Wednesday, February 16, 2000
Appeals court OKs peculiar use of jury
Federal judge asked their advice
BY BEN L. KAUFMAN
The Cincinnati Enquirer
A Covington judge's creative use of an advisory jury verdict has been vindicated and will provide $483,092 to two older workers fired before they had full pension rights.
The U.S. Court of Appeals for the 6th Circuit in Cincinnati recently affirmed the handling of their case and the verdict.
That doesn't mean, however, that they can claim the money U.S. District Judge William O. Bertelsman awarded them more than two years ago, plus interest.
Company attorney Gregory P. Rogers said he would ask the 6th Circuit to reconsider the decision, saying it was hard to understand how a jury could reject an age-discrimination claim and conclude the men were fired because of their proximity to retirement age.
The case involves Alex Pennington of Madeira and Harold Gene Cunningham of Florence, both longtime employees of Western Atlas Inc., a subsidiary of Litton Industries in Hebron.
They lost their jobs in 1993 as part of a reduction in work force. That cost them half of their potential pensions for the next two decades.
Attorney Teresa L. Cunningham filed their suits in 1994 under the Age Discrimination in Employment and Employee Retirement Income Security Acts (ERISA).
A jury in Judge Bertelsman's court in Covington rejected the age-discrimination claim in late 1997.
However, under ERISA, the verdict is up to the judge.
Judge Bertelsman asked the jury for its advice, and jurors said Western Atlas violated ERISA by firing both men to save money on their pensions.
Judge Bertelsman adopted that advisory verdict, saying, “If there was no right to a jury on the ERISA claim, the court will consider the jury to be an advisory jury ... and hereby adopts its findings as those of the court.”
That decision delighted Ms. Cunningham, whose father was one of her clients. “I've never had a judge do that before,” she said.
He awarded $348,090 to Mr. Cunningham, who was a senior mechanical engineer when he was fired at age 59, and $135,002 to Mr. Pennington, who was 60 and an inspector.
Awards represent lost wages until age 65 and lost pension benefits. Payment was postponed during the appeal. If further appeals do not reverse Judge Bertelsman's verdict, the men will be entitled to even more accumulated interest plus Ms. Cunningham's fees and expenses.
Judge Bertelsman did not believe company complaints about either man's performance, saying witnesses “offered substantial evidence that the plaintiffs were in fact above-average performers.”
Further, the judge said, “with the aid of an advisory jury,” he chose to infer “that a desire to reduce pension liability was a determining factor in the plaintiffs' discharge.”
Mr. Pennington was receiving a $7,692 annual pension. Mr. Cunningham was getting $12,276. Had either man worked as planned until 65, he would have received twice that.
Sixth Circuit Judges Damon J. Keith, Allen E. Norris and Eric L. Clay praised Judge Bertelsman's handling of the ERISA verdict.
“We are further persuaded in our opinion by the fact that an advisory jury rendered its decision in this case,” the judges said.
In part, the judges said, they gave “due regard” to jurors' ability to weigh witness credibility when they rejected company reasons for firing the men.
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