Appeal from the United States District Court for the Eastern District of Wisconsin. No. 83 C 1598 -- John W. Reynolds, Judge.
Before CUMMINGS, Chief Judge, BAUER, Circuit Judge, and CAMPBELL, Senior District Judge.*fn1
This case involves an age discrimination suit brought by plaintiff Edna Johnson ("plaintiff"), pursuant to the provisions of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq. ("ADEA"), against the defendant University of Wisconsin-Milwaukee ("defendant"). Plaintiff appeals from the district court's order denying plaintiff's motion for judgment notwithstanding the verdict ("JNOV") or for a new trial. For the reasons set out below, we affirm.
Plaintiff was born April 17, 1922, and was hired by defendant November 11, 1965. She initially worked for defendant as a secretary for several years. Around 1973 or 1974, she began to work in defendant's Fringe Benefits Office, and in 1978 became a retirement counselor. She was working as a payroll and benefit staff counselor when she was terminated on September 17, 1981.
Plaintiff contested her termination through the arbitration procedure afforded by her state employment contract. Not surprisingly, plaintiff and defendant disagreed as to the reasons for her termination. Defendant contended that plaintiff was terminated because she was unable to complete routine work assignments, attempted to avoid work, and performed work incorrectly. Plaintiff argued that her discharge was in retaliation for the legal action taken by her son, who was terminated by the University in September 1980, against certain University officials. The arbitrator found that plaintiff was not terminated because of age or handicap discrimination, retaliation against her son's legal actions against certain University officials, or nepotism. The arbitrator further decided that plaintiff was not discharged for just cause, but ruled that there was just cause for a ten-week suspension without pay, and ordered that she be reinstated with back pay less pay for the ten-week suspension and less earnings from other employment during the period since her discharge.
Plaintiff also applied for unemployment compensation benefits after her termination. The matter proceeded to a contested hearing before the Appeal Tribunal of the State of Wisconsin Department of Industry, Labor and Human Relations, which ruled that plaintiff was not terminated for "misconduct" within the meaning of Wis. Stat. § 108.04(5) (1974), and hence was entitled to unemployment compensation benefits. As part of his findings, the hearing examiner stated that although there is some evidence that plaintiff committed errors and failed to perform certain aspects of her job, plaintiff "for the last several months of her employment . . . had been beset by her immediate supervisors with a concerted program of formal disciplinary proceedings, a substantial amount of which was specious or contrived." Plaintiff's App. at 113. The hearing examiner did not state the motivation for this concerted program of specious disciplinary hearings.
Plaintiff subsequently brought this age discrimination suit in federal district court. Plaintiff moved for partial summary judgment, arguing that the decisions of both the arbitrator and the Wisconsin appeal tribunal should preclude defendant from raising the defense that plaintiff was terminated as the result of a legitimate business decision. The court denied plaintiff's motion. During the jury trial that ensued, plaintiff attempted through various means to introduce evidence that plaintiff was discharged in retaliation for her son's legal action. However, the court refused to admit the appeal tribunal's decision into evidence, and rejected as irrelevant the testimony of plaintiff and another witness that defendant terminated plaintiff in retaliation for her son's legal action. The court did admit the arbitrator's decision and award into evidence, and allowed the parties to stipulate that plaintiff had to sue in order to collect unemployment compensation benefits. The jury found that plaintiff's age was not a determining factor in her termination. The court denied plaintiff's motion for JNOV or for a new trial. At no time did plaintiff move for a directed verdict.
At the outset, we must untangle several procedural knots created by plaintiff before we can reach the merits of this case. Plaintiff's post-trial motion before the district court was a dual one: a motion for JNOV and a motion for a new trial. Such a dual motion is permitted by Fed. R. Civ. P. 50(b). However, both parts of this dual motion are flawed.
Plaintiff's appeal from the district court's denial of her motion for JNOV is fatally flawed, and we lack jurisdiction to review it. That is because plaintiff never moved for a directed verdict at the close of all the evidence, as required by Fed. R. Civ. P. 50(b). Although we have on occasion excused the lack of a formal motion for a directed verdict at the close of all the evidence where the moving party did move for a directed verdict earlier in the trial and the opposite party was not prejudiced by the moving party's failure to renew the motion, plaintiff's failure to make a motion for directed verdict at any point in the trial cannot be excused. McKinnon v. City of Berwyn, 750 F.2d 1383, 1388-1390; see also 5A Moore's Federal Practice PP 50.08, 50.12 (1985). The purpose of this requirement is to give "the opposing party a chance to repair . . . the deficiencies in his proof before it is too late," and nothing done by plaintiff alerted defendant to this possible need. McKinnon, 750 F.2d at 1388, 1389.
Plaintiff's appeal from the district court's denial of her motion for anew trial is also flawed, though not fatally so. This flaw lies not with the original motion but rather with the appeal. Plaintiff appeals from an order denying her motion for a new trial, but the generally accepted rule is that the appeal should be taken from the judgment itself rather than the order denying the motion for a new trial. Hennessy v. Schmidt, 583 F.2d 302, 305-306 (7th Cir. 1978); see also 6A Moore's Federal Practice P 59.15 at p. 59-308 (1985). However, the general practice, which we have previously approved, is to treat this error as harmless and view the appeal as instead taken from the judgment, so long as (1) the judgment from which the moving party intended to appeal is final; (2) it is clear what judgment is involved; (3) the motion and appeal were timely made; and (4) there is no prejudice to the other party. ...