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Rengers v. WCLR Radio Station

decided: August 4, 1987.

LEO J. RENGERS, PLAINTIFF-APPELLEE, CROSS-APPELLANT,
v.
WCLR RADIO STATION, A DIVISION OF BONNEVILLE INTERNATIONAL CORPORATION, DEFENDANT-APPELLANT, CROSS-APPELLEE



Appeals from the United States Court for the Northern District of Illinois, Eastern Division, No. 82 C 1925 -- Bernard M. Decker, Judge.

Cummings and Flaum, Circuit Judges, and Grant, Senior District Judge.*fn*

Author: Cummings

CUMMINGS, Circuit Judge.

Defendant WCLR Radio Station appeals from a denial of a JNOV motion and a jury verdict in favor of plaintiff Leo Rengers, a former WCLR disc jockey. The jury affirmatively answered two special interrogatories, finding that defendant's termination of plaintiff violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and that the violation was willful. After resolving various post-trial motions, final judgment was entered on March 6, 1986, and the notices of appeals and cross-appeals were timely filed thereafter.

In an appeal from an adverse jury verdict and a denial of a JNOV motion we of course must determine whether there is a reasonable basis in the record for the jury verdict. U.C. Castings Co. v. Knight, 754 F.2d 1363, 1369 (7th Cir. 1985). We consider "whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in a light most favorable to the party against whom the motion is directed." Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th Cir. 1985). The evidence here, when viewed in a light most favorable to plaintiff, reveals the following: Plaintiff resides in Glencoe, Illinois, and defendant WCLR Radio Station has its place of business in Skokie, Illinois. Plaintiff was hired in November 1970 as a staff announcer for WCLR. He was terminated on April 15, 1980, because of alleged tardiness and "dead air," that is, periods when no sound is being transmitted over the air. At the time of his discharge, he was 51 years old and had been employed longer than any other WCLR announcer; he was replaced by a new employee aged 33. WCLR claimed at trial that the discharge was due to plaintiff's unsatisfactory job performance and not his age.

Plaintiff worked on various shifts as a disc jockey and announcer during his employment with WCLR. From 1970 to 1975 WCLR featured a "beautiful music" format that mainly consisted of instrumental music designed for easy listening. During this period plaintiff was a proficient and well-respected disc jockey. In 1975 WCLR attempted to reverse its sagging ratings by changing to a "middle of the road" format that featured adult contemporary songs by artists such as the Beatles, the Carpenters, Frank Sinatra, and Barbra Streisand and was targeted to a younger audience. The prominence and on-air time of the announcers grew. To implement this new strategy, WCLR hired a 29-year-old program director. The station retained plaintiff, who was 47 at the time, but fired the three other announcers over age 40. Plaintiff's evidence supported a conclusion that the three were fired not on account of their ability but because their age was not compatible with the new direction in which WCLR was moving. WCLR then proceeded to hire four new on-air announcers over 40 -- a sportscaster, meteorologist, and two weekend announcers -- but only one remained in the employ of WCLR at the time of plaintiff's discharge and he soon left after WCLR imposed on him two drastic cuts in his salary, an involuntary assignment to the midnight shift, and the imposition of an additional day of work. Plaintiff produced expert testimony to the effect that WCLR's format change in 1975 was intended to attract a younger audience and that radio stations generally hire disc jockeys in the targeted age group. The plaintiff also showed through expert testimony and WCLR's own documents that in early 1980 WCLR decided to target an even younger audience during plaintiff's on-air nighttime slot, namely persons aged 25 to 34. The district court concluded in denying WCLR's JNOV motion that "the unmistakable result of its post-1975 hiring practices was that, by the end of 1981, it did not employ a single staff announcer over the age of 40. The jury was entitled to conclude that this disparity was neither merely 'coincidental' . . . nor simply a byproduct of the natural age progression of the labor market." Defendant's App. 25-26 (footnote omitted).

Plaintiff produced evidence supporting a reasonable inference that his firing resulted from this systematic age discrimination. After the 1975 change in management and move to a "youth" image for the station, plaintiff's photograph was not included in WCLR's promotional documents containing pictures of all the other WCLR disc jockeys. From then on he did not receive any more "production work," i.e., taping commercials or public service announcements, nor was he scheduled to make personal appearances at shopping centers to earn extra money, unlike the younger WCLR disc jockeys. As for defendant's proffered justification of unsatisfactory job performance, plaintiff did not deny that in 1977 his job performance declined and three memoranda critical of his work were put in his file. He did show that thereafter his performance again improved to acceptable levels. In early 1979 he was placed on probation but then he worked diligently to improve and was never reprimanded again. He received no formal disciplinary notices in the year prior to his dismissal and the program director who fired him admitted at trial that his performance during that year had not warranted a reprimand. In fact, in November 1979, about five months before his termination, plaintiff received a favorable evaluation from an outside consultant hired by WCLR that concluded that he "did a good job of representing the WCLR format." Plaintiff received merit increases every year but although his raise in 1979 was referred to as a cost of living adjustment. In sum, there was more than enough evidence for the jury to conclude that the proffered justification of unsatisfactory job performance was a pretext and that plaintiff was actually fired because at 51 he was considered too old to attract the recently decided upon nighttime target audience of persons 25 to 34 years of age.

The Equal Employment Opportunity Commission was unable to settle his age discrimination complaint, causing plaintiff to file this suit seeking reinstatement, back pay, and various benefits. The jury returned a verdict of $97,433 for plaintiff. This amount was doubled under 29 U.S.C. § 626(b) by the district court in view of the jury's finding that WCLR's violation of the ADEA was willful. In addition to the award of $194,866, the district court awarded $5,000 for lost investment benefits and health insurance premiums, a monthly pension that defendant would have received but for the illegal firing, and attorney's fees and costs.

In August 1985, Judge Decker handed down a lengthy memorandum opinion and order disposing of numerous contentions raised by the parties. Defendant's App. 1-47. In that opinion, the district judge carefully reviewed the evidence and decided that a fair and impartial jury could have found from the evidence that age was a determining factor in plaintiff's discharge, so that judgment notwithstanding the verdict was unjustified. Next the district court summarized portions of the evidence before determining that the jury could have reasonably concluded that WCLR willfully terminated Rengers, so that doubling the damages portion of the verdict was proper under the liquidated damages provision of the ADEA (29 U.S.C. § 626(b)). Judge Decker then decided that a new trial would not be justified because the jury's verdict was not contrary to the clear weight of the evidence, the damages were not excessive, and there were no substantial errors of law. Consequently WCLR's motion for a new trial was denied.

In the same opinion, the court disposed of various claims of plaintiff. First of all, reinstatement was denied because of continuing animosity between plaintiff and the WCLR management. Plaintiff was awarded, however, prospective pension benefits and lost insurance benefits whose amount was to be determined later. Plaintiff's attorneys requested $9,203.75 attorney's fees as a sanction for WCLR's destruction of certain logger tapes that would have been useful for the trial. See Fed. R. Civ. P. 37(b)(2). This amount was cut to $3,491.50 on the grounds that a proper hourly rate for plaintiff's chief counsel was $110 instead of $125 and because plaintiff's attorneys had spent unreasonable amounts of time on that matter. Although plaintiff's attorneys requested $155,018.38 in fees for representing the prevailing party and also $1,633.10 for costs, the court held off deciding that issue to permit WCLR an opportunity to respond.

In a subsequent opinion, dated January 2, 1986, Judge Decker refused to award plaintiff front pay sought as an alternative remedy in view of the denial of reinstatement.*fn1 Front pay was refused on the ground that the damages award was substantial. Defendant's App. 78-84.

Another opinion, dated April 15, 1986, was devoted to plaintiff's attorneys' final request for $130,921 in attorney's fees plus a 50% multiplier, or a total of $196,381.51, plus $2,175.74 costs. The district judge refused to employ a multiplier and also reduced the fees claimed by employing a lower hourly rate (again $110 instead of $125) and permitting fewer compensable hours. Therefore attorney's fees of $62,934.75 were allowed, plus $1,633.10 costs. Defendant's App. 63-75. The court had earlier denied on March 3, 1986, plaintiff's request to serve interrogatories on WCLR's counsel to ascertain their fees. Plaintiff's App. 1-3.

Defendant WCLR's appeal argues for a judgment notwithstanding the verdict and attacks the finding of willfulness. Defendant also assails various trial rulings of the district judge and claims there was no evidence to support the $97,433 verdict. In addition, the defendant claims that the attorney's fees sanction for its inability to produce certain logger tapes was unwarranted and that the other attorney's fees for plaintiff were unwarranted because he should not have prevailed.

Plaintiff has cross-appealed from (1) the reduced costs and attorney's fees, (2) the rulings of no reinstatement and no front pay, and (3) the allowance of only $3,491.90 for attorney's ...


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