David Hipp v. Liberty National Life ( 2001 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 29, 2001
No. 99-10699 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 95-01332-CIV-T-17A
DAVID HIPP, and all others similarly situated;
BRAD STEIN, and all others similarly situated;
et al.,
Plaintiffs-Appellees,
versus
LIBERTY NATIONAL LIFE INSURANCE CO.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 29, 2001)
Before BLACK, FAY, and COX, Circuit Judges.
PER CURIAM:
This age discrimination appeal requires us to decide several issues
concerning application of the “single-filing,” or “piggybacking,” rule1 to opt-in
collective actions under 29 U.S.C. § 216(b). We address these important issues in
Part I of this opinion, and we provide a brief summary of our holdings here. We
first clarify the meaning of the “similarly situated” requirement under § 216(b).
We conclude the similarly situated requirement is not particularly stringent, and we
suggest an approach district courts can use to better manage these cases. We next
consider the proper temporal scope of § 216(b) collective actions, an issue this
Court has not yet directly addressed. As to the proper rearward cutoff date, we
conclude in order to properly opt into a § 216(b) action, a plaintiff must allege
discriminatory treatment within 180 or 3002 days before the representative
1
The “piggybacking,” or “single-filing,” rule
allows plaintiffs who did not file timely charges of
discrimination with the Equal Employment Opportunity
Commission (EEOC) to “piggyback” onto the timely charge
of a named plaintiff. Grayson v. K-Mart Corp., 79 F.3d
1086, 1101 (11th Cir. 1996). We will use the terms
“piggybacking” and “single-filing” interchangeably.
2
Whether a plaintiff must allege discriminatory
treatment within 180 days or within 300 days depends on
whether that plaintiff lives in a “deferral” or “non-
deferral” state. Non-deferral states are those without
laws banning age discrimination in employment and
without state entities authorized to grant or seek
relief for victims of age discrimination. See Grayson,
79 F.3d at 1100 n.20. Plaintiffs in non-deferral
states must file charges of discrimination with the
EEOC within 180 days after the allegedly discriminatory
2
plaintiff’s charge is filed with the Equal Employment Opportunity Commission
(EEOC). We conclude the proper forward cutoff date is the date of filing of the
representative charge. Plaintiffs who do not allege discriminatory treatment
occurring during this period may not opt into a § 216(b) action. In other words, a
plaintiff must have been able to file his or her charge of discrimination on the date
the representative plaintiff filed the representative charge.3 In Part II of this
opinion, we address the sufficiency of the evidence presented in this case.
BACKGROUND & PROCEDURAL HISTORY
This case arises under the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. §§ 621-34, and the Florida Civil Rights Act of
1992 (FCRA), Fla. Stat. Ann. §§ 760.01-760.11. Plaintiffs David Hipp, Harry W.
McKown, Jr., and Brad Stein filed their original complaint in Florida state court,
alleging Appellant Liberty National Life Insurance Company (Liberty National)
acts. Id. Deferral states are those with laws banning
age discrimination in employment and state entities
authorized to seek relief for age discrimination
victims. Id. at 1100 n.21. In deferral states,
putative plaintiffs have 300 days in which to file
their EEOC charges, and they “must also have commenced
proceedings under state law before filing” civil
actions. Id. (internal quotation marks and citation
omitted).
3
We leave room for a possible exception in certain
rare cases. See infra note 22 and accompanying text.
3
engaged in a pattern and practice of age discrimination resulting in Plaintiffs’
constructive discharges. These three named Plaintiffs claimed to bring the case on
behalf of themselves and others similarly situated.
Liberty National removed the case to the United States District Court for the
Middle District of Florida. Plaintiffs amended the complaint to add another named
Plaintiff, Mike Stell. Plaintiffs then informed the district court they intended to
pursue a collective action under 29 U.S.C. § 216(b). Plaintiffs sought to distribute
notice of an opt-in class under § 216(b). Liberty National opposed this motion,
maintaining Plaintiffs were not “similarly situated.” Liberty National further
argued that even if Plaintiffs were similarly situated such that a collective action
was proper, Plaintiffs’ proposed notice was defective because it would allow opt-in
by individuals who could not properly piggyback into the case. On February 6,
1996, the district court approved Plaintiffs’ proposed notice. Hipp v. Liberty Nat’l
Life Ins. Co., 164 F.R.D. 574, 576 (M.D. Fla. Feb. 6, 1996). The district court
adopted the following class definition, proposed by Plaintiffs:
All persons who are, or were, employed by Liberty National Life Insurance
Company on or after August 25, 1993, who are, or were, managerial
employees, district managers or above, residing in the United States, who
were over 40 years of age.
Id.4
Over twenty individuals eventually filed consents to opt in, although some were
untimely.4
After the close of extended discovery, Liberty National sought to sever the
cases. Liberty National also filed motions for summary judgment as to the claims
of several Plaintiffs. The court substantially denied Liberty National’s motions for
summary judgment.5 The court also denied Liberty National’s request to certify an
interlocutory appeal and its motion to sever the cases.
4
This appeal concerns the claims of named
Plaintiffs Hipp, Stein, and Stell, as well as the
claims of four “opt-in” Plaintiffs: Tony Agee, Harold
Carter, James Lee, and Blake Tuggle. These seven
Plaintiffs prevailed at trial. Named Plaintiff
McKown’s claim resolved in mediation before trial.
Named Plaintiffs Hipp and Stein and opt-in Plaintiffs
Lee, Carter, and Tuggle allege they were constructively
discharged in violation of ADEA. Opt-in Plaintiff Agee
alleges his employment was terminated in violation of
ADEA. It is unclear whether named Plaintiff Stell
alleges constructive discharge or unlawful termination.
He tendered his resignation, effective February 17,
1995, on February 6, 1995. He alleges he was fired
February 14, 1995. The Amended Complaint alleges at ¶
20 that his employment was terminated, but alleges at ¶
24 that he resigned. The jury’s verdict forms treat
Stell’s claim as one of constructive discharge and
award damages on that basis. We will therefore also
treat Stell’s claim as one of constructive discharge.
5
The court granted summary judgment to Liberty
National on the claims of some opt-in Plaintiffs it
determined did not fall within the definition of the
class, but these Plaintiffs’ claims are not at issue in
this appeal. Hipp v. Liberty Nat’l Life Ins. Co., 973
F. Supp. 1033, 1040-41 (M.D. Fla. 1997).
5
The claims of ten Plaintiffs were tried before a jury over the course of five
weeks beginning June 1, 1998. The jury returned verdicts on July 9, 1998, finding
that Liberty National had engaged in a pattern and practice of age discrimination,
but returning defense verdicts as to three of the ten Plaintiffs, whose claims are not
at issue in this appeal.
The jury’s verdicts awarded back pay and ADEA liquidated damages to the
seven prevailing Plaintiffs. Hipp v. Liberty Nat’l Life Ins. Co., 65 F. Supp. 2d.
1314, 1334-35 (M.D. Fla. 1999); Hipp v. Liberty Nat’l Life Ins. Co., 29 F. Supp.
2d. 1314, 1318-19 (M.D. Fla. 1998). Plaintiffs Hipp and Stein received punitive
damages and pain and suffering damages under the FCRA, and the jury returned
advisory front pay verdicts as to the five prevailing Plaintiffs other than Hipp and
Stein. The district court ordered that no Plaintiff should receive front pay because
the Plaintiffs’ front pay award estimates were too speculative. Hipp, 65 F. Supp.
2d. at 1336; Hipp v. Liberty Nat’l Life Ins. Co., 39 F. Supp. 2d. 1359, 1361-64
(M.D. Fla. 1999). Furthermore, the district court remitted some of the punitive
damages and liquidated damages awarded to Stein and Hipp. Hipp, 39 F. Supp.
2d. at 1364-65; Hipp, 29 F. Supp. 2d. at 1335. In all other respects, the court
entered judgment in accordance with the jury’s verdicts.
6
Liberty National moved for judgment as a matter of law (JMOL) both during
and after trial, and filed motions for remittitur and new trial after entry of
judgment. The district court denied Liberty National’s motions, except to the
extent that it remitted some of the damages. Hipp, 65 F. Supp. 2d. at 1345.
Liberty National raises the following issues on appeal: (1) the district court
erred in permitting a collective action in this case; (2) the district court erred in
denying Liberty National’s motions for judgment as a matter of law on Plaintiffs’
pattern and practice claims; (3) the district court erred in denying Liberty
National’s motions for judgment as a matter of law on the Plaintiffs’ individual
claims; (4) the district court erred in denying Liberty National’s motions for
judgment as a matter of law as to liquidated damages; and (5) the district court
erred in denying Liberty National’s motion to remit the jury’s verdicts.
For the reasons stated in Part I of this opinion, we affirm the district court’s
judgment on the propriety of a collective action, but we reverse as to the temporal
scope of the action. For the reasons stated in Part II, we reverse the pattern and
practice finding, and we reverse the verdicts in favor of the individual Plaintiffs.
In light of our disposition regarding the verdicts, we need not address Liberty
National’s arguments pertaining to the damages awarded in this case.
DISCUSSION
7
I. OPT-IN COLLECTIVE ACTIONS UNDER 29 U.S.C. § 216(b)
A. Introduction and Background
Plaintiffs wishing to sue as a class under ADEA must utilize the opt-in class
mechanism provided in 29 U.S.C. § 216(b) instead of the opt-out class procedure
provided in Fed. R. Civ. P. 23. See Grayson, 79 F.3d at 1102 (citing Price v.
Maryland Cas. Co., 561 F.2d 609, 610-11 (5th Cir. 1977)).6 In a Rule 23 class
action, each person who falls within the class definition is considered to be a class
member and is bound by the judgment, favorable or unfavorable, unless he has
opted out. Fed. R. Civ. P. 23(c)(3); Grayson, 79 F.3d at 1106. By contrast, a
putative plaintiff must affirmatively opt into a § 216(b) action by filing his written
consent with the court in order to be considered a class member and be bound by
the outcome of the action. § 216(b); Grayson, 79 F.3d at 1106; see also
LaChappelle v. Owens-Illinois, Inc., 513 F.2d 286, 288-89 (5th Cir. 1975)
(recognizing this “fundamental” difference between Rule 23 class actions and
§ 216(b) class actions).
6
In Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc), this Court adopted as
binding precedent all decisions of the former Fifth
Circuit handed down prior to close of business on
September 30, 1981.
8
To maintain an opt-in class action under § 216(b), plaintiffs must
demonstrate that they are “similarly situated.” § 216(b); Grayson, 79 F.3d at 1093.
In subpart B, we will clarify the meaning of § 216(b)’s “similarly situated”
requirement in this circuit. We will also suggest an approach for district courts to
use in considering certification of ADEA opt-in classes.
This case also requires us to consider application of the piggybacking rule to
ADEA opt-in classes under § 216(b). As a general rule, an employee who wishes
to sue his employer for age discrimination must first file an administrative charge
of discrimination with the EEOC. Under the piggybacking rule, however, a
putative plaintiff who has not filed his own EEOC charge may “piggyback” his
claim onto the claim of a plaintiff who has filed a timely charge. Grayson, 79 F.3d
at 1101; Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 450 (11th Cir.
1993). We have specifically held that the piggybacking rule is applicable to
ADEA cases. Grayson, 79 F.3d at 1101. In so holding, we adopted the two
requirements used in Title VII piggybacking cases: A plaintiff may piggyback on
another plaintiff’s charge provided “‘(1) the relied upon charge [to which he is
piggybacking] is not invalid, and (2) the individual claims of the filing and
non-filing plaintiff [the named filing plaintiff and the piggybacking plaintiff] arise
9
out of similar discriminatory treatment in the same time frame.’” Id. at 1101-02(quoting Calloway, 986 F.2d at 450).
The parties agree Plaintiff Stein filed the representative charge in this case,
and they agree his charge was valid. They disagree, however, as to the precise
meaning of the second requirement, and we must therefore now determine the
scope of the statement “in the same time frame.” In subpart C, we address the
appropriate temporal scope of an ADEA opt-in collective action.
B. “Similarly situated” requirement
We first must determine whether Plaintiffs were “similarly situated” as
required to create an opt-in class under § 216(b). We review the district court’s
decision that a collective action was proper because Plaintiffs were similarly
situated for abuse of discretion. See Grayson, 79 F.3d at 1097; see also Armstrong
v. Martin Marietta Corp., 138 F.3d 1374, 1388 (11th Cir. 1998) (en banc).
For an opt-in class to be created under § 216(b), a named plaintiff must be
suing on behalf of himself and other “similarly situated” employees.7 “‘[P]laintiffs
7
“An action . . . may be maintained against any
employer . . . in any Federal or State court of
competent jurisdiction by any one or more employees for
and in behalf of himself or themselves and other
employees similarly situated. No employee shall be a
party plaintiff to any such action unless he gives his
consent in writing to become such a party and such
consent is filed in the court in which such action is
10
need show only that their positions are similar, not identical, to the positions held
by the putative class members.’” Grayson, 79 F.3d at 1096 (quoting Sperling v.
Hoffman-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988), aff'd in part and
appeal dismissed in part, 862 F.2d 439 (3d Cir. 1988), aff'd, 493 U.S. 165, 110
S. Ct. 482 (1989)).
Liberty National claims the district court should have used a two-tiered
approach in making the similarly situated determination. Under this approach,
during the early stages of litigation, the district court would have evaluated the case
under a lenient standard and likely would have granted preliminary certification of
an opt-in class. The court would then have re-evaluated the similarly situated
question at a later stage, once discovery produced more information regarding the
nature of Plaintiffs’ claims.
In Mooney v. Aramco Servs. Co., 54 F.3d 1207 (5th Cir. 1995), the Fifth
Circuit, while finding it unnecessary to decide which methodology district courts
should use in making ADEA class certification decisions, see id. at 1216, described
the two-tiered approach used by the district court in that case:
The first determination is made at the so-called “notice stage.” At the notice
stage, the district court makes a decision–usually based only on the
brought.” 29 U.S.C. § 216(b).
11
pleadings and any affidavits which have been submitted–whether notice of
the action should be given to potential class members.
Because the court has minimal evidence, this determination is made
using a fairly lenient standard, and typically results in “conditional
certification” of a representative class. If the district court “conditionally
certifies” the class, putative class members are given notice and the
opportunity to “opt-in.” The action proceeds as a representative action
throughout discovery.
The second determination is typically precipitated by a motion for
“decertification” by the defendant usually filed after discovery is largely
complete and the matter is ready for trial. At this stage, the court has much
more information on which to base its decision, and makes a factual
determination on the similarly situated question. If the claimants are
similarly situated, the district court allows the representative action to
proceed to trial. If the claimants are not similarly situated, the district court
decertifies the class, and the opt-in plaintiffs are dismissed without
prejudice. The class representatives–i.e. the original plaintiffs–proceed to
trial on their individual claims. Based on our review of the case law, no
representative class has ever survived the second stage of review.
Id. at 1213-14 (internal footnote omitted).
Liberty National sought to have the district court utilize the two-tiered
approach in this case, but the district court declined to do so. If the court had
employed this approach, Liberty National contends, the proper result would have
been decertification of the class after discovery because of the individualized
nature of Plaintiffs’ claims. See, e.g., Thiessen v. Gen. Elec. Capital Corp., 996 F.
Supp. 1071, 1083 (D. Kan. 1998) (conditionally certifying opt-in class), and
Thiessen v. Gen. Elec. Capital Corp., 13 F. Supp. 2d 1131, 1141 (D. Kan. 1998)
(decertifying opt-in class and dismissing claims of opt-in plaintiffs); see also
12
Lusardi v. Xerox Corp., 118 F.R.D. 351, 353-54 (D.N.J. 1987) (utilizing two-tiered
approach to class certification), mandamus granted in part, appeal dismissed,
Lusardi v. Lechner, 855 F.2d 1062, 1080 (3d Cir. 1988), on remand, Lusardi v.
Xerox Corp., 122 F.R.D. 463, 464 (D.N.J. 1988); Vaszlavik v. Storage Tech. Corp.,
175 F.R.D. 672, 678-79 (D. Colo. 1997) (same); Bayles v. Am. Med. Response of
Colorado, 950 F. Supp. 1053, 1066-67 (D. Colo. 1996) (same); Brooks v.
BellSouth Telecomm., Inc., 164 F.R.D. 561, 568 (N.D. Ala. 1995) (endorsing the
two-tiered approach), aff’d mem., 114 F.3d 1202 (11th Cir. 1997).
After the district court substantially denied Liberty National’s motion for
summary judgment, Liberty National filed a “Motion for Certification of
Interlocutory Appeal of July 28, 1997, Order and Alternate Motion for
Reconsideration.” Liberty National also filed a motion to sever the cases pursuant
to Fed. R. Civ. P. 42(b). The district court denied these motions. In denying the
motion to sever, the district court noted that the similarly situated requirement is
not very stringent in this circuit.
This Court expressed its view of the similarly situated requirement in
Grayson: “[T]he ‘similarly situated’ requirement of § 216(b) is more elastic and
less stringent than the requirements found in Rule 20 (joinder) and Rule 42
(severance).” 79 F.3d at 1095. “[A] unified policy, plan, or scheme of
13
discrimination may not be required to satisfy the more liberal ‘similarly situated’
requirement of § 216(b).” Id. “[P]laintiffs bear the burden of demonstrating a
reasonable basis for their claim of classwide discrimination. The plaintiffs may
meet this burden, which is not heavy, by making substantial allegations of class-
wide discrimination, that is, detailed allegations supported by affidavits which
successfully engage defendants’ affidavits to the contrary.” Id. at 1097 (internal
citations and quotation marks omitted).
The two-tiered approach to certification of § 216(b) opt-in classes described
above appears to be an effective tool for district courts to use in managing these
often complex cases, and we suggest that district courts in this circuit adopt it in
future cases. Nothing in our circuit precedent, however, requires district courts to
utilize this approach. The decision to create an opt-in class under § 216(b), like the
decision on class certification under Rule 23, remains soundly within the discretion
of the district court. See Grayson, 79 F.3d at 1097 (§ 216(b) class); Rutstein v.
Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir. 2000) (Rule 23 class),
cert. denied, 121 S. Ct. 1354 (2001). It may have been prudent for the district
court in this case to have decertified the class upon defendant’s motion, but we
14
cannot reverse the decision unless we find the district court abused its discretion.8
Given the flexibility of the similarly situated requirement under Grayson, we
cannot find the district court abused its discretion in allowing the opt-in class in
this case.
Liberty National emphasizes that Plaintiffs in this case worked in different
geographical locations. This factor is not conclusive. The plaintiffs in Grayson
worked in several states, and the court still held that they met the similarly situated
requirement. 79 F.3d at 1091. Liberty National also argues that each Plaintiff’s
case was unique and required an individual analysis of his or her working
conditions. Like the plaintiffs in Grayson, however, Plaintiffs in this case all held
the same job title, and they all alleged similar, though not identical, discriminatory
treatment. See id. at 1098-99.
C. Temporal Scope
We next must determine whether the opt-in Plaintiffs have met the “in the
same time frame” requirement such that they can properly piggyback their claims
8
In Grayson, the defendant challenged the district
court’s failure to hold an evidentiary hearing before
certifying the class. There we stated that the
district court does not abuse its discretion in failing
to hold an evidentiary hearing before certifying a
class “unless the parties can show that the hearing, if
held, would have affected their rights substantially.”
79 F.3d at 1099.
15
onto Stein’s EEOC charge. Specifically, Liberty National claims (1) Plaintiff Lee
should have been excluded because he did not fall within the appropriate rearward
temporal scope of the action, and (2) Plaintiffs Carter, Tuggle, and Agee should
have been excluded because they did not fall within the appropriate forward
temporal scope.
At oral argument, Liberty National argued the district court’s decisions
regarding the temporal scope of the collective action should be reviewed de novo.
Plaintiffs argue the standard of review is abuse of discretion. We agree with
Liberty National that, since the issue is analogous to a statute of limitations issue,
the standard of review is de novo. See Atlantic Land & Improvement Co. v. United
States, 790 F.2d 853, 857 (11th Cir. 1986) (noting that district court’s application
of statute of limitations, as a question of law, is reviewed de novo).
1. Appropriate Rearward Scope
Liberty National claims Plaintiff Lee should not have been allowed to
participate in the opt-in collective action because his claim was time-barred.
Plaintiff Lee retired from his position as District Manager in Anniston, Alabama,
on December 1, 1993, more than a year before Plaintiff Stein filed the
representative charge in this case. Since Alabama is a non-deferral state, Plaintiff
Lee had only 180 days from December 1, 1993, to file a charge of discrimination
16
with the EEOC. Plaintiff Lee did not file a charge, and he could not have filed one
on December 9, 1994, the date Plaintiff Stein filed the representative charge in this
case.
Liberty National claims Grayson established that the rearward scope of an
ADEA opt-in action is 180 or 300 days (depending on whether the putative opt-in
plaintiff resides in a deferral or a non-deferral state) before the filing of the
representative charge. Grayson did not, however, establish such a rule. Instead,
the Grayson plaintiffs conceded such a rearward cut-off date should apply. See 79
F.3d at 1101, nn.26-27 and accompanying text.
Liberty National emphasizes the Grayson court’s statement that
misapplication of the piggybacking rule would “virtually eliminate the statute of
limitations for opt-in plaintiffs in ADEA actions.” 79 F.3d at 1107. We recognize
that the Court made this statement in the context of determining that the filing of
an opt-in plaintiff’s written consent to opt into the action, rather than the filing of
the original complaint in the action, serves to toll the statute of limitations on that
plaintiff’s ADEA claim. The same concept is, however, involved in this case.
Here, the concern is that plaintiffs would be able to revive stale claims for which
they failed to file EEOC charges. “The purpose of the requirement that a plaintiff
file an EEOC charge within 180 days (or 300 days in a deferral state) of the
17
allegedly illegal act or practice is (1) to give the employer prompt notice of the
complaint against it, and (2) to give the EEOC sufficient time to attempt the
conciliation process before a civil action is filed.” Id. at 1102-03. While the issue
of the proper rearward scope of the action was not directly before the court in
Grayson, we believe the rule adopted by the parties in that case is the appropriate
one to serve these purposes. We therefore hold the rearward scope of an ADEA
opt-in action should be limited to those plaintiffs who allege discriminatory
treatment within 180 or 300 days before the representative charge is filed.
Plaintiff Lee’s claim is procedurally barred because it arose before the
“piggybacking window” opened in Alabama, a non-deferral state.9
9
The parties agree Plaintiff Stein’s December 9,
1994, charge is the representative charge in this case.
Plaintiff Hipp filed his charge on June 23, 1994, but
Plaintiffs conceded at oral argument that the district
court determined Hipp’s charge was timely under the
FCRA but untimely under ADEA. See Hipp, 39 F. Supp.
2d. at 1364 (jury determined Hipp had suffered an
adverse employment action within 365 days before his
charge, but not within 300 days before it). Plaintiffs
do not appeal this finding. At any rate, for purposes
of this appeal, it makes no difference whether opt-in
Plaintiffs could have piggybacked on Plaintiff Hipp’s
charge. Plaintiff Lee (who resided in Alabama, a non-
deferral state) retired on December 1, 1993. More
than 180 days therefore passed between Lee’s retirement
and the filing of Hipp’s charge on June 23, 1994. Put
another way, Lee “could not have filed a timely charge”
on the date Hipp filed his charge. Levine, 700 F.
Supp. at 957. Furthermore, we do not believe Hipp’s
charge was sufficient to alert the EEOC or Liberty
18
Other courts that have addressed this issue have come to the same
conclusion. See, e.g., McDonald v. United Airlines, Inc., 587 F.2d 357, 361 (7th
Cir. 1978) (holding that the rearward scope must be defined by going back 90 days
(the then-existing EEOC charge-filing period) from the date of the earliest-filed
charge).10 In McDonald, the Seventh Circuit held that the EEOC and the employer
were put on notice by intervening plaintiffs’ EEOC charges, which were filed
earlier than the named plaintiffs’ charges. See id. The court left room for the fact
that continuing discovery in that case “might turn up a prior EEOC charge, thus
resulting in a different tolling date.” Id. at 361 n.10. The court refused, however,
to hold the employer liable for discrimination that occurred before the employer
and the EEOC were on notice and could therefore attempt to resolve the issue
through conciliation. See id. at 360-61; see also, e.g., Thiessen, 996 F. Supp. at
National of the class nature of the claims. See
Grayson, 79 F.3d at 1104-05; see also infra text
accompanying notes 19-20.
10
We recognize that McDonald is a Title VII case.
587 F.2d at 358. The purposes underlying ADEA and
Title VII, specifically their respective requirements
that employees file charges of discrimination with the
EEOC so that the employer can attempt to resolve the
issue through conciliation, are similar. We therefore
look to Title VII cases as well as ADEA cases in
examining this issue. Cf. Fountain v. Metcalf, Zima &
Co., 925 F.2d 1398, 1399 (11th Cir. 1991); EEOC v.
Reno, 758 F.2d 581, 583-84 (11th Cir. 1985).
19
1076-77 (holding that “the single-filing rule is properly applied only to those
individuals who could have filed timely EEOC charges at the time [the
representative plaintiff] actually filed his charge”); Brooks, 164 F.R.D. at 570
(same); Church v. Consol. Freightways, Inc., 137 F.R.D. 294, 309 (N.D. Cal.
1991) (same); Levine v. Lane Bryant, 700 F. Supp. 949, 957 (N.D. Ill. 1988)
(same); Walker v. Mountain States Tel. & Tel. Co., 112 F.R.D. 44, 47 (D. Colo.
1986) (same); cf. Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549,
1562-65 (11th Cir. 1988) (suggesting liability dates from 180 days prior to filing of
earliest EEOC charge), vacated on other grounds sub nom., Pullman-Standard,
Inc. v. Swint, 493 U.S. 929, 110 S. Ct. 316 (1989).
Plaintiffs argue even if Plaintiff Lee’s claim otherwise falls outside the
rearward scope of the class, the continuing violation doctrine revives it. As noted
above, it is undisputed that no action was taken against Lee during the charge-
filing period. Some cases hold that the continued enforcement of a discriminatory
policy against an individual plaintiff constitutes a continuing violation such that the
individual plaintiff may sue on otherwise time-barred claims as long as one act of
discrimination has occurred against that individual during the statutory period. See
Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1303 (8th Cir. 1997); Roberts v.
North Am. Rockwell Corp., 650 F.2d 823, 826-28 (6th Cir. 1981) (in failure-to-hire
20
context, violation was continuing because plaintiff, after being rejected because of
her sex, made several more unsuccessful attempts to apply for job). These courts
held that claims of discrimination were not time-barred because some acts of
discrimination against the individual plaintiffs had occurred within the statutory
period, even though prior acts did not. The earlier acts of discrimination were
actionable because they were part of a continuing violation. We can find no
authority, however, for allowing one plaintiff to revive a stale claim simply
because the allegedly discriminatory policy still exists and is being enforced
against others. See, e.g., Woodburn v. LTV Aerospace Corp., 531 F.2d 750, 751
(5th Cir. 1976); Miller v. Int’l Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir. 1985)
(“[S]everal courts have held that an employee who has been discharged pursuant to
a discriminatory policy may not take advantage of later discriminatory acts against
other employees for the purpose of postponing the running of the statutory period
as to him on a continuing violation theory.”).
Even if the continuing violation doctrine could be read broadly enough to
preserve otherwise stale claims of all class members as long as the illegal policy is
being enforced against some members of the class, allowing it to save Plaintiff
Lee’s claim in this case would contravene the doctrine’s purpose. The continuing
violation doctrine is premised on “the equitable notion that the statute of
21
limitations ought not to begin to run until facts supportive of the cause of action are
or should be apparent to a reasonably prudent person similarly situated.” Alldread
v. City of Grenada, 988 F.2d 1425, 1432 (5th Cir. 1993) (internal quotation marks
omitted). This circuit and others have recognized this underlying premise in
holding that “[a] claim arising out of an injury which is ‘continuing’ only because a
putative plaintiff knowingly fails to seek relief is exactly the sort of claim that
Congress intended to bar by the 180-day limitation period.” Roberts v. Gadsden
Mem. Hosp., 850 F.2d 1549, 1550 (11th Cir. 1988); see also Carter v. West Publ’g
Co., 225 F.3d 1258, 1264 (11th Cir. 2000); Doe v. R.R. Donnelley & Sons Co., 42
F.3d 439, 446 (7th Cir. 1994) ("[T]he purpose of permitting a plaintiff to maintain
a cause of action on the continuing violation theory is to permit the inclusion of
acts whose character as discriminatory acts was not apparent at the time they
occurred.") (citing Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 282 (7th
Cir. 1993)); Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1415 n.6 (10th
Cir. 1993) (“[I]f an event or series of events should have alerted a reasonable
person to act to assert his or her rights at the time of the violation, the victim
cannot later rely on the continuing violation doctrine to overcome the statutory
requirement of filing a charge with the EEOC with respect to that event or series of
events.”); Berry v. Bd. of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983) (In
22
determining whether a continuing violation exists, courts should consider whether
“the [alleged discriminatory] act [has] the degree of permanence which should
trigger an employee's awareness of and duty to assert his or her rights, or which
should indicate to the employee that the continued existence of the adverse
consequences of the act is to be expected without being dependent on a continuing
intent to discriminate.”).
Plaintiff Lee testified he suspected age discrimination when he resigned in
1993. He claimed Regional Vice President Andy King was harassing him and
making age-based comments, and Lee felt he was being forced to retire. During
his direct examination at trial, Lee testified that, at the time he left the company, he
felt King’s harassment was based on Lee’s age.11 The Gadsden Memorial rationale
therefore applies here, and Lee may not rely on the continuing violation doctrine to
revive his stale claim of age discrimination.12 Plaintiff Lee should not have been
11
At oral argument, counsel for Plaintiffs argued
Lee did not “put two and two together” and realize he
had been discriminated against until several months
after he left the company. In light of the fact that
Lee testified that King told him he needed to retire
because he was too old, it is difficult to believe Lee
did not suspect age discrimination at the time he
retired.
12
In Gadsden Memorial, the individual plaintiff was
trying to revive an old claim by asserting that it was
sufficiently connected to a timely action as to
constitute a continuing violation. 850 F.2d at 1550.
23
permitted to opt into this action, and the jury verdict in his favor must be
reversed.13
We held that since the plaintiff had slept on his
rights, he could not revive the old claim, regardless
of its connection to the timely claim. Like Gadsden
Memorial, most cases involving continuing violations
involve claims of discrimination against the same
individual, not another member of the class. Even the
cases cited by Plaintiffs do not support such a broad
reading of the continuing violation theory. See, e.g.,
Gray v. Phillips Petroleum Co., 858 F.2d 610, 614 (10th
Cir. 1988). In Gray, the Tenth Circuit held that where
an employee continues to be affected by a
discriminatory policy but fails to file a charge
because he fears reprisal by his employer, the
continuing violation doctrine allows him to file a
charge encompassing otherwise untimely claims. Id.The court further held, however, that once an employee
leaves the company, he must comply with the charge-
filing period, and the continuing violation doctrine
will no longer save a late claim:
Once an employee is terminated, . . . he must
file a charge with the EEOC within 180 days of his
termination; otherwise, his ADEA action will be
time barred. When an employee is terminated, the
employment relationship ends; and the fear of
reprisal and the reasons for allowing employees to
claim a continuing discriminatory policy are
removed. Moreover, if former employees were allowed
to assert charges after 180 days had passed from
the date of termination, the purpose of the statute
of limitations would be undermined and employers
could be exposed to unlimited suits.
Id. (emphasis added).
13
Plaintiffs also assert Lee’s claim should be saved
by equitable tolling because Liberty National deceived
Lee as to its discriminatory purpose. Since Lee
suspected age discrimination at the time he resigned,
equitable tolling cannot apply to save his claim. See
Turlington v. Atlanta Gas Light Co., 135 F.3d 1428,
24
2. Appropriate Forward Scope
Liberty National argues Plaintiffs Carter, Tuggle, and Agee should not have
been allowed to opt into the action because their claims arose after the forward
scope of the action should have been cut off.
Plaintiff Carter was District Manager in Roanoke, Alabama, until July 1994,
when he took medical leave. At that point, he was replaced by Plaintiff Agee, who
was older than Carter. One year later, Carter expressed interest in returning to his
position, but Agee was still District Manager.14 Liberty National reassigned Carter
to a sales manager position in Opelika, Alabama, and Carter resigned. Carter did
not file a charge of age discrimination with the EEOC, and he could not have filed
one on December 9, 1994, the date Plaintiff Stein filed the representative charge in
this case.
1435-36 (11th Cir. 1998) (suggesting equitable tolling
might apply if a claimant has no reason to believe he
has been the victim of unlawful employment
discrimination, but finding the plaintiff in that case
knew he was the victim of discrimination).
14
On September 22, 1994, Agee wrote a letter to
Regional Vice Presidents Steve Sexton and Andy King,
stating Carter had badly mismanaged the district.
25
Plaintiff Agee was fired from his position as District Manager in Roanoke,
Alabama, in June 1996.15 Agee did not file a charge of discrimination with the
EEOC, and he could not have filed one on December 9, 1994.
Plaintiff Tuggle resigned from his position as District Manager in
Tullahoma, Tennessee, in December 1995, at age 43. Tuggle was replaced by
Donnie Ventress, who was older than Tuggle. Tuggle did not file a charge of age
discrimination with the EEOC, and he could not have filed one on December 9,
1994.
Liberty National claims the forward scope of this action should have been
cut off on the day Stein (the representative plaintiff) left Liberty National. In the
alternative, Liberty National contends the forward scope should have been cut off
on the day Stein filed the representative charge, or, at the latest, on the day the
complaint was filed in this case. Plaintiff Stein resigned from Liberty National on
July 29, 1994, and he filed his EEOC charge on December 9, 1994. The original
complaint in this case was filed on June 22, 1995, and the amended complaint was
filed on October 5, 1995. Plaintiff Carter resigned from Liberty National in July
1995; Plaintiff Tuggle resigned in December 1995; and Plaintiff Agee’s
15
Liberty National alleges Agee was fired for
issuing a receipt on the back of a business card, in
violation of company policies.
26
employment was terminated in June 1996. Under Liberty National’s theory, then,
all three of these Plaintiffs should have been barred from joining the collective
action.
Liberty National relies on Jones v. Firestone Tire & Rubber Co., 977 F.2d
527, 532 (11th Cir. 1992), a Title VII case in which this Court recited the district
court’s decision that the representative charge could be relied on by non-filing
plaintiffs whose claims arose between the date 180 days before the representative
charge was filed and the date of the representative plaintiff’s departure from the
company. See id. at 532. The temporal scope of that case was not, however, an
issue in the appeal. This Court therefore had no occasion to pass on the correctness
of the district court’s decision in that respect. See id.16
Liberty National argues that if the piggybacking window did not close the
day Stein left the company, it closed the day he filed his EEOC charge. Liberty
National finds support for this position in Grayson. In finding plaintiff Grayson’s
EEOC charge could not be the representative charge in that case, the Court noted
that Grayson’s charge did “not put the EEOC on notice of demotions occurring
16
We note the tone of the opinion suggests the Court
found the district court’s decision reasonable, and
perhaps even assumed it to be correct.
27
after [its] filing.” Grayson, 79 F.3d at 1104.17 The Court noted that if Grayson’s
charge were used as the representative charge, putative plaintiffs demoted after the
date it was filed could not opt into the class. See id.18 This language suggests the
Court would have considered plaintiffs who were demoted after Grayson was
demoted, but before Grayson filed his EEOC charge, able to opt in, undermining
Liberty National’s argument that the cut-off date is the date the representative
plaintiff leaves the company. It also, however, strongly suggests the Court agreed
with Liberty National’s alternative argument that the forward scope of the opt-in
class should be cut off on the date the representative charge was filed.
17
The Court’s primary reason for finding Grayson’s
charge inadequate was that Grayson’s own action was
time-barred, so he should not have been allowed to
participate in the action. Since he should not have
been involved in the action, his charge could not serve
as the representative charge for other plaintiffs.
Grayson, 79 F.3d at 1104.
18
Despite the fact that the appeal bore Grayson’s
name, Grayson himself was an opt-in plaintiff, not a
named plaintiff. 79 F.3d at 1092. The district court
dismissed Grayson’s original complaint, noting that all
plaintiffs in that case were also members of the class
in a separate action, Helton. Id. The district court
assumed the Grayson plaintiffs would want to opt into
the Helton action, and provided that their cases could
be re-opened if they were later excluded from the
Helton class. Id. The class at issue in the Grayson
appeal was actually the Helton class, in which Grayson
was an opt-in, not a named, plaintiff. Id.28
The Court in Grayson went on to select the charge of plaintiff Kempton,
which was “the first timely filed charge of one of the named plaintiffs that gives
adequate notice of the scope of the class.” Id. at 1104-05.19 See also Walker, 112
F.R.D. at 47 (“The latest date on which potential plaintiffs may claim
discrimination occurred is also circumscribed by [the representative] charge. . . .
The EEOC could not have been expected to perform its conciliatory function for
alleged acts of discrimination which could have occurred long after [the
representative] charge was filed and of which no notice was given.”); Griffin v.
Casey, 42 Fair Empl. Prac. Cas. (BNA) 1423, 1429 (M.D. Fla. Jan. 20, 1987)
(“[T]he fact that the present case involves a class action should not expand the
temporal scope of the claims that would otherwise be heard if Griffin had litigated
alone.”).
19
Before trial in this case, the district court
found Hipp’s charge to be timely. Hipp, 973 F. Supp.
at 1038. Liberty National claims it was untimely, and
Plaintiffs conceded at oral argument that it was
untimely under ADEA, but timely under the FCRA.
Regardless of its timeliness, Hipp’s charge did not put
the EEOC and Liberty National on notice of the
collective nature of the claims, so it cannot serve as
the representative charge.
29
While the issue was not squarely before this Court in Grayson, our statement
as to the inadequacy of Grayson’s charge20 supports the view that the forward
20
We find no material basis on which to distinguish
Stein’s charge from Grayson’s. In Grayson, plaintiff Grayson’s
charge made the following allegations:
For the past five years, the Company has systematically [retired or] demoted
managers in the protected age group and replaced them with younger
managers.
79 F.3d at 1104.
In this case, Plaintiff Stein’s charge makes the following allegations:
I believe Liberty National, C.B. Hudson and Andy King have violated my
rights, as well as the rights of both older workers and applicants, under the
Age Discrimination in Employment Act and the Florida Civil Rights Act of
1992. Liberty National, C.B. Hudson and Andy King have implemented a
uniform practice and policy of age discrimination by forcing older
employees to retire, take demotions, terminating them, and\or subjecting
them to continued harassment, abuse, and discriminatory policies and
practices.
Both charges alleged that other employees were affected by the policies.
Grayson’s charge alleged that older managers had been “systematically”
discriminated against, while Stein’s alleged “a uniform practice and policy of age
discrimination.” Stein’s charge, like Grayson’s, did not explicitly allege that the
violation was continuing. (While Stein’s charge did allege “continued
harassment,” we read that allegation to mean the “harassment” was “continued”
during Stein’s employment, not that it was “continuing” after Stein left Liberty
National). Stein’s charge also did not explicitly allege that the policy ended on the
day his employment ended (or on the day he filed the charge), but neither did
Grayson’s, and the Court there believed it was inadequate to notify the EEOC of
discrimination occurring after the charge was filed. Grayson, 79 F.3d at 1104. If
opt-in plaintiffs whose claims arose after Grayson’s charge was filed could not opt
in on the basis of his charge, we do not see how opt-in plaintiffs whose claims
30
scope of an opt-in class ends on the date the representative charge is filed. We
agree that this rule is the proper one, and we adopt it today. This rule is consistent
with the purposes of requiring putative ADEA plaintiffs to file charges with the
EEOC. As stated above, the charge-filing requirement is designed to put the
EEOC and the employer on notice of the allegations. The objective of the
piggybacking rule is to allow non-filing plaintiffs to rely on the charges of filing
plaintiffs when it would be a “useless act” for the non-filing plaintiffs to file their
own charges. Grayson, 79 F.3d at 1103 (internal quotation marks omitted). It is
not, however, “useless” for plaintiffs with claims arising after the representative
charge is filed to file their own charges. On the contrary, such filing is necessary
to remain faithful to the overriding purpose of the charge-filing requirement:
notifying employers and the EEOC of the allegations in a timely manner.
Plaintiffs allege the claims of Carter, Tuggle, and Agee “related to and grew
out of” the allegations in Stein’s EEOC charge, and these Plaintiffs therefore
should have been allowed to opt into this action under a continuing violation
theory. Indeed, there is some authority supporting this position. See, e.g.,
McDonald, 587 F.2d at 361 (permitting opt-in of plaintiffs discharged after
arose after Stein’s charge was filed could properly opt in on the basis of Stein’s
charge.
31
representative charges were filed but before discriminatory rule was abolished);
Church, 137 F.R.D. at 309 (The rule that “the latest date upon which a potential
class member must have been able to file is defined by the date of the last filed
EEOC charge” does not apply “where acts of ongoing discrimination in
furtherance of an earlier implemented plan are alleged.”); Levine, 700 F. Supp. at
957 (representative charge “put [the employer] on notice that someone was
challenging its alleged age discrimination”). Most of the cases Plaintiffs cite,
however, do not establish that one plaintiff may opt into an action because his
claims of discrimination relate to allegations made in an EEOC charge filed by
another plaintiff. See Turner v. Orr, 804 F.2d 1223, 1226 (11th Cir. 1986) (Title
VII complaint may allege incidents that occurred during the pendency of an EEOC
charge if the incidents could reasonably be expected to “grow out of” the
allegations in the charge); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465-67
(5th Cir. 1970) (same). It makes sense to allow an individual plaintiff to include in
his complaint allegations of conduct occurring after the representative charge is
filed, as long as that conduct relates to the conduct alleged in the charge. For
example, in Turner, the plaintiff’s EEOC charge generally alleged the company
had failed to promote him, and he wanted to include in his complaint allegations
that he had not received a specific promotion. 804 F.2d at 1226-27. In such a
32
case, the EEOC and the employer can reasonably be expected to be on notice that
the plaintiff will challenge the employment decision. Here, however, the actions
about which Carter, Lee, and Tuggle complained occurred well after Stein filed his
charge. A single charge cannot be expected to put the EEOC and employer on
notice that general policies as applied to different individuals in different offices
are being challenged indefinitely.21
Where the representative charge clearly alleges a continuing, concrete policy
that is illegal, as in McDonald, it might be fair to assume the company has
knowledge of later-arising claims challenging the same policy. See, e.g., Bush v.
Liberty Nat’l Life Ins. Co., 12 F. Supp. 2d. 1251, 1258-59 n.11 (M.D. Ala. 1998),
aff’d mem., 196 F.3d 1261 (11th Cir. 1999) (continuing violation must be “clearly
asserted both in the EEOC filing and in the complaint”) (quoting Miller v. Int’l Tel.
21
Stein’s charge alleges that a rather nebulous
practice and policy of harassment was implemented by
Hudson and King. The testimony centered around King’s
behavior, and the district court found King
“predominantly carried out the harassment.” Hipp, 29
F. Supp. 2d. at 1317. King apparently left the company
in early 1995. Plaintiff Carter resigned in July 1995;
Plaintiff Tuggle resigned in December 1995; and
Plaintiff Agee’s employment was terminated in June
1996. Based on these facts, even if we were to accept
Plaintiffs’ “relate to and grow out of” theory, it is
uncertain whether these claims would qualify.
33
& Tel. Corp., 755 F.2d 20, 25 (2d Cir. 1985)). Since we are not faced with such a
case, we need not decide that more difficult issue today.22
The forward cut-off date in this case should have been December 9, 1994,
the date Plaintiff Stein filed his charge. Plaintiffs Carter, Tuggle, and Agee should
22
In McDonald, the defendant, United, had an explicit discriminatory policy:
a no-marriage rule for flight attendants. 587 F.2d at 358. It was certainly
reasonable to expect United to be on notice, from the filing of the first charge, that
it could expect flight attendants to continue challenging the policy until the policy
was withdrawn. In such a case, it may well be futile to require putative plaintiffs to
file repetitive charges challenging the same well-defined plan. “The principle
behind the piggybacking rule is to give effect to the remedial purposes of the
ADEA and to not exclude otherwise suitable plaintiffs from an ADEA class action
simply because they have not performed the ‘useless act of filing a charge.’”
Grayson, 79 F.3d at 1103 (citations omitted). We think the act of filing a charge,
though, can only be said to be “useless” when the charge on which a plaintiff
purports to rely clearly puts the EEOC and the employer on notice that the plaintiff
is likely to assert a claim. Such can certainly be said of the McDonald plaintiffs
whose claims arose after the first EEOC charge was filed. They were challenging
precisely the same concrete policy that had already been brought to the attention of
United and the EEOC. McDonald, 587 F.2d at 358.
We recognize that in such cases the line between
the “similar discriminatory treatment” and “in the same
time frame” requirements becomes somewhat blurred.
When plaintiffs so clearly meet the “similar
discriminatory treatment” requirement, as in McDonald,
courts can afford to be somewhat more lenient with
respect to the “in the same time frame” requirement,
without sacrificing fairness to the employer.
34
not have been permitted to opt into this action. The jury verdicts in favor of these
three Plaintiffs must therefore be reversed.23
II. SUFFICIENCY OF THE EVIDENCE AS TO PLAINTIFFS HIPP, STELL,
AND STEIN24
Liberty National argues Plaintiffs presented insufficient evidence of a
pattern and practice of age discrimination. Liberty National further argues the
district court should have granted its motion for judgment as a matter of law
(JMOL) on each Plaintiff’s claims of age discrimination. We will first address the
pattern and practice evidence, and we will then address the Plaintiffs’ individual
claims. We conclude the case should not have been allowed to proceed as a pattern
and practice case. We further conclude the jury verdicts in favor of the individual
23
Liberty National also claims the subject matter of
the opt-in class should have been limited to
constructive discharge because Stein’s EEOC charge
alleged only constructive discharge. Plaintiff Agee is
the only plaintiff involved in this appeal who does not
allege constructive discharge; Agee alleges unlawful
termination. Since we hold Agee should not have been
allowed to participate in the action because his claim
fell outside the proper temporal scope of the class, we
need not address this issue.
24
It is unnecessary for us to consider Liberty
National’s arguments regarding the claims of Plaintiffs
Lee, Carter, Agee, and Tuggle, as we have already found
those Plaintiffs should not have been allowed to opt
into this action.
35
Plaintiffs must be reversed because they presented insufficient evidence of
constructive discharge in violation of ADEA.
A. Sufficiency of Pattern and Practice Evidence
Plaintiffs in this case proceeded under a pattern and practice theory of
intentional discrimination.25 See generally EEOC v. Joe’s Stone Crab, Inc., 220
F.3d 1263, 1286 (11th Cir. 2000). In a pattern and practice case, plaintiffs must
establish by a preponderance of the evidence not only that the employer
discriminated against certain individuals, but that “discrimination was the
company’s standard operating procedure–the regular rather than the unusual
practice.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S. Ct.
1843, 1855 (1977). To meet this burden, plaintiffs must “prove more than the
mere occurrence of isolated or accidental or sporadic discriminatory acts.” Id.(internal quotation marks omitted); Maddox v. Claytor, 764 F.2d 1539, 1556-57
(11th Cir. 1985).26 When plaintiffs successfully establish a pattern and practice of
25
The verdict forms required the jury to find whether Liberty National had
engaged in a pattern and practice of age discrimination. The jury answered “yes.”
The verdict forms also required the jury to find on an individual basis whether
“each plaintiff prove[d] by a preponderance of the evidence that he suffered a
tangible job detriment, such as discharge, constructive discharge, demotion or loss
of substantial job benefits.” The jury answered “yes” as to Hipp, Stell, and Stein.
26
Plaintiffs need not, however, establish that the employer followed “a
formal or express policy of discrimination.” Joe’s Stone Crab, 220 F.3d at 1285.
36
employment discrimination, a rebuttable presumption that each plaintiff was a
victim of discrimination obtains, and the burden shifts to the employer to prove
that each individual employment decision was not made in furtherance of its illegal
policy. Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1559 (11th Cir. 1986)
(citing Teamsters, 431 U.S. at 359, 97 S. Ct. at 1866). The employer may meet this
burden with “clear and convincing evidence that job decisions made when the
discriminatory policy was in force were not made in pursuit of that policy.” Id.(citing Teamsters, 431 U.S. at 362, 97 S. Ct. at 1868).
The jury in this case found by a preponderance of the evidence that Liberty
National engaged in a pattern and practice of age discrimination. The jury further
found that Liberty National did not prove it operated outside the pattern and
practice with respect to each of the prevailing Plaintiffs.27 The jury also found that
each prevailing Plaintiff had “suffered a tangible job detriment, such as discharge,
constructive discharge, demotion or loss of substantial job benefits.”
Plaintiffs proceeding under a pattern and practice theory often introduce
statistics to bolster their claims of discrimination. See, e.g., Teamsters, 431 U.S. at
339-40, 97 S. Ct. at 1856-57; Maddox, 764 F.2d at 1556; Coates v. Johnson &
27
The jury found Liberty National did demonstrate it
operated outside the pattern and practice as to the
three Plaintiffs who did not prevail at trial.
37
Johnson, 756 F.2d 524, 532 (7th Cir. 1985); In re W. Dist. Xerox Litig., 850 F.
Supp. 1079, 1084-85 (W.D.N.Y. 1994). Plaintiffs in this case did not introduce
statistical evidence at trial.28 Liberty National urges us to hold Plaintiffs’ pattern
and practice evidence insufficient as a matter of law because Plaintiffs failed to
provide statistical evidence to support their claims. While we note that statistical
evidence is often extremely useful, we decline to announce the broad rule Liberty
National requests. See, e.g., Xerox, 850 F. Supp. at 1085 (the absence of statistical
evidence is not always fatal in pattern and practice cases, but when either statistical
evidence or anecdotal “evidence is missing altogether, the other must be
correspondingly stronger”).
We nevertheless do not think this case should have been allowed to proceed
as a pattern and practice case. Even assuming the truth of all their allegations,
Plaintiffs did not prove that age discrimination was the “standard operating
procedure” of the company regarding retention of District Managers. While the
28
Plaintiffs claim they were prepared to introduce
statistical evidence based on one of Liberty National’s
exhibits, but Liberty National withdrew the exhibit.
After trial, the district court faulted Liberty
National for Plaintiffs’ lack of statistical evidence.
Hipp, 65 F. Supp. 2d. at 1327. Liberty National claims
Plaintiffs failed to produce their own statistical
analysis and argues it should not be faulted for that
failure.
38
absence of statistical evidence is not necessarily fatal to Plaintiffs’ claims, they
presented only vague allegations of a policy of forcing out older District Managers.
Plaintiffs argue on appeal that the evidence at trial showed that “Liberty
National’s discriminatory policies emanated from its chief executive officer and
were uniformly enforced by the company’s regional vice presidents. Liberty
National’s top executives employed a standardized set of harassing tactics and
techniques.” Plaintiffs’ evidence at trial did not, however, show such a widespread
pattern of discrimination.29 Rather, Plaintiffs alleged an amorphous “policy” that
was mainly implemented by one man, Andy King.
29
We note that part of the problem in this case is
that the pattern and practice framework is inherently
ill-suited to cases in which plaintiffs allege
constructive discharge. In most pattern and practice
cases, plaintiffs challenge the employer’s failure to
hire or promote employees of a certain class. See,
e.g., Teamsters, 431 U.S. at 328-29, 97 S. Ct. at 1851(discriminatory hiring practices); Cox, 784 F.2d at
1551-52 (failure to promote; job classification on the
basis of gender; wage discrimination). In such cases,
the individual employees generally present very similar
claims, and they can often point to either a written
policy or strong statistical evidence that supports
their position. In constructive discharge and hostile
environment cases, by contrast, plaintiffs often rely
on individualized actions taken against them. Many of
the actions about which Plaintiffs complain are
individualized. See discussion infra II.B. While it
might in some other case be appropriate to conclude an
employer engaged in a “pattern and practice” of forcing
out employees of a certain class, it is not appropriate
here, where each Plaintiff relies heavily on
individualized and personalized “harassment.”
39
Plaintiff Hipp testified he noticed a pattern of older District Managers
leaving the company. He did not, however, know how many District Managers
over age 40 remained at Liberty National, and he did not know whether the average
age of District Managers had increased or decreased since the alleged policy began.
Plaintiff Stell testified he would have stayed at Liberty National if he had been
transferred out of King’s division. This testimony indicates age discrimination was
not Liberty National’s “standard operating procedure.” Rather, if age
discrimination existed at all with respect to the treatment of District Managers, it
was apparently confined to King’s division.30
30
Viewing the evidence in the light most favorable to Plaintiffs, it appears
Plaintiffs may have proven it is Liberty National’s standard operating procedure to
discriminate against older applicants for positions as agents. There was
substantial testimony at trial that Liberty National subjected applications from
individuals over age 55 for positions as agents to additional scrutiny. (There was
some confusion in the testimony as to whether the policy applied to applicants over
55 or applicants over 60). Plaintiffs argue on appeal that the discriminatory hiring
policy bolsters their pattern and practice claim. The district court accepted this
argument. We do not see, however, how that alleged policy has any relationship to
Plaintiffs’ claims. That policy, if it existed, concerned applicants who were over
age 55 and who applied for jobs as agents. Plaintiffs were not subjected to that
policy. They were already employed by Liberty National. Furthermore, they were
all in their early 40s, and they worked as District Managers. They do not claim
Liberty National refused to hire them. Instead, they claim they were constructively
discharged from their positions. Further, they do not argue that
only District Managers who were over 40 were prohibited
from hiring agents over age 55. The policy apparently
applied across the board. While it was certainly a
deplorable policy to refuse to hire agents over age 55,
it simply is not probative of a plan on the part of
40
Based on these facts, we conclude Plaintiffs presented insufficient evidence
of a pattern and practice of age discrimination.
B. Individual Constructive Discharge Claims31
In reviewing the denial of a motion for JMOL, this Court uses the following
standard:
When considering whether or not a ruling on a motion for directed
verdict or for judgment notwithstanding the verdict should be upheld, the
standard of review to be applied by this Court is the same as that applied by
the district court. Thus, we consider all the evidence, and the inferences
drawn therefrom, in the light most favorable to the nonmoving party. If the
facts and inferences point overwhelmingly in favor of one party, such that
reasonable people could not arrive at a contrary verdict, then the motion was
properly granted. Conversely, if there is substantial evidence opposed to the
motion such that reasonable people, in the exercise of impartial judgment,
might reach differing conclusions, then such a motion was due to be denied
and the case was properly submitted to the jury.
It bears repeating that a mere scintilla of evidence does not create a
Liberty National to force out District Managers in
their early 40s. We also cannot accept Plaintiffs’
allegation that this policy created a hostile working
environment for all employees over age 40. So holding
would mean, in effect, that age discrimination against
one employee would give all other employees over 40 a
cause of action. ADEA was not meant to be so
expansive.
31
The same discussion applies both to Plaintiffs’
claims under ADEA and Plaintiffs’ claims under the
FCRA. See Zaben v. Air Prods. & Chems., Inc., 129 F.3d
1453, 1455 n.2 (11th Cir. 1997) (noting that we
consider age discrimination claims under FCRA within
the same framework used to consider age discrimination
claims under ADEA).
41
jury question. Motions for directed verdict and for judgment
notwithstanding the verdict need not be reserved for situations where there is
a complete absence of facts to support a jury verdict. Rather, there must be a
substantial conflict in evidence to support a jury question.
Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989) (footnotes omitted).32
Plaintiffs allege they were constructively discharged in violation of ADEA.33
The fact that we have found Plaintiffs’ evidence insufficient as a matter of law to
establish a pattern and practice of discrimination does not necessarily mean
Plaintiffs are not entitled to relief on their individual claims. Cf. Cooper v. Fed.
Reserve Bank of Richmond, 467 U.S. 867, 876-78, 104 S. Ct. 2794, 2799-2800
(1984) (judgment in class action that employer had not engaged in pattern and
practice of discrimination did not preclude filing of separate individual actions by
class members). We will therefore examine Plaintiffs’ individual constructive
discharge claims.
“[T]he plaintiff in an employment discrimination lawsuit always has the
burden of demonstrating that, more probably than not, the employer took an
adverse employment action against him on the basis of a protected personal
32
Fed. R. Civ. P. 50(b) has been amended to
substitute the term “judgment as a matter of law” for
the terms “directed verdict” and “judgment
notwithstanding the verdict.”
33
As noted above, Plaintiff Stell apparently alleges
both constructive discharge and unlawful termination.
Since the district court analyzed his claim as one of
constructive discharge, we will do the same.
42
characteristic.” Wright v. Southland Corp., 187 F.3d 1287, 1292 (11th Cir.
1999).34 See also Benson v. Tocco, Inc., 113 F.3d 1203, 1207-08 (11th Cir. 1997);
Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 n.2 (11th Cir. 1997).
We have long recognized that constructive discharge can qualify as an adverse
employment decision under ADEA. See Poole, 129 F.3d at 553 n.2; Maddow v.
Proctor & Gamble, 107 F.3d 846, 852 (11th Cir. 1997); Stamey v. Southern Bell
Tel. & Tel. Co., 859 F.2d 855, 859-60 (11th Cir. 1988). The jury in this case found
that Plaintiffs were constructively discharged in violation of ADEA.35 The district
34
The plaintiff must show that an adverse employment
action was taken against him regardless of whether he
is relying on direct evidence of discrimination or
employing the burden-shifting approach established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.
Ct. 1817 (1973), for cases in which only circumstantial
evidence is available. See Wright, 187 F.3d at 1292.
35
As to Plaintiffs Hipp and Stein, the jury’s special verdict forms contained
the following findings, made pursuant to the preponderance of the evidence
standard:
(1) Plaintiffs proved they suffered adverse employment actions and age was
a determining factor in those actions.
(2) Plaintiffs proved they were subjected to hostile work environments due
to their ages.
(3) Plaintiffs proved age was a determining factor in the work conditions
imposed on them.
(4) Plaintiffs proved their working conditions were so intolerable that
reasonable people in their places would have felt compelled to resign.
(5) Liberty National did not prove it would have treated Plaintiffs the same
way if age had not been a factor.
43
court denied Liberty National’s motion for JMOL on this issue, and Liberty
National appeals this denial.
The threshold for establishing constructive discharge in violation of ADEA
is quite high. In evaluating constructive discharge claims, we do not consider the
plaintiff’s subjective feelings. Instead, we employ an objective standard. Doe v.
DeKalb County Sch. Dist., 145 F.3d 1441, 1450 (11th Cir. 1998). “To successfully
claim constructive discharge, a plaintiff must demonstrate that working conditions
were ‘so intolerable that a reasonable person in [his] position would have been
compelled to resign.’” Poole, 129 F.3d at 553 (quoting Thomas v. Dillard Dep’t
Stores, Inc., 116 F.3d 1432, 1433-34 (11th Cir. 1997)).
The standard for proving constructive discharge is higher than the standard
for proving a hostile work environment. Landgraf v. USI Film Prods., 968 F.2d
The special verdict form for Plaintiff Stell contained the following findings, made
pursuant to the preponderance of the evidence standard:
(1) Plaintiff proved his age was a determining factor in the work conditions
imposed on him.
(2) Plaintiff proved he was subjected to a hostile working environment due
to his age.
(3) Plaintiff proved his working conditions were so intolerable that a
reasonable person in his place would have felt compelled to resign.
(4) Liberty National did not prove it would have treated Plaintiff the same
way if age had not been a factor.
(5) Liberty National did not prove Plaintiff unreasonably refused an
unconditional offer of full reinstatement and back pay.
44
427, 430 (5th Cir. 1992) (“To prove constructive discharge, the plaintiff must
demonstrate a greater severity or pervasiveness of harassment than the minimum
required to prove a hostile working environment.”), aff’d, 511 U.S. 244, 114 S. Ct.
1483 (1994); see also Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316-
18 (11th Cir. 1989) (affirming district court’s conclusion that Title VII plaintiffs
were subjected to hostile work environment, but were not constructively
discharged); Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 905-06
(11th Cir. 1988) (same).
This circuit has required pervasive conduct by employers before finding that
a hostile work environment existed or a constructive discharge occurred. See, e.g.,
Mendoza v. Borden, Inc., 195 F.3d 1238, 1247 (11th Cir. 1999) (en banc) (no sex-
based hostile work environment where male supervisor (1) told female employee
he was “getting fired up;”(2) rubbed his hip against employee’s hip while smiling
and touching her shoulder; (3) twice made a sniffing sound while looking at
employee’s groin area; and (4) constantly followed employee and stared at her in a
very obvious manner), cert. denied, 529 U.S. 1068, 120 S. Ct. 1674 (2000); Poole,
129 F.3d at 553 (issue of fact existed, precluding summary judgment for employer
on constructive discharge claim, where plaintiff was “[s]tripped of all
responsibility, given only a chair and no desk, and isolated from conversations
45
with other workers”); EEOC v. Massey Yardley Chrysler Plymouth, 117 F.3d 1244,
1247-48 and nn.2 and 4 (11th Cir. 1997) (affirming jury finding of age-based
hostile work environment and constructive discharge where supervisors (1) made
offensive comments regarding effects of aging on plaintiff’s body; (2) told her she
was too old for the clothes she was wearing and should wear “old lady dresses”
instead; (3) asked if she was “having any hot flashes;” (4) remarked that she was
becoming “senile” or “losing it,” and asked “whether Alzheimer’s disease was
setting in early;” (5) told her she would “just have to get used to” these comments
since she “was, after all, ‘an old lady’”); Morgan v. Ford, 6 F.3d 750, 752, 756
(11th Cir. 1993) (issue of fact as to sex-based constructive discharge where
plaintiff’s supervisor (1) repeatedly asked her out on dates; (2) constantly
“hovered” around her after she turned him down; (3) told her she “had not had a
real man until she had him;” (4) made offensive, sexually charged comments; and
(5) electronically monitored her conversation); Hill v. Winn-Dixie Stores, 934 F.2d
1518, 1527 (11th Cir. 1991) (affirming district court’s grant of judgment
notwithstanding the verdict because evidence of reprimands, criticism, and
supervisor’s withdrawal of support was insufficient to prove constructive
discharge, especially in light of employer’s efforts to remedy the situation after
plaintiff’s resignation); Wardwell v. Sch. Bd. of Palm Beach County, 786 F.2d
461554, 1557-58 (11th Cir. 1986) (reversing as clearly erroneous the district court’s
finding of sex-based constructive discharge where female plaintiff was passed over
for promotion in favor of less experienced male and was assigned extra duties).36
Plaintiff Hipp
Plaintiff Hipp was District Manager in Ft. Myers, Florida, before he resigned
in August 1993 at age 43. On June 23, 1994, Hipp filed an individual charge of
discrimination with the Florida Commission on Human Relations (FCHR). This
charge alleged he was forced to resign because of his age.37 At trial, he testified
36
In Wardwell, the Court stated, “Although there is
evidence to support the district court's finding of
constructive discharge, because our review of the
evidence leaves us with the definite and firm
conviction that no reasonable person in Wardwell's
position would have felt compelled to resign, we hold
that the district court's finding that Wardwell had
been constructively discharged is clearly erroneous.”
786 F.2d at 1557.
37
Plaintiff Hipp made the following allegations in
his charge:
I was employed by Liberty National Insurance
Company from 1-16-78 until I resigned on 08-31-93.
As a result of management’s desire to have younger
management, I was subjected to continuous
harassment and felt forced to resign. My job as
district manager and the performance of my duties
were made miserable by Andy King (Second Vice-
President) so that I would be forced to resign. I
endured changes in policies and procedures and
constant harassment and criticism by Mr. King.
I was replaced by a 29-year old with only five
47
that Regional Vice President Andy King, and, to a lesser extent, Regional Vice
President Don Horton, harassed him until he felt he had no choice but to resign.38
He said the criticism he received prior to 1991 was constructive and helpful, but
after 1991, “it was nothing but harassment.”
Hipp testified that Liberty National’s C.E.O., C.B. Hudson, said on at least
one occasion that “older people are harder to get to change,” and that King and
Horton made similar statements.39 Hipp did not allege King and Horton made
years’ experience. His district is at the bottom
of the company (and has been since he became
district manager) in terms of productivity.
I was told by Andy King that I was not to send
in applications for individuals over 60-years old.
Patty Herring, Human Resources, returned an
applicant’s file to me because the applicant was a
diabetic. According to Ms. Herring, management
would not look at the file or acknowledge they had
received the file. I was instructed to tell the
applicant he was not hired because another
applicant was more qualified. According to Ms.
Herring, these instructions came from Mr. Andy
King.
38
Hipp also testified that Horton told him King
forced Horton out. According to Hipp, Horton could no
longer withstand the pressure King was putting on him.
39
Plaintiffs claim these statements constituted
direct evidence of age discrimination, and, in denying
Liberty National’s first motion for JMOL, the district
court agreed. We need not determine whether these
statements constituted direct evidence. Since we
conclude Plaintiffs have not established they were
48
these statements in reference to Hipp himself, but rather alleged they were
evidence of widespread age animus within the company.
Hipp’s claims mainly centered around two confrontations with King, as well
as several smaller incidents. Hipp’s first confrontation with King occurred at an
April 1993 meeting he had with King and Horton.40 Hipp complained that the
meeting was supposed to be in his district office at 8 a.m., but around 8:30 or 8:45,
King and Horton called and asked Hipp to meet at a coffee shop instead.41
Hipp claimed that at the meeting, in a public area in the restaurant, King
“verbally attacked [him] in a manner that [he had] never been spoken to before.”
Hipp said the attack related to every aspect of his job, but King’s main concern was
the negative growth rate in Hipp’s district at the time. Hipp denied that his growth
rate was negative and believed his own numbers were more accurate than King’s,
but King got very angry when Hipp questioned his numbers. King and Horton told
Hipp he should quit if he was unable to do the job. Hipp said he would not quit;
they would have to fire him. King and Horton then told Hipp to summon his sales
subjected to any adverse employment actions, it does
not matter whether they were relying on direct or
circumstantial evidence.
40
Hipp was 43 years old at the time of this meeting.
41
Hipp testified that he had received several
personnel transaction memos (PTMs) from Horton in the
weeks before the meeting.
49
managers to the coffee shop, and, when he complied, King and Horton berated the
sales managers in much the same manner as they had Hipp.
Hipp’s second confrontation with King concerned a conflict between the two
men regarding an agent in Hipp’s district who accused another agent and a sales
manager of sexual harassment. Hipp disagreed with King about the punishment
the accused harassers should receive and thought they were being treated unfairly
because the company had not confirmed the harassment.42 At a weekend retreat,
King approached Hipp and told him he wanted to discuss the harassment problem
and the “lousy job” Hipp had done in controlling the situation. Hipp wanted to
have the conversation at another time because both men had been drinking, but
King refused. King berated Hipp and told him he was a “terrible district manager.”
Hipp walked away, but King followed him. King apologized the next day, but
Hipp was upset that the apology was private because the humiliation had been
public. Hipp refused to shake King’s hand.43
ADEA does not guarantee employees a stress-free working environment.
While we might disagree with the behavior of Horton and King, we cannot find
42
The sales manager admitted going to the
complaining agent’s house, uninvited, and taking a nap
in her bed.
43
In addition to these two encounters, Hipp
testified that he had several telephone confrontations
with Mr. King.
50
that it rises to the level of constructive discharge in violation of ADEA. See, e.g.,
Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1162 (3d Cir. 1993) (“[A]
constructive discharge claim based solely on evidence of close supervision of job
performance must be critically examined so that the ADEA is not improperly used
as a means of thwarting an employer's nondiscriminatory efforts to insist on high
standards.”); Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)
(“Every job has its frustrations, challenges, and disappointments . . . . An
employee is protected from a calculated effort to pressure him into resignation
through the imposition of unreasonably harsh conditions, in excess of those faced
by his co-workers. He is not, however, guaranteed a working environment free of
stress.”).
Hipp also complained it was difficult for him to abide by Liberty National’s
alleged policy of not hiring agents over age 55, because his district, Fort Myers,
Florida, had a large elderly population. He talked to Horton about this problem,
but Horton said King would not allow Hipp to violate the over-55 policy. Hipp
also testified that Horton told him to fire an agent named Wes Adams because
Adams was too old.44 Hipp wanted to allow Adams to work two more years so
Adams would receive retirement benefits, and he ultimately succeeded in doing so.
44
Hipp testified Adams was in his 60s at the time.
51
Hipp also stated that after he was promoted to District Manager, a sales manager in
his district, a Mr. Johnson, was giving him trouble. He later found out Mr.
Johnson was supposed to be promoted to the District Manager position Hipp
received. Horton told Hipp that Johnson was too old to do the job. Horton also
made negative comments about the age of Hipp’s secretary. Hipp stated that these
comments “bothered” him.
The testimony that Liberty National would not allow Hipp to hire agents
over age 55 fails to show Hipp was constructively discharged because of his own
age, 43. As noted above, this policy did not apply to Hipp. See supra note 30.
Furthermore, if the policy existed, the evidence is that it applied equally to all
districts, and was not implemented to burden Hipp.45 According to Hipp’s
testimony, the policy was intended to reduce the company’s costs in paying
benefits for agents over 55, not to force District Managers in their 40s to leave the
company. Similarly, even if Hipp was told to fire Adams because Adams was too
old, this testimony does nothing to establish that Hipp was constructively
discharged because of his own age. Likewise, the comments regarding Johnson
45
In other words, the policy made it harder for all
District Managers, those under 40 as well as those over
40, to hire agents over 55. As noted supra note 30, we
cannot find that a policy of refusing to hire agents
over age 55 created a hostile environment for all
current employees over age 40.
52
and Hipp’s secretary, although perhaps offensive, fail to establish that Hipp was
subjected to a hostile environment or constructively discharged because of his own
age.
Hipp testified about several other alleged indignities he suffered in the latter
years of his employment with Liberty National. He complained that agents, Sales
Managers, and District Managers began to receive less training after Hudson joined
the company, and he began to receive more personnel transaction memos (PTMs)
criticizing his performance. He complained that the company began to emphasize
bank-budget or bank-draft sales over field-collection sales, but failed to provide
any training in this new sales method.46 Hipp asked King to provide training for
the agents, but King told him to train the agents himself. Hipp also complained
46
Hipp also received criticism because his agents
were writing too much field collection business. The
company told him not to allow agents to write more than
20 percent field collection business each week. Hipp
claimed if the agents could not write more than 20
percent field collection business, the office would not
have experienced any growth. Although perhaps true,
this evidence is irrelevant. Hipp has not alleged that
younger District Managers could allow their agents to
write higher percentages of field collection business.
From the evidence, we can only conclude the change from
field collection to bank draft business affected all
District Managers. In fact, Hipp himself suggested it
was a company-wide policy (“It was during the time we
were trying to go from field collection to bank draft.
It was–the company was in that mode to get it done.”)
It is therefore not evidence of age discrimination.
53
that around 1990 or 1991 the company went to a “growth bonus” instead of a
bonus based on the employee’s overall performance. According to Hipp, the new
bonus system was unfair.
Hipp further complained that King cut expenses. He claimed King did not
allow him to have a full-time secretary during part of his employment. He
sometimes had to close the office during the day because he did not have a
secretary, and his business suffered as a result. While it may be true that he was
not allowed to have a full-time secretary, and while this restriction may have been
bad business, Hipp did not testify that younger District Managers were permitted to
have secretaries or in any way connect the company’s actions to his age.47
Hipp also complained that he was told to cut his lawn service expenses from
$73 per month to $42 per month, the company-wide limit. He claimed it was
impossible to trim that much money off his lawn bill, and he complained to Horton
and King. King refused to make an exception for Hipp, and King said he did not
47
Refusing to allow an employee in Hipp’s position
to hire subordinates to help him run the office might
in some circumstances constitute constructive
discharge. For such conduct to qualify as age-based
constructive discharge, however, the employee must at a
minimum show that employees outside the protected group
were treated differently. See, e.g., Mendoza, 195 F.3d
at 1253 (Edmondson, J., concurring). Hipp has made no
such showing here.
54
care about Hipp’s problems.48 Hipp also testified that his office was in disrepair
and needed to be remodeled. He had been trying to get it remodeled since 1986,
and when he finally got it remodeled, he was not allowed to make all of the desired
repairs. It may have been bad business for the company to cut Hipp’s lawn
expenses and delay remodeling his office. Perhaps customers were drawn to the
office because of its appealing landscaping, or perhaps they were repelled by its
state of disrepair. It was not, however, age discrimination. One’s working
environment does not become objectively intolerable simply because it becomes
less attractive.49
Hipp also complained that all districts were told to keep their expenses at the
same level, even though the needs of the districts varied widely. He was charged
for going over the budget on janitorial and landscaping services, even though he
did not exceed the total budget for all items. Again, Hipp did not allege that the
48
Hipp canceled the lawn service because the company
he used could not do it for $42. Hipp’s lawn expenses
were restored to their previous level after
approximately two months, during which Hipp complained
regularly to Horton.
49
Additionally, Hipp makes no allegation that
younger District Managers were not asked to prune their
lawn budgets. Such a showing would be essential to
establishing that any constructive discharge was based
on Hipp’s age. See, e.g., Mendoza, 195 F.3d at 1253(Edmondson, J., concurring). Indeed, the testimony
suggests the cap on landscaping budgets applied equally
to all districts.
55
expense targets were intended to force older District Managers into retirement, or
even that the expense targets had a disproportionately harsh impact on districts run
by older District Managers.50 Rather, it appears from the testimony that the
expense targets applied to all District Managers. In fact, Hipp admitted on cross-
examination that all District Managers were sent a letter stating that they would be
financially responsible for any over-budget amounts for janitorial or landscaping
services. The fact that Hipp did not like complying with company-wide budget
limitations does not mean he was constructively discharged in violation of ADEA.
Hipp testified he felt forced to resign, but he did not know at the time that
age was a factor. He said the day he left, he did not know why he was not being
treated well; his “biggest problem” was that he “could not figure out why” he was
being treated poorly. He discussed his unhappiness with Horton, and Horton told
him things were worse in the home office. Hipp testified that it took him “almost a
year” before he could “figure it out–what was going on in the company.” He
50
Hipp also testified that when the districts were
ranked, the rankings did not take into account the
number of agents in each district, implying that this
failure caused his ranking to suffer. Hipp did not
allege the rankings were deliberately skewed to make it
appear as though the districts run by older District
Managers were not doing well. Approximately three
months before Hipp resigned, Horton sent him a letter
stating he was very disappointed in Hipp’s ranking
because he knew Hipp’s ability as a District Manager.
56
started seeing other older District Managers leaving the company. The more he
thought about it, he realized Liberty National was forcing out the older District
Managers.51
At trial, under examination by his own counsel, Hipp made the following
statements:
Q: At the time you resigned, were you having physical and emotional
reactions to the situation that you were under?
A: Yes.
Q: Okay. Did you consider those–the situation you were under to be
something you could tolerate?
A: Yes.
Q: And do you consider yourself a reasonable person?
A: Yes.
As noted above, to prove constructive discharge, a plaintiff must prove his
working conditions are so intolerable that a reasonable person would feel he had no
choice but to resign. Hipp stayed for several months after the allegedly
discriminatory confrontations, suggesting the confrontations were not so
intolerable as to leave him with no choice but to resign.52 As quoted above, Hipp
51
Hipp’s immediate replacement was Forrest Ayers, who is 16 years older
than Hipp.
52
Hipp admitted he was considering leaving the company before his
altercations with King. In fact, at that time, he had made a list of the “pros” and
“cons” of staying with the company. He also admitted on cross-examination that
Regional Vice President Dale Rainey called him after he left and asked him to
return to the company, but he refused. On Hipp’s termination form,
57
himself admitted at trial that his working conditions were tolerable. He also
testified he did not believe at the time he resigned that he was being discriminated
against on the basis of his age. Hipp’s termination form indicates he resigned
because he did not like the direction in which the company was moving. Most of
Hipp’s complaints related to King’s general management style, and he failed to
show that younger District Managers were treated differently.53 Cf. Mendoza, 195
F.3d at 1253 (Edmondson, J., concurring) (sexual harassment plaintiff must prove
men were treated considerably differently, and better, in order to prevail).
In light of the foregoing, the finding that Hipp was constructively discharged
in violation of ADEA was is not supported by the evidence. The district court
the regional vice president wrote that Hipp had above
average sales ability, and that he would re-employ Hipp
“with a complete turnaround in . . . attitude.” The
regional vice president gave the following description
of Hipp:
This man has been in the past an asset to the
company. Over the last year, he has developed a
very poor attitude. With a change in attitude, I
think he can be an asset in the future.
53
Hipp did testify that one younger District
Manager, Mark Allen, told him he “really wasn’t having
a problem with anything.” Hipp did not, however,
produce any evidence showing that Allen was actually
treated differently; Allen could have been subjected to
the same treatment, but simply not found it offensive.
Alternatively, it might be true that Allen received
less criticism than Hipp received, but the record is
silent on whether Allen and Hipp were performing at the
same level.
58
should have granted JMOL to Liberty National on Plaintiff Hipp’s claims, as he
failed to prove he suffered an adverse employment action. The judgment in his
favor must therefore be reversed.
Plaintiff Stell
On February 6, 1995, at age 43, Stell tendered his letter of resignation from
his position as District Manager in Troy, Alabama.54 Stell’s resignation was to
become effective February 17, 1995. On February 14, 1995, King told him he was
no longer needed at the company. Stell said that, in his opinion, he was fired.55
Stell filed a charge of discrimination with the EEOC on February 22, 1995.56
54
Stell had previously been District Manager in
Brunswick, Georgia. In May or June of 1992, at age 41,
Stell requested and received a transfer to Troy,
Alabama.
55
If Stell were claiming unlawful termination, he
would also need to claim constructive discharge to
collect any significant damages, as the alleged
unlawful termination occurred only three days before
his resignation was to become effective. (If he was
paid through February 17, he would apparently have no
monetary damages.) At any rate, we think it doubtful
Stell could prevail on an unlawful termination claim
merely because he was told he could leave three days
before his resignation was to become effective. King
signed Stell’s notice of termination of personnel,
stating that Stell was resigning to accept another job.
On this form, King rated Stell’s sales ability as very
good and indicated he would re-employ Stell.
56
Stell made the following allegations in his EEOC
charge:
59
Stell testified that he was quite fond of Liberty National until 1993, when the
harassment began. According to Stell, Regional Vice Presidents Steve Sexton,
King, and Vurl Duce either threatened or harassed him or knew about the threats
and harassment. He called Duce and “talked to him about it.”
One of Stell’s chief complaints was that he received a large number of PTMs
from King. He regarded these PTMs as “threats.” At trial, however, Stell testified
he would write PTMs for the agents in his district when they were not performing
well. Stell admitted these PTMs were “no different” from the ones King sent him.
I was hired by the company on May 8, 1978 as an
Insurance Agent. On February 14, 1995 the above-
named employer discharged me. During my employment
I had been subjected to constant threats and
harassment by my immediate supervisor. On February
6, 1995 I tendered my resignation to the company’s
president because of the treatment I was being
subjected to. I was employed as a District Manager
at the time of my termination.
Mr. Andrew King, Senior Vice-President, stated that
if I could not work under his supervision, I was
fired.
I believe that I have been discriminated against in
violation of the Age Discrimination in Employment
Act (ADEA) because of my age, 43.
The vice-president has stated that he was seeking
younger persons for management with the company.
Older long-term employees are being terminated
while less productive younger employees are being
retained. The person I replaced was given the
ultimatum to retire or he would be replaced.
60
Stell testified he did not regard as a threat language in a PTM he sent one of his
agents stating the agent “must have positive growth and maintain a positive,
enthusiastic attitude if he is to continue his employment with Liberty National.”
Stell sent a PTM to another agent stating, “If no improvement is made within the
next four weeks, termination is imminent.” Stell testified he did regard this
language as a threat to the agent’s job. He claimed he did not think such language
was “justified,” but he “wrote something down according to the company’s rules
and regulations.” Stell further admitted at least some of King’s concerns about
Stell’s job performance were valid.57
Stell testified that King said at a meeting “that change would be easier to
make if we had younger district managers,” and King told him that sometimes it
was easier to replace employees than to retrain them. King once said Stell
“need[ed] to get off [his] fat ass and go to work,” and Stell claimed he was
“humiliated” by this remark.58 King called Stell while Stell was in the hospital for
57
Stell claimed he did not like the way King treated
him, and he did not know why he was being treated that
way. He admitted all of the perceived threats were job
related. In a job performance review in which he rated
his own performance, Stell rated himself less than
satisfactory in district production and premium growth.
58
Stell testified that King’s remark about his
weight was a one-time occurrence, and it drove Stell to
make the decision to leave Liberty National.
61
suspected heart problems, and, upon finding Stell’s condition was not serious,
King inquired about the production for that week in Stell’s district.59 Stell also
complained that King interrupted Stell while he was meeting with customers.
According to Stell, this treatment by King caused him “some severe health
problems.”
Stell also complained about a trip to a company leadership conference in
Cancun. The conference was developed by King. Stell and several other
employees “won” this trip. Many of the other employees who “won” the trip were
older or even “very much older” than he was. Stell did not go on the trip because it
conflicted with his planned family vacation. Stell testified that King was “not real
happy with me, and he said that I would never do this to him again.” Stell
complained about the “harassment and treatment [he] received after” declining to
go on that trip. Even if Stell was treated poorly after declining to go on the trip,
there is no indication that such treatment was due to his age.
Stell also complained that he had to pay out of his own pocket for a Sales
Manager to attend the Cancun trip. He testified that “[u]nder this trip that Mr.
King designed and developed, sales managers had to pay out of their pocket for an
59
Stell admitted on cross-examination that he also
received flowers from King and his wife on that
occasion.
62
agent to attend this trip. District managers had to pay for the leading sales manager
in the -- their district to attend this trip.” Stell did “not feel that [he] should have to
personally pay out of [his] pocket to send an agent on a trip that was a company --
or a company-sponsored program.”60 If this was the company policy, and even if it
was a bad policy, Stell utterly failed to connect it in any way to age discrimination.
In fact, he admitted younger District Managers also had to pay for their Sales
Managers to go on the trip.
Stell also testified that the company refused to authorize repairs to his
district office. He claimed his office was remodeled about a month after he was
replaced by a new District Manager, Cecil Harris, who was in his “late 30s, early
40s.” Stell also complained about a “Torch Club” convention he wanted to attend.
He was told he would not be invited, but that opt-in Plaintiff Harold Carter would
be invited instead, because Carter’s district had been experiencing positive growth.
When Carter went on sick leave, Stell asked to take his place at the convention, but
Stell was not invited. He claimed younger, less productive District Managers were
invited. Stell admitted, however, that at least one of the managers in attendance
was in his late 50s or early 60s.
60
As noted infra, King later offered to reimburse
Stell for this expense.
63
Stell claimed King was “more of a buddy” to the younger District Managers
but “more business-like with the older district managers.” Even if true, this
difference in treatment does not mean Stell was constructively discharged because
of his age. It is hardly intolerable for an employee’s superior to treat him in a
“business-like” manner, even if the employee thinks the supervisor appears
friendlier to others.
Stell also testified that King instructed him to notify an older agent that the
agent would be fired if he did not show positive growth within four weeks. Stell
testified that, because of this particular agent’s work situation, it would be
impossible for the agent to show positive growth within that time frame. Stell also
testified that once, when he did need to fire an agent, Liberty National’s legal
department asked him the gender, race, and age of the agent. When Stell replied
that the agent was a white male under 40, he was told to proceed with the firing.
Plaintiffs contend this evidence supports an inference that Liberty National was
trying to “build a file” on protected employees before firing them. It may be true
that this evidence indicates Liberty National was concerned about its liability under
federal employment discrimination statutes. This evidence, however, does not
suggest in any way that Liberty National was attempting to drive older employees
out of the company by “building files” consisting of fabricated incidents. If
64
anything, it indicates Liberty National was conscientious about ensuring that
protected employees were not fired without good cause.
Stell claims when he left the company, the specific incident on his mind was
his telephone conversation with King in which King commented on Stell’s weight.
Stell testified he met with Tony McWhorter, Liberty National’s president, and
William Barcliff, Liberty National’s chief legal counsel, to discuss King’s
harassment of Stell and to request a transfer out of King’s division.61 He wanted to
be transferred to Duce’s division because he was “familiar” with Duce’s
management style. McWhorter told Stell he could not transfer him. Stell tendered
his resignation. McWhorter and Barcliff asked Stell to stay and asked what it
would take to make him stay. Stell said he would stay if they would transfer him
out of King’s division, but they still told him they could not make the transfer.
Barcliff then asked if Stell planned to sue the company. Stell was surprised by this
question, as he did not intend to sue the company at that time.
61
Stell admits not all of his contact with King was
negative. In fact, Stell testified that on May 31,
1993, King sent a letter to all District Managers
praising Stell as a good example for them. In February
1994, the company sent out another letter praising
Stell’s performance and sent Stell a congratulatory
memo.
65
After Stell tendered his resignation, King met with Stell and apologized for
everything unpleasant he had said or done, telling Stell that was just his
management style. Stell complained that he had been forced to spend $5,000 out
of his own pocket to, among other things, send the Sales Manager to Cancun, and
King offered to write him a personal check to reimburse him for those expenses if
Stell would stay with the company. Stell once again said he would stay if he could
be transferred out of King’s division, and King told him a transfer would be
impossible.
Sexton called Stell at home on one occasion and visited him two weeks later,
asking him to come back to the company. Stell, however, said he would not come
back unless he could be transferred out of King’s division. The company refused.62
Later, Regional Vice President Newell Cheeseborough contacted Stell, and Stell
gave him the same demand.
Stell testified he did not believe at the time he resigned that he had been
discriminated against on the basis of his age. Accordingly, even though Stell
claimed to have complained to the company about King’s “harassing” and
“threatening” behavior, he never told anyone the harassment and threats were age-
62
As mentioned above, Stell’s willingness to return
to the company if he could be transferred out of King’s
division indicates he did not believe discrimination
was Liberty National’s “standard operating procedure.”
66
related, because Stell did not think at the time that they were age-related. The
record reveals that Stell left his position because he did not like King’s
management style. After Stell’s resignation, he spoke with other people and came
to the conclusion that he “fit in the pattern of the older district managers being
replaced by younger district managers.” He then determined King’s treatment of
him was part of “a program designed by the management, upper management of
this company, to remove the older district managers.”63
Stell’s letter of resignation is quite revealing and is reproduced here in its
entirety:
Mr. McWhorter;
May 8, 1978 was one of the happiest days of my life. That was the day that I
joined the sales force of Liberty National. I will never forget the words told
to me by District Manager George Bates, “Take care of LNL and LNL will
take care of you”. These are words that I have tried to live with for the last
17 years, but I don’t feel that I can anymore. Working for LNL is no longer
fun for me but something I have grown to dread.
63
Stell testified that Horton told him during his
first week as District Manager in Troy, Alabama, that
his predecessor “was forced to either retire or be
replaced because he had gotten to old to be effective
in his job.” Stell admitted, however, that the Troy
district had been performing very poorly before he
arrived, suggesting his predecessor did not do a good
job. Even if Stell believed his predecessor was forced
into retirement, he did not believe at any time before
he resigned that Liberty National was trying to force
him to leave his job because of his age.
67
I have always been a person that motivated people to want to do their job, to
try to help them reach their goals and dreams, not a person that had to
threaten a person with their job if the results were not what I wanted. I can
not bring myself to operate this way or to treat people this way.
For several months, I have been considering opening my own agency. I
have always thought that I wanted to sell other insurance products that LNL
didn’t offer, such as medical insurance, disability, dental, etc.. For this
reason I have been making contacts with several companies and general
agents, but I have not made any attempts to sign contracts or get licensed
with anyone. My loyalty is still with LNL until my decision was made.
I have been made an offer to become a partner in Brokerage Concepts, Inc.
with Olley Kelley, which I have decided to accept. I want you to know
that I don’t have any hard feelings toward you or LNL and that I am not
leaving with the idea of replacing LNL’s business. However, due to the fact
that I will be working the same area, I will be calling on some of the same
customers, but to add to their coverage not replace what they have.
I have enjoyed my relationship with LNL and will always be greatfull
[sic] to ya’ll for giving me the opportunity that I have had. I hope that
if this doesn’t work out for me that I might be allowed to return to LNL
in the future.
As I know how much change affects a District office, I feel that the quicker I
am out of the picture the better it will be for my people to concentrate on the
job they have to do. Therefore, please accept this letter of resignation
effective Friday, February 17, 1995.
Again I have enjoyed my time at Liberty National and wish you the
best.
(emphasis added).
This letter certainly does not seem like the language of someone who feels
his working conditions are so intolerable he has no choice but to resign. Cf.
Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1284 (11th Cir. 1999)
68
(“[P]laintiff's letter of resignation, in which she expressly thanks State Farm, does
not by its terms lend support to a theory that plaintiff was forced to resign due to
‘intolerable’ working conditions.”). Parts of the letter do suggest Stell was
unhappy with the direction in which the company was moving. The letter reveals
that perhaps he preferred a gentler style of management (i.e., motivating rather than
“threatening”), but nowhere in the letter did he suggest that at the time he resigned,
he felt he was treated unfairly because of his age. To the contrary, Stell
represented that he would consider returning to Liberty National in the future.
Stell testified it was company policy to send PTMs to poorly performing
employees. The PTMs routinely indicated that the employee in question would
lose his or her job if performance did not improve. Stell further admitted that at
least some of the PTMs sent to him expressed valid concerns about his
performance. He therefore failed to prove that he was treated any differently than
anyone else, or that Liberty National’s treatment of him was in any way related to
his age. Finally, and importantly, at the time he submitted his letter of resignation,
Stell did not believe age discrimination was the reason for his treatment.
It is not our place to decide whether Liberty National’s practice of sending
“threatening” memos to its poorly performing employees was wise business policy,
or whether Stell’s preferred strategy of “motivating” the employees would have
69
worked better. We must decide only whether the conduct as it related to Stell
violated the ADEA, and we conclude it did not. The district court should have
granted Liberty National’s motion for JMOL on Stell’s claims because he failed to
prove he suffered an adverse employment action. Accordingly, the verdict in his
favor must be reversed.
Plaintiff Stein
Plaintiff Stein resigned from his position as District Manager in Clearwater,
Florida, on July 29, 1994, at age 41. Stein filed charges of discrimination with the
70
the FCHR and the EEOC in December 1994.64 When Stein resigned, he was
64
Stein made the following allegations in his
charge:
I was employed by Liberty National Insurance
Company from November 5, 1975 until I was forced to
resign on July 29, 1994. As the result of
management’s desire to have younger management, I
was subjected to continuous harassment and forced
to resign when I was 41 years of age. Andy King
made my job as a district manager at Liberty
National impossible once he became the vice-
president in charge of my side of the company.
Under Andy King, I endured numerous changes in
policies and procedures, as well as constant
harassment and criticism, in his attempt to force
my resignation.
One of my duties as a district manager included the
screening of potential applicants for sales
positions. All of the district managers and myself
were told not to send the file on any potential
applicant to the home office for approval if that
applicant was over the age of 60 or had health
“problems”. Liberty National’s actions constituted
discrimination against applicants over 60 and
applicants with health “problems” and created a
hostile working environment.
Andy King and Don Horton verbally harassed me and
continually made me feel like my job was in
jeopardy in an effort to force me to resign.
I believe Liberty National, C.B. Hudson and Andy
King have violated my rights, as well as the rights
of both older workers and applicants, under the Age
Discrimination in Employment Act and the Florida
Civil Rights Act of 1992. Liberty National, C.B.
Hudson and Andy King have implemented a uniform
practice and policy of age discrimination by
forcing older employees to retire, take demotions,
terminating them, and\or subjecting them to
71
replaced by Stan Watson, who was 14 years older than Stein.65
Stein testified that at a meeting of District Managers, King introduced the
newer District Managers to “[a]ll you gray hairs.” He heard King use the phrase
“RC factor” to refer to an employee’s “resistance to change.” On several
occasions, King said the company needed younger employees because older
workers were resistant to change.66
continued harassment, abuse, and discriminatory
policies and practices.
I file these charges on behalf of myself and all
others similarly situated.
65
The district court accepted Plaintiffs’ argument
that Watson may have been hired to help Liberty
National develop a defense to a potential age
discrimination suit by Stein. Hipp, 973 F. Supp. at
1041-42. Stein testified that Watson did not immediately get the position
because King thought Watson was too old.
66
Stein’s attorney asked him on direct examination
if he was “ever directed to fire somebody because of
their age.” Stein said he was. The questioning that
followed concerned two older agents King instructed
Stein to fire “because of their growth.” Stein alleged
King’s growth numbers on the agents were incorrect, but
nothing in his testimony established that King knew the
numbers were incorrect or that the agents were being
fired because of their ages.
72
Stein also complained about the company’s alleged policy regarding hiring
agents over age 55.67 He said the company threatened to fire people who sent these
files to the personnel department. He believed the policy was wrong, however, so
he did not comply with it. He claimed Liberty National’s Regional Vice Presidents
refused to discuss the issue with him.
This policy, if it existed,68 was certainly reprehensible. As discussed above,
however, Stein was not subjected to this policy. The fact that Liberty National
wrongfully discouraged Stein from hiring agents over age 55 does not establish
that Liberty National forced Stein to resign from his District Manager position
based on Stein’s age, which was 41.69
67
At trial, Stein testified that the policy applied
to applicants over age 55. In his complaint to the
FCHR, he stated the policy applied to applicants over
age 60.
68
On cross-examination, Stein was shown Liberty
National’s contracts with several agents who were over
age 55 when Stein hired them. All of these agents were
hired when this policy was allegedly in effect. Some
of the agents also had known medical conditions when
they were hired.
69
Indeed, to hold otherwise would mean that any of
Liberty National’s employees who were over 40 at the
time this alleged policy was in place could have simply
resigned from their positions and sued Liberty National
for age discrimination. ADEA was not meant to give one
employee a cause of action for age discrimination
against another.
73
Stein also complained that King “got very belligerent” over some of Stein’s
numbers, but the numbers on which King based his criticism were incorrect. Stein
testified that King would not listen when Stein told him the numbers were wrong,
and “it got to almost a violent situation.”70
Stein also complained that a District Manager who looked younger than
Stein was brought in to open up a new office in St. Petersburg, Florida.71 Stein
said King described this man as a “young and up-coming man, with lots of energy
and [who is] going to show you how to do your job.” This District Manager was
given company money to fund his recruiting efforts, while Stein had to pay for his
own recruiting. Since the other District Manager was starting a new office, and
Stein was maintaining an existing office, we do not think this disparity is
important, especially since Stein does not allege that other younger District
Managers were likewise given recruiting budgets.72
70
Stein claimed that, on the advice of Liberty National’s legal counsel, he
started an “Andy King file,” but he left it in his desk when he departed. After the
locks were changed, he could not retrieve the file.
71
On cross-examination, Stein clarified that he did
not know if the man actually was younger, but he looked
younger. According to defense counsel, the man was
actually one year older than Stein.
Stein testified that, at the time, he had no problem with the new District
72
Manager.
74
Stein testified that King’s “constant harassment” of him made his job
difficult. He claimed his responsibilities were “inconsistent,” so he was constantly
confused about what his job actually was.73 One such “inconsistency” was that
Liberty National required agents to begin selling on a bank-budget basis instead of
a field-collection basis. Stein also testified that the company constantly changed
the salary at which District Managers could hire new agents, and the company’s
goals on the number of new agents were also constantly changing. Stein also
complained that when his three full-time secretaries left, he was not allowed to hire
any new full-time secretaries, but some other District Managers were. Stein
testified that his health was suffering as a result of his stressful work environment,
and he “was not comfortable with . . . the way [he] was forced to treat [his]
agents.”
Stein signed a contract and took out a license with another life insurance
company (C Corp) prior to leaving Liberty National.74 He admitted this action was
73
Stein admitted on cross-examination that King also
sometimes sent letters to all District Managers
praising Stein for something he had done particularly
well.
74
He signed this contract three months before he
left, on April 6, 1994. He testified that he was told
he had to sign the contract right away or the
opportunity would no longer be there. He testified he
signed it because he knew he was going to be leaving
Liberty National in July. He had another job lined up,
75
in violation of his contract with Liberty National,75 but claimed he did it because he
could see he “had no future at Liberty National.”76 The offense was one that,
according to Liberty National’s employment manual, would “normally result in
termination of employment.”77
Stein does not allege that the younger District Managers were the ones who
were allowed to hire full-time secretaries, and he does not allege that younger
District Managers were treated any differently with respect to field-collection
business and the hiring of new agents.78 Stein testified that he did not know
and the other company wanted him to begin working, but
he stayed at Liberty National, working under conditions
he alleges were intolerable and getting worse. It
seems unlikely that an employee who is constructively
discharged under intolerable working conditions would
plan his departure for three months.
75
His actions in working for Liberty National
likewise violated his contract with C Corp. C Corp
eventually sued Stein to recover the money it had paid
him as either salary or advance commissions. In that
lawsuit, Stein asserted that C Corp could not recover
the money from him because he performed work for it
during the period in question. The suit was eventually
dismissed.
76
Plaintiff Hipp, who also worked for C Corp after
he left Liberty National, testified that Stein spent
about five hours a week working for C Corp while Stein
was still employed by Liberty National.
77
In fact, while he was at Liberty National, Stein
himself fired other employees for the same offense.
78
Stein did testify that the field-collection rules
were different in other districts, but he did not
76
whether the rules on hiring new agents changed in other districts in the same way
they changed in his. He also did not know whether the changes in the number of
new agencies applied to other districts.
On direct examination, Stein testified that he believed age was a factor in the
way he was being treated. He raised the issue in his letter of resignation, and no
one attempted to persuade him to stay with the company. At deposition, however,
Stein stated he could not recall anyone ever saying or doing anything that made
him believe he was being discriminated against on the basis of his age. The record
reveals that Stein resigned because he was unhappy with the direction in which the
company was moving. There is no support for the conclusion that Stein was
constructively discharged in violation of ADEA.
Based on this record, the finding that Stein was constructively discharged in
violation of ADEA is not supported by the evidence. The district court should
have granted JMOL to Liberty National on Stein’s claims, as he failed to prove he
suffered an adverse employment action. Accordingly, the verdict in Stein’s favor
must be reversed.
testify that these differences depended on the ages of
the District Managers. Stein complained about the
forms on which District Managers reported production,
but he admitted they were the same in every district in
King’s region.
77
Summary
After our thorough review of the extensive record created in this case, we are
left “with the definite and firm conviction that no reasonable [people] in
[Plaintiffs’] position[s] would have felt compelled to resign.” Wardwell, 786 F.2d
at 1557. At most, Plaintiffs have proven that King had a harsh, confrontational,
and perhaps even at times offensive style of management, and the company was
changing some of its policies regarding the manner in which it conducted its
business. While King’s management style may or may not have been effective,
and the changes in Liberty National’s business practices may or may not have been
wise, it is not our place to tell employers how to run their businesses. See
Chapman v. AI Transport, 229 F.3d 1012, 1031 (11th Cir. 2000) (en banc).
Plaintiffs have not proven that age-based harassment caused their working
environments to become so objectively intolerable that they had no choice but to
resign.79 Since Plaintiffs have not shown that they were subjected to adverse
employment actions, the district court should have granted judgment as a matter of
79
As we have found Plaintiffs were not
constructively discharged, we need not address Liberty
National’s claims regarding the amount of damages
awarded.
78
law to Liberty National on Plaintiffs’ claims,80 and its judgment in favor of
Plaintiffs must be reversed.81
80
Assuming hostile environment claims are cognizable
under ADEA, the Plaintiffs also have not met the less
stringent standard for a hostile environment. See
Massey Yardley, 117 F.3d at 1249 n.7 (noting this
circuit has not explicitly determined whether the
hostile environment framework developed in Title VII
cases applies to ADEA cases). In evaluating hostile
environment claims, courts are to “determine whether an
environment is sufficiently hostile or abusive by
‘looking at all the circumstances,’ including the
‘frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.’”
Faragher v. City of Boca Raton, 524 U.S. 775, 787-88,
118 S. Ct. 2275, 2283 (1998) (citation omitted). The
conduct Plaintiffs allege was not sufficiently severe
or pervasive as to constitute a hostile environment.
“We recognize that claims of employment discrimination
. . . present fact-intensive issues. However, we agree
with the Fifth Circuit's observation that motions for
summary judgment or judgment as a matter of law are
appropriate to ‘police the baseline for hostile
environment claims.’” Mendoza, 195 F.3d at 1244(quoting Indest v. Freeman Decorating, Inc., 164 F.3d
258, 264 n.8 (5th Cir. 1999)); see also id. at 1246-47
(listing cases in which courts have found no sex-based
hostile environment).
81
Liberty National argues Plaintiffs should not have
prevailed because they did not prove they had reported
offensive behavior pursuant to Liberty National’s anti-
harassment policy. See, e.g., Coates v. Sundor Brands,
164 F.3d 1361, 1364-65 (11th Cir. 1999) (hostile
environment plaintiff must notify employer of
harassment and give employer a chance to remedy the
situation); Kilgore v. Thompson & Brock Mgmt., Inc., 93
F.3d 752, 754 (11th Cir. 1996) (“A constructive
discharge will generally not be found if the employer
79
III. CONCLUSION
We AFFIRM as to the district court’s certification of the opt-in class. We
REVERSE, however, the district court’s definition of the temporal scope of that
class. The rearward scope should have been limited to 180 days (in non-deferral
states) or 300 days (in deferral states) before Plaintiff Stein filed the representative
charge in this case. Plaintiff Lee’s claim therefore fell outside the temporal scope
is not given sufficient time to remedy the
situation.”). Plaintiffs argue they were not required
to complain because the alleged policy originated with
the very people to whom complaints should have been
directed. They also allege that, even though it was
not required, they did complain. The record reflects
at least some of the Plaintiffs complained to the legal
department about King’s behavior. The jury was
instructed that Liberty National would not be liable if
it proved “by a preponderance of the evidence that it
maintained an antiharassment policy and complaint
procedure and that the plaintiffs unreasonably failed
to make a complaint under that procedure.” The jury
apparently found there was no such unreasonable
failure. Most of Plaintiffs’ complaints to the company
seem to have centered on the over-55 hiring policy,
which is not directly relevant to Plaintiffs’ claims
that they personally were harassed and forced out of
the company. It is unclear whether any Plaintiff
actually complained to the company about age-based
harassment directed toward him, but it seems unlikely,
given that most Plaintiffs did not suspect age
discrimination when they left Liberty National. It is
unnecessary for us to decide this question, however,
since we determine Plaintiffs did not prove they were
constructively discharged because they did not prove
their working environments were objectively
intolerable.
80
of the class, and he should not have been allowed to join. The jury’s verdict for
Plaintiff Lee is REVERSED. The forward scope of the class should have been cut
off the day Plaintiff Stein filed the representative charge with the EEOC. Since the
claims of Plaintiffs Agee, Tuggle, and Carter arose after that date, those Plaintiffs
should not have been allowed to join in this action, and the jury verdicts in their
favor are REVERSED. We also REVERSE the finding of a pattern and practice of
discrimination in this case, because there was insufficient evidence that
discrimination was Liberty National’s standard operating procedure. Finally, we
REVERSE the jury’s verdicts as to Plaintiffs Hipp, Stein, and Stell, because those
Plaintiffs did not prove they were subjected to age-based hostile environments or
constructively discharged because of their ages.
AFFIRMED in part and REVERSED in part.
81