Opinion
95-1119-CIV-ORL-99B
June, 2000
Frederick C. Morello, FREDERICK C. MORELLO, P.A., Daytona Beach, FL, attorney for plaintiff.
William D. Palmer, PALMER PALMER, P.A., Orlando, FL, attorney for defendant.
MEMORANDUM ORDER
The Defendant Interim Healthcare ("Interim") submits this motion to set aside the jury verdict awarding the Plaintiff Glisson $550,000 for age discrimination. In the alternative Interim moves for a new trial or to modify the award, claiming it to be excessive. The Plaintiff Glisson has cross moved for an award of severance pay under his ERISA claim and for post judgment interest, pre-judgment interest, a bill of costs, reinstatement and attorney fees. For the reasons stated below all the motions are denied. The clerk of the court is hereby ordered to enter a judgment of $550,000 for the Plaintiff.
Glisson's position of regional vice president was eliminated in February 1994 and Mark Dermott, another regional vice president, took over his responsibilities. At the time Glisson was forty nine years old and Dermott was thirty seven. This case was initially tried by Judge Sharp wherein he entered a directed verdict for the Defendant after the presentation of the Plaintiff's case. The Court of Appeals vacated Judge Sharp's ruling and remanded in a decision dated March 4, 1998. The Appeals Court held that Judge Sharp's ruling that the reason given for Glisson's termination was not a pretext as a matter of law was erroneous. The Circuit court ordered that the case go to the jury. The case was retried in front of me on March 6-8, 2000. On March 9, 2000 the jury found that the Plaintiff had been terminated because of his age and accordingly awarded him $550,000 in back pay and compensatory damages.
There was also a second order from the Eleventh Circuit Court dated May 22, 1998. Although the original March 4, 1998 order remanded the case for a jury determination on the discrimination issue, it also affirmed Judge Sharp's ruling dismissing the ERISA claim because of the finding that Glisson had quit. The May 22 order reversed the March 4 order on this one issue and vacated and remanded the ERISA ruling for a new determination but otherwise affirmed the March 4 order. Because I find it would be double recovery for Glisson to receive both back pay damages and severance pay as discussed more fully below, Glisson's motion herein for severance pay under his ERISA claim is denied and I find it is otherwise unnecessary to rule on the validity of the ERISA claim.
The Defendant Interim now moves for a directed verdict judgment on two grounds, neither of which have merit. First, Interim claims that the Plaintiff failed to produce a right to sue letter from the EEOC at trial and should accordingly now be barred from recovery. Next, Interim claims that the Plaintiff failed to produce evidence during trial such that a reasonable jury could find that the reason given for Glisson's termination was a pretext for discrimination.
I reserved on a directed verdict motion that came from the defense counsel at the end of the Plaintiff's case presentation and will now treat this motion as a directed verdict. Alternatively, the motion here could be treated as a judgment as a matter of law which is the same as a JNOV (judgment not withstanding the verdict) since the standard is the same.
In the alternative Interim moves for a new trial on three different grounds. Again, I find the Defendant's arguments unconvincing. They are: 1) the jury verdict is against the great weight of evidence, 2) the jury was confused and misapplied the law, and 3) the court erred by not admitting handwritten notes of certain telephone conversations.
Directed Verdict
The evidence here must be viewed in the light most favorable to the non-moving party, the Plaintiff Glisson, for this Rule 50 motion for judgment as a matter of law. See Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989). I cannot weigh the evidence or make new decisions regarding credibility. See Watts v. Great Atlantic Pacific Tea Co., 842 F.2d 307, 310 (11th Cir. 1988). The motion will only be granted if I find that no reasonable people exercising impartial judgment could have arrived at the verdict made by this jury. See Carter, 870 F.3d at 581.
Right To Sue
Interim now asks me to throw out the jury verdict and find in their favor because Glisson never produced a right to sue letter during trial. I find such a motion to be both meritless and disingenuous because as Interim well knows, Glisson did, in fact, receive a right to sue letter and the issue never came up prior to this motion. Interim's transparent attempts now amount to no more than sneaky legal maneuvering more akin to "sandbagging" than an honest effort to win on the merits. The right to sue letter was turned over during discovery and was again submitted in response to this motion. Despite Defendant's contentions to the contrary, there is no case law that would support such unjust legal fiction and I will not now pretend that no right to sue letter exists when it does.
See Forehand v. Florida State Hospital at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1996) ("[R]eceipt of a Right-to-Sue letter is a condition precedent subject to equitable modification."). I find it ironic that Interim tries to use the fact that it denied the existence of the right to sue letter in its answer as legal justification for not pleading the issue as an affirmative defense. Fed.R.Civ.P. 11 requires all representations to the court to be given only if "formed after an inquiry reasonable under the circumstances. . . ." Here, a simple phone call to the Plaintiff's counsel or the EEOC should have been enough for Interim to have discovered that the right to sue letter existed. Interim seems to have no shame in that it now cites to its own misrepresentation as a basis to throw out the jury's verdict. While I find the Defendant's representations related to the right to sue letter to be unsavory, I decline to exercise my power to sanction under Rule 11(c)(1)(B). The Defendant has also submitted a related motion to suppress the submission of the right to sue letter by Glisson in response to the motion for a directed verdict. The motion to suppress is denied in the interests of fairness and equity.
Interim cites to two cases to support its position. The first, Forehand v. Florida State Hospital at Chattahoochee, 89 F.3d 1562 (11th Cir. 1996), held that the Plaintiff could not satisfy the EEOC requirements by obtaining a right to sue letter after commencing suit. This has nothing whatsoever to do with the situation here where the right to sue letter was obtained before the suit's commencement. In the second case, Cutliff v. Greyhound Lines, Inc., a right to sue letter was entered into evidence at trial; however, the Plaintiff never proved that proper charges were filed with the EEOC and the appeals court accordingly found for the Defendant affirming the trial Judge who had already thrown out the case on the merits. 558 F.2d 803, 806 (5th Cir. 1977). Here, there is no dispute that Glisson filed these charges and unlike this situation, in Cutliff the defendant made the absent EEOC charges an issue throughout the trial. See id. at 806.
This case has already been through two trials and an appeal, yet Defendant is raising this issue for the first time after the Plaintiff's presentation in the second trial. The Defendant did not even include this as an issue of contention in the pre-trial order. Had the Defendant raised the issue for trial, Glisson would have undoubtedly produced the letter settling it then and there. If Interim thought it could trick Glisson into a trap by purposely waiting until after the close of the Plaintiff's case to bring it up, it was mistaken. It is the law in this circuit that if the defendant does not deny a precondition to suit "specifically and with particularity" then the defendant "cannot later assert that a condition precedent has not been met." Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir. 1982). The present motion based on the failure to produce a right to sue letter at trial is denied.
Pretext
In order to make a prima facie case of age discrimination under the Age Discrimination in Employment Act ("ADEA") the plaintiff must show that he 1) was at least 40, 2) was employed by the Defendant and subsequently discharged, 3) was qualified for his job, and 4) the position was filled by a younger person. See Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1359 (11th Cir. 1999). Here, all the factors are met as Glisson had performed his job for sixteen years with generally good job evaluations, he was removed from the position of regional vice president at the age of forty nine, and a thirty seven year old man, Mark Dermott, took over his job responsibilities.
Once a prima facie case of age discrimination is made, the defendant can rebut the showing with evidence of a non-discriminatory reason for plaintiff's termination. See id. at 1360-61. Interim has met this burden by presenting evidence that Glisson was removed from his position because he lacked "ambassadorship". This evidence consisted of several words on one of his evaluations and testimony from Glisson's manager Kathleen Gilmartin, as well as her manager Robert Livonius.
The defendant's burden of producing evidence that discrimination was not the cause of the challenged action is exceedingly light. See Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997).
Finally, the plaintiff can counter by showing that the non-discriminatory reason given was simply a pretext for discrimination. See Damon, 196 F.3d at 1361. In the Eleventh Circuit, once a prima facie case has been established and the plaintiff has met his burden of presenting evidence that the legitimate reasons given for his termination are pretextual, judgment as a matter of law is no longer appropriate. See Combs v. Plantation Patterns, Inc., 106 F.3d 1519, 1529 (11th Cir. 1997). The Supreme Court has recently joined in the Eleventh Circuit's interpretation that judgment as a matter of law is no longer appropriate in this situation. See Reeves v. Sanderson Plumbing Products, Inc., No. 99-536, 2000 WL 7436634, at *9 (June 12, 2000). Here, evidence came out during the trial that Dermott was interviewed nearly a year before Glisson's termination and even then there was an intent to replace Glisson. Dermott testified that he was told when hired that he would be getting a much larger area and specifically that he would get additional branches in the Florida region — an area that belonged to Glisson. (Tr. 185). When examined at trial Livonius denied that he planned to replace Glisson with Dermott at the time Dermott was hired. (Tr. 334). Livonius also claimed that Glisson was being evaluated during the final year of employment and was considered for the position that went to Dermott. (Tr. 338). This contradicts testimony from both Gilmartin and Dermott. (Tr. 215). Needless to say, Livonius and Gilmartin's veracity for truthfulness may have been doubted by the fact finder. See Combs, 106 F.3d at 1529 ("The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.") (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). If the decision to replace Glisson was indeed made long before the actual termination then it logically follows that contrary to Livonius' statements, Glisson's performance during his last year was irrelevant to his termination.
Furthermore, it is disturbing that Glisson was never given a written evaluation for the last fourteen months of his employment despite receiving evaluations in each of his previous years with Interim. Dermott's only evaluation covering the period prior to the replacement was decidedly worse than any of Glisson's, noting that he needed improvement in generating profit margins.
Finally, in all of his evaluations there is only one mention of the alleged ambassadorship problem and Glisson himself testified that he attempted to get a clarification and possibly training to remedy this perceived deficiency without any substantive response. Certainly a fact finder could have determined that this combination of events added up to show that the reason given, lack of ambassadorship, was simply a pretext to get rid of Glisson. It is not necessary that evidence of discrimination be given to show pretext, rather only evidence that tends to disprove that the reason given was true is needed. See Combs, 106 F.3d at 1528. Accordingly, I find that the jury could indeed have come to a reasonable conclusion that pretext existed.
I also view the March 4, 1998 remand from the Court of Appeals as binding on this issue. The appeals court stated:
[U]nder Combs, Glisson needed only to produce evidence that Interim's proffered reason for removing him — that he was ineffective — was pretext. He did that when he: (1) testified that he had never had a poor evaluation; (2) introduced evidence that in 1990 and 1991, Interim put him in its "President's Circle," which meant that the office he ran was one of the most profitable operations in the nation; and (3) testified that he was consistently ranked either number one or two in the nation when compared to other regional vice-presidents. Accordingly, the district court erred by requiring Glisson to produce additional evidence that Interim had a discriminatory motive. We therefore reverse the district court's entry of a directed verdict on Glisson's age discrimination claims and remand for a jury determination of those claims.
Interim now claims that this decision is not binding because at the retrial the evidence produced was different. I do not agree. Similar evidence came out at trial on most of the points made by the circuit court. Accordingly, I am bound by the appellate court decision and as discussed, based on the Combs case, the law in this circuit does not warrant judgment as a matter of law here in any event.
New Trial Standard
Only if the jury determination went against the great weight of the evidence should a motion for a new trial be granted. See, e.g., Chapman v. AI Transport, 180 F.3d 1244, 1251 (11th Cir. 1999). Similar to a directed verdict motion the judge should not engage in fact finding or weigh evidence. "[T]he district judge should not substitute his own credibility choices and inferences for the reasonable credibility choices and inferences made by the jury." Redd v. City of Phenix City, Ala., 934 F.2d 1211, 1215 (11th Cir. 1991).
Against the Great Weight of Evidence
Interim moves for a new trial, contending that the jury finding that Glisson was terminated or constructively discharged and the finding that Glisson suffered an adverse employment action were both against the great weight of evidence. I disagree. The jury instructions given for constructive discharge, and adverse employment action are as follows:
Interim did take exception to the use of the words "terminated, constructively discharged or subject to adverse employment action" throughout certain portions of the charge instead of just using the word "terminated." The definitions used and the language incorporated into the charge relating to adverse employment action and constructive discharge were largely taken from the Eleventh Circuit Model Jury Instructions.
Constructive Discharge — An employer can discharge an employee without formally firing them when the employer's words and actions would logically lead a reasonable person to believe their employment had been terminated. Employees may be constructively discharged by a demeaning demotion or a transfer. A constructive discharge also includes situations where an employer eliminates an employee's position, even though the employer does not say the words "you're fired."
(Tr. 451-52)
Adverse Employment Action — Adverse employment action is an action that has a negative effect on the terms, privileges or other conditions of employment. This includes, of course, termination, promotion, job assignment, compensation. Adverse employment actions are broadly defined as a significant change in employment status and include not only terminations but also demotions and reassignments with significantly different and less desirable responsibilities.
(Tr. 451)
There was considerable evidence and testimony about the circumstances surrounding Glisson's departure from Interim. The testimony of Livonius, Gilmartin, and Glisson, the three main players in this case, all indicate that Glisson was given a sort of ultimatum. It is clear that Glisson could not have continued in his position as regional vice president.
The Defendant seems to assert that because three people testified that Glisson told them he was resigning, all three would have to be lying in order for Glisson to have been constructively discharged. This is incorrect and completely ignores the definition given for constructive discharge. Glisson could have quit on the day in question and still been considered to have been constructively discharged. He had been told that come Monday he would no longer be a regional vice president. This certainly is a situation where the employer has "eliminated the employee's position" or has given the employee a "demeaning demotion."
Livonius and Gilmartin testified that they worked extensively with Glisson to find alternatives, most of this being attempts to sway Glisson into buying one of the regional offices. Again, this shows that Glisson was no longer going to have his job as regional vice president. A jury finding that Glisson was constructively discharged was sensible and I cannot say that it was against the great weight of evidence nor do I disagree with the finding.
At best Glisson had been offered some alternate sales position that had no clearly defined responsibilities. Mark Dermott, Glisson's replacement, testified that he considered this alternate sales position a demotion from regional vice president. It is clear that a reasonable fact finder could have concluded that this new position was a demotion or a reassignment with significantly different and less desirable responsibilities or, indeed, a fictional mechanism for getting Glisson to quit without suffering potential liability for his termination. This precisely meets the definition charged to the jury for adverse employment action. The jury reasonably found that Glisson had been both terminated or constructively discharged and been subject to adverse employment action. However, in order to impose liability, a finding of either one of these would have been sufficient. I can only conclude that the jury acted in accordance with the evidence and made a fair finding.
I recognize that no direct evidence of discrimination was produced at this trial. It is also true that the Plaintiff still retains the ultimate burden of showing discrimination regardless of the McDonnell Douglas factors. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 503 (1993). However, since the fact finder has determined that Glisson was terminated because of his age my inquiry is limited to determining whether there was sufficient evidence of pretext to support such a jury finding. See Combs, 106 F.3d at 1529. Since, as previously discussed, there was sufficient evidence I cannot interfere with the fact finder's conclusions on the ultimate issue of discrimination.
Admission of Telephone Notes
Notes were taken during certain telephone conversations between Gilmartin, Stripp, Livonius, and Glisson. Some of these notes were admitted during trial and some were not. Specifically, Interim now asserts that it was error warranting a new trial to preclude the notes of Gilmartin and Stripp. They argue that Stripp's notes qualified under the business record exception to hearsay, Fed.R.Evid. 803(6), because it was Stripp's regular habit to take such notes and their presence before the jury would have reinforced Gilmartin's version of events — that Glisson gave her his resignation.
All the telephone notes are hearsay and there is no applicable exception. The reason I allowed some of the notes to come in during trial was because no proper and timely objection was raised. I sustained Plaintiff's objection for the notes that are now at issue.
Since Interim does not even contend that Gilmartin's notes were admissible under an exception to the hearsay rules, I will not address the issue further other than saying that the notes were hearsay because they were out-of-court statements that were being offered to prove the truth of their content. See Fed.R.Evid. 801(c).
Contrary to Interim's contentions, Stripp's notes do not meet the business record exception. Rule 803(6) allows the admission of hearsay if it is "[a] memorandum, report, record, or data compilation . . . made at or near the time . . . by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the [record] as shown by the testimony of the [custodian] unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness."
Here it is clear that these notes do not fall under a regularly conducted business activity. The activity must be a specific one that is the normal course of business for the company, not simply, as here, a telephone habit of the employee. There was not even evidence or an allegation that it was the regular practice of Interim to have its employees take notes during telephone conversations. I will not minimize this important requirement by allowing alleged spontaneous handwritten notes of any telephone conversation to substitute for a regularly conducted business activity.
This is not to say that if there were such evidence the motion would be viable rather it is merely to point out the complete lack of merit in this motion.
Additionally, the motion here simply makes a conclusory allegation that not admitting the notes caused unfair weight on Plaintiff's version of events without explaining why. The Defendant has not even included the notes in its motion nor does it cite to specific text in the notes. I find that these notes, even if they were admissible, are not material to the case and therefore do not warrant a new trial. See Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1516 (11th Cir. 1993) (holding the evidence in question was merely cumulative to witnesses testimony and therefore had no affect on a substantial right and did not warrant a new trial). The notes relate to telephone conversations that occurred immediately prior to Glisson departing from Interim in February 1994. There was testimony from the witnesses that took the notes; the notes were merely cumulative evidence to the testimony. Moreover, the jury knew of the existence of the notes and had no reason to doubt that the notes said anything different from the testimony.
Despite defense counsel's focus on whether Glisson actually resigned, the more important focus is on whether Glisson was subjected to constructive termination or an adverse employment action. Since the notes in question only focus on actual termination they are not probative on the more relevant issues for which the jury had to make a determination. The finding of constructive termination or adverse employment action had the same effect as a finding of actual termination under these circumstances. Accordingly, the notes are not material and are not proper grounds to grant a new trial regardless of admissibility.
Jury Confusion
Interim also argues that the jury was confused as demonstrated by their request to have the deposition testimony of Karen Bradley relating to the words "old school" read back to them. I agree that the testimony relating to "old school" did not in any way evidence discrimination. However, a jury's determination is not normally set aside or second guessed absent a patently obvious mistake such as conflicting verdicts. A jury verdict should not be dissected based on speculation. "[The] court will not supplant the jury verdict nor second-guess what may have been their thought process." Sullivan v. National Railroad Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999) (citing Vera-Lozano v. International Broadcasting, 50 F.3d 67, 71 (1st Cir. 1995)). It is entirely unclear why the jury wanted that testimony read back. There are many possible reasons; one could be to determine the issue of willfulness, on which they found in favor of the Defendant. Maybe they wanted to make sure the "old school" testimony had nothing to do with discrimination before they concluded that Interim lacked willfulness. This type of idle speculation is certainly not grounds to overturn a verdict.
The Defendant points to DeLong Equipment Co. v. Washington Mills Electro Minerals Corp. to support the proposition that the court can grant a new trial based on the perception that a jury was confused. 990 F.2d 1186, 1206 (11th Cir. 1993). However, in DeLong, unlike the ambiguous situation here, it was obvious that the amount awarded had been confused with another relevant number (i.e. the jury should have awarded the amount that the Plaintiff lost instead it used the amount that the Defendant had gained). See id. at 1207. Furthermore, the jury instructions in that case were admittedly confusing. See id. So the case cited by the Defendant is clearly distinguishable and the Defendant's assertion that the jury was confused is rejected.
Damages
Interim also moves to reduce the jury award. First Interim contends that Glisson did not present any evidence at trial to support a jury finding of $100,000 in compensatory damages for mental distress, embarrassment, and humiliation. Next Interim contends that the jury finding of $450,000 had no basis in fact. I do not accept these bald assertions as sufficient to overturn the jury findings so these motions are denied.
Clearly, the jury need not base its finding of compensatory damages on precise calculations. "[C]ompensatory damages, as opposed to special damages, need not be proven with a high degree of specificity. [Rather, they] may be inferred from the circumstances as well as proved by the testimony." Ferrill v. Parker Group, 168 F.3d 468, 476 (11th Cir. 1999). The Ferrill Court went on to hold that the adverse treatment the plaintiff received in her workplace was sufficient evidence of harm to support such damages. See id. at 476. In this case the underlying mistreatment suffered by Glisson that was the basis for the jury verdict on liability can also support their finding of compensatory damages. I will not interfere with the jury's determination as "the standard of review [for compensatory damage awards is] deferential to the fact finder because the harm is subjective and evaluating it depends considerably on the demeanor of the witnesses." Id. Glisson certainly suffered some distress as a result of being forced out of his job after sixteen years and not being able to find comparable work for years afterward. I cannot say as a matter of law that the award here was excessive.
For back pay damages the Defendant here simply makes a general contention that the jury finding was not supported by the evidence. There is no attempt to point out why the evidence is insufficient nor to demonstrate why the numbers offered by the Plaintiff are not viable. The Defendant does not even offer alternative numbers. This form statement alleging a lack of evidence, aside from being uninspiring, is also unconvincing. The Plaintiff has presented numbers that represent the average salary of Dennis Glisson over the past few years before his termination. When calculated over the four years he was unable to obtain comparable work the numbers add up to approximately $450,000, the amount awarded. These numbers were submitted into evidence for the jury to use in its deliberations and, as far as I am aware, were never denied nor discredited by the Defendant. It is hard to see where the Defendant's argument here has any merit whatsoever.
The Defendant also contends that Glisson failed to mitigate his damages by not actively seeking employment during the four years following his termination. However, again the Defendant simply presents conclusory wording without any reference to evidence or the trial record. Glisson did testify about numerous attempts to obtain comparable work following his termination. The Defendant did not discredit this testimony or present countervailing evidence. It is clear that once the plaintiff in a discrimination suit has carried his burden of producing evidence to show the relevant back pay due, as Glisson has here, the burden then shifts to the defendant to show that the plaintiff failed to properly mitigate his damages. See Weaver v. Casa Gallardo Inc., 922 F.2d 1515, 1527 (11th Cir. 1991). Interim has failed to set forth, either during trial or on submission of this motion, any evidence that would show Glisson did not properly mitigate his damages and accordingly, the motion relating to excess back pay damages is denied.
ERISA claim for severance pay
I will not award a severance pay judgment for Glisson on top of the award for back pay damages because that would lead to double recovery for Glisson. Severance pay is designed to supplement an individual who was terminated and is no longer receiving a salary from the company. Since the award of back pay damages puts Glisson in a position of having received his normal salary for the period after his termination that is the subject of this suit, additional severance payments would put him in a better position than if he had just stayed at the company and continued in his job as regional vice president. That would be an unfair enrichment.
It is typical for district courts in this circuit to deduct severance pay received from back pay damage calculations to avoid this type of double recovery. See, e.g., Schulz v. Hickok Manufacturing Co., 358 F. Supp. 1208, 1217 (N.D.Ga. 1973). It should be noted that any potential emotional hardship and humiliation Glisson may have suffered is separate from the back pay/severance pay issue and is covered by the award of compensatory damages. Accordingly, the motion for the award of severance pay damages is denied.
Post Judgment Interest and Plaintiff's Remaining Motions
Since I reserved Judgment on Defendant's motion for a directed verdict it is obvious that no final judgment had been entered in this case prior to this order. Therefore, it would be premature to enter post judgment interest for the Plaintiff and, accordingly, Glisson's motion is denied. For the rest of Plaintiff's motions, pre-judgment interest, bill of costs, and reinstatement, Interim argues that it is premature to rule on them pending the outcome of their motions here. I will give Interim the benefit of the doubt in light of the legal expense and I deny all the Plaintiff's motions listed here without prejudice.
SO ORDERED.