McCann had failed to establish a prima facie case of age discrimination, failed to demonstrate Litton's specific intent to discriminate, and failed to plead and prove constructive discharge. After denying the motion, the district court submitted the case to the jury with the following instruction:

In order for the plaintiff in this case to prevail on his claim of age discrimination, he must prove to you by a preponderance of the evidence, the following: First, that he is within the protected age group of forty to seventy years of age; and second, that he was actually or constructively discharged from his employment and that he was qualified to assume another position at the time of separation; and three, that his age was a determining factor in his separation, that the employer intended to discriminate on the basis of [age].

Id., vol. 4, at 461-62. The court defined "constructive discharge" as a situation in which "an employer makes an employee's work condition so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to [retire]." Id. at 463.

Neither McCann nor Litton objected to the jury instructions. The jury returned a verdict for McCann, assessing damages at $246,000 in back pay. Litton moved for judgment n.o.v., arguing again that McCann had failed to prove both age discrimination and constructive discharge. Litton also moved, in the alternative, for a new trial, arguing that the jury verdict was against the great weight of the evidence. The district court denied Litton's motion and entered judgment for McCann.

Litton contends on appeal that the evidence before the district court jury was insufficient as a matter of law to support a verdict for McCann. Specifically, Litton argues that the evidence does not support either a finding of (a) constructive discharge or (b) age discrimination, and that (c) the district court erred in denying its motion for a new trial. Because we agree with Litton's first argument, we do not reach the others.

II

A

In an appeal from the denial of a judgment n.o.v., our review of the district court proceedings is limited. See Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). To reverse the district court's denial of a judgement n.o.v., "the facts and inferences [must] point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict." Id. at 374. However, if reasonable persons could disagree as to the verdict, a judgment n.o.v. is inappropriate, and we must affirm. See id. Moreover, we must examine the evidence in the light most favorable to the appellee. Stephens v. C.I.T. Group/Equipment Financing Co., 955 F.2d 1023, 1027 (5th Cir.1992).

B

As part of his age discrimination claim, McCann had to show that he was either actually or constructively discharged. ⁷ See Stephens, 955 F.2d at 1027 ("In order to prove a prima facie case of age discrimination, a plaintiff must show, among other things, that he was discharged from his position."). Constructive discharge occurs when ...