Tennes v. Com. of Mass., Dept. of Revenue
| Decision Date | 31 October 1991 |
| Docket Number | Nos. 90-2443,90-2510,90-2475,90-2656 and 91-1344,s. 90-2443 |
| Citation | 944 F.2d 372 |
| Parties | 56 Fair Empl.Prac.Cas. (BNA) 1664, 57 Empl. Prac. Dec. P 41,006 Joseph F. TENNES, Plaintiff-Appellee, Cross-Appellant, v. COMMONWEALTH OF MASSACHUSETTS, DEPARTMENT OF REVENUE and Stephen W. Kidder, as Commissioner, Commonwealth of Massachusetts, Department of Revenue, Defendants-Appellants, Cross-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Anthony S. Graefe, Brian Steinbach (argued), James R. Cox, Banta, Cox & Hennessy, Chicago, Ill., for plaintiff-appellee, cross-appellant.
Philip C. Stahl (argued), Lynn H. Murray, Grippo & Elden, Chicago, Ill., for defendants-appellants, cross-appellees.
Before COFFEY, MANION and KANNE, Circuit Judges.
Joseph Tennes sued his employer, the Commonwealth of Massachusetts, alleging unlawful discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. A jury found that the Commonwealth had discriminated against Tennes because of his age. The jury further found the Commonwealth's discrimination to be willful. The court entered judgment on the jury verdict for back pay, liquidated damages, costs and attorney fees. The Commonwealth motioned for judgment notwithstanding the verdict (JNOV) which was denied by the district court.
The Commonwealth appeals only the district court's refusal to overturn the jury's willfulness verdict and its award of attorneys' fees to the extent the award is attributable to Tennes' success on the willfulness claim. Tennes cross-appeals from the district court's denial of his requests for reinstatement, post-judgment back pay, front pay and injunctive relief. The jury verdict and the court's judgment awards are affirmed. 745 F.Supp. 1352.
Joseph Tennes was an employee of the Commonwealth of Massachusetts, working in the Multistate Bureau of the Massachusetts Department of Revenue. Tennes worked in the Bureau's Chicago office. The Bureau is responsible for auditing out-of-state enterprises which do business in Massachusetts. The audits monitor compliance with Massachusetts tax laws to ensure those enterprises pay all state taxes owed. The Chicago office audits and collects taxes from corporations based in the Midwest.
Tennes began working for the Commonwealth in 1983. The Commonwealth fired him in 1986 at the age of 58. Tennes worked as a tax auditor, conducting field audits of Midwestern businesses which are, or might be, liable for Massachusetts taxes. During his employment, Tennes was the oldest auditor in the Chicago office.
The chief of the Chicago office during the time of the events relevant to this case was Donald H. Lamb, then about 36 years old. Lamb's superior, the Chief of the Multistate Bureau, was Bernard F. Crowley. Crowley during times relevant to this case was in his early forties. Crowley's immediate superior was Stephen B. Shiffrin, Deputy Commissioner of the Department of Revenue and responsible for the Enforcement Division (which includes the Multistate Bureau).
The evidence presented to the jury showed that immediately after Lamb assumed control of the Chicago office, he began making deprecating comments about Tennes' advanced years. These comments were generally derogatory references to the presumed senility, physical decrepitude and sexual impotence associated with Tennes' old age. Some representative statements include: "There he is, grey hair, false teeth"; and "send someone along on the audit so he doesn't get lost." Lamb once mentioned to the office that Tennes was "white on top and burned out on the bottom," and on another occasion, Lamb, upon seeing Tennes, announced to the office in a loud sarcastic voice, On the surface Tennes occasionally reacted to some of the remarks with good humor, but nevertheless found them humiliating.
Other auditors testified that Lamb often ridiculed Tennes in front of other staff members speculating that Tennes was unsuited for his job because he was "so old he would probably forget [Bureau procedures and objectives]"; or "so old he probably needs [help] to carry his bags [on business trips]." At one point, Tennes sternly (and publicly) informed Lamb that he had enough of these age-related comments and that he didn't want to hear any more.
On May 1, 1986, shortly after Tennes demanded Lamb cease making hostile age-related comments, Lamb issued to Tennes the first of a series of damaging disciplinary notices known as Formal Corrective Action ("FCA") memoranda. The first FCA accused Tennes of being inefficient and unobservant of proper Bureau procedures. The memo was very vague in that it failed to specify any particular occurrence which prompted Lamb's generalized criticisms of Tennes' efficiency or competence. The critical FCA was routed to Multistate Bureau Chief Crowley and was included in Tennes' personnel file.
The next round of FCAs from Lamb to Tennes was prompted by a business trip Tennes took to audit several Michigan-based taxpayers. On the week of August 4-8, 1986, Tennes signed out of the office to do field audits of corporate taxpayers in the Detroit, Michigan area. He worked at the first audit August 4 and 5, calling his office collect the first day to notify them of his whereabouts, and the second day to notify them that he had finished the audit and would be at the next taxpayer's location the following day. He worked at the second taxpayer's office on August 6 and 7, calling his office shortly after noon Detroit time on August 7 to discuss some technical tax issues. Later that afternoon, Tennes conducted an exit interview with the tax manager for the second taxpayer. After concluding his meeting with the second taxpayer, Tennes concluded he was too late to catch the evening flight back to Chicago on August 7, and decided to stay the night in Detroit. He already had a discount ticket for the next day anyway, and it would cost extra to change the flight.
On August 8, Tennes made several unsuccessful attempts to contact a representative of a third Detroit area corporate taxpayer to collect some necessary documents for a pending tax assessment. He checked out of his hotel room after breakfast. He then returned his rental car and flew back to Chicago. Lamb claims that the Bureau tried to locate Tennes on August 7 and 8 by telephone at the hotel and at the taxpayer's business offices but was unsuccessful. Lamb became suspicious of Tennes' activities on these days during his business trip. He discussed the prospect of Tennes being "absent without leave" with Crowley. Crowley stated that if that was the case Tennes would be fired.
Tennes arrived in Chicago about 2:20 p.m. and went directly home, arriving between 3:50 and 4:00 p.m. It was a Friday afternoon, and if Tennes had decided to return to work after arriving from Detroit he would have reached the office at quitting time.
Tennes returned to work Tuesday, August 12, 1986 and found in his desk drawer four disciplinary FCA memoranda: all four disciplinary FCA memos were dated August 4, 1986, and one was dated August 8, 1986. The first FCA criticized him for executing an unsatisfactory "Pre-Audit Plan" (a proposal designating who was being audited, type of tax being examined, and the tax years the audit would cover) with respect to the prospective audit of a taxpayer in South Bend, Indiana. The second FCA criticized him about delays in another audit he was working on. The third FCA criticized him for an error he allegedly made on a taxpayer notice which resulted in significantly reducing the amount of time the Bureau had to collect a tax assessment. The fourth FCA complained about Tennes' apparent unfamiliarity with certain new and old auditing procedures. Lamb was made conscious of Tennes' unawareness in casual conversation with Tennes--not as a result of difficulties in Tennes' work product. Each FCA was written and issued by Lamb, circulated to Chief Crowley, and inserted in Tennes' personnel file. The basis and substance of the criticisms contained in each FCA are highly questionable and were disputed.
Lamb was away at a conference when Tennes returned to work August 12, but acting Chief Donald Kaspan informed Tennes that Lamb wanted a complete accounting of his time on August 7 and 8. Tennes prepared a handwritten explanation in preparation for his eventual meeting with Lamb. The following Monday Lamb had a conference with Tennes, where Tennes proffered his notes and oral explanation of his whereabouts during the past week. Lamb responded that he and Bureau Chief Crowley had discussed the situation, and were not satisfied with what they believed to be Tennes' deliberate absence from work. Lamb informed Tennes that preparations were being made to terminate his employment.
Later, and unknown to Tennes, Lamb sent Crowley a copy of a memo dated August 18, 1986 which was ostensibly addressed to Tennes but never sent to him. The memo outlined Lamb's suspicions that Tennes had violated work procedures during the last two days of his recent excursion to Detroit. The memo claimed that Tennes had improperly left the audit site before the end of the regular working day August 7, and that he had taken unauthorized leave from work on Friday, August 8. By way of proof, the memo stipulated that Lamb had tried to telephone Tennes on August 7 and 8 at the hotel and at the taxpayer's offices. However, as it turned out, the office phone bills for August 7 and 8 did not support Lamb's claim. In the August 18 memo, Lamb recommended that Tennes be discharged. Lamb supplemented his memo with a call to Crowley telling him that Tennes did not provide a written explanation for his whereabouts (when he in fact had), that he gave conflicting stories about events in Detroit, and that he was generally dishonest.
Crowley scheduled a conference...
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