Robert D. AUNGST, Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellee

case, fortunately, simpler than This envisioned. Rod- hypothetical just case any evidence tend- produce

riguez did attorney made ever

ing that his to show Also, here the

promises predictions. pleaded might yet have

rational defendant rep- of counsel’s

guilty even the absence

resentations, proving the for the evidence to ensure

charged was sufficient conduct gained by pro- advantage would be

that no foregoing all the rea-

ceeding to trial. For

sons, judgment of the dis- we affirm the

trict court. AUNGST, Plaintiff-Appellant,

Robert D. ELECTRIC CORPO

WESTINGHOUSE

RATION, Defendant-Appellee.

No. 90-1849. Appeals,

United States Court of

Seventh Circuit.

Argued Dec. 1990. July

Decided Barker, Price,

Henry Robert G. Sharon J. Shula, Groeger, Indianapolis, L. Price & Ind., plaintiff-appellant. Yerkes, Larkin,

Jay R. Kenneth J. Ind., Thornburg, Indianapolis, Barnes & defendant-appellee. FLAUM, CUDAHY,

Before MANION, Judges. Circuit MANION, Judge. Circuit 35-year D. Engineer Robert Westinghouse employee, was terminated (RIF). He during a reduction force Age Discrimi- this action under the brought (ADEA), 29 Employment Act nation Westing- alleging seq., et U.S.C. 621 § 1) of his terminated because house: 2) rehire him age; refused to because 3) retaliatorily refused to re- age; and age dis- him because he had filed an hire Equal Employ- claim with the crimination (EEOC). Opportunity ment Commission judgment granted summary Judge Noland claims, Westinghouse on the latter by the statute of holding were barred August juryA found for limitations. claim, concluding discharge the unlawful willfully discharged him However, Judge of the ADEA. violation percent cility to make a 10 Noland, persuasive opin- was ordered thorough in a “managed ion, Westinghouse’s motion for across the board reduction granted costs,” notwithstanding requiring the verdict substantial reduc- judgment thus in- (JNOV), holding employees. that the evidence was in its staff of 155 salaried tions support prove pretext by and to plant sufficient to was restructured Bloomington The jury’s of willful discrimination. Westlake, the verdict plant and division William appeals all of the district court Aungst Frederick, Frank for- manager. He named affirm. rulings. We marketing depart- merly manager of ment, capacitor depart- manage the new

I. ment, Frederick was ordered to make and in Pitts- Aungst graduated 1948 from in both his old and new staff reductions Technology burgh’s Carnegie Institute of marketing depart- In the departments. degree engi- in with a bachelor’s electrical ment, Frederick decided to terminate two immediately went to work for neering, and employees years each under 30 who were Westinghouse. years After 10 in East capacitor department old. Pittsburgh, he was transferred to the selected He dis- termination. Bloomington, plant, he re- Indiana where McClain, with Don who cussed his decision mained until his termination at the end of managed capacitor equipment engi- and neеring from 1975 to and section Brittain, engineering department John units, capacitor worked with manager 1958 to and neither are utilities in the trans- which used disagreed with choice. Frederick power. mission and distribution of electric versatility in protective claims to have wanted more Although briefly he worked with year department; he concluded that al- devices that same he was permanently assigned though Aungst’s performance sec- work with began designing capacitor tion and units. good, he was the least versa- Autotrols was eventually designing He found his niche in engineer depart- tile and creative “Autotrol,” particular capaci- kind of ment, and his tasks were the easiest to Westinghouse tor. Autotrol is a trade perform. He also was aware that polemounted capacitor name for a unit. problems employees had more with on the complicated are of the least Autotrols one shop engineers. Aungst than other floor apparently capacitor, forms of and years was 60 old at the time of his termi- design quickly. their mastered As he con- Overall, during Westinghouse nation. designing year year, tinued Autotrols after RIF of December were became comfortable the nickname Eight terminated. the ADEA’s very infrequent “Mr. Autotrol.” His for- (between protected age group age 40 and ays working complicated into on more ca- 70), seven were not. pacitor always units were not successful. Wilkinson, Frederick chose Tom also a Aungst was a customer order Autotrol 60-year-old engineer longer with an even engineer, which meant that he assembled Westinghouse higher tenure at and a sala- existing components devices into a de- ry replace Aungst than in re- sign specifications. By that met customer sponding to Autotrol orders. Wilkinson contrast, development fundamental or de- perform engi- also continued to his other sign engineers hypothesized, created neering responsibilities. Wilkinson worked capacitors.

tested new uses The cus- on until his retirement Autotrols utility tomers dealt with were com- frequently and even after retirement was panies. companiеs generally These would Warkentin, 51, used as a consultant. John specify ‍​​​‌​​‌‌‌​​‌​​‌‌‌​‌​‌​‌‌​​‌‌‌‌​​​‌​‌‌​‌‌​​​‌​​‌‌‍type detail the of Autotrol up backed Wilkinson on Autotrol orders. desired, would then assemble job Warkentin’s old in another division was specifications. the Autotrol to their RIF, during eliminated so Frederick company-wide

Pursuant reorga- brought capacitor depart- to 1983 him into the new nization, ment, Westinghouse Bloomington spent fa- where he about half his time including juryA engineering, Westinghouse determined that customer order on willfully against Aungst by discriminated younger engineers were Autotrols. Two Seaton, 27, choosing him for the RIF. appeals retained Frederick: Steve grant from the district court’s decision Kile, 25. Both were fundamental and Joe Westinghousе’s ap- JNOV motion. He also development design engineers, and nei- peals grant the district court’s decision to ther worked on Autotrols. summary judgment of other em- Frederick made number Aungst’s refusal to rehire claims. during reorganiza- ployment decisions tion, of which resulted older em- some II. ployees being retained over em- Discriminatory Discharge A. Claim prior this: to ployees. The net result was ADEA, Under the it is unlawful “for an eight engineers 12 reorganization, the employer ... to fail or refuse to hire or to capacitor department the the discharge any individual or otherwise dis protected age group; after the ADEA’s against criminate an individual ... because pro- reorganization, 11 of 14 were аge.” such individual’s 29 U.S.C. (The depart- age group. capacitor tected 623(a). reviewing age an When discrimi § ment been one of six divisions in the had case, nation court must decide a “whether Distribution Business Transmission and there was sufficient evidence a reason Unit. Those six divisions were combined age able to find that was a determin during reorganiza- the into three divisions factor,” words, ing or “in other a ‘but-for’ tion, explains why capacitor which the new employer’s cause” of the decision to fire despite department had two more members plaintiff. M/Mars, the Brown v. M 883 & force.) the reduction in 505, (7th Cir.1989). F.2d 507 terminat “[A] Aungst he After Frederick told was be- plaintiff’s age ed ultimate burden in an terminated, Aungst ing met with Joe Ken- prove discrimination case is to that he was Westinghouse nedy headquarters. discharged age.” of his because Oxman v. accepted Kennedy a resume from WLS-TV, 448, (7th Cir.1988), 846 F.2d 452 service, Westinghouse placement for the citing LaMontagne v. American Conve placement the rate for told Inc., 1405, Products, F.2d 1409 nience employment discharged seeking workers But must clear an percent. Aungst’s was between 75 and 85 other hurdle this case—he must also Westinghouse resume remained in the prove by Westinghouse that the decision months, placement booklet for nine but no unlawfully terminate him was made “will availability. inquired one about his Aungst concededly fully.” That is because bring years claim within did not this Shortly discharge Aungst after his filed provides ADEA that an firing; the charge a of discrimination with the EEOC “may commenced within two action be 1985, at- on December 1983. while years after the cause of action accrued ... tending regular weekly luncheon except arising that a cause of action out of Westinghouse engi- retired and current may commenced a willful violation with neers, Aungst gained an access to internal years after the of action in three cause 29, 1985, memorandum dated March which 626(e)(1); 29 U.S.C. accrued....” § listed two new U.S.C. 255. § department. engineer Another new September hired in court’s claims We review de novo the district knowledge grant judgment he did not have that these three decision to notwithstand- younger engineers ing were hired until Novem- the verdiсt. We take the evidence 8, 1986, it in the ber when Wilkinson told him of the all reasonable inferences from hirings. light On November most the non- favorable to EEOC, reweigh charges moving party. filed not additional with the While we do “ evidence, alleging Westinghouse discriminato- we do ‘whether determine substantial; rily refused to rehire him. evidence is a mere scintil- ” plaintiff.” give employer We must not suffice.’ la of evidence will Graefen Co., regarding F.2d its ex- Brewing the benefit of doubt Pabst hain v. (7th Cir.1987), LaMontagne, employment quoting planation of decisions. original). In this (emphasis in F.2d at 1410 respect employer’s] explana- With [an case, therefore, Aungst provide needed to discharge, we employee’s] tion for [an Westinghouse evidence substantial super- again note that we do “not sit as ADEA. Before we willfully violated personnel department reexamines separate, added burden discuss entity’s “No an business decisions.” ... willfulness, first will prove we practices, matter a firm’s how medieval of whether there is question address the high-handed no matter how its decisional at all. any age here discrimination process, no matter how mistaken the put forth suffi that he contends managers, ADEA firm’s [the does] support jury’s verdict cient evidence “Rather, inquiry interfere.” our ... of willful discrimination. employer gave limited to ‘whether the ” prima Aungst made out concedes that explanation honest of its behavior.’ age under facie case of discrimination Sears, Co., Mechnig v. Roebuck & proof for Title burden-shifting method of (7th Cir.1988)(citations omitted). Douglas VII cases described McDonnell Westinghouse rea- offers several lawful 792, 1817, Green, Corp. v. 411 U.S. 93 S.Ct. termination, pointing sons for the while out (1973), applied to and later 36 L.Ed.2d 668 only firing that the occurred because of a v. Ayala Mayfair ADEA cases. Mold See First, Westinghouse reduction force. ar- 1314, F.2d 1318 Corp., ed Products 831 replaced by gues that was someone (7th Cir.1987). 1) Aungst proved that he: age, only younger the his own and that class; 2) protected per was within the was performing work retained were forming job employer’s satisfac his to that did not do and could not have terminated; tion; 3) 4) others not was done, Second, retraining. еven with due to protected age group were treated RIF, Westinghouse was forced to make Oxman, favorably. more 846 F.2d at See engineers, with fewer and needed more do 455. versatility. Westinghouse argues production of This shifted the burden to exclusively in Aungst, who worked almost legitimate, Westinghouse to show a non many years, production Autotrol was discriminatory Aungst’s reason for termi engineer. the least versatile plaintiff proves prima nation. Once a a produced by explanation Given the West case, presumption facie “a rebuttable of inghouse, Aungst “prove by had to a now discrimination arises and the burden shifts preponderance of the evidence that the rea [emplоyer] legitimate articulate a to by [Westinghouse] sons offered were not non-discriminatory reason for the dis merely pretext a its true reasons but were burden, however, charge. merely This a Graefenhain, for discrimination.” 827 production burden of ... that is not diffi 18, Burdine, citing F.2d at 450 at 255 U.S. satisfy.” Chicago cult to Dale Tribune 10, 10, 257, & n. 101 S.Ct. at 1095 & n. Co., (7th Cir.1986), 797 F.2d 463 & n. 5 required disprove 1095-96. was to cert. denied 479 U.S. ‍​​​‌​​‌‌‌​​‌​​‌‌‌​‌​‌​‌‌​​‌‌‌‌​​​‌​‌‌​‌‌​​​‌​​‌‌‍S.Ct. explanations” “specific each of these (1987), citing 93 L.Ed.2d 1002 Texas De Dale, Westinghouse’s actions. See partment Community v. Bur of Affairs Further, corpo F.2d at “in cases of dine, 248, 254-55, 450 U.S. S.Ct. reorganization plaintiff rate a must come 1094-95, (1981). 67 L.Ed.2d Bur direct, dine, forward with ‘additional circumstan Supreme Court described the bur tial, age or statistical evidence that was a productiоn way: den of this “The defen Simpson factor in his termination....’” persuade dant need not court that it actually by proffered Corp., v. Midland-Ross motivated (6th Cir.1987), quoting It if Ridenour v. reasons.... is sufficient the defen Law Co., genuine dant’s evidence raises issue of son 791 F.2d 52 “[A]n fact against plaintiff as to whether it discriminated ADEA who been terminated has Frederick described in de- supervisors. ate reorganization carries corporate amidst Westlake, charges plant manager, tail how supporting burden greater who was employee him make the reduction than chose to decisions. discrimination Ri reasons.” for similar not terminated described-in detail his reasons for He also denour, F.2d at 57. Aungst; after he the deci- choosing made Brittain, agreed with sion he informed who Westing- argued that At trial Because Frederick was in- the selection. firing him were reasons for stated house’s decisionmaker, disputably the sole the dis- willfully dis- to pretexts for a desire mere give weight trict court was correct to no age. against criminate because by made allegedly a statement the EEOC court con- agreed, but the district The Dyer, by officer, Robert returned verdict cluded “[t]he weight obligation” felt a “moral to its against the clear jury is persons could engineers. (Dyer strongly making Reasonable denied evidence. the defendant.” against statement.) arrive at a verdict made any Statements such it, put evidence Judge Noland As probаtive “[t]he of an inferior are not establish that cannot presented by the decisionmaker. intent to discriminate to terminate Frederick’s decision 456-57, Oxman, discussing 846 F.2d at See ADEA, willful violation of was a at 1412. That Fred- LaMontagne, 750 F.2d pre- articulated reasons even that his decisionmaker will also erick was sole agree, and therefore affirm textual.” We reasons, relating important for other grant court’s decision the district willfulness, later. that we shall discuss Westinghouse for JNOV. motion of “smoking gun” Because there is no mo Leaving willfulness aside for a willfully fired evidence that Frederick ment, age discrimination just prove basic age, Aungst his must Aungst because of more than make out Aungst needed to do proof to rely the indirect method of prove that prima facie case. He needed essence, In he must dis pretext. show alleged for choos Westinghouse’s reasons for Westinghouse’s primary reason prove during RIF ing him termination for RIF —lack versatili choosing for the of LaMontagne, we pretext. were mere analysis from La three-part ways plaintiff ty. could Under suggested three those, Aungst that Freder Applying Aungst must show prove Montagne, his case. Westinghouse’s al with versatili prove really needed to that concerned ick was fact, if was, no or leged reasons had basis if was fired for ty, or that he did, they really factors they that were not versatility. If than lack of reasons other were, motivating discharge, thеy or if reason, versatility was the actual lack of moti jointly that insufficient to were versatility lack of Aungst must show that discharge. LaMontagne, vate the cho caused to be should not have an examina 1414-15. We turn now to at words, after RIF. In other sen for the sup Aungst believes tion of the evidence producing of Westinghouse met its burden pretext. ports allegation his of discharge, the burden reasons for he Aungst, now proof remained with but argues first that the dis merely than restate needed to do more wrongly concluded Frederick trict court up He needed to come prima facie case. He relies on was the sole decisionmaker. legit disprove the evidence to with some Brittain, statement that John Frederick’s Westing offered explanations imate manager, “key engineering department evidence, reviewing the we After house. people” managers” and “other staff court that agree with the district This contention is without merit. involved. evidence, any than his provide other did not testimony clear lengthy Frederick’s made self-serving testimony, he was that responsible own person he that was sole termination, stated fired for reasons other than those selecting Aungst although decisionmaker, Westinghouse through its making process in the that decision certainly Aungst’s immedi- Frank Frederick. consulted with A. the criteria that I felt I evidence to counter Because no

Aungst presents Capacitor Dеpartment in the in- needed testimony regarding lengthy Frederick’s diversity, cluded the characteristics of versatility, or to show that the need for things creativity, good like overall un- actually fired for reasons Aungst was working relationship everyone with that versatility. Westlake ordered related with, including to associate you have capaci- to make reductions factory important. It experience was is described his department. Frederick tor Aungst’s experience just that I felt Mr. decisionmaking: criteria very was narrow focus and we needed you reorga- any time have to I think experience. denying There is no broader fewer perform a function with nize or experience many that hе had a lot of in— question you ask people, really the first years experience in It autotrols. keep? I have to ... yourself is who do just experience that that needed to decisions, So, very easy those become the broader, and it was I not broader.... very keep, I because of the who must needed the most creative and diverse specialized knowledge detailed experienced flexible individuals they may have. And then individu- expe- exception I could find. With the you that are left look and see what als autotrols, rience in which was more nar- per- now need to be other functions needed, really than I row Mr. way to do it formed and what is the best capable the least that I individual people with the limited number of and, remaining therefore, him, had chose left, you organize you have and how can factors, based on those for reduction in left, people you may have have force. left, perform the additional functions. Q. What about Mr. Kile and Mr. Sea- up in They capacitor ton? ended discussed his decision to Frederick then equipment development section. Would emphasize diversity within the de- retained, Mr. if he had been partment: would he have been retained in this get away I wanted much I as as development equipment section? specialization engineering. could from A. No. my experience marketing From I well Q. He would have been retained [in understood the fact that customers don’t capacitor order section]? always buy equip- the same amount of A. That’s correct. every every day ment and week and ev- Q. you What in factors did evaluate month, ery purchase in they cyclical determining retain Mr. Kile and Mr. capabil- had fashion. And we to have the capacitor equipment Seaton within the ity handling of in cyclical those orders development section in December of fashion, having people and who had di- 1983? capability handling verse was essential to They doing develop- A. were both So, cyclical those orders in a I fashion. ment doing work. Steve Seaton was de- diversity wanted much I get as as сould velopment capacitor work on units. engineers. it in the year and a half that he had been Finally, responded to a series proven very capable there he had to be a questions relating to his decision to se- very individual.... He was a diverse RIF, Aungst lect for the while retaining engineer.... and creative The same can younger engineers two in engineer- another pretty Kile, much be said for Joe al- ing department: though doing development he was work Q. Frank, on based all the informa- fuses, switches, eases, in and in some you tion that had you available to in bushings.... Very aggressive, very 1983, why December of was Mr. creative, dynamic, again good electronic selected for reduction аnd the others re- help that we skills felt could us in our capacitor tained within the lines, series, section in De- product particularly other cember, 1983? the future. work, development design mental or fuse

So, experience we had based on individuals, background, plaintiff’s self-serving testimony re but a with those shown, creativity they garding ability his own is “insufficient to the work had they they employer’s negative had diversity that shown contradict an assess and achieving, felt that capable ability.” we were ment of that Williams v. and positions Electronics, Inc., them in those we needed Williams than Mr. they (7th Cir.1988), Dale, could do it better discussing could. F.2d at 464-65. also introduced pay shortly Mr. evidence of: a merit increase

Q. knowledge, did your To tеrmination; in fuse de- before his Performance any experience have Management System charts that described sign? good performance; his work and a letter of No, A. sir. recommendation written his former boss Q. knowledge, did Mr. your To help application teaching him in for a any experience Aungst have However, pieces of position. none of these development units? fundamental responds Westinghouse’s rea evidence No, A. sir. terminating sons for him—the need for ver testimony established So Frederick’s satility in the context of a reduction 1) versatility important his most that: was argued force. never that 2) decisionmaking; thought criterion for incompetent engi was an Autotrol 3) engineеr; the least versatile was neer; contrary, perform his work engineer- order Aungst worked customer experience ance and in that narrow area engineers ing, the two were generally considered an asset. “[T]o sepa- completely separate doing section pretext, help it show does not ‍​​​‌​​‌‌‌​​‌​​‌‌‌​‌​‌​‌‌​​‌‌‌‌​​​‌​‌‌​‌‌​​​‌​​‌‌‍for [the 4) work; rate he did not think repeat proof job plaintiff] to his experience doing design fuse any had generally satisfactory. performance was development. fundamental Other testimo- question already resolved in That has been ny documentary evidence established Company specific advanced his favor. The Autotrol Aungst departed, when discharge, and his rebuttal reasons for his work in the customer order section was on them.” La evidence should focused among divided within Judge Montagne, 750 F.2d at As protected age group, ADEA’s both it, “[a]ny put Noland inference of discrimi performed whom other work and were plaintiff may have raised nation which Further, Aungst. than more versatile prof dissipated by the defendant’s Aungst’s superiors testified that did The court finds no justification. fered expertise had more not believe he to do any age sim proof work, complicated and that even with fur- more were accorded ilar work credentials training, he would not able ther have been treatment.” favorable performed by to do the work Seaton Aungst Kile. himself testified that he had significantly, Aungst Finally, and design, fuse and had not never done meeting higher not come close to does design unit worked on since 1963. necessary for a willful violation standard Westinghouse “knew or the ADEA—that

Aungst had the burden to counter disregard the matter explanations” reckless for Westinghouse’s “specific showed prohibited was these of whether its conduct its decision a manner that showed Brown, F.2d at 512. An pretext age the ADEA.” 883 factors were mere discrimi not “willful” when only employer’s basic conduct is nation. Not did he not meet that burden, reasonably in determin employer meet acts certainly did not it ing legal obligations, or even when “greater specific evidence of its burden” conduct is unreasonably, long RIF so as its pretext required reorganization in a acts Theaters, Ridenour, 57; at not reckless. Coston v. Plitt case. 791 F.2d See Cir.1988), Inc., 834, (7th quot Simpson, Aungst 823 F.2d at 941. testi 860 F.2d 836 Co., 486 performed ing McLaughlin funda- v. Richland Shoe fied that he could have 1677, 13, ADEA years. 1682 n. But the is not a tenure U.S. S.Ct. statute; (1988). usually plaintiff age L.Ed.2d 115 Willfulness must show that his negli- merely means “conduct that is not was the cause of his termination. “[T]he age protect at 1681. law gent.” McLaughlin, 108 S.Ct. discrimination does not an decisionmaker, employee being so Frederick the sole older from fired without was good protects being intent It him needed to show Frederick’s cause. require- recklessly age.” the ADEA’s fired because of his flaunt Visser Pack discussed, Assoc., Inc., Yet, already Engineering еr 924 F.2d ments. as we have (7th (en banc) (citations Cir.1991) that: evidence shows omit uncontroverted ted). repeatedly We have between warned that Aungst’s Frederick divided work will not reevaluate business decisions engineers within the who were “[w]e good class; Sys made faith.” Bechold v. average age IGW protected ADEA’s tems, Inc., (7th 817 F.2d Cir. capacitor department 1987), Yards, Inc., citing Lampert Tice v. up reorganization; went after the Freder 761 F.2d enough “It is employment ick made a number of other ‘genuinely honestly if the decision was employees decisions that benefited older attempt made in an to select the and, Frederick, younger employees;1 over performance to be retained on the basis of began engineering working who with the related considerations.’ Dorsch v. L.B. capacitor department Co., (7th Foster Cir. develop aware that had ever done 1986).” Bechold, 817 F.2d at 1285. work, ment and did not believe provide failed any evidence to design could work with fuse or fundamen Westinghouse’s counter reasons for choos development. tal is no There evidence ing him for the RIF. jury from which the could conclude that willfully violated ADEA in By failing to proving meet the burden of selecting Aungst for the RIF. We reit discrimination, age Aungst necessarily has provide erate that in this case must proving higher fallen far short of “will- beyond prove evidence that which would ful” additionally showing standard that ordinary age claim оf discrimination. Even Westinghouse terminated him when it assuming prove could disregard knew or showed reckless Westinghouse unlawfully terminated requirement age ADEA’s not be a age, because of his he would not win this determining factor the termination deci- case. That is because has failed to agree Judge sion. We Noland’s con- present any evidence that Frederick that “no reasonably clusion could con- sought willfully fire him because of his age determining clude that was a factor in age, in reckless defiance of the ADEA. Aungst’s employ- the decision terminate Age necessarily discrimination is not will ment.” The district court therefore cor- ful, plaintiffs who wait nearly until rectly granted Westinghouse. JNOV for years beyond аlleged three discrimina tion should be warned that the Discriminatory statute re B. to Rehire Refusal evidence, quires specifically relating more Claims knowledge intent and employ Prior to trial the district granted court er, prove in order to that an ADEA viola Westinghouse’s summary judg- motion for tion was willful. Aungst had no evidence Aungst’s ment on discriminatory claims for of that sort here. failure retaliatory to rehire and failure to

Aungst appears reliable, to have been a rehire. claimed dis- loyal employee Westinghouse of for 35 against criminated him because age, of his part reorganization, (51) 1. "As of the Improve- John Warkentin the as Value brought (58) department Bud Harman into his back-up ment Coordinator and as a to Wilkin- manage Capacitor to the Order section. Dan son on Each autotrols. of these moves favored (59), (57), Kesselich Richard Crowe and Jack (District older over ones.” (45) brought department Brankle into the 6.) opinion court at engineers. brought as industrial Frederick also Cada, 920 F.2d at 450-52. claim. rehiring him ment not then retaliated and applies equitable here. approach the Neither complaint with filed a he had because younger en- hired three it Instead EEOC. tolling principles are based on Equitable held court The district in 1985. gineers rule, filing discovery that “the dead- the so were barred Aungst’s rehire claims tolled until the time line with the EEOC is charge with the file a did not he because support chаrge a of ‘facts that would when alleged dis- days within of EEOC apparent or should discrimination ... were criminatory act. person with a apparent to have been rights reasonably prudent regard for his argues that he appeal On ” plaintiff.’ similarly situated hires the new knowledge of not have did 410-11, quoting F.2d at Reeb Vaught, 745 1986, that he of November until Atlanta, Inc., Opportunity v. Economic next charge the filed his EEOC promptly 924, ap we ‍​​​‌​​‌‌‌​​‌​​‌‌‌​‌​‌​‌‌​​‌‌‌‌​​​‌​‌‌​‌‌​​​‌​​‌‌‍should argues also week. He 13, 1986; claim on November filed his to extend tolling principles equitable ply therefore, have known if he knew or should Westing requirement because 180-day previously, approxi- prior days or to take action Aungst to not induced house giving facts rise to mately Mаy of job. him find another help to its promise discrimination, his claim is claim of court’s conclu the district agree with We time-barred. genuine present no these claims sion that fact, and affirm material issues regular weekly lunch Aungst attended summary judgment grant of court’s Westing and current meetings with retired Westinghouse. discharge in engineers following his house these Aungst testified that at meet requirements court outlined the This of em ings general there was discussion claim timely age discrimination filing a “they’re interview changes, that ployment Co., 745 Donnelley R.R. & Sons Vaught v. hired, something they’ve like ing, or Cir.1984): (7th F.2d specific. Aungst also that,” nothing but may not be age discrimination suit An relating staffing to memoranda received plaintiff' court filed district unless including an engineering department, within 180 charge with the EEOC filed a dated Westinghouse document internal alleged discriminatory act days after the of the listed two 1985 which March 626(d)(1). Al- 29 U.S.C. occurred. § kept this engineers. newly hired jurisdic- 180-day is not though the limit produced it possession, in his document and, like a statute of in nature tional person, discovery. reasonable during A limitations, equitable may be tolled information available given reasons, Kephart v. Institute Gas 1985, “should have middle of as of the Cir.1978), (7th F.2d 1287 Technology, 581 charge support a known facts would an timely charge file bars failure Dynas Stark [age] discrimination.” plaintiff satisfies unless action Cir.1990) (7th F.2d Corp., 902 can filing was tolled that the deadline court omitted). (citation Not that these facts equitable grounds. charge, necessarily support such would Corp., 920 v. Baxter Healthcare Cada claimed they were facts but (7th Cir.1990), provides a thor- F.2d later, year more than a discovered applica- doctrines ough tolling discussion claim. the basis of his are discussion ADEA. As our ble to the fraudulent estoppel, or clear, making Equitable really makes is Cada concealment, employer applies when First, his conten- claims here. two distinct prevent plaintiff steps “takes active of the new hires that he was not aware tion time, by promising suing in equitable toll- as of 1986 an December until Cada, limitations.” plead the statute of claim, argument that West- ing while his omitted). (citations Eq F.2d at 450-51 charge file a 920 him not inghouse induced only under lim estoppel is available help job him another is uitable by trying to find ited circumstances: estoppel, fraudulent conceal- equitable or factors, granting Aungst, of While that is unfortunate for Mr. Among other nothing premised age it has to do with discrimina- equitable estoppel should be tion. (1) upon showing plaintiffs “a of the reliance on the de- actual and reasonable grant The decision of the district court to representations” or fendant’s conduct notwithstanding the judgment verdict to (2) improper purpose “evidence of on Westinghouse is and the defen- part of the defendant Affirmed. knowledge actual constructive dant’s or nature of its conduct.” deceptivе of the CUDAHY, Judge, dissenting. Circuit Plastics, Inc., 784

Mull v. Arco Durethene setting aside a verdict the evi (7th Cir.1986),quoting Naton F.2d light dence must be viewed most 691, 696 California, v. 649 F.2d Bank of party prevailing favorable to the before (9th Cir.1981). jury. Mathewson National Automatic questionable While it whether Co., Tool It Aungst’s Westinghouse’s prom- on reliance majority opinion places seems to me the openings him for future ise to consider great weight testimony on the of Frank reasonable,” Aungst “actual failed to Frederick, apparently who selected support Westinghouse claim that elimination, his weight for and no at all on the sought actively delaying deceive into testimony Aungst, which is character filing charge “self-serving.” jury may of his with the EEOC. ized as The well Westinghouse exactly All Kenne- have reversed the order of reliance did was send Joe and hence reached a different conclusion. dy headquarters speak group to a Inc., Castings, Isaksen v. Vermont employees, of RIF’d one of whom was (7th Cir.1987)(“nor F.2d can we Westing- to tell them about the disregard merely the verdict because al placement Westinghouse house service. most all of the evidence favorable to Isak- through by putting Aungst’s followed re- mouth”), sen came from his own cert. de booklet, placement sume where it nied, 486 U.S. 108 S.Ct. Kennedy remained for nine months. did (1988). may L.Ed.2d 193 It also have be guarantee Aungst anyone job, else a lieved, consistent with the district court’s officially reapply nor did ever instructions, regarding the decision engineering department Westing- at Aungst’s termination was influenced ex house. capacitor department: ecutives outside the equitable tolling equitable Neither nor jury may thus the have deemed critical the here, estoppel principles apply so the dis- feeling EEO officer’s confession to a "mor correctly granted summary trict court obligation” al company’s younger judgment Westinghouse Aungst’s employees, or the fact that out of the seven failure to rehire claims because Bloomington terminated in the charge failed to file a with the EEOC with- RIF, plant’s pro six were within ADEA’s days alleged discriminatory of the tection. act. heavy placеd The reliance on “versatili- ty” by Westinghouse’s argument III. majority misplaced. here seems to me thing The ADEA is about one —discrimi- may virtually synonym “Versatile” age. nation on the basis of It is not about “young.” It infrequently is not the case good employees, it is not about em- wise long-term employees tend to become decisions, ployment years it is not about 35 specialized, doing primarily things loyalty company. to one Robert doing do best and them with the en- competent served aas Auto- couragement employer. of their Indeed in engineer trol for three-and-a-half decades. this case worked unit Nevertheless, in judgment the reasonable (the design discipline one of his person charged of thе enforcing a 10 learning) successors was fourteen percent force, reduction in he was the most years company before the began limiting expendable engineer department. assignments design. autotrol New hand, have been the other employees, on They many of the work. facets

exposed undertaking a uniformly capable of

may be perhaps with array of tasks—all

wide Aungst re inexperience.

equal degree of ex pay increases

ceived substantial right up to the ratings on his cellent work— P, S; Order on go. let Pl.Exs.

time he was 1989). (June 6, Judgment at 8 Summary an issue

“Versatility” apparently became perhaps RIF arrived or

only when the Admittedly, litigation threatened.

when makes this requirement of willfulness ‍​​​‌​​‌‌‌​​‌​​‌‌‌​‌​‌​‌‌​​‌‌‌‌​​​‌​‌‌​‌‌​​​‌​​‌‌‍case,1 I would let the

very close but

verdict stand. late-filing persuaded I that the

Nor am clearly bars the refus- charge

of the EEOC principal The basis

al to rehire claim.

imputing knowledge of new hires containing the

Aungst is a memorandum engineers. recently hired

names of two the document as are not identified on

These hires, I Aungst Dep. Ex.

recent heavy burden on placing are

think we jigsaw puz- pieces of the to fit develop- together

zle and “know” about which there is no clear evidence

ments of

he was informed. respectfully

I dissent. therefore America,

UNITED STATES

Plaintiff-Appellee, CAICEDO, Defendant-Appellant.

Mario

No. 89-2813. Appeals,

United States Court

Seventh Circuit.

Argued June 1991. July 1991.

Decided however, younger, inexpe- judge’s company telling, hired I find the trial first opinion denying probative mo- engineers) the defendant’s of willful- rienced —issued summary judgment (June Judgment tion for discrimina- Summary at 8 ness. Order on Westinghouse's repeated tion count—that offers 6, 1989). early Aungst (beginning before retirement

Case Details

Case Name: Robert D. AUNGST, Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellee

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 22, 1991

Citation: 937 F.2d 1216

Docket Number: 90-1849

Court Abbreviation: 7th Cir.