Spagnuolo v. Whirlpool Corp.

• Decision Date: 01 September 1983
• Docket Number: No. 82-2048,82-2048
• Parties: 32 Fair Empl.Prac.Cas. 1382, 78 A.L.R.Fed. 559, 32 Empl. Prac. Dec. P 33,801 Colombo A. SPAGNUOLO, Appellee, v. WHIRLPOOL CORPORATION, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 114

717 F.2d 114

32 Fair Empl.Prac.Cas. 1382, 78 A.L.R.Fed. 559,

32 Empl. Prac. Dec. P 33,801

Colombo A. SPAGNUOLO, Appellee, v. WHIRLPOOL CORPORATION, Appellant.

No. 82-2048.

United States Court of Appeals Fourth Circuit.

Argued May 12, 1983.

Decided Sept. 1, 1983.

Charles J. Griffin, Jr., Chicago, Ill. (Joan McAvinn Gale, Dana S. Connell, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., on brief), for appellant.

Samuel M. Millette, Ernest S. Delaney, III, Charlotte, N.C. (DeLaney, Millette, DeArmon & McKnight, P.A., Charlotte, N.C., on brief), for appellee.

Before WINTER, Chief Judge, CHAPMAN, Circuit Judge, and TURK, ^* Chief District Judge.

HARRISON L. WINTER, Chief Judge:

Whirlpool Corporation appeals from several orders entered by the district court after we affirmed its judgment in this age-discrimination action in Spagnuolo v. Whirlpool Corporation, 641 F.2d 1109 (4 Cir.), cert. denied, 454 U.S. 860, 102 S.Ct. 316, 70 L.Ed.2d 158 (1981). Supplementing and enforcing its original judgment, the district court ruled that certain positions offered Spagnuolo by Whirlpool were not the equivalents of the position from which he had been illegally discharged and therefore Spagnuolo was not required to accept them in satisfaction of the judgment or in mitigation of damages. Further, it directed reinstatement of Spagnuolo in his former position, as it previously existed or as it was combined with another position, "without delay" with the effect of displacing the present incumbent. Finally, it awarded plaintiff additional compensation and counsel fees.

We affirm the rulings that plaintiff was not required, either in satisfaction of judgment or in order to mitigate damages, to accept any of the three positions offered to him by Whirlpool. We reverse, however, the district court's order requiring Whirlpool to reinstate plaintiff to his former position, as that position remains occupied by his successor. Instead, we instruct the district court to take alternative steps to ensure that Whirlpool is making a satisfactory effort to comply with the former reinstatement order. Finally, we conclude that the district court should have limited its award of attorneys' fees to the amount requested by plaintiff's counsel, and we direct that the award be reduced.

I.

Plaintiff Colombo Spagnuolo was, as of the summer of 1977, the Manager of the Builder Department of the Charlotte Sales Division of defendant Whirlpool Corporation. In November 1977, Whirlpool combined his position with that of the Manager of Heating and Cooling Sales, then held by Daniel Brattain. The new, combined position, entitled "Builder/Heating and Cooling Sales Manager," was given to Brattain, and Spagnuolo was demoted to Territory Manager. Spagnuolo thereupon filed suit against Whirlpool, alleging that he had been the victim of age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621 et seq. Spagnuolo obtained a jury verdict in his favor, and the district court awarded him damages, costs, post-judgment interest, and attorneys' fees through the time of trial. In addition, the district court entered a reinstatement order, instructing

[t]hat the defendant shall reinstate the plaintiff as Builder Sales Manager of the Charlotte Sales Division of the defendant or as the combined Builder/Heating and Cooling Sales Manager of the Charlotte Sales Division of the defendant, or in a position of equal stature, compensation, future prospects and responsibility.

The judgment entered on the verdict of liability and the equitable relief, including the reinstatement order, were affirmed by us on appeal, and certiorari was denied by the Supreme Court. Spagnuolo v. Whirlpool Corporation, supra.

Whirlpool, upon receiving the reinstatement order, decided not to uncouple the newly-created combined position nor to replace Brattain with Spagnuolo in the combined position, but instead to wait for a comparable position to become available for Spagnuolo. By December of 1981, however, no offer had been made to Spagnuolo, and the parties agreed upon a partial consent decree compensating Spagnuolo for lost wages (i.e., the difference between what he would have earned in the combined position, some $3,643 monthly, and what he was earning in mitigation of damages, some $1,000 monthly) through 1981, plus attorneys' fees through the Supreme Court filing. As of May 1982, Whirlpool still had not offered Spagnuolo any position, and the district court entered an order requiring Whirlpool to pay lost wages for the first three months of 1982 and to commence sending monthly checks to Spagnuolo covering his lost wages. Subsequently, the district court entered a further order clarifying Spagnuolo's rights to insurance coverage and fringe benefits.

In June of 1982, Whirlpool offered Spagnuolo the position of National Account Manager/Manufactured Housing, assertedly in satisfaction of the reinstatement order. The district court, however, concluded that the proffered position was essentially different from that in which Spagnuolo was previously employed and that Spagnuolo had the right to reject the offer. See 548 F.Supp. 104 (W.D.N.C.1982). Moreover, the district court, concluding that Whirlpool had been given sufficient time to find Spagnuolo an alternative position, amended its reinstatement order to require that Whirlpool either uncouple the newly-created combined position and give Spagnuolo back his old job or replace Brattain with Spagnuolo in the combined job. See id. at 108-10.

Whirlpool immediately filed a motion requesting that its option under the original reinstatement order to place Spagnuolo into a comparable position be revived, and simultaneously offered Spagnuolo the position of Builder Sales Manager--his old job--in either Dallas, Texas or Denver, Colorado. The district court also rejected these proffered positions as compliance with its orders and reaffirmed its amended reinstatement order. See 550 F.Supp. 432, 437 (W.D.N.C.1982). Finally, plaintiff's attorneys requested additional attorneys' fees in the amount of approximately $25,600 for post-judgment work, and the district court entered an order awarding them some $35,000 in fees. Id. at 435-37.

Whirlpool thereupon noted an appeal to this court and filed a motion for a stay of the district court's orders. By an order dated January 5, 1983, we denied Whirlpool's motion for a stay of the lost wages portion of the district court's orders, but granted a stay pending appeal of the modified reinstatement order and of the attorneys' fees award.

II.

Whirlpool argues first that the district court erred in concluding that its proffered position as National Account Manager did not, as an equivalent job, satisfy the reinstatement order. The district court's conclusion, however, is plainly a question of fact, and it is against the heavy burden of the clearly erroneous rule that Whirlpool's challenge must be judged. Rule 52(a), Fed.R.Civ.P.; cf. Williams v. Albemarle City Board of Education, 508 F.2d 1242, 1243 (4 Cir.1974) (in banc). Moreover, we have held that the comparability of any alternative position must be judged by a broad range of factors, and not merely any one criterion alone. Id.

The first criterion considered by the district court was stature. Whirlpool asserts that the National Account Manager is one rung higher in the overall corporate hierarchy than is the combined job. But the evidence showed that the National Account Manager does not supervise anyone and has no secretary, while in his old job Spagnuolo supervised five to ten salesmen and had a full-time secretary. Moreover, Spagnuolo notes that the work to be done in the proffered job is simply the nationwide selling of products that were formerly sold locally by salesmen Spagnuolo supervised. As such, Spagnuolo argues that the National Account Manager is nothing more than a glorified traveling salesman. Finally, Spagnuolo points with emphasis to "traveling," since the National Account manager will spend 75 percent of his time on the road, while in his old job Spagnuolo spent only 20 percent of his time on the road, and all of that in North or South Carolina.

The second factor considered was the prospect for future advancement. Because the position has only existed for one year, Whirlpool criticizes the district court's reliance on the fact that no National Account Manager had ever been promoted. Instead, Whirlpool contends that because it plans to invest heavily in this area of sales, with expected revenues of $50 million annually compared to the $9 million annually in Spagnuolo's old job, the prospects for advancement are far greater. In response, however, Spagnuolo has demonstrated that Whirlpool in the past attempted to sell these products locally with notable lack of success, and is now trying a nationwide marketing strategy. From the lesson of history, we agree that there is substantial doubt as to the prospects for success in an area that has already failed on a local level, as well as to Whirlpool's commitment to the area if initial indications are similarly gloomy.

The third factor examined was the amount of compensation. Here Whirlpool contends that the "salary guidepoint"--of which the actual salary can be from 85 percent to 120 percent--is some $268 monthly higher for the National Account Manager position. But here, too, Spagnuolo points out that this differential is offset by the fact that the National Account Manager is not eligible for certain prizes and trips that came to him in his old job.

On this record we are unable to conclude that the district court's finding that the National Account Manager position was not equivalent employment satisfying the reinstatement order was clearly erroneous. The combination of the various factors convinces us that the district court could properly conclude that the National Account Manager position is not, when looked at as a whole, as desirable as...