Hybert v. Hearst Corp.

900 F.2d 1050, 30 Fed. R. Serv. 249, 1990 U.S. App. LEXIS 6454, 53 Empl. Prac. Dec. (CCH) 39,897, 52 Fair Empl. Prac. Cas. (BNA) 1238, 1990 WL 47217
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 20, 1990
DocketNo. 89-1576
StatusPublished
Cited by104 cases

This text of 900 F.2d 1050 (Hybert v. Hearst Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hybert v. Hearst Corp., 900 F.2d 1050, 30 Fed. R. Serv. 249, 1990 U.S. App. LEXIS 6454, 53 Empl. Prac. Dec. (CCH) 39,897, 52 Fair Empl. Prac. Cas. (BNA) 1238, 1990 WL 47217 (7th Cir. 1990).

Opinion

BAUER, Chief Judge.

Plaintiff George Hybert brought an action against the Hearst Corporation, his former employer of thirteen years, for wrongful discharge in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”). Following a trial, the jury returned a special verdict in favor of Hybert and awarded him a total of $170,000 in damages. Hybert also received additional equitable relief from the court in the form of front pay. For the reasons stated below, we affirm the jury’s verdict and damages award, but remand for a recalculation of the amount of front pay to which Hybert is entitled.

I.

Hybert began working in Hearst’s Chicago office in 1972 selling advertising space in Good Housekeeping Magazine. He served continuously in that capacity until his discharge in February, 1985. Throughout his years with Hearst, Hybert received steady increases in his base salary and experienced similar increases in his sales-based commissions, so that, by 1984, his total yearly income from Hearst was over $50,000. In mid-1984, just over nine months before his termination, Hybert received a $2,000/year increase in his base salary. Prior to late 1984, all evaluations of Hybert reflected that he was performing his job adequately. In fact, on several occasions Hybert received praise from his publisher, Ray Peterson, and his immediate supervisor, Chicago sales manager Des Dardenne, for his handling of particular accounts.

Hybert’s difficulties at Hearst appear to coincide with the arrival, in July, 1984, of new publisher Lou Porterfield. Prior to Porterfield’s arrival at the New York headquarters of Good Housekeeping, Hybert had not received any memoranda or evaluations critical of his job performance. Shortly thereafter, however, Hybert was informed by his supervisor Dardenne of several “complaints” regarding his handling of certain accounts.1 On October 18, 1984, Hybert received his first formal notice of such complaints. On that date, Dardenne sent Hybert a memorandum that listed three specific complaints that had apparently resulted in Hybert being removed from the subject accounts. On the first of these accounts, Hybert was accused of improperly making direct contact with senior executives of the target companies instead of their advertising agency; on another, of similarly making direct contact with product managers instead of advertising personnel; and on the third, of “negative selling” (i.e. making disparaging comments about other magazines).2 Hybert [1052]*1052responded to these allegations with explanatory memoranda and letters to both Dard-enne and Porterfield.

Hybert’s employment situation deteriorated rapidly in late 1984. On December 19, after an apparently confrontational Christmas party in New York, Porterfield sent Hybert a letter criticizing his “attitude and approach toward business.” Nine days later, Porterfield followed up with another letter “to add some clarification,” in which he warned Hybert that any further complaints would “indeed be cause for your termination.” Such a further complaint apparently came a few short weeks later. In January, 1985, Hybert’s new manager Ron Saba3 informed Hybert that another advertiser had voiced a complaint regarding his performance and that he (Saba) had informed Porterfield of the complaint. As threatened in his December correspondence, Porterfield viewed this last complaint as the last straw. He fired Hybert on February 28, 1985, the stated grounds being “inability to meet the requirements of his position.” At the time of his discharge, Hybert was 68 years old.

Along with the foregoing, the jury received two additional, important and hotly disputed pieces of evidence. First, over the hearsay objection of Hearst’s counsel, Hy-bert testified that Dardenne told him: “there is a concern with the people in New York that, with a new publisher, which we expect, there are a number of people up in their sixties [who] are going to be replaced, because they [later described as ‘the people in New York’] feel that younger people of ours could call on these younger people in the agency media departments a lot more effectively.” Hybert testified that Dard-enne made such statements to him four or five times in early- to mid-1984. Second, Hybert’s counsel presented evidence that, contemporaneous with Hybert’s firing, the three other employees in Good Housekeeping ’s Chicago office who were near or over sixty years old were forced to retire, transfer, or otherwise relinquish their prime business, their work uniformly taken by much younger men.4

The jury returned a special verdict finding that Hybert had been discriminatorily discharged because of his age. The jury awarded Hybert $150,000 in compensatory damages and, because it found that Hearst willfully violated the ADEA, an additional $20,000 in “liquidated damages.” 5 Hearst moved for judgment notwithstanding the verdict (“JNOV”), repeating the unsuccessful arguments it made in its motion for directed verdict regarding the state of the evidence and attacking the jury’s damages award. In a memorandum opinion and order dated March 8, 1989, Judge Parsons denied this motion.

Hybert, too, filed a post-verdict motion, requesting additional equitable relief. Judge Parsons ruled that Hybert was entitled to such relief and granted him, in lieu of reinstatement, “front pay” in the amount of $189,266, as well as costs and reasonable attorney’s fees. Hearst here appeals the finding of liability, the damages award, and Judge Parson’s front pay award..

[1053]*1053II.

Hearst’s challenges to the district court’s conduct of the trial and to the jury verdict are wholly predictable — and wholly merit-less. First, Hearst attacks the admission of the most incriminating piece of evidence against it: the statements made by Dard-enne to the effect that “the people in New York” (i.e. Porterfield and Co.) were bent on replacing older salesman with younger salesmen. As it is attacking an evidentiary ruling, Hearst must establish that the district court abused its substantial discretion in making these types of rulings. See Jardien, 888 F.2d at 1156; FTC v. Amy Travel Serv., Inc., 875 F.2d 564, 572 (7th Cir.), cert. denied, — U.S. -, 110 S.Ct. 366, 107 L.Ed.2d 352 (1989). To this end, Hearst argues on appeal that Dardenne’s statements were “double hearsay,” contending that they were mere repetitions of the statement(s) of others. Even if Dard-enne’s statements to Hybert are admissible under Fed.R.Evid. 801(d)(2)(D) as admissions by the agent of a party, the argument goes, there is no applicable hearsay exception or definitional exclusion that covers the first link in the chain: the statements from the people in New York to Dardenne. Thus, Hearst concludes, it is entitled to a new trial because the jury was obviously tainted by this heavily damaging piece of “inadmissible double hearsay.”

We do not dispute Hearst's assertion that Dardenne’s statements likely had a great impact on the jury. Hybert’s testimony recounting Dardenne’s statements was the most direct evidence supporting Hybert’s contention that the management of

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900 F.2d 1050, 30 Fed. R. Serv. 249, 1990 U.S. App. LEXIS 6454, 53 Empl. Prac. Dec. (CCH) 39,897, 52 Fair Empl. Prac. Cas. (BNA) 1238, 1990 WL 47217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hybert-v-hearst-corp-ca7-1990.