Equal Employment Opportunity Commission v. Westinghouse Electric Corporation , 869 F.2d 696 ( 1989 )

GARTH, Circuit Judge,

dissenting in part:

My colleagues in the majority have remanded this case to the district court to reevaluate “whether Westinghouse willfully violated ADEA.” (Maj.op. at 714.) They have done so even though, after an exhaustive analysis of the district court’s seven day trial record and the district court’s 30-page opinion, the majority and I have concluded:

1) the district court’s findings are clearly erroneous;

2) no evidence supports the district court’s findings;

3) no suggestion appears that the parties were discouraged from adducing additional evidence or lulled into not producing additional evidence;

4) the district court fully complied with Fed.R.Civ.P. 52(a);

5) the district court in every respect applied the correct legal standard; and

6) the record is voluminous and comprehensive: (so much so, that the majority seeks only to have the district court review the very same record from which its original findings were made and as to which no evidence sufficient to sustain those findings appears).

Thus, although I agree with the majority that Westinghouse violated the ADEA and I agree that on this record, and this evidence, that the violation was not willful, I cannot agree that a remand should be ordered. In a case such as this one, where an extensive trial was held, where full opportunity was afforded for evidence to be presented by both parties, where correct legal standards were employed and where requisite findings (albeit clearly erroneous) were made, our disposition must be an outright reversal on the issue of willfulness.

The majority does not explain why, in such a situation a remand should be ordered and, “two bites of the apple” given to a litigant who has failed to produce sufficient evidence to support a desired finding and therefore carry its requisite burden as to a particular issue — in this case the issue of willfulness. By remanding, the majority grants EEOC a second chance to prove that Westinghouse has willfully violated the ADEA, when EEOC was unable to do so the first time around.

Typically, when a plaintiff brings an action and a court lawfully determines that the evidence is insufficient to sustain the plaintiff’s claim, the plaintiff is barred by the principles of res judicata and/or collateral estoppel from seeking a more favorable result by entering another forum to adduce the same evidence in support of the same claim. While I do not claim that the doctrines of res judicata and collateral es-toppel are applicable here, the principles of finality enshrined in those doctrines, speak to this very situation and provide the logic for our outright reversal of the district court’s holding that Westinghouse violated the ADEA willfully. The majority by remanding this case to the district court, effectively negates the principles of res judicata and collateral estoppel. It does so by allowing EEOC to retry the very same claim that the majority now rejects due to an insufficiency of evidence.

I fail to understand why EEOC should be afforded still another opportunity to rear-gue before the district court the very same issue which it would be barred from bringing in any other forum. The only appropriate disposition of this appeal is not to remand for such a meaningless exercise by the district court, but to reverse on the issue of willfulness, even while we affirm the district court’s findings on the non-willful Westinghouse violations.

I.

As I understand the jurisprudence which has developed with respect to when a remand to the district court is appropriate, the established precedents provide:

1) District courts are the fact-finders, appellate courts are not. Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). Thus, if a district court fails to make requisite findings as prescribed by Fed.R.Civ.P. 52(a), such a proceeding should be remanded for the district court to discharge that function. Shlensky v. Dorsey, 574 F.2d 131 (3d Cir.1978).

2) If the district court in making its findings applied, or relied on, an incorrect legal standard, it is appropriate to remand to the district court to rectify it error by fact-finding under the correct legal standard. US. v. Gypsum, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Black United Fund of N.J., Inc. v. Kean, 763 F.2d 156 (3d Cir.1985).

3) If the district court has prevented a party from introducing admissible evidence, or has lulled a party into a false sense of security to the extent that otherwise admissible evidence was not adduced and findings based on such a truncated record were then made by the district court, a remand to frame proper findings on a proper record is appropriate. Dunn v. United States, 842 F.2d 1420 (3d Cir.1988).

4) Finally, remand may be discretionary in other rare circumstances, none of which have any relevance to the present case or to the present record. Hritz v. Woma, 732 F.2d 1178 (3d Cir.1984).

If, however, none of the above conditions obtain, and a district court on a complete, unchallenged, comprehensive record, has made findings which have no support in the evidence, a remand is not the correct disposition. This is particularly so, where no claim has ever been made that a party had additional evidence which it was not permitted to introduce. In such a circumstance, I know of no authority or reason for a reviewing court to remand so that a district court may seek to justify its initial findings on the same record already found deficient to support those findings.

II.

Because I agree with the majority that the district court’s findings which establish that Westinghouse violated the ADEA must be affirmed, there is no occasion for me to address that issue. However as I have indicated, the issue of “willfulness” and the manner by which we dispose of that issue, causes me to part company with the majority.

To understand why I believe there can be no logic or basis for a remand one need only examine the reasons given by the majority in light of its analysis of the district court opinion. I turn to that task.

A.

The majority opinion analyzes the four factors relied on by the district court for the district court’s finding of willfulness and concludes that of the four factors, which led the district court to find willfulness on the part of Westinghouse, only one factor may be sustained. In this analysis I join the majority in its holding that the district court’s findings and conclusions are flawed. Indeed, I go one step further than my colleagues in the majority, because although they hold that Westinghouse’s policy against “double-dipping” may on this record be deemed to support the district court’s finding of willfulness, (Maj.op. at 714) I do not. This difference between us is not significant, however, because the “double-dipping” policy alone, as the majority and I agree, is insufficient to sustain a finding of willfulness.

Three of the factors on which the district court relied to find willfulness — factors which were rejected by the majority because the findings made by the district court were clearly erroneous — were:

1) Westinghouse had ignored judicial in-validations of plans similar to its own.

2) Westinghouse had failed to change its policies after receiving notification from EEOC and after commencement of litigation challenging its plan.

3) Westinghouse was not in good-faith in contending that its 1979 plan (designed before ADEA was enacted), comported with the law at that time, and that Westinghouse was not in “good faith” when it designed its 1982 plan relying on statements made by EEOC to the effect that an option plan (the center piece of the 1982 plan), would cure any defects.

We have rejected the district court’s findings and conclusions with respect to each of these factors.

(i)

As to the first factor relied on by the district court, where the district court found that Westinghouse had ignored judicial authorities which had invalidated plans that were similar to its own, we have held the district court erred in so ruling.

The majority opinion correctly reasons that when Westinghouse’s plans are considered separately in relation to the judicial precedents which had invalidated so-called similar plans, it cannot be argued that Westinghouse ignored authoritative precedents. The majority opinion analyzed Westinghouse’s severance pay plan and Westinghouse’s option plan in light of Equal Employment Opportunity Comm’n v. Borden’s Inc., 724 F.2d 1390 (9th Cir.1984) and Equal Employment Opportunity Comm’n v. City of Altoona, 723 F.2d 4 (3d Cir.1983), cert. denied 467 U.S. 1204, 104 S.Ct. 2386, 81 L.Ed.2d 344 (1984) (Maj.op., supra, 713) and concludes that “[bjecause Borden’s was not decided until after Westinghouse changed its LIB plan, [.Borden’s] does not support a finding of willfulness with respect to Westinghouse’s 1979 LIB plan.” (emphasis added) Id. at 713. It goes on to hold that “... because Borden’s did not confront an option plan like Westinghouse adopted in July 1982, it does not support a finding that Westinghouse willfully violated the ADEA by maintaining its ES & P, an option type MSA plan.” id. at 713. It further holds that “... Altoona does not support a finding that Westinghouse willfully violated the ADEA with respect to either the 1979 plans or the 1982 plans,” id., because “... by the time Altoona was decided, Westinghouse had already changed its LIB plan to provide an option (ES & P), and no longer flatly denied severance pay to pension eligi-bles.” Id. Moreover, the majority opinion correctly recognizes that “... we did not hold in Altoona that an option plan violated the ADEA____” Id. The majority opinion therefore concludes that Westinghouse did not ignore “the handwriting on the wall” and that Borden’s and Altoona do not support a finding of willfulness concerning any of the Westinghouse plans. Id. at 714.

Having so held, and having so disposi-tively rejected the district court’s findings and analysis, I suggest that a remand to the district court to “consider separately the 1979 plans and the 1982 plans” as the majority opinion directs (Maj.op. at 714) would serve utterly no purpose. The district court has exhaustively analyzed the evidence and the law in this respect and, as the majority opinion now reveals, that analysis was flawed. We, on the other hand, have thoroughly assessed the impact of these decisions on Westinghouse’s plans, and we have now determined Westinghouse cannot be faulted, at least to the extent of finding willfulness with respect to the plans which it adopted. This is particularly so, since the resolution of the issue of “willfulness,” in light of the then prevailing precedents must necessarily entail a legal determination which we are as well equipped to render as the district court. Indeed, we have rendered that decision today.

(ii)

The second factor relied on by the district court, concerning Westinghouse’s failure to change its policies, has also been rejected by us. As the majority opinion reasons, Westinghouse’s “good-faith adherence to, and defense of” its policies, when the law is unsettled cannot establish a willful violation of the ADEA. (Maj.op. at 713). As a result, Westinghouse’s actions concerning either of its plans may not be construed as willful.

(iii)

Finally, we have rejected the district court’s finding that Westinghouse was not in “good-faith” when it designed its 1979 plan (before ADEA was enacted), and when it redesigned its 1982 plan in reliance on the statements by EEOC counsel in the New Jersey Westinghouse litigation. We disapproved the district court’s finding by holding that there was no clear “forewarning” that Westinghouse’s plans were illegal, or that the change to an option plan, based on EEOC counsel’s statements, can sustain a finding of willfulness. (Maj.op. at 714.)

(iv)

Therefore, the only factor identified by the district court which could bear on “willfulness”, and which was not held to be clearly erroneous by the majority, was the district court’s determination that Westinghouse had invented a policy against “double-dipping” in order to justify its unwillingness to comply with the ADEA. Even if that determination was not in error, the majority opinion has appropriately concluded that such a policy against “double-dipping,” of and by itself, cannot sustain a finding of willfulness. Thus, this court on its own independent review of the record, properly holds that the findings made by the district court are not supported by evidence in the record and that accordingly, willfulness has not been established.

B.

At this point, therefore, under the majority’s analysis of the record, an analysis with which I concur, the district court was clearly erroneous in finding that Westinghouse willfully violated the ADEA. This being so, all that remains is for us to implement our decision by an appropriate disposition of this appeal. However, the majority of the court has concluded its opinion by directing a remand, stating:

Because we have concluded that some of the factors relied on by the district court in support of its findings of willfulness do not support such a finding, and because that court did not consider separately the 1979 plans and the 1982 plans when making its willfulness determination, we will remand to the district court to reevaluate, in a manner consistent with this opinion, whether Westinghouse willfully violated the ADEA. In all other respects, we will affirm the judgment of the district court.

Maj.op. at 714.

Both the majority opinion and this dissent have demonstrated on this record that three of the four factors relied on by the district court to establish “willfulness” are not supported by evidence of record and the fourth factor (a policy against double-dipping), without more, cannot by itself, support such a finding. Thus, no reason exists to remand for district court reconsideration. No purpose can be served by a remand to the district court to reconsider its findings when we have already determined that those findings on this record cannot support a willful violation.

Not only is there no basis in law to remand to the district court (as distinct from an outright reversal), but of equal importance, equitable considerations militate against any further delay in the implementation of the district court’s judgment which concludes that Westinghouse had committed a violation of the ADEA.

As EEOC has emphasized in all litigation brought under the ADEA — time is of the essence. EEOC has called our attention to the fact that some of the former employees aggrieved by Westinghouse’s violations of the ADEA have already died and, thus, will be unable to receive the direct benefit flowing from the district court’s judgment. Moreover, this case from which the present appeal arises was based on charges filed as long ago as November 10, 1983. The appeal from the district court judgment was itself argued well over a year ago. If we remand to the district court, rather than reverse with a direction to the district court to correct its judgment, this court’s decision will mark the beginning of still another stage of litigation and that litigation will undoubtedly continue through months and years to come.

Thus, the most compelling considerations of equity, fairness and law dictate that the only just disposition of this appeal, is to affirm the district court’s finding that Westinghouse violated the ADEA and, at the same time, reverse the district court’s finding of willfulness, with a direction that the district court modify its judgment accordingly.

Anyone who has studied the district court record and the district court’s very comprehensive opinion which has combed, analyzed and sifted every bit of evidence, can only conclude that if there was any evidence which could support a finding of willfulness, the district court would have unquestionably identified that evidence, referred to it in its opinion and thus called it to our attention. To suggest that the district court ignored evidence and factors which would have supported its findings, is to indulge in unwarranted speculation and is to denigrate the thoroughness with which the district court approached its task.

For the foregoing reasons, I disagree strongly with the majority’s decision to remand to the district court, as I know of no purpose which can be served by such an action. I, therefore, respectfully dissent from so much of the majority’s disposition as would remand to the district court for a redetermination of the issue of willfulness.