Price v. Marshall Erdman & Associates, Inc.

966 F.2d 320, 1992 U.S. App. LEXIS 15427, 59 Empl. Prac. Dec. (CCH) 41,612, 59 Fair Empl. Prac. Cas. (BNA) 462, 1992 WL 155730
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 8, 1992
DocketNos. 91-2303, 91-2373 and 91-3727
StatusPublished
Cited by21 cases

This text of 966 F.2d 320 (Price v. Marshall Erdman & Associates, Inc.) 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
Price v. Marshall Erdman & Associates, Inc., 966 F.2d 320, 1992 U.S. App. LEXIS 15427, 59 Empl. Prac. Dec. (CCH) 41,612, 59 Fair Empl. Prac. Cas. (BNA) 462, 1992 WL 155730 (7th Cir. 1992).

Opinion

POSNER, Circuit Judge.

In 1988, Marshall Erdman and Associates, which (among other activities) designs and builds medical buildings, fired Bobby Price, a salesman in its midwest division. Price sued Erdman, and the head of the midwest division, Halverson, under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. Price obtained a jury award (against both defendants) of $178,-700 in backpay, consisting of what he would have earned from Erdman between the date of his discharge and the date of trial, had he not been fired, minus what he did earn from others; because the jury found the defendants’ violation of the age discrimination law to have been willful, the judge doubled this award. 29 U.S.C. § 626(b). The jury also awarded Price $750,000 in “front pay,” representing the present value of the future earnings that Price would have had from Erdman, minus the present value of his anticipated future earnings in his current occupation of real estate broker. Front pay is an alternative to reinstatement, which Price had requested but which the judge refused to order because of “mutual dislike and defendants’ continued opinion that plaintiff is incompetent.” The judge nevertheless threw out the jury’s award of front pay on the grounds that the evidence of Price’s lost future earnings was speculative and that an award of front pay would duplicate the award of liquidated damages (Congress’s name for the doubling of damages to which the victim of a willful violation of the age discrimination law is entitled). Price’s cross-appeals challenge both the denial of front pay and the judge’s award of only $82,000 in attorneys’ fees; Price had sought $265,000. He does not appeal from the denial of reinstatement.

The evidence of age discrimination was thin; so thin, the defendants argue, as to entitle them to judgment notwithstanding the verdict. Price was 45 when he became a medical-buildings salesman for Erdman (his previous job had been as a construction supervisor for the company). This was the same age as his boss, codefendant Halverson. Two years after being hired, Price was fired, from the company as well as from the division, after some customers had complained about his inattention to detail and after Halverson had been told by his boss to reduce the sales force in the midwest division by one as part of a company-wide economy drive — a directive that Halverson protested before reluctantly carrying it out by firing Price, his newest salesman. It is true that despite the so-called economy drive, Halverson was permitted to bring in another salesman, but the new man came from another division of Erdman, so there was no additional cost to [323]*323the company. And while Price, although the newest salesman, was not the youngest one and was replaced by a man in his twenties (Foy), a much older salesman was retained. The sale of medical buildings to doctors and hospitals does not seem the type of activity in which a youthful image is valued. Nor was anyone in a senior position at Erdman younger than Price.

These are the facts stressed by Erdman but there are others. Despite the customer complaints, Erdman credited Price with substantially higher sales than the young man who replaced him, even though Price’s territory was reconfigured to make things easier for Foy. (Shades of Shager v. Upjohn Co., 913 F.2d 398 (7th Cir.1990), where we upheld the finding of age discrimination.) And Foy too had been the target of a complaint by a customer — a serious complaint that had required repara-tive action by Halverson. This is not a criticism of Foy but it places' customers’ complaints against Price in perspective. Such complaints are inevitable in a business that involves the sale of a complex product to sophisticated and demanding professionals. Price emphasizes, moreover, that not only did he sell more than Foy, but his sales were more profitable, even though costs incurred in responding to customers’ complaints were subtracted in computing the profitability of a sale. Another bit of evidence — trivial in itself, but part of the mosaic — is that an executive of Erdman said that Price did not fit the desired image of a “consultant for the nineties,” that is, the 1990s (Erdman calls its medical-building salesmen “sales consultants”). When asked at argument what this expression was intended to convey, the defendants’ able lawyer said that Erdman’s salesmen would have to be adaptable in order to flourish in the changed competitive environment anticipated for the then forthcoming decade. Older people are considered less adaptable than younger ones (“you can’t teach an old dog new tricks”). As for the older salesman who was retained when Price was fired, he was nearing retirement age so might be gone soon anyway. Finally, although Halverson was the same age as Price, some supervisors feel uncomfortable having subordinates of their own age or older. They prefer to supervise younger persons, who are apt to be more deferential, because deference is more easily paid by a younger person to an older one than by an older person to a younger person or to a contemporary. So this case fits the general pattern of Shag-er, where a middle-level supervisor, uncomfortable with having a subordinate older than himself, fires the subordinate (or engineers his firing).

The jury didn’t have to believe all this, and, even if it did, this would still be a weaker case than Shager; but we cannot say that it is so weak that no rational jury could have brought in a verdict of age discrimination. Nor do we think the jury’s conclusion that the violation was willful can be upset. Ordinarily, it is true, it is irrelevant to liability, whether civil or criminal, that the defendant did not know he was violating the law. But sometimes the law is so intricate, or so remote from the moral intuitions of the people made subject to it, that the legislature conditions the imposition of a penalty on proof that the violation was “willful.” The concept of willfulness clearly includes the defendant who knew he was violating the law and clearly excludes the defendant who reasonably believed that he was not violating it, but what about the defendant who was careless or even reckless with respect to the possibility that he might be violating the law? This case falls in that intermediate zone. If, as the jury found, Halver-son fired Price because Halverson was uncomfortable supervising a person of his own age, this was not an accident resulting from the intricacies of the age discrimination statute or the interpretive doctrines that have been grafted on to it, as in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), and Heiar v. Crawford County, 746 F.2d 1190, 1200-01 (7th Cir.1984). Halverson testified, however, that he had thought the protection of the statute did not begin until a worker reached the age of 50. (Notice how this weakens the defendants’ attempt to get mileage from Halverson’s retention [324]

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966 F.2d 320, 1992 U.S. App. LEXIS 15427, 59 Empl. Prac. Dec. (CCH) 41,612, 59 Fair Empl. Prac. Cas. (BNA) 462, 1992 WL 155730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-v-marshall-erdman-associates-inc-ca7-1992.