Moody v. Pepsi-Cola Metropolitan Bottling Co., Inc.

• Decision Date: 06 November 1990
• Docket Number: PEPSI-COLA,Nos. 89-1917,89-2078,s. 89-1917
• Citation: 915 F.2d 201
• Parties: 56 Fair Empl.Prac.Cas. 1491, 54 Empl. Prac. Dec. P 40,228, 117 Lab.Cas. P 56,441, 17 Fed.R.Serv.3d 1393 Duane MOODY, Plaintiff-Appellee, v.METROPOLITAN BOTTLING COMPANY, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 201

915 F.2d 201

56 Fair Empl.Prac.Cas. 1491,

54 Empl. Prac. Dec. P 40,228,

117 Lab.Cas. P 56,441, 17 Fed.R.Serv.3d 1393

Duane MOODY, Plaintiff-Appellee, v. PEPSI-COLA METROPOLITAN BOTTLING COMPANY, INC., Defendant-Appellant.

Nos. 89-1917, 89-2078.

United States Court of Appeals, Sixth Circuit.

Argued July 30, 1990.

Decided Sept. 20, 1990.

Rehearing and Rehearing En Banc

Denied Nov. 6, 1990.

Martin J. Leavitt, Andrew W. Mychalowych, Andrew J. Haliw, III (argued), Sullivan & Leavitt, Northville, Mich., for plaintiff-appellee.

Richard E. Lieberman, Mark N. Woyar (argued), Robert T. Zielinski, Ross & Hardies, Chicago, Ill., Gregory V. Murray, Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., for defendant-appellant.

Before MILBURN and GUY, Circuit Judges; and TIMBERS, Senior Circuit Judge. ^*

MILBURN, Circuit Judge.

Defendant-appellant Pepsi-Cola Metropolitan Bottling Company, Inc., ("Pepsi") appeals from an amended judgment entered on a jury verdict for plaintiff-appellee Duane Moody in this action alleging breach of contract under Michigan's Toussaint doctrine ¹ and age discrimination in violation of both the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634, and Michigan's Elliott-Larsen Civil Rights Act. For the reasons that follow, we affirm.

I.

A.

In the initial pleadings in this case, neither party demanded a jury trial. After the district court entered a scheduling order reflecting that the case was set for a non-jury trial, counsel for Moody filed a motion requesting a jury trial. The district court heard oral arguments and granted the motion for a jury trial indicating that it took Moody's actions as a waiver but not a fully informed one. However, to avoid possible prejudice to Pepsi, the district court granted it additional time for discovery.

The case was tried to a jury beginning on June 22, 1988, and the trial ended on July 6, 1988. Pepsi made timely motions for a directed verdict at the close of Moody's proof and at the close of all the evidence. The jury returned a verdict in favor of Moody on all three claims and awarded $300,000 in economic losses. The jury also awarded $150,000 for emotional distress under the Elliott-Larsen claim.

Judgment was not entered until March 28, 1989. On April 6, 1989, Moody filed a motion for a partial new trial and/or amendment of the judgment. On April 11, 1989, Pepsi filed a motion for a judgment notwithstanding the verdict ("JNOV") or, alternatively, for a new trial. On June 29, 1989, the district court entered an order generally denying the post-trial motions of both parties; however, it decreased the economic loss award from $300,000 to $184,038.

On July 14, 1989, Pepsi filed a motion for reconsideration by the district court of its June 29, 1989, order denying the JNOV and new trial. Specifically, Pepsi asked for further reduction of the economic loss award. ² While the motion for reconsideration was still pending, Pepsi filed a notice of appeal (No. 89-1917) to this court on July 28, 1989. On August 25, 1989, the district court, in response to the motion for reconsideration, entered an order reflecting a reduction of the economic loss award to $132,818.

Since the notice of appeal was filed while a motion for reconsideration was pending, this court issued a show cause order on the issue of jurisdiction dated September 5, 1989. Pepsi not only submitted a response, but also filed a second notice of appeal (No. 89-2078). On October 17, 1989, this court discharged the show cause order and consolidated the cases reasoning that one of the two notices conferred jurisdiction.

B.

This action arises out of Duane Moody's discharge from the job of warehouse manager of Pepsi's facility in Romulus, Michigan, on October 29, 1982. Moody was fifty-two years old at the time of the discharge. The man who assumed the top managerial position at the warehouse was twenty-nine.

At trial, both Moody and his wife testified that Moody suffered emotional distress from the termination. Moody testified that as he left the job he was humiliated and in a state of shock and disbelief. Moody testified that part of the humiliation was from his being "escorted off by a guard [that was his subordinate] just the day before." J.A. 138. Moody was forced to take a job that was offered to him as a favor and eventually had to move to Florida and reside away from his family for a year in order to maintain employment. Moody testified that he felt his marriage suffered from the separation.

Moody's wife testified that Moody was upset to the point of crying following his discharge. Every time Moody went job hunting, he came home more dejected than before. Mrs. Moody was afraid her husband would "go off the deep end." Mrs. Moody testified that her husband still cries as he "never really pulled out of it." J.A. 185.

Moody was earlier employed by Pepsi in the 1950's until he began working for a competitor. He returned to Pepsi in 1977 and was told that he could work until retirement if he performed competently. Moody's performance reports from 1977 until 1981 were above average and often commented favorably upon his knowledge of labor relations and his firm and fair approach to his department. One report specifically noted that because of Moody's management there had not been a single grievance that year. J.A. 77. However, the final appraisal of Moody for the year he was discharged criticized his "high turnover of subordinates" and criticized his management style as "too domineering and intimidating." J.A. 112.

The latter comments came from Ed Koltalo who became Moody's supervisor in April of 1982. Koltalo was Pepsi's principal witness in this case; however, he was called as a witness by both sides. Koltalo testified that Moody was terminated because of a reduction in force in which higher management ordered elimination of six management people because of a significant decrease in sales volume. The record verifies the claimed decrease in sales; however, the record leaves room for doubt as to the alleged reduction in force.

For example, after testifying as a witness for Pepsi, Koltalo was cross-examined, with the aid of Pepsi's organizational charts, concerning the alleged reduction in force. Koltalo admitted that for periods before Moody's termination, the charts showed forty employees, and for periods after Moody's termination, the charts showed thirty-nine employees. Thus, if Moody were reinstated, the number of employees after the alleged reduction in force would be the same as before. J.A. 238.

During cross-examination, Moody's counsel also explored Koltalo's claim that as a supervisor, Moody had a turnover rate of 100 percent. It was established on cross-examination that two of the employees referred to as turnovers left years after Moody did. J.A. 242. The other two were terminated for legitimate reasons by Moody's superiors.

Before Moody's termination there were three managerial positions at the warehouse; manager 1 (Moody--age 52), manager 2 (James Becker--age 29), and supervisor (James Blank--age 30). Koltalo testified that it was his decision that the managerial jobs should be consolidated. From the record it appears that after Moody's termination, only two of the three managerial positions at the Romulus warehouse were occupied.

The man who assumed the top managerial position was James Becker. Becker was hired in July of 1982; Moody was terminated in October of the same year. Koltalo testified that he decided Becker should be retained over Moody because of Becker's superior employee relations skills. This factor was especially important, according to Koltalo, because of an ongoing strike at the facility and previous complaints of mistreatment from Moody by his subordinates.

However, Becker admitted having doubts about his experience and proficiency regarding several aspects of the job. Becker's on-the-job training was limited to approximately one month by the intervening strike.

During his case-in-chief, Moody called as a witness, Robert Bobbitt, a former regional manager for Pepsi whose duties were much the same as Koltalo's. Bobbitt testified that the company followed a human resource plan, the purpose of which was to plan the development of each Pepsi employee. Bobbitt also verified the existence of a "Crew Program" designed to recruit "persons right out of college" to become top managers. J.A. 198. The record reflects that under the Crew Program, nine persons were hired in 1982 prior to Moody's termination. J.A. 72.

Bobbitt also testified that he was present at a meeting with Koltalo and Mr. Muldoon, a superior from Pepsi's New York headquarters. According to Bobbitt, Muldoon ordered Koltalo to "terminate Duane Moody." J.A. 192. Koltalo resisted by arguing that he had not yet gathered enough documentation; however, Muldoon insisted on the termination. Under cross-examination, Bobbitt admitted that he, as an area manager, participated in a reduction in force in 1982.

Koltalo admitted the Muldoon conversation but presented a different version. According to Koltalo, he made the decision to terminate Moody and consulted Muldoon only for his concurrence.

Under examination by Moody's counsel as an adverse witness, Koltalo was asked to explain some documents entitled "1982 Personnel Plans." The documents were introduced as plaintiff's exhibit 8, and beside Moody's name in one document was the entry "(Age)". Several other names were listed in the document accompanied by entries such as "(Minority)" and "(Black/Female)". The document showed Moody to have been "Outcounseled/Outplaced."

Koltalo explained that the term "outcounseled" meant that an employee was not effectively doing his job and had to be counseled. "Outplaced" meant that counseling was unsuccessful and the employee had to be removed from the job. Thus, Koltalo admitted that plaintiff's exhibit 8 showed that Moody was terminated because he was not effectively doing his job....