Glismann v. AT & T Technologies, Inc.

827 F.2d 262, 43 Fair Empl. Prac. Cas. (BNA) 1140, 1987 U.S. App. LEXIS 5727, 43 Empl. Prac. Dec. (CCH) 37,110
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 4, 1987
DocketNo. 86-1718
StatusPublished
Cited by8 cases

This text of 827 F.2d 262 (Glismann v. AT & T Technologies, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Glismann v. AT & T Technologies, Inc., 827 F.2d 262, 43 Fair Empl. Prac. Cas. (BNA) 1140, 1987 U.S. App. LEXIS 5727, 43 Empl. Prac. Dec. (CCH) 37,110 (8th Cir. 1987).

Opinion

HANSON, Senior District Judge.

This is an action under the Age Discrimination in Employment Act (ADEA). Appellants claim that AT & T Technologies refused to transfer them into production jobs at the Omaha Works plant in February 1983, and failed to recall them as production workers during a subsequent plant expansion because they were “pension eligible.” A jury found that appellants had not been discriminated against because of their ages, and appellants now appeal asserting that the district court1 should have set aside the jury’s verdict. We affirm the decision of the district court.

I.

Appellants are eight former security guards at AT & T Technologies who alleged they were discriminated against because of their ages. In 1982, Technologies’ Omaha Works plant employed a large number of production workers, who were covered by a collective bargaining agreement, and a 24-member in-house security force, who were not covered by a collective bargaining agreement. After conducting a study of cost-saving mechanisms at the plant, the plant manager determined that approximately $500,000 per year could be saved by eliminating the plant’s in-house security guard force and obtaining the same services from Pinkerton’s, Inc., a private security guard firm. On February 11, 1983, Technologies disbanded its in-house security guard force in favor of the Pinkerton’s services.

Not all of the 24 guards were discharged on February 11, 1983. Eleven of the twenty-four guards had prior plant experience and were transferred into the plant as production workers, although two of the men (Rick Palmer and William Lorenz) were immediately laid off from their plant production jobs for lack of work. Of the remaining nine guards who were transferred into the plant and not laid off, seven employees were within the age guidelines provided by the ADEA. Both Palmer and Lorenz were recalled six months later pursuant to the production workers’ collective bargaining agreement which provided for automatic recall when available work existed.

Another guard not terminated in February 1983 (G. Dokmonovich, age 52) was given an office job for eleven months. Dokmonovich received this temporary position in order to comply with Technologies’ corporate policy prohibiting involuntary layoffs of employees who are within twelve months of eligibility for service pensions. [264]*264Dokmonovich in February 1983 was eleven months away from qualifying for his service pension. He was terminated in January 1984 when he became eligible for a pension. Neither Dokmonovich nor any other guard without prior plant service could have been transferred into the plant or given a permanent position as a production worker in February 1983 because Technologies’ production worker collective bargaining agreement provided that transfer of employees who lacked prior plant service was impermissible when the plant was in a “surplus condition.” A surplus condition existed whenever there were production workers on layoff status. In February 1983, the plant was in layoff status.

The twelve remaining guards were, therefore, discharged. None had prior plant experience. None was within twelve months of qualifying for service pensions. One guard (James Peroutka) had 26 years of service, and was within 14 months of eligibility for a pension, thereby just missing qualification for retention under Technologies’ policy. Technologies’ assistant plant manager, Graham Seiter, was particularly concerned with discharging Peroutka and thus promised to notify him once Technologies began hiring production workers after all the laid off production workers had been recalled.

Appellants are eight of the twelve guards who were discharged. Each was eligible for a service pension.2 The appellants began drawing pensions of between $490 and $590 per month at the time of their discharge, and were granted full medical and other employee benefits for life. Furthermore, each of the discharged guards received a severance payment of between $22,000 and $30,000. Each of the appellants was told that he could apply for a job at Pinkerton’s. The starting wage at Pinkerton’s was $5.25 per hour, compared with the wage they had been receiving as guards of between $9.00 and $11.00 per hour. All but one of the appellants refused to apply for jobs at Pinkerton’s.3

In late summer and early fall of 1983 the plant began expanding again. Technologies first recalled production workers who had been laid off less than two years. Lorenz and Palmer were recalled at this time. Next, Technologies sent some 500 letters inviting all former production workers who had been laid off more than two years to apply for job openings. Then, Technologies extensively advertised in newspapers and on television job openings at the Omaha Works plant. During this time Technologies hired 175 persons without prior plant experience who applied for production jobs. In June 1983 Peroutka was sent a letter specifically inviting him to apply for a job. He was hired as a Grade 32 production worker on August 1, 1983.

In January 1984 two security guards from Technologies’ Hawthorne plant in Illinois, Charles Stanley and Raymond Mason, received notices of job openings at the Omaha Works plant. Stanley and Mason bid for and were hired for production jobs at the Omaha Works. They had been union members at the Hawthorne plant and were permitted to bid on production jobs at the Omaha Works pursuant to an agreement between Technologies and their union at the time the Hawthorne plant was closed.

In May 1984 Technologies offered each of the appellants a Grade 32 production job at the Omaha Works beginning on June 1, 1984.4 As part of the offer made by Technologies, any of the appellants who had accepted employment would not have had to pay back his severance payment, and his pension would not have been reduced. None of the appellants accepted Technologies’ offer.

Appellants had filed charges with the EEOC on January 18, 1983. In May 1983 [265]*265they filed their complaint in federal court. Their complaint, subsequent amended complaint, and the pretrial order asserted the sole ADEA issue was whether they had been wrongfully terminated in February 1983 because of their ages.5

At the close of the evidence, the district court instructed the jury that the plaintiffs were challenging the February 1983 termination, and were challenging the fact that Technologies had failed to give them the same invitation to apply for a job that had been extended to Peroutka. The district court refused to instruct the jury that appellants were challenging any discrimination between themselves and the other 175 persons without prior plant experience who were hired by Technologies, reasoning that these 175 new claims were barred by the pretrial order. In addition, the district court held that there was no evidence of age discrimination with respect to these 175 persons because these new employees had responded to newspaper advertisements just as the appellants could have. The district court did instruct the jury that appellants were challenging any “adverse employment decision.”

The jury returned with a defense verdict, finding that the appellants had not been discriminated against because of their ages. Subsequently, the district court denied appellants’ post-trial motions for judgment notwithstanding the verdict and a new trial. This appeal followed.

II.

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827 F.2d 262, 43 Fair Empl. Prac. Cas. (BNA) 1140, 1987 U.S. App. LEXIS 5727, 43 Empl. Prac. Dec. (CCH) 37,110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glismann-v-at-t-technologies-inc-ca8-1987.