McCorstin v. U.S. Steel Corp.

• Citation: 621 F.2d 749
• Decision Date: 16 July 1980
• Docket Number: No. 78-1957,78-1957
• Parties: 23 Fair Empl.Prac.Cas. 320, 23 Empl. Prac. Dec. P 31,112 James B. McCORSTIN, Jr., Plaintiff-Appellant, v. UNITED STATES STEEL CORPORATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 749

621 F.2d 749

23 Fair Empl.Prac.Cas. 320,

23 Empl. Prac. Dec. P 31,112

James B. McCORSTIN, Jr., Plaintiff-Appellant, v. UNITED STATES STEEL CORPORATION, Defendant-Appellee.

No. 78-1957.

United States Court of Appeals, Fifth Circuit.

July 16, 1980.

G. Daniel Evans, Birmingham, Ala., for plaintiff-appellant.

Thomas, Taliaferro, Forman, Burr & Murray, J. Fredric Ingram, Birmingham, Ala., for United States Steel.

Appeal from the United States District Court for the Northern District of Alabama.

Before HILL, KRAVITCH and THOMAS A. CLARK, Circuit Judges.

KRAVITCH, Circuit Judge.

In this appeal this court must decide the parameters of a prima facie case filed under the Age Discrimination in Employment Act. The action was filed by a former employee of U.S. Steel Corporation who had given notice to the Secretary of Labor alleging violations of the ADEA. During pretrial, the district court denied the appellant's motion for class certification on the ground that the members of the putative class had not "opted in" to the action by giving notice to the Department of Labor. The court denied motions to intervene filed by six other employees on the same ground. The district court refused to compel discovery into the appellee's company-wide policy concerning reduction in work forces. Additionally, the district court denied McCorstin's motion for a jury trial. After McCorstin had presented evidence, the district court rendered a directed verdict against the appellant on the ground that a prima facie case of age discrimination had not been demonstrated, citing McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Although we affirm the district court with respect to class certification, we reverse the directed verdict decision and remand for a jury trial on the merits, after a suitable period for renewed discovery.

Based upon the testimony and depositions before the court, the salient facts may be summarized as follows: The appellant initially began employment with the appellee United States Steel Corporation in 1940. Following interruptions for service in World War II and college, in 1947 McCorstin resumed his career with appellee as an industrial engineer. He remained with U.S. Steel until January 13, 1972 when he was terminated pending early retirement at the age of fifty-one.

Since 1965 McCorstin's employment history with the appellee has been checkered. He has had a number of different jobs, some of which involved demotions, and his level of performance in those jobs was disputed. For example, McCorstin's immediate superior in the Safety Department testified that his work was entirely satisfactory while the Assistant Superintendent of Personnel Services, Ruel Russell, stated that the numerous complaints about appellant, mainly his inability to work harmoniously with fellow employees, forced him to reassign McCorstin to the Metallurgy Department. ¹

In October of 1971 the General Supervisor advised McCorstin's immediate supervisor, Edge, that a reduction in force would occur. This reduction in force was accomplished by a combination of layoffs, early retirements and reductions in status from exempt ² to non-exempt. As a result ten exempt employees, including McCorstin, were "reduced" in the Metallurgy Department. Of these ten, five were assigned non-exempt status, four were retired and one, the appellant, was laid off pending retirement. Of those reduced in status only one was eligible for early retirement. The appellant was finally laid off on January 31, 1972 and became eligible for early retirement ³ benefits nineteen months later.

Edge testified that although early retirement was mentioned as an option to those "reduced," retirement was not urged. He testified that McCorstin was selected to be laid off for four reasons: (a) his assignment in the development of the sheet mill providing program had substantially ended by the summer of 1971; (b) he had turned down the only other job in which he had had any appreciable experience, that is, the Blast Furnace computer job; (c) he ranked poorly in the 1971 rankings and had been rated poorly, on a comparative basis, for the other years in the Metallurgy Department; and (d) he had very limited experience in the Metallurgy Department, which would reduce the desirability of his moving to another job in that department. Edge testified that the fact that the plaintiff was fifty-one years of age and would become eligible for retirement at a later time played no part in the decision to select McCorstin for the reduction. Similar justifications were adduced for Edge's other reduction decisions concerning other employees. In contrast, McCorstin testified that Edge had specifically told him that because he was approaching early retirement he should consider the alternative, i. e., being fired.

With regard to the post-termination history of the appellee's reduction in force practice, the evidence and testimony demonstrates that McCorstin was not replaced by a person under forty years of age following his dismissal. It is questionable whether he was replaced at all. The appellant did offer evidence that the Company has actively solicited and hired recent college graduates to work in various engineering departments during the time period relevant to this appeal.

Because six other plaintiffs were dismissed from the case for failure to meet the jurisdictional requirements of notice to the Department of Labor and the court denied appellant's attempt to maintain a class action under Rule 23 Fed.R.Civ.Proc., certain additional post-termination facts must be recounted. On July 8, 1972 McCorstin tendered to the Department of Labor his notice of intention to sue, together with a statement of facts outlining widespread discriminatory practices by U.S. Steel. Subsequently, conciliation meetings were held between a member of the Wage and Hour Division. No attempt was made to redress any employee's grievance other than McCorstin. Nonetheless, the appellant contends that the Labor Department was put on notice of his intentions to prosecute the instant action on behalf of all employees similarly situated.

The pretrial period was stormy: two sets of attorneys were dismissed or asked to be relieved and numerous motions for continuances were made. In the course of pretrial proceedings, the court resolved two motions against the appellant that form the basis for two of his points on appeal. The trial court denied appellant's motion for a jury trial and refused to compel discovery against U.S. Steel into company-wide force reduction history. The basis for the denial of the discovery motion was the relative inactivity of plaintiff's earlier counsel and that the discovery cutoff date had passed. The court also denied a motion for a continuance in order to effect discovery. Trial commenced on September 21, 1977 and terminated on October 6 at the close of appellant's case in chief when U.S. Steel moved for involuntary dismissal. This motion was granted by the court after notice that it was considering the motion as one for summary judgment ⁴ or directed verdict pursuant to Rules 50(a) and 56(b) of Fed.R.Civ.Proc.

The appellant levels three attacks on the district court's judgment. First, McCorstin contends that the court erred in denying his motion for a jury. Second, the court's decision to limit discovery is challenged. Finally, appellant contends that error was committed in refusing to allow the case to proceed as a class action.

As the appellee concedes and the district court recognized in its memorandum opinion, the failure of the court to grant appellant's motion for a jury constituted error. Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). ⁵ As the appellee argues, however, this error was harmless if the directed verdict was proper because, in that event, no jury question would have existed. See United States v. Williams, 441 F.2d 637 (5th Cir. 1971). It is therefore incumbent upon this court to review the propriety of the district court's directed verdict.

The standard to be applied in the review of the directed verdict was announced by this court in Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc). In Boeing we stated:

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence not just that evidence which supports the non-mover's case but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Although the Boeing standard is a necessary component for appellate review, it is not sufficient. Absent a legal framework for the compartmentalization of facts, evidence simply represents a small slice of history. For age discrimination analysis this circuit has adopted the four-prong test, with modification, that the Supreme Court promulgated for race...