Monroe v. Penn-Dixie Cement Corporation, Civ. A. No. 12290.

• Decision Date: 27 December 1971
• Docket Number: Civ. A. No. 12290.
• Citation: 335 F. Supp. 231
• Parties: Thomas B. MONROE, Jr. v. PENN-DIXIE CEMENT CORPORATION.
• Court: U.S. District Court — Northern District of Georgia

335 F. Supp. 231

Thomas B. MONROE, Jr. v.PENN-DIXIE CEMENT CORPORATION.

Civ. A. No. 12290.

United States District Court, N. D. Georgia, Atlanta Division.

December 27, 1971.

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Neely, Freeman & Hawkins, Atlanta, Ga., for plaintiff.

Peek, Whaley & Haldi, Atlanta, Ga., for defendant.

SIDNEY O. SMITH, Jr., Chief Judge.

Plaintiff, Thomas Monroe, brought this action for damages against defendant, Penn-Dixie Cement Corp., under the provisions of the recently enacted Age Discrimination in Employment Act of 1967,29 U.S.C. § 621 et seq.¹Specifically, he complained that he was discharged from his job with defendant because of his age: he was 58 at the time.The case was tried before a jury, and the jury found for plaintiff in the sum of $23,785.Now, defendant moves for judgment notwithstanding the verdict or, in the alternative, for a new trial.

Defendant submits three contentions: (1)plaintiff was discharged from his position on May 17, 1968; therefore, the Age Discrimination in Employment Act(hereinafter called the Act or the Age Discrimination Act), which became effective on June 12, 1968, and upon which plaintiff relies for relief was inapplicable; (2) even if the Age Discrimination Act were applicable, there is no evidence whatsoever of any violation of the Act; (3) even if the Age Discrimination Act were applicable and there was evidence it was violated by defendant, the dollar verdict of the jury is unsupportable.

If the Age Discrimination Act was not yet effective when plaintiff was discharged, then of course, the discharge could not be unlawful under the Act.The Act became law on June 12, 1968; furthermore, it is undisputed that on May 15, 1968, plaintiff was notified that May 17, 1968, would be his last day with Penn-Dixie and that he has not actually worked for that corporation since.This seemingly simple situation is complicated somewhat, however, by the fact that plaintiff was due five weeks paid vacation on May 17.Plaintiff argues that the five weeks accrued vacation to which the plaintiff was entitled, extended his tenure of employment for the period of five weeks thereby making the effective date of discharge June 13, 1968, one day after the Age Discrimination Act became law.

A discharge occurs when there are any acts or words which show a clear intention on the part of the employer to dispense with the services of the employee and which are the equivalent to a declaration that the services will no longer be accepted.AccordTaylor v. Tulsa Tribune Co., 136 F.2d 981, 983(10th Cir.1943).Applying this standard to the facts here, this court has no doubt that when plaintiff was told May 17, 1968, would be his last day with Penn-Dixie, his employment terminated as of that date.The paid vacation time does not change the date of plaintiff's discharge.A vacation with pay is, in effect, only additional pay for work already done.In re Wil-Low Cafeterias, 111 F.2d 429, 432(2d Cir.1940)(Augustus Hand, J.).Plaintiff, by working for defendant over a year, had already earned his vacation pay when he was discharged; he had a contractual or quasi-contractual right to the vacation pay, and he was in fact paid the vacation pay plus severance pay by check on May 22, 1968.Nevertheless, Penn-Dixie terminated plaintiff's employment relationship with it on May 17.Plaintiff's contractual right to receive pay already earned did not include the right to continue as defendant's employee against its will.Had the Age Discrimination Act been in effect on May 17, 1968, plaintiff would have had a cause of action under the Act as of that day, but the Act was not effective at such time.

Incidentally, Mr. Monroe, who has been admitted to the Tennessee Bar, seems to have considered himself unemployed as of May 17.On May 22, 1968, he filed for unemployment benefits; in his application for benefits, he categorically said he was then unemployed and said that his previous employment lasted from May, 1947, through May 17, 1968.Moreover, in a letter to Penn-Dixie's pension fund officer, plaintiff said he assumed that any early retirement benefits he might elect to take would be retroactive to June 1, 1968.This is significant since apparently one could not draw retirement benefits while still an employee.

It also seems significant that the Department of Labor, which under the Act must be given an opportunity to eliminate any claimed discrimination grievance by mediation before a private plaintiff may proceed to court, refused to aid Mr. Monroe because it found that he was discharged on May 17, 1968, and that, therefore, the discharge was not a violation of the Age Discrimination Act which became effective on June 12, 1968.See letter from Henry A. Heuttner, Regional Director, Department of Labor, to Thomas B. Monroe, December 9, 1968.

Because the Age Discrimination in Employment Act of 1967,29 U.S.C. § 621 et seq., was not in effect on May 17, 1968, the day on which plaintiff's employment was terminated, the verdict against defendant cannot stand.²

Although not strictly essential to the ruling on defendant's motion, the court deems it appropriate to rule on defendant's other contentions.

Assuming arguendo that the Act was effective when plaintiff was discharged, the next question is whether the evidence supports the jury's finding that plaintiff was discharged because of his age.The question is essentially one of fact and the court concludes that there is sufficient evidence to support the jury's finding, although the court, itself, might not have reached the same conclusion from the evidence."The state of proof was such that reasonable and impartial minds could reach the conclusion the jury expressed in its verdict."SeeHar-Pen Truck Lines, Inc. v. Mills, 378 F.2d 705(11, 12, 13)(5th Cir. 1967).

Again assuming arguendo that the Act was effective when plaintiff was discharged, the question of the quantum of damages is raised.A person may recover amounts owing to him as a result of a violation of the Act.The court concludes that, at most, the plaintiff in this case would be entitled to less than a third of the $23,785 awarded by the jury.The damages should properly equal the difference between the value of the compensation by way of salary³ together with other specific monetary benefits, such as increased pension benefits which would have vested prior to trial, to which plaintiff would be entitled had he remained employed by defendant until the trial date and the value of his total benefits and earnings at other jobs from his discharge until the trial date.⁴Any suggestion that the computation of damages should be projected beyond the date of trial by setting off what plaintiff might have earned if he had remained in Penn-Dixie's employ until his death or retirement against what he...