Tribble v. Westinghouse Elec. Corp.
| Decision Date | 30 May 1980 |
| Docket Number | No. 79-270 C (1).,79-270 C (1). |
| Citation | 508 F. Supp. 14 |
| Parties | George TRIBBLE, Plaintiff, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Burton Newman, Clayton, Mo., for plaintiff.
John R. Musgrave and Richard Mueller, St. Louis, Mo., for defendant.
This matter is before the Court upon defendant's motion for judgment in accordance with defendant's previous motion for a directed verdict filed at the close of all evidence herein, and defendant's alternative motion for a new trial.
The Court cannot agree with defendant's assertion that viewing the evidence in the light most favorable to plaintiff and giving plaintiff the benefit of all reasonable inferences, there was not sufficient evidence to support a verdict on behalf of plaintiff on his claim brought pursuant to the Age Discrimination In Employment Act (ADEA), 29 U.S.C. § 621 et seq. Nor does the Court believe that the instructions given the jury did not set forth a full statement of the applicable law and adequately cover all issues raised at trial. The Court perceives no fundamental injustice in the instructions given. See Grinder v. Southern Farm Bureau Casualty Ins. Co., 590 F.2d 741, 743 (8th Cir. 1979); Hartman v. United States, 538 F.2d 1336, 1346 (8th Cir. 1976).
There exists, however, a problem in the jury's assessment of damages. The jury awarded plaintiff Fifty Five Thousand Seven Hundred and Ten Dollars ($55,710.00) in lost wages, and did not return a verdict in favor of plaintiff on the issue of liquidated damages. The only evidence the jury could have considered in arriving at the above verdict was evidence that plaintiff was receiving Two Thousand Ninety Five Dollars ($2.095.00) per month when he left defendant's employ, that he would have received such salary for another eighteen months, and that as a result of leaving at that particular time plaintiff's pension was reduced by One Hundred Dollars ($100.00) per month. Additional evidence indicated that the average number of pension checks received by a company employee at normal retirement was one hundred and eighty. It seems beyond cavil that the jury assessed damages as follows:
$2,095.00 × 18 months = $37,710.00
100.00 × 180 months = $18,000.00
_________
Total = $55,710.00
Instruction number 4 directed the jury to deduct from their award benefits and earnings received by the plaintiff from the date he left Westinghouse until he reached sixty five years of age.
The evidence is undisputed that plaintiff performed no work for defendant after January 31, 1978, went off defendant's payroll on July 31, 1978, and plaintiff received pension benefits from defendant commencing September 1, 1978 in the amount of Three Hundred and Eighty Dollars ($380.00) per month. Plaintiff reached the age of sixty five on January 15, 1980. At that time, pursuant to defendant's pension plan, plaintiff's retirement would have been mandatory. But see, 29 U.S.C. § 623(f)(2). The issue of mandatory retirement pursuant to the pension plan is not before the Court, since plaintiff's termination and unsuccessful attempts to obtain other jobs with defendant precluded such an outcome. Nor may the lost wages recovery period be extended beyond age sixty five. This Court has held that the 1978 Amendments to the ADEA which have (1) extended the protection of the Act from age sixty five to age seventy, 29 U.S.C. § 631(a), and (2) prohibited involuntary retirement because of age pursuant to a bona fide employee benefit plan, up to age seventy, 29 U.S.C. § 623(f)(2) are not to be applied retroactively. EEOC v. Florissant Valley Fire Protection District, 21 FEP Cases, 973, 21 E.P.D. ¶ 30,520 (E.D.Mo. 1979); See Also Marshall v. Delaware River & Bay Authority, 471 F.Supp. 886 (D.Del. 1979). Plaintiff ceased performing services for defendant January 31, 1978 and was officially administratively terminated on that day, though he continued to receive his salary until July 31, 1978. See Moses v. Falstaff Brewing Corp., 525 F.2d 92, 94-95 (8th Cir. 1975). The 1978 amendments to the ADEA became effective April 6, 1978. Pub.L.No.95-256, § 3(a), 92 Stat. 189. Therefore, since plaintiff's cause of action accrued prior to the effective date of the Amendment to 29 U.S.C. § 631(a) raising the upper age limitation to seventy, his cause of action is governed by the age sixty-five limitation. This precludes his claim for reinstatement.
Though plaintiff's pension benefits were vested, he had no entitlement to receive them while he remained in defendant's employ. Had plaintiff remained in defendant's employ, he would not have received any benefits until mandatory retirement at age sixty five. By virtue of defendant's violation of the Act, plaintiff received eighteen months of pension benefits totaling Six Thousand Eight Hundred and Forty Dollars ($6,840.00). Plaintiff's recovery should only return him to the financial position he would have enjoyed, but for the involuntary termination. The jury properly included in its award the pecuniary loss suffered by plaintiff because he was not able to work to age sixty five and thereby maximize his pension benefits. As such, the "interim" pension benefits must be deducted from the lost wages award as they are, on the circumstances of this case, virtually identical to severance pay. Laugeson v. Anaconda Co., 510 F.2d 307, 317 (6th Cir. 1975) (severance pay); Cf. Coates v. National Cash Register Co., 433 F.Supp. 655, 663 (W.D.Va.1977); Monroe v....
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