Summary
The Tenth Circuit reviewed an Age Discrimination in Employment Act action brought by seven AT&T Technologies employees alleging discriminatory failures to promote. The court affirmed liability and damages for four plaintiffs, including liquidated damages based on willful violations, and upheld the jury instructions and damages methodology challenged by the parties. The court also affirmed the denial of certain expert and deposition costs.
Topics
Practice areas
Questions Presented
- Whether the plaintiffs could rely on a continuing policy and practice of age discrimination to challenge promotion decisions occurring before the ADEA filing periods.
- Whether the jury's special verdicts were fatally flawed because the promotion dates identified for three prevailing plaintiffs occurred outside the applicable limitations periods.
- Whether the district court properly found the ADEA violations willful and awarded liquidated damages under 29 U.S.C. § 626(b).
- Whether the district court's back-pay calculations were supported by a reasonable basis and the best evidence available.
- Whether the district court's McDonnell Douglas/Burdine jury instruction imposed an improper burden on the three unsuccessful plaintiffs who claimed to have presented direct evidence of discrimination.
- Whether the prevailing plaintiffs were entitled to reimbursement of expert witness fees and certain deposition costs.
Holdings
- An ADEA failure-to-promote claim may rely on a continuing policy and practice of discrimination that began before the statutory filing period if the employer continued to apply the discriminatory policy and at least one discriminatory employment decision occurred within the relevant filing period. Earlier decisions may be considered as evidence of the continuing practice and discriminatory intent and may support the remedy.
- The special verdict was sufficiently complete and consistent to sustain liability for the four successful plaintiffs, even though the verdict form did not expressly ask whether a continuing discriminatory policy existed and was applied within the filing period.
- An ADEA violation is willful when the employer knew or showed reckless disregard for whether its conduct was prohibited by the ADEA. The district court properly applied that standard and properly awarded liquidated damages.
- The district court did not clearly err in using the employer's initially provided earnings data and an average of earnings of employees promoted to the supervisor category as the basis for calculating back pay.
- The district court's burden-shifting instruction adequately stated the law and did not impose an improper burden on the three unsuccessful plaintiffs. The McDonnell Douglas/Burdine framework generally applies to ADEA cases unless the plaintiff presents direct evidence that age caused the employment decision.
- The prevailing plaintiffs were not entitled to recover expert witness fees under 28 U.S.C. § 1920 beyond the statutory witness-fee limit, and the stipulated attorney-fee award provided no basis for further reimbursement.
- The denial of costs for depositions actually used at trial may constitute an abuse of discretion if based solely on a policy allowing reporter fees only for depositions marked as exhibits. The issue therefore required reconsideration by the district court.
Key quotations
“A claim of age discrimination, however, may be based on a continuing policy and practice of discrimination that began before the statutory filing period, as long as the employer continues to apply the discriminatory policy and practice to a point within the relevant filing period, and plaintiff is not merely complaining of the continuing effects of a discriminatory practice that existed only before the relevant filing period.” (1543)
“The Supreme Court held that a violation is willful when “ ‘the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.’ ”” (1546)
“If the court’s reasons here are simply a general policy to disallow reporter costs of all depositions not marked as exhibits, whether or not they are “published” and used at trial, then refusal to tax the costs of these depositions would be an abuse of discretion.” (1551)
Factual background
Seven long-time AT & T Technologies employees, all born between 1925 and 1933, had risen from installer positions to installation supervisors before being demoted during a 1973-1975 recession. When Technologies created or filled supervisory positions beginning in 1978, younger employees and other individuals were promoted while the plaintiffs were not. The plaintiffs presented evidence of age-related statements by managers and a company management report concerning age discrimination. Four plaintiffs prevailed before the jury, while three did not.
Procedural history
Seven employees sued AT & T Technologies under the ADEA, alleging willful age discrimination in failures to promote them to installation-supervisor positions. The jury found for four plaintiffs and against three, finding that the four prevailing plaintiffs were denied promotions because of age and that the violations were willful. The district court entered a $438,699.06 judgment, including back pay, liquidated damages, and stipulated attorney's fees. The Tenth Circuit affirmed the liability findings, liquidated damages, and back-pay calculations, but remanded for reconsideration of certain deposition costs.
Remand instructions
Remand for reconsideration of the taxation of the specified deposition costs. The judgment is affirmed in all other respects, including liability, willfulness, liquidated damages, back-pay calculations, the jury instruction, and denial of expert fees.