Colombo A. SPAGNUOLO, Appellee, v. WHIRLPOOL CORPORATION, Appellant.
No. 80-1035
United States Court of Appeals, Fourth Circuit
Argued Oct. 8, 1980. Decided Feb. 26, 1981.
641 F.2d 1109
V.
In conclusion, we hold that the contentions regarding prosecutorial misconduct are not properly before us at this time, that Josiah may not attack on appeal the validity of his arrest warrant, and that the evidence at trial was sufficient to sustain Rios’ conviction of second-degrеe murder. We also hold that when the district court entered judgments of acquittal on the count of kidnapping for ransom or extortion, it should have entered judgments of conviction on the lesser-included offense of simple kidnapping.
VI.
The judgment of the district court will be affirmed. We remand to the district court, however, to enter judgments of conviction on the offense of simple kidnapping,
Jeffrey K. Ross, Chicago, Ill. (Charles J. Griffin, Jr., Seyfarth, Shaw, Fairweather & Geraldsоn, Chicago, Ill., Weinstein, Sturges, Odom, Bigger, Jonas & Campbell, Charlotte, N. C., 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, Circuit Judge, FIELD, Senior Circuit Judge, and ERVIN, Circuit Judge.
WINTER, Circuit Judge:
In a suit against his former employer, Whirlpool Corporation (Whirlpool), asserting a claim under the Age Discrimination in Employment Act,
I.
After almost twenty-four years of employment, plaintiff, when he was one month
We need not state further facts except with respect to some of the contentions to which they relate. It suffices to say that if submitted to the jury under legally correct instructions, the conflicting evidence amply permitted the jury to return its verdict finding liability on the part of Whirlpool under the Act and finding that plaintiff had sustained actual damages of $51,977. We turn therefore to the legal issues.
II.
Whirlpool‘s first argument for reversal is directed at the district court‘s instructions to the jury regarding what factual determination it was required to make to justify a verdict that Whirlpool had violated the Act. Specifically, Whirlpool contends that the jury should have been instructed that plaintiff‘s age must have been the determinative factor in Whirlpool‘s decision to demote him in order for the jury to find a violation of the Act.
Whirlpool‘s argument is foreclosed by our decision in Smith v. Flax, 618 F.2d 1062, 1066 (4 Cir. 1980). There, in prescribing the standard of causation that must be met to show a violation of the Act,
III.
Nor do we think that there was error in the district court‘s refusal to instruct the jury that it must find that the Act was not violated if it found that Whirlpool merely articulated or stated a legitimate nondiscriminatory reason or explanation for plaintiff‘s demotion, unless it also found that the reason or explanation was mere pretext. Whirlpool‘s argument is based upon its reading of Sweeney v. Board of Trustees of Keene State College, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978). It reads Sweeney as holding that the mere articulation of a legitimate nondiscriminatory reason is sufficient for the employer to be entitled to judgment. We, however, read Sweeney to hold that the articulation of a legitimate nondiscriminatory reason is sufficient to insulate an employer from a directed verdict against it, i. e., it dispels the adverse inference from a plaintiff‘s prima facie case. The jury in its consideration оf all of the evidence may still find that the wrong occurred in the manner established by plaintiff.
Moreover, in this case, plaintiff did not rely on statistical data or any other
Our decision in this regard also answers Whirlpool‘s argument that the district court improperly excluded evidence to support Whirlpool‘s business justification for plaintiff‘s demotion. As we read the record, Whirlpool amply proved its asserted reasons for consolidating two of its sales divisions and appointing someone other than plaintiff to head them. The excluded evidence merely derogates plaintiff‘s achievements with Whirlpool. At best the evidence is cumulative so that its exclusion constitutes no reversible error.
IV.
The jury found that Whirlpool‘s violation of the Act was “willful” and this finding was essential to the district court‘s assessment of liquidated damages in an amount equal to plaintiff‘s actual losses as found by the jury. In essence, the jury was told that Whirlpool‘s violation was willful if the jury found that “the demotion or transfer of the plaintiff was knowingly and intentionally done by the Whirlpool Corporation with the knowledge that the Age Discrimination Act applied” and that the actions taken were not “accidental, or mistaken, or unknowing, or [taken] for some innocent reasоn...” Whirlpool argues that it was entitled to an instruction that “Whirlpool must have known that its actions would violate the law” for its conduct to have been “willful.”
The instruction given by the district court was in accord with the construction placed upon the meaning of “willful” applied in the enforcement of the Fair Labor Standards Act as amended by the Portal-to-Portal Pay Act,
V.
Whirlpool contends that the district court should have instructed the jury that plaintiff could recover loss of salary only if it found that he had been “constructively discharged” by Whirlpool. Its theory is that when plaintiff resigned from his position at Whirlpool and went to work for one of its competitors, the termination of his employment was voluntary, and plaintiff had no claim to lost wages unless he proved that Whirlpool deliberately made his job as Greensboro Territory Manager so intolerable that he was forcеd to quit.
Although the district court declined to give the requested “constructive discharge” instruction, it did instruct the jury about plaintiff‘s duty to mitigate damages and in that connection told the jury that it must decide whether, as part of that duty, plaintiff should have stayed with Whirlpool, taken the job with Whirlpool‘s competitor, or sought another job elsewhere.
We think that on the facts of this case, there was no reversible error in the district court‘s instructions to the jury. Prior to his demotion, рlaintiff was compensated at the rate of $2285 per month plus a yearly bonus which for 1977 was $8,000. In the position to which he was demoted, plaintiff was paid $900 per month plus commission, with expenses in the maximum amount of $350 per month for only six months of the year and without any bonus. Whirlpool‘s competitor from which plaintiff accepted employment compensated him at the rate of $1,200 per month, plus commission and an automobile with all expensеs. Thus, consistent with his obligation to mitigate damages, plaintiff sought and obtained a better-paying job. Plaintiff did not resign from Whirlpool and accept employment paying him lesser compensation. There was therefore no factual basis on which to submit the concept of constructive discharge to the jury.
VI.
Plaintiff does not respond in his brief to Whirlpool‘s contention that having been awarded liquidated damages, plaintiff is not entitled to prejudgment intеrest. We think that plaintiff may not recover both.
Under the Fair Labor Standards Act, it has been held that the recovery of prejudgment interest is precluded by the statutory authorization for liquidated damages. Brooklyn Savings Bank v. O‘Neil, 324 U.S. 697, 715, 65 S.Ct. 895, 906, 89 L.Ed. 1296 (1945); Masters v. Maryland Management Co., 493 F.2d 1329, 1334 (4 Cir. 1974). We agree that the same rule should apply when liquidated damages under the Age Discrimination in Employment Act are allowed. On remand, the district court will therefore reduce the judgment to remove аny recovery for prejudgment interest.
VII.
Whirlpool vigorously attacks the equitable relief of reinstatement granted by the
We recognize, of course, that reinstatemеnt particularly at the level of an executive position may be entirely inappropriate where the evidence reflects hostility between the parties and the position involved demands a high degree of cooperation. See EEOC v. Kallir, Philips, Ross, Inc., 420 F.Supp. 919 (S.D.N.Y.1976), aff‘d 559 F.2d 1203 (2 Cir.), cert. denied, 434 U.S. 920, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977). But as we read the record, aside from the fact of this litigation, Whirlpool has neither demonstrated plaintiff‘s lack of qualifications nor has it made any showing that feelings аre so high and tensions so exacerbated that the parties can no longer work together even with the high degree of cooperative effort that plaintiff‘s former and prospective position requires. With the substantial evidence of the esteem in which plaintiff was held prior to his demotion, we cannot presume that the litigation of this suit which, incidentally, tended to show that Whirlpool proceeded against plaintiff and others solely because of age and not as a result of any other personal characteristic, so destroyed the mutual confidence of the parties in one another as to obviate the possibility of any future harmonious and fruitful association. We therefore think it premature to abandon the remedy of reinstatement. The remedy is an equitable one, and an equitable decree is subject to revision upon application and for good cause shown when there is a material change in conditions.
VI.
Finally, Whirlpool contends that the district court‘s allowance of counsel fees was excessive. We think that the district court properly applied the criteria in Walston v. School Board of Suffolk, 566 F.2d 1201, 1204-05 (4 Cir. 1977) in fixing fees, and we do not fault the quality of proof upon whiсh it relied or the completeness of its findings.
On remand, plaintiff‘s counsel will be entitled to an additional allowance for their services on appeal since we affirm in major part the district court‘s judgment.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
FIELD, Senior Circuit Judge, dissenting:
This case, which I fear is one of the first of many, portends serious problems for employers in this circuit for, to me, the caveat is clear that any management reorganization which adversely affects an employee within the age brаcket of forty to seventy years will expose the employer to a costly and disruptive law suit. In my opinion, legitimate and non-discriminatory personnel decisions can be protected in such a case only by adherence to the orderly presentation of proof and even-handed instructions to the jury, bearing in mind that the ADEA proscribes only those personnel decisions in which age is the determinative factor.
I agree with the majority that the format of proof of McDonnell Douglas should not be appliеd inflexibly to a case tried to a jury such as the one before us, but I have serious reservations concerning the observation that “[t]he reliance on direct evidence instead of inferences obviated any need for an independent showing that Whirlpool‘s asserted justifications were ‘pretextual‘“. Ante, 1113. While the production of direct evidence might relieve the plaintiff of the necessity of proving each of the elements of а McDonnell Douglas prima facie case, it does not justify a complete departure from the sensible and orderly presentation of evidence under that case. We recognized the desireability of such a pattern in Smith v. Flax, 618 F.2d 1062 (4th Cir. 1980), when we observed:
My examination of the record in the present case indicates that the district court‘s failure to follow the basic format of proof under McDonnell Douglas made it extremely difficult for the jury to intelligently appraise the evidence in the light of the issues before it.
In a case such as this I think we would be well advised to heed the admonitions of Judge Campbell in his thorough and perceptive opinion in Loeb v. Textron, 600 F.2d 1003, 1019 (1st Cir. 1979):
At least until the Supreme Court further clarifies when proof along the lines of the prima facie case in McDonnell Douglas is required, we would suggest that, unless the parties themselves agree otherwise, the court depart only cautiously from the general McDonnell Douglas framework in this third type of case.
Whatever the role of McDonnell Douglas in the particular case, we strongly encourage the court to go beyond the bare outlines of the issues mentioned here, and to provide the jury with a helpful and meaningful explanation of the relevance of the evidence introduced and of the interests of the parties. It would be useful to discuss the policies of the Age Discrimination Act and the plaintiff‘s rights thereunder, as the court did here to some extent. The court should also, especially when a management level job is involved, explаin that an employer is entitled to make its own subjective business judgments, however misguided they may appear to the jury, and to fire an employee for any reason that is not discriminatory. (Emphasis added.)
Finally, I cannot agree with the majority that the district court‘s instructions properly embodied the standard of causation articulated in Loeb v. Textron, supra, and which was applied by us in Smith v. Flax, supra. In Loeb, the court stated:
we do think, however, that the court should have instructed the jury that for plaintiff to prevail he had to prove by a prеponderance of the evidence that his age was the “determining factor” in his discharge in the sense that, “but for” his employer‘s motive to discriminate against him because of age, he would not have been discharged. (Emphasis added.)
A reading of the charge in the present case indicates to me that the jury was permitted to return a verdict against Whirlpool merely upon its finding that the plaintiff‘s age was “a factor” in his demotion.
For these reаsons, I would reverse the judgment and remand this case for a new trial.
Notes
1. Indeed, two portions of the district court‘s charge were specific on the issue. First, the jury was told:
This is not a class action. We‘re not engaged in any deep inquiry into all the Whirlpool operations. It‘s simply a question inquiring into the question of whether this particular person was demoted and forced out of the job or forced out of his job through conduct which violated the Age Act.
Now, yоu will remember that if the decision to treat Mr. Spagnuolo in a different fashion was based upon legitimate business reasons rather than upon age, the plaintiff is not entitled to recover, and the burden is upon the plaintiff to satisfy you that there was, that age was considered. The existence of a legitimate business reason or many legitimate business reasons, if you find there were such reasons, does not answer the question. If age played any significant part in the decision, then the plaintiff would be entitled to recover. Age has to be what we call a but for element in the decision. It‘s not the only element, not the only major element but, in order for the plaintiff to recover, age must be either the basis of the decision or one of the things which played a significant part in arriving at the decision. It has to be a producing cause. It has to be one of the factors which brought about the decisiоn, one of the factors without which he would not have been demoted. It need not be the only cause, and he‘s not entitled to recover unless age was one of the elements which played a significant part in the decision to downgrade him in his work.
The jury was also given supplemental instructions after counsel registered objections to the initial instructions. Thus, immediately before retiring, the jury was told:
A couple of partly repetitious instructions. The plaintiff says that age was a producing cause, one of the principal reasons for his discharge. The defendant denies that age played a part in the decision. The defendant also advances evidence of business reasons for the decision. Now, the defendant has no burden to prove anything, so the burden of proving a business reason is not, you don‘t have to decide whether the defendant has proved that business reasons exist. The only question you have to decide is whether the plaintiff has satisfied you that age was the, was a principal or a producing cause for his demotion; and if you find there were valid business reasons and also that age played a part, the plaintiff would be entitled to a finding in his favor. The point I‘m making is that the defendant has no burden to prove anything. The fact that the defendant may have satisfied you that there were valid business reasons doesn‘t end your inquiry. You‘ve still got to make a finding as to whether the plaintiff has satisfied you that age played a producing part or was one of the but for causes of the decision.
2. Loeb discusses McDonnell Douglas with respect to three types of cases: (1) the “classic” or “pure” McDonnell Douglas case, (2) a case where plaintiff relies on direct evidence of discrimination, and (3) a case in which McDonnell Douglas elements are a significant part, but not all, of plaintiff‘s total evidence. This case does not fall into the first category; plaintiff did not rely on the classic McDonnell Douglas proof. Neither, as the dissent suggests, is it in the third category, “one in which proof of the McDonnell Douglas elements is a significant part of the plaintiff‘s total evidence, but where there is also other evidence, direct or circumstantial, that might support an inference of discrimination.” Loeb, 600 F.2d at 1018-19. In this case, the plaintiff demonstrated not an inference but rather the fact of age discrimination; it is the second type of case described in Loeb. Accordingly, it “simply does not fit the mold of the McDonnell Douglas formula” because the plaintiff “relie[d] chiefly upon direct evidence of discriminatory motive.” Loeb, 600 F.2d at 1018. We agree with the Court of Appeals for the First Circuit that the trial court “should not force a case into a McDonnell Douglas format if to do so will merely divert the jury from the real issues.” We think the district court here instructed the jury as the Loeb opinion suggests, namely, that “the best charge may simply be one that emphasizes that plaintiff must prove, by a рreponderance of the evidence, that he was discharged because of his age—with adequate explanation of the meaning of the age statute, the determinative role age must have played, etc.” Id. See also, n.1, supra. Smith v. Flax, also cited by the dissent, does not mandate strict adherence to the McDonnell Douglas format, because it involved precisely the third type of case discussed in Loeb, mistakenly characterized by the dissent as the case before us.