Merkel v. Scovill, Inc.

• Decision Date: 02 November 1983
• Docket Number: No. C-1-82-149,C-1-82-150 and C-1-82-151.,C-1-82-149
• Citation: 573 F. Supp. 1055
• Parties: Robert MERKEL, Jacob M. Hughes, Michael Cain, Plaintiffs, v. SCOVILL, INC., Defendant.
• Court: U.S. District Court — Southern District of Ohio

573 F. Supp. 1055

Robert MERKEL, Jacob M. Hughes, Michael Cain, Plaintiffs, v. SCOVILL, INC., Defendant.

Nos. C-1-82-149, C-1-82-150 and C-1-82-151.

United States District Court, S.D. Ohio, W.D.

November 2, 1983.

COPYRIGHT MATERIAL OMITTED

James B. Helmer, Jr., Cincinnati, Ohio, for plaintiffs.

Charles Weiner, Cincinnati, Ohio, for defendant; Stanford G. Wilson and Robert Thompson, Atlanta, Ga., of counsel.

OPINION AND ORDER

SPIEGEL, District Judge:

This matter is before the Court on defendant's motion for a judgment notwithstanding the verdict or in the alternative for a new trial (doc. 95), plaintiffs' memorandum in opposition (doc. 109), and the defendant's reply (doc. 113). For reasons to be discussed, the Court finds as follows:

(1) With respect to plaintiff Cain, the motion is denied.

(2) With respect to plaintiff Merkel, the motion is denied insofar as it pertains to Merkel's federal claim. However, defendant's motion is granted insofar as it pertains to Merkel's state claim. The Court finds that there is no evidence from which the jury could properly find that the defendant Scovill, Inc., discharged Merkel because he refused to commit perjury or falsification. Accordingly, judgment notwithstanding the verdict shall be entered for defendant and against plaintiff on Merkel's state claim for wrongful discharge.

(3) With respect to plaintiff Hughes, the motion is denied insofar as it applies to his federal claim. However, with respect to the issue of compensatory damages, the motion for a new trial is denied conditional upon plaintiff Hughes' accepting a remittitur of $125,000 on the jury award of compensatory damages on his state claim. If Hughes does not consent to the remittitur, the Court shall grant a new trial limited to the issue of compensatory damages under state law.

Still pending is plaintiffs' application for attorney's fees. That motion is ripe and shall be decided expeditiously, but its pendency does not affect the finality of this Order. Smillie v. Park Chemical Co., 710 F.2d 271 (6th Cir., 1983).

FACTUAL BACKGROUND

These consolidated cases were brought pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., and state law. They arose out of events at defendant Scovill, Inc.'s Nutone plant December 18, 1980. Plaintiffs Cain and Hughes presented Earlie Howard, a Scovill guard, with an authorization pass which permitted them to remove scrap lumber from Scovill's property. The pass, obtained by Merkel on behalf of Cain, had been signed by Cain's superior. Although he allowed the two men to remove the box containing the scrap wood from the lift truck on which they were carrying it to Cain's truck, the guard was suspicious. Believing there was something in the box other than scrap wood, Howard notified his supervisor who also examined the box and then notified Paul Schlesinger, Assistant Director of Industrial Relations, of his suspicion that two employees were attempting to remove company property on a scrap wood pass. Schlesinger called his supervisor, John Henson, Director of Industrial Relations, who instructed Schlesinger to determine whether the box in fact contained company property and if so to suspend Cain and Hughes pending an investigation.

Cain and Hughes were detained at the guardhouse until Schlesinger arrived. In the presence of Schlesinger and Howard, the two men removed the wood from the box, revealing four boxes similar to those in which Scovill packed its finished goods. Cain and Hughes were subsequently questioned about these events by Schlesinger and Henson and ultimately discharged on December 23, 1980 for removing company property without authorization.

Plaintiff Merkel, who was thirty at the time, was not questioned about the events resulting in the discharge of Cain and Hughes. Approximately nine months later, Scovill received a letter from the Ohio Civil Rights Commission (OCRC) regarding the OCRC's investigation of a charge of age discrimination filed by Cain. The OCRC letter requested defendant to obtain an affidavit from Merkel.

The evidence shows that Henson and Schlesinger met with Merkel on October 7, 1981. Because he believed Merkel's statements to be inconsistent, Henson asked Merkel to submit to a polygraph examination. Merkel agreed, but on October 16, told Schlesinger he would not take such an examination. On October 22, 1981 Schlesinger met with Merkel again and showed him the OCRC letter; Margaret Poole, a company secretary, was also present. Merkel agreed to give a statement responding to the OCRC's questions; Poole recorded his answers in shorthand. The following day Merkel was given the affidavit which Poole had typed from her notes; he was permitted to take the statement home for the weekend. When he returned to work on October 27, he told Schlesinger he would not sign the affidavit because the answers were wrong. Schlesinger warned Merkel that he could be discharged if he refused to sign. When Merkel persisted in refusing to sign the affidavit, Schlesinger told him that he was discharged for giving inconsistent statements and refusing to cooperate in the OCRC investigation.

These cases were tried to a jury. Hughes and Cain asserted that age had been a determining factor in Scovill's decision to discharge them in violation of the ADEA. Merkel claimed that he had been discharged because of his participation in Cain's age discrimination claim filed with the OCRC, also in violation of the ADEA. All three plaintiffs contended that defendant had acted willfully in discharging them. The jury found that all three discharges violated the ADEA and were willful.

Plaintiff Hughes also asserted that his discharge violated Ohio Revised Code § 4101.17 which prohibits discrimination based upon age. His claim for punitive damages was struck by the Court upon defendant's motion for a directed verdict following the close of plaintiffs' case. The jury found for plaintiff Hughes on his state claim and awarded him compensatory damages in the amount of $250,000.

Plaintiff Merkel asserted a common law cause of action on the ground that he had been wrongfully discharged for refusing to commit perjury and falsification. On defendant's motion for a directed verdict, the Court dismissed Merkel's claim for punitive damages prior to the jury instruction conference. The jury found for Merkel on his state claim and awarded him compensatory damages in the amount of $150,000.

By agreement of the parties, the Court entered the judgments on the basis of the jury's answers to special interrogations. Defendant's motion followed.

JUDGMENT NOTWITHSTANDING THE VERDICT

The principles governing the granting of a motion for a judgment notwithstanding the verdict are well established. The test is whether there is evidence upon which a jury could properly find a verdict for the party opposing the motion. Hill v. Spiegel, 708 F.2d 233, 237 (6th Cir.1983); Pike v. Benchmaster Manufacturing Co., 696 F.2d 38, 40 (6th Cir.1982). The Court may not weigh the evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. 9 C. Wright and A. Miller, Federal Practice & Procedure: Civil § 2254 and cases cited therein. A motion for a judgment notwithstanding the verdict "may be granted only if, viewing the admissible evidence most favorable to the party opposing the motion, a reasonable trier of fact could draw only one conclusion." Hill v. Spiegel, 708 F.2d at 237, citing Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962).

I. Federal Claims

Defendant first maintains that the Court should have granted defendant's motion for a directed verdict on the ADEA claims of plaintiffs Cain and Hughes. It argues that the evidence was insufficient to permit a reasonable person to conclude that age was a determining factor in the decisions to discharge and that Scovill articulated a legitimate nondiscriminatory business reason for the discharges. More particularly, defendant argues that Cain and Hughes failed to present any evidence that defendant's articulated reason — that plaintiffs were discharged for the unauthorized removal of company property — was pretextual.

In an age discrimination claim under the ADEA, the plaintiff bears the burden of demonstrating by a preponderance of the evidence that he was within the protected age group, discharged, and that age was a determining factor in his discharge. Blackwell v. Sun Electric, 696 F.2d 1176, 1180 (6th Cir.1983). A plaintiff is entitled to liquidated damages under the ADEA if he proves that defendant acted willfully, i.e., that the defendant deliberately, intentionally, and knowingly discharged him because of his age. Blackwell v. Sun Electric, 696 F.2d at 1183-84.

It was undisputed that Cain and Hughes were able to perform their work, were within the protected age category and were discharged. The only questions for the jury therefore with respect to Cain and Hughes' ADEA claims were whether age was a determining factor in the decision to discharge them and whether defendant acted willfully.

We have carefully reviewed the evidence and conclude that Cain and Hughes presented evidence from which a jury could reasonably find that age was a determining factor and that the discharges were willful. In particular, we note that plaintiffs showed that defendant, at a minimum, should have been aware that Merkel obtained the scrap wood pass for Cain, but that defendant did not even question the much younger Merkel until some months after discharging Hughes and Cain and only after the OCRC began investigating Cain's age discrimination charge. In addition, plaintiff presented evidence that there was no written policy with regard to the unauthorized removal of company property and that younger employees who appeared to have removed property without authorization were treated differently than Hughes and Cain. This evidence was sufficient...