Smallwood v. United Air Lines, Inc.

• Decision Date: 28 February 1984
• Docket Number: Nos. 82-2115,82-2116,s. 82-2115
• Citation: 728 F.2d 614
• Parties: 34 Fair Empl.Prac.Cas. 217, 33 Empl. Prac. Dec. P 34,185 Gerald E. SMALLWOOD, Appellee, v. UNITED AIR LINES, INC., Appellant. Gerald E. SMALLWOOD, Appellant, v. UNITED AIR LINES, INC., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 614

728 F.2d 614

34 Fair Empl.Prac.Cas. 217,

33 Empl. Prac. Dec. P 34,185

Gerald E. SMALLWOOD, Appellee, v. UNITED AIR LINES, INC., Appellant.

Gerald E. SMALLWOOD, Appellant, v. UNITED AIR LINES, INC., Appellee.

Nos. 82-2115, 82-2116.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 1, 1983.

Decided Feb. 28, 1984.

Herbert Prashker, New York City (William E. Hickman, Poletti, Freidin, Prashker & Gartner, New York City, on brief), for appellant in No. 82-2115, and for appellee in No. 82-2116.

Wyatt B. Durrette, Jr., Fairfax, Va. (Michael C. Montavon, Joyce A. Naumann, Roeder, Durrette & Davenport, P.C., Fairfax, Va., on brief), for appellee in No. 82-2115 and for appellant in No. 82-2116.

Before RUSSELL, HALL and MURNAGHAN, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This is an action under the Age Discrimination in Employment Act (ADEA) ¹ in which the plaintiff (Smallwood) challenges the refusal of the defendant United Air Lines, Inc. (United) to process his application for employment as a flight officer under a rule providing that an application for employment as a flight officer would not be processed if the applicant were over 35 years of age. The plaintiff was shown on his application to be 48 years of age. At trial of the action the defendant sought to defend against the charge of a statutory violation by asserting, first, that its rule under which it refused to process plaintiff's application met the requirements of a bona fide occupational qualification (BFOQ) within the Act, ² and, second, that the plaintiff would not have been hired as a flight officer even if there had been no age discrimination. The district judge, however, confined the trial to the validity of the BFOQ claim and refused to permit the defendant to develop fully, or to rule on the defendant's second defense. ³ At the conclusion of the testimony, the district judge upheld the validity of the BFOQ defense and ordered the complaint dismissed. On appeal by the plaintiff, we reversed, finding the defendant's rule not to be a valid bona fide occupational qualification. ⁴ Since the district court had not ruled on defendant's second defense, we remanded the cause for trial of that issue, i.e., whether the defendant would not have hired the plaintiff if there had been no age discrimination. Smallwood v. United Air Lines, Inc., 661 F.2d 303 (4th Cir.1981).

After the remand and in preparation for the second trial, the parties engaged in discovery. Because of the direction of such discovery as pursued by the defendant, the plaintiff filed a motion for clarification of issues. In support of his motion, the plaintiff argued 1) that the earlier decision had resolved all issues in the case, including the defense that the defendant would not have hired the plaintiff if there had been no age discrimination; and 2) that, even if that latter issue were still relevant on remand, the defendant was strictly restricted in proof of such defense to evidence on "matters arising subsequent to [the first] trial." During argument on the motion, the district judge remarked that the Court of Appeals' opinion in the first appeal was "almost a direction for [him] to consider aspects of the case which [he] didn't consider" and that "the prudent way to proceed [was] to allow the defendant to introduce this additional [evidence which] is apparently not a great deal of evidence." He opined that if the case went back to the Court of Appeals the record would thereby be "in a position that [the Court of Appeals] can decide [the case] and not send it back here for any more testimony." For this reason, he said, it was proper "to get all that has to be gotten or is proffered by either side into this record now, so that we can decide this case finally, if possible." After the hearing, the district judge denied the motion and, in the exercise of his discretion allowed "the reopening of the record and receipt of evidence on the question whether plaintiff would have been hired by the defendant regardless of age." The cause thereafter proceeded to trial. Both parties offered evidence and at the conclusion of the trial, the district judge, by oral decision, later confirmed by a formal judgment with a later "clarification," found for the plaintiff.

In his oral decision, the district judge began by expressing doubt that "the wouldn't-have-hired-anyway defense" was "available as a defense" in this case. Without indicating the reason for such doubt, he proceeded, however, to find that such defense was "available as a defense" but that the burden of establishing such defense by the preponderance of the evidence rested on the defendant. ⁵ He added, however, that in considering evidence of the plaintiff's alleged fraud upon his former employer [which was the defense asserted by the defendant], "it's true that--or at least there is some force to the argument that only those facts available to the defendant as of the time of the rejection of the plaintiff's application ought to be considered" but that if any evidence after the time of the rejection of plaintiff's application were deemed "admissible, it seems to me the Court is entitled to be and should be, skeptical of after-the-fact decisions as to what the defendant would have done had it known what it knows now." It followed with a criticism of defendant's action, saying that, if there had been no age discrimination, the defendant would at the time of the application have made "suitable inquiry ... whether or not [plaintiff's] activity with his former employer was such that it [the defendant] would [have been] warrant[ed] ... [in] rejecting him as an applicant" and whether the defendant would have "interviewed [the plaintiff] ... so that he could have at least ... given his side of the story." Though he recognized, as the foregoing comments demonstrated, that the critical issue on remand was the plaintiff's "activity with his former [airline] employer" which caused such employer to fire the plaintiff, the district judge gave no explicit reasons for his basic decision save this sentence at the end of his decision:

"I find that the defendant has not borne its burden of proof by a preponderance of the evidence that he would not have been hired anyway after viewing this evidence, bolstered as it has been in the interim between the November, 1979 hearing [at the first trial] and now."

Later, in his judgment order, the district judge added a "clarification" of his decision, "lest there be any uncertainty in the matter." This clarification consisted of but a single sentence:

"The court's feelings at the time it ruled, as well as now, are that the after-the-fact rationale and testimony of the defendant in this regard, particularly where no opportunity had been given the plaintiff to explain the prior transaction with his former employer, were just not persuasive."

The judgment entered by the district court in conformity with this ruling was in two parts: First, it granted injunctive relief by requiring United to "process" plaintiff's application in the same manner as it processed all other applications received at the time plaintiff filed his application, and, if his application were successfully processed, to include him in the first available class of applicants to be provided flight training, which class the court then found in advance of any processing to be that of January 9, 1978, and to be given all rights and benefits "normally afforded United Air Lines pilot employees, including seniority and longevity rights," and certain pension benefits. Second, it granted backpay, holding that, if the plaintiff's application had been processed free of any violation of ADEA, he would be entitled to backpay from January 9, 1978, the date it was found he would have been hired absent discrimination, to date of trial of the case, computed to be $92,501.31, which it doubled as liquidated damages, increasing the pecuniary award to the plaintiff $185,002.62. To this it added an attorney's fee of $125,000, together with costs of $2,160.30.

From that part of the judgment granting the plaintiff backpay and attorney's fees, the defendant has appealed, asserting that the court's finding that the defendant had not proved by the preponderance of the evidence that its defense against such award was clearly erroneous, arrived at by the use of improper standards of proof, and in complete disregard of the undisputed evidence. It raised, also, alternatively the contention that, even if the court had been correct in its dismissal of defendant's defense, it erred in the relief granted. The plaintiff cross-appeals, contending that the denial of his motion for clarification was clearly erroneous. Finding no merit in the plaintiff's cross-appeal, we dismiss such cross-appeal, but reverse the judgment awarding the plaintiff backpay relief, finding that the district court's decision and findings in favor of such an award were clearly erroneous.

Before reviewing the evidence connected with the defendant's appeal herein, it is necessary, particularly in view of certain arguments of the plaintiff later noted and of the language of the district court in its oral decision, to identify specifically the issue with which the present appeal is concerned and to distinguish it from the issue decided by us on the first appeal. We begin such explication by observing that there are generally two issues in disparate treatment cases whether the action be under either the ADEA, Title VII, or Section 1981: One has to do with the substantive issue of violation of the applicable statute or constitutional provision; the other (which, it must be emphasized, only becomes relevant if a violation is proved) involves the remedy which generally presents the question of compelled hiring, reinstatement, or promotion accompanied with backpay. These two issues are separate and distinct and their resolution depends on different, or at least additional, evidence and...