Zieger v. Manhattan Coffee Co.

• Decision Date: 04 February 1983
• Docket Number: No. 82-67,82-67
• Citation: 112 Ill.App.3d 518,68 Ill.Dec. 200,445 N.E.2d 844
• Parties: , 68 Ill.Dec. 200 James ZIEGER, Plaintiff-Appellee, v. MANHATTAN COFFEE COMPANY and the Nestle Company, Inc., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 844

445 N.E.2d 844

112 Ill.App.3d 518, 68 Ill.Dec. 200

James ZIEGER, Plaintiff-Appellee, v. MANHATTAN COFFEE COMPANY and the Nestle Company, Inc. Defendants-Appellants.

No. 82-67.

Appellate Court of Illinois Fifth District.

Feb. 4, 1983.

Rehearing Denied March 2, 1983.

Paul P. Waller, Jr., O'Connell & Waller, Belleville, for defendant-appellant The Nestle Co., Inc.

Sidney W. Horwitz, Dubinsky, Duggan & Horwitz, St. Louis, Mo., for defendant-appellant Manhattan Coffee Co.

Freeark, Harvey & Mendillo, P.C., Belleville, for plaintiff-appellee; James R. Mendillo, Belleville, of counsel.

KASSERMAN, Justice:

Plaintiff, James Zieger, brought this action alleging that he was discharged in violation of the Federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1976) (hereinafter the ADEA). Following trial, the jury found defendant Manhattan Coffee Company (Manhattan) guilty of age discrimination and fixed plaintiff's damages at $46,000. The jury also found defendant Nestle Company (Nestle), of which Manhattan is a wholly owned subsidiary, liable to plaintiff as if it were plaintiff's employer. In answer to a special interrogatory, the jury found that Manhattan's violation of the ADEA was willful. Based on that answer, the court entered judgment for plaintiff in the amount of $92,000. Defendants have filed joint briefs in this appeal. Further, this court ordered plaintiff's motion for attorney fees taken with the case. We affirm the judgment of the trial court and remand for determination of plaintiff's attorney fees in defense of this appeal.

Plaintiff's ultimate complaint alleged as follows: He was a "commissioned route salesman" employed by Manhattan from 1961 until he was fired on October 23, 1978, at age 62 as a result of Manhattan's "deliberate and wilful" conduct. It was further alleged that Manhattan was Nestle's wholly-owned subsidiary and that Nestle so controlled Manhattan that Manhattan was an "agent or instrumentality" of Nestle and, therefore, that Nestle was also plaintiff's employer for purposes of the ADEA.

Nestle's answer to plaintiff's ultimate complaint purported to raise four affirmative defenses, two of which are pertinent to this appeal: (1) that Nestle was not plaintiff's employer, and (2) that plaintiff was discharged for good cause.

Testimony for plaintiff at trial was as follows:

William Taylor (examined pursuant to section 60 of the Civil Practice Act (Ill.Rev.Stat.1981, ch. 110, par. 60)):

For six to seven years prior to and including plaintiff's discharge, Taylor was Manhattan's vice-president, Manhattan having no president. Some of the products sold by Manhattan salesmen were Nestle's and Nestle representatives were frequent visitors at Manhattan's St. Louis office. These visitors included product marketing personnel, an employment discrimination compliance officer, and attorneys representing Nestle.

Regarding plaintiff's discharge, Taylor was unaware of plaintiff's sales record, and it was not a factor in the discharge. Plaintiff's personnel file contained no complaints, warnings or reprimands. Taylor, just prior to his October 1978 vacation, discovered that the Stadium Club had made no purchases in the last six to seven weeks. Taylor told Tom Kinkle, plaintiff's supervisor, and Lou Wolff, sales manager, to discuss the problem with plaintiff and, if no progress was made, to tell plaintiff to take early retirement or resign. After Taylor's vacation, he met with plaintiff and Kinkle. Taylor asked plaintiff, "What is wrong, Bert? Do you think maybe you ought to get out of the rat race? Is something troubling you?" or words to that effect. Taylor also referred to plaintiff's pension having already vested and suggested to plaintiff that the job was getting too tough for him. Plaintiff responded that he wanted to work to age 70, that he would not resign, and that Taylor would have to fire him. "Disturbed" by plaintiff's "insolvent manner," Taylor fired him.

Plaintiff:

Plaintiff was age 65 at the time of trial. His immediate supervisor had been Lester Curran until 1977; thereafter, it was Kinkle. Plaintiff's route consisted of 150 to 200 accounts which he visited with varying frequency, some as often as twice weekly. He had never been warned or reprimanded. He characterized his relationship with his customers as good. He admitted some problems with customers, including Barbara at Long Ceil's, who accused him of making passes at her; Mr. Lewis at the Convention Center, who complained that plaintiff was slow; and Mr. Pietsch at Tony's, an account plaintiff had obtained by transfer from another salesman whom Mr. Pietsch also had not gotten along with.

During Taylor's October 1978 vacation, Wolff and Kinkle told plaintiff to retire. When plaintiff asked why, they told him there had been complaints but would not specify what the complaints were. When Taylor returned, Kinkle told plaintiff Taylor did not want to meet with him. Plaintiff insisted. When plaintiff told Taylor he would not retire or resign but intended to work to age 65, he was fired.

Regarding the Stadium Club, plaintiff told Wolff and Kinkle that he had not been there in two weeks. However, he was not sure it was two weeks, because when they asked him, he did not have his route book with him. Later he was told that it had been six weeks.

Michael Schwartz:

He replaced plaintiff after plaintiff was fired. The Stadium Club was on Schwartz's route for a time, but later Manhattan lost that account. More recently, the Stadium Club had bought some items from him but not coffee.

Testimony for defendants at trial was as follows:

Hans Pietsch:

Pietsch managed Tony's from 1963 to 1976. He had no problem with Manhattan until plaintiff took over the account. Plaintiff was supposed to make sure Tony's did not run out of coffee and filters. Instead, Pietsch had to call Taylor at home on several occasions to get needed supplies.

Ernest Lewis:

Lewis was chef at both the Stadium Club and the Convention Center. Plaintiff was supposed to make sure Lewis had sufficient supplies at both locations. Instead, Lewis often was required to call for service, and even then he would not get what he wanted on time. Lewis also noted plaintiff's belligerent attitude. Lewis called Wolff and Taylor on one occasion and told them he needed better service or a new coffee company.

Lester Curran:

Curran was plaintiff's supervisor from 1966 to 1977. When both Curran and plaintiff worked for Star Coffee Company, prior to Manhattan's 1966 acquisition of Star, Curran had been required to give two restaurant accounts to another salesperson due to complaints about plaintiff. Curran could not state any other specific complaints about plaintiff but believed the complaints he did receive concerned plaintiff's service and his poor disposition. When Curran discussed complaints with plaintiff, plaintiff promised to improve. Curran was of the opinion that minor complaints, especially about running out of stock, were common in his business; however, complaints about plaintiff concerned plaintiff's coming in with a "long face" and complaining to customers. Curran confirmed that the Stadium Club had not made a purchase in the six weeks prior to plaintiff's discharge.

Thomas Kinkle:

Kinkle's testimony regarding complaints about plaintiff from Long Ceil's and the Stadium Club was reiterative of Taylor's and plaintiff's. Plaintiff had also lost the Mayfair Hotel account because of inadequate service. Kinkle's testimony regarding the confrontation at which plaintiff was discharged agreed with Taylor's.

At the time of trial, Kinkle had salesmen ages 45, 58, and 61. Kinkle had ridden with plaintiff on his route about 10 to 15 times and had observed no problems.

Louis Wolff:

Wolff, general sales manager at Manhattan beginning in 1971, related three specific complaints he received regarding plaintiff: (1) the Mayfair Hotel, his account agreeing with Kinkle's; (2) the Stadium Club, the details reiterated being the same as Taylor's and Kinkle's; and (3) the Media Club, whose chef, unhappy with poor service and plaintiff's belligerence, had threatened to quit Manhattan. Most complaints about salesmen related to running out of stock; complaints about any salesman's attitude were rare.

Plaintiff's sales when fired were "average." The ages of the last four salesmen hired were 28, 25, 30, and 24.

William Taylor:

Taylor mentioned complaints about plaintiff received from the Stadium Club, the Media Club, and the Convention Center. Complaining customers had mentioned plaintiff's attitude and behavior. When Taylor discussed complaints with plaintiff plaintiff was pleasant and would promise to improve. Taylor discovered the loss of the Stadium Club account when he dined there and was served a competitor's coffee. Taylor admitted that of all of plaintiff's accounts (about 150, according to Schwartz), he could recall only six specific complaints over the years.

Manhattan's job application form did not inquire as to the applicant's age. As of October 23, 1978, 14 of Manhattan's 27 drivers were at least age 40.

The following witness testified for plaintiff in rebuttal:

Chet Breitweiser:

Breitweiser was a Manhattan sales trainee from June 1 to December 1, 1977, when he resigned. He rode with plaintiff at least 10 to 15 times and never saw plaintiff give any customer cause to complain.

The Issues on Appeal:

(1) Whether the trial court should have permitted defendants to be represented by separate counsel at trial; (2) Whether various evidentiary rulings were correct; (3) Whether either defendant was entitled to a directed verdict; (4) Whether various jury instruction rulings were correct; (5) Whether the court should have ordered a mistrial due to an "outburst" by plaintiff's wife; and (6) Whether plaintiff is entitled to attorney fees for defense of this appeal.

I. Representation by Separate Counsel.

On October 19, 1981, the first day...