Sawchik v. E.I. DuPont Denemours & Co.
| Decision Date | 13 February 1986 |
| Docket Number | No. 84-3783,84-3783 |
| Citation | 783 F.2d 635 |
| Parties | 40 Fair Empl.Prac.Cas. 126, 39 Empl. Prac. Dec. P 35,873 Boris SAWCHIK, Plaintiff-Appellant, v. E.I. DuPONT DENEMOURS & CO., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Ronald A. Banig, argued, Akron, Ohio, for plaintiff-appellant.
Ronald J. James, Janet L. Maher, argued, Squire, Sanders & Dempsey, Cleveland, Ohio, for defendant-appellee.
Before KRUPANSKY and GUY, Circuit Judges, and SUHRHEINRICH, District Judge. *
Plaintiff appeals the granting of a directed verdict in the district court jury trial of his age discrimination in employment claim filed pursuant to 29 U.S.C. Sec. 621 et seq.
We review the granting of a directed verdict by the trial court under the same standard used by that court in determining whether or not it was appropriate to grant the motion.
In considering a motion for a directed verdict under Rule 50(a), the trial court "must determine whether there was sufficient evidence presented to raise a material issue of fact for the jury." O'Neill v. Kiledjian, 511 F.2d 511, 513 (6th Cir.1975). As applied in this context, "sufficient evidence" is such that, when viewed in the light of those inferences most favorable to the nonmovant, Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458 (1943), and Dowdell v. U.S. Industries, 495 F.2d 641, 643 (6th Cir.1974), there is either a complete absence of proof on the issues or no controverted issues of fact upon which reasonable men could differ. Sulmeyer v. Coca-Cola Co., 515 F.2d 835, 841 (5th Cir.1975), cert. denied 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 341 (1976), citing 5A Moore's Federal Practice p 50.02 (2d ed. 1974). Appellate courts apply this same standard. O'Neill v. Kiledjian, supra, at 513, citing 9 Wright & Miller, Federal Practice and Procedure Sec. 2524, at 542 (1971).
Milstead v. International Brotherhood of Teamsters, 580 F.2d 232, 235 (6th Cir.1978), cert. denied 454 U.S. 896, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981).
When this standard is applied to the record made below, we are convinced that Judge Manos was correct in granting a directed verdict and we affirm.
Plaintiff began working for defendant in 1959, starting as a sales representative in defendant's Antifreeze Division. In 1974 plaintiff was transferred to the Consumer Paints Division as a sales representative. In August of 1980, certain business consolidations were made and the sales representative positions in the Consumer Paints Division were eliminated. Rather than layoff the plaintiff, defendant found a position for him as a sales representative in its Refinish Paints Division. At the time of this transfer, plaintiff was experiencing back problems and was considering a spinal fusion. Shortly after the transfer, plaintiff's back condition deteriorated and he decided to undergo corrective surgery.
Plaintiff applied for and received a six-month medical leave of absence, and entered the hospital in October of 1980. Plaintiff had been told by a superior that his territory would be held open for him pending his recovery. This was not in fact done, however, and shortly after plaintiff's surgery, he was informed that he was being transferred back to the Consumer Paints Division. Plaintiff claims he was told at the time of the transfer that it was for administrative reasons during his recovery period. Plaintiff expressed shock and concern at this transfer back because he knew there was no job for him back in the Consumer Paints Division (App. 28-30). In late October or early November, 1980, plaintiff learned from a co-worker that his territory in the Refinish Paints Division had been assigned to a 22-year old trainee (App. 30).
The above chronology of factual events is not disputed by the parties. It is also not disputed that under defendant's wage policy an employee is guaranteed a disability leave with full pay for up to six months. On April 5, 1981, plaintiff's first medical leave expired and, since he was not yet ready to return to work, he was given an additional three months leave of absence at 85 percent of his salary, although defendant had no obligation to make such an extension. This second leave expired on June 30, 1981, and at this point in time plaintiff was offered a position as sales correspondent in Wynnewood, Pennsylvania, beginning July 13, 1981. Plaintiff was not happy with this offer and sought a third leave of absence. This was denied, and it was clear at this point in time that plaintiff could (1) report to the new job in Wynnewood, (2) cease employment with defendant, or (3) take early retirement. On September 16, 1981, plaintiff elected to retire at full pension effective July 1, 1981. The back-dated effective date of July 1, 1981, was a negotiated date partially reflecting the fact that plaintiff had been off the payroll since his second medical leave expired on June 30, 1981. On November 1, 1981, plaintiff secured new employment with a third party, and, on April 14, 1982, filed an age discrimination charge with the Equal Employment Opportunity Commission (EEOC).
Since Ohio is a deferral state, plaintiff had 300 days from the date of the alleged discriminatory act to file a charge with the EEOC. Since he filed on April 14, 1982, the alleged discriminatory act must have occurred on or after June 22, 1981. Plaintiff seeks to run the time from July 1, 1981, the effective date of his retirement. Defendant urges October or November of 1980 when plaintiff allegedly knew of this transfer back to Consumer Paints and his replacement in the Refinish Paints Division by a younger person.
The resolution of this issue is helped by the fact that what constitutes the alleged discriminatory act was clarified on the record by Judge Manos at the time of argument on the motion for directed verdict.
* * *
* * *
I want to know what your definition of the unlawful act is. Tell me and give me the date.
Since the alleged discriminatory act of which plaintiff had knowledge occurred in October or November of 1980, a filing of a charge with the EEOC on April 14, 1982, clearly would not be within the 300-day limitations period. However, the 300-day filing period is not jurisdictional and is subject...
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