The Honorable Ann D. Montgomery, United States District Judge for the

1

District of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 97-2106/2107 

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Mark A. Stolzenburg, *

*

Appellant/Cross-Appellee, *

*

v. * Appeals from the United States

* District Court for the Eastern

Ford Motor Company, * District of Missouri.

*

Appellee/Cross-Appellant. *

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Submitted: March 9, 1998

Filed: April 30, 1998

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Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and

MONTGOMERY, District Judge. 1

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

This suit arises from a number of decisions that the Ford Motor Company made

not to promote Mark Stolzenburg, then an employee of almost twenty years, to a more

senior managerial position. Mr. Stolzenburg alleges, first, that, shortly after his fortieth

birthday, Ford removed him from "Private Salary Role" (PSR) status and designated

him as "Appropriately Placed" (AP), which meant at best that he was presumptively
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ineligible for further advancement within the company, and, second, that a number of

younger and less qualified individuals were preferred to him. Mr. Stolzenburg claims

that all of these decisions, including his AP designation, were made in violation of the

Age Discrimination in Employment Act (ADEA), see 29 U.S.C. §§ 621-634, and the

Missouri Human Rights Act, see Mo. Ann. Stat. §§ 213.010-213.137. 

Although a jury found that four of the seven acts of which Mr. Stolzenburg

complained were motivated by age, and the trial court entered judgment in his favor,

Mr. Stolzenburg appeals, seeking the reversal of a partial summary judgment entered

against him and a new trial on the issues of willfulness and punitive damages.

Mr. Stolzenburg also seeks modification of the relief that the trial court ordered. Ford

cross-appeals, claiming that the jury's answer to one interrogatory, the answers to the

other interrogatories notwithstanding, precluded judgment against it.

 I.

All management employees at Ford (those at grade 9 and higher) receive an

annual assessment of their performance and their potential for promotion. This review

serves as an opportunity to give employees feedback on their performance and to

identify and promote employees from within the lower tiers of management. Good

performance evaluations are critical to an employee's advancement at Ford.

Mr. Stolzenburg has been continuously employed in the Parts and Services

Division of Ford since May 9, 1972. Throughout his first fourteen years with Ford, he

advanced steadily and performed successfully in progressively more responsible

positions. In 1978, he was promoted to district field services manager (FSM) for

Buffalo, New York, a lower-management, grade 9 position. Later, he was transferred

to Ford's Dearborn, Michigan, headquarters. There he was told by a number of his

supervisors that his career held the promise of advancement. In July, 1984,

Mr. Stolzenburg, then thirty-eight years old, was transferred to the Parts and Services

Division's St. Louis office to take over as the FSM there, a position that both
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Mr. Stolzenburg and his supervisors understood was one from which he could expect

future advancement.

 

In February, 1986, however, Mr. Stolzenburg was moved to a supporting grade 9

management position in St. Louis to allow a younger employee to take over the position

of FSM, and Mr. Stolzenburg's career saw no more advancement. This appears to have

come as a surprise to him, since, at least until 1986, he had consistently received

above-average evaluations. Just four months after he changed positions and shortly

after his fortieth birthday, his PSR job status (indicating that he had the potential for

promotion to at least four more salary grades) was changed to AP job status. Although

several of Mr. Stolzenburg's peers and supervisors advocated his advancement, he

never received another promotion. He was passed over for promotion on six separate

occasions between October 1, 1990, and February 1, 1991, in favor of employees who

were younger and who had fewer years of experience both with Ford and in a grade 9

position. 

The trial court submitted special interrogatories to the jury, asking whether age

was a motivating factor in each of seven relevant employment decisions by Ford. The

first interrogatory asked whether age was a motivating factor in Ford’s decision to keep

Mr. Stolzenburg in AP status. The succeeding interrogatories asked whether, in each

of six specific instances, age was a motivating factor in Ford’s choice to promote

younger grade 9 employees instead of Mr. Stolzenburg. 

While the jury answered the first interrogatory in the negative, it found that, in

four of the other six employment decisions, age was indeed a motivating factor. The

jury also found that Ford did not act willfully or recklessly in any of the instances in

which Ford's decision was motivated by age. Finally, the jury found that different

decisions would have been made if Ford had not been motivated by age. Upon

receiving and reviewing these answers, the trial court entered judgment for

Mr. Stolzenburg, awarding him $40,500 (the lost wages to which the parties stipulated)
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and directing Ford to promote Mr. Stolzenburg to the next available grade 10 position.

The trial court also awarded approximately $211,300 in attorney's fees to

Mr. Stolzenburg. 

 II.

Mr. Stolzenburg alleged in his complaint that instead of promoting him, Ford

promoted more than twenty younger, less qualified grade 9 employees to available

grade 10 positions. The trial court granted pretrial partial summary judgment to Ford,

holding that relief to Mr. Stolzenburg for any employment decisions made before

October 1, 1990, was barred by the 300-day statute of limitations in the ADEA. See

29 U.S.C. § 626(d)(2); see also 29 U.S.C. § 633(b). Mr. Stolzenburg argues that he

was the victim of a continuing violation by Ford and therefore that the trial court erred

in excluding evidence with respect to several instances when he was not promoted. We

disagree.

 In order to establish a continuing violation (which would allow Mr. Stolzenburg

to put all of the denied promotions before the jury), a plaintiff must show that the acts

of which he or she complains were not actionable as discrete violations of the

applicable law. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). The only

continuing condition under which Mr. Stolzenburg labored when he filed his EEOC

complaint was his AP status. Because the denials of promotion that the trial court

excluded from the case were discrete employment actions that occurred before the 300

days preceding Mr. Stolzenburg's filing of his EEOC complaint, see 29 U.S.C.

§ 626(d)(2), the trial court was correct in treating each as merely "an unfortunate event

in history which has no present legal consequence[]." United Air Lines, Inc. v. Evans,

431 U.S. at 558. 

III.

Mr. Stolzenburg also asserts that the trial court erred by excluding two exhibits

pertinent to Ford's employee evaluation system, and the related deposition testimony
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of Jane Glotzhober, an employee of Ford's personnel office. Without this evidence,

Mr. Stolzenburg argues, he was unable to show that Ford acted willfully to violate the

ADEA and was therefore unable to make a case for liquidated damages.

To be entitled to liquidated damages under the ADEA, a plaintiff must prove that

the defendant willfully violated the act. See 29 U.S.C. § 626(b). This requires more

than a mere demonstration that the defendant was aware that the statute was potentially

applicable; since employers are required to post ADEA notices, virtually every

employer would be aware that the act was potentially applicable. Trans World

Airlines, Inc. v. Thurston, 469 U.S. 111, 127-28 (1985). Rather, an employee must

show that "the employer either knew or showed reckless disregard for the matter of

whether its conduct was prohibited by the statute." Hazen Paper Co. v. Biggins, 507

U.S. 604, 617 (1993). Mr. Stolzenburg contends that the two excluded exhibits (one

entitled "Employee Evaluation: Do's and Don'ts," the other entitled "Sales and

Marketing Assessment of Potential Guidelines") tended to show that Ford was covering

up past age-based decisions and thus that Ford willfully violated the act in the

employment decisions that affected him. 

"Do's and Don'ts" is intended to provide guidance to Ford managers who engage

in the annual evaluations of employees. It instructs managers on how to deal with

employees who are certain to be disappointed by a performance evaluation and on how

to reassure them that there are always ways of improving their chances for later

promotion. Of evident importance to Mr. Stolzenburg is the fact that the document tells

managers not to discuss age in any manner with the employees.

The second exhibit is a memorandum from the personnel office of the department

in which Mr. Stolzenburg was employed. This document discusses a proposed

modification in the evaluation and promotion process. For example, under the practice

in place during the relevant period, a management employee's "potential"
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was presumed to be that of PSR grades 13 and 14 but could be gradually lowered if an

employee proved himself or herself capable of only a more limited management role.

The memorandum proposes that employees start from a more restricted presumptive

ability and that as they prove themselves more capable, their potential rank would be

raised. The document makes only a brief reference to age; it highlights the concern of

the personnel office that some employees of Ford believed that promotions were based

on age rather than merit. By adopting new performance review standards, the

document suggests, Ford would avoid the litigation risks associated with employee

assessments.

We find that any error in excluding these exhibits was harmless. If a trial court

wrongly excludes evidence, we must be left with "no reasonable assurance that the jury

would have reached the same conclusion had the evidence been admitted" before we

will set aside the judgment. Adams v. Fuqua Industries, Inc., 820 F.2d 271, 273 (8th

Cir. 1987). The inference of willfulness on Ford's part, if any, that a reasonable person

could draw from these documents is extremely weak at best. We therefore do not

believe that these two documents, both of them dated after the period relevant in this

case and neither of them related to Mr. Stolzenburg, would have altered the jury's

verdict on willfulness. Since Ms. Glotzhober’s deposition testimony dealt largely with

the circumstances of how the documents came into being, we conclude as well that any

error in excluding it was harmless.

IV.

Mr. Stolzenburg further maintains that the trial court improperly instructed the

jury on the issue of willfulness. He argues that since Ford denied that it used age as a

factor in making its employment decisions, it was not entitled to an instruction that its

“good faith” would exempt it from punitive damages. See Hazen Paper Co. v. Biggins,

507 U.S. at 616.
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The trial court, after giving the standard instruction on willfulness, added that if

"by the greater weight of the evidence [you find] that Defendant in good faith and

non-recklessly believed that Federal law permitted it to act as it did with respect to

Plaintiff, then you may not find that the Defendant's conduct was 'willful.' " While this

instruction contains language that does not find complete support in our cases, it does

not do substantial violence to them, and, on this record, we believe that any error in the

instruction was harmless at most. 

V.

Mr. Stolzenburg complains that the trial court refused to submit the issue of

punitive damages to the jury, which he believes he was entitled to under the Missouri

Human Rights Act. Under Missouri law, “[p]unitive damages may be awarded for

conduct that is outrageous, because of the defendant’s evil motive or reckless

indifference to the rights of others.” Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d

796, 803 (8th Cir. 1994) (internal quotation marks omitted). To merit an instruction to

the jury on punitive damages under the Missouri statute, a plaintiff must produce

evidence of conduct that shocks the conscience. Id. at 804. 

While Ford did not promote Mr. Stolzenburg, there was no showing that Ford

acted in an outrageous fashion: Ford offered Mr. Stolzenburg lateral transfers that

could have helped restart his career, he was always eligible for merit raises within a

grade 9 position, and he was never discharged from the company. After reviewing the

record in the light most favorable to Mr. Stolzenburg, we conclude that there was

insufficient evidence of outrageous conduct by Ford to warrant the submission of the

matter of punitive damages to the jury. 

VI.

Finally, we find no error in the trial court's order for relief. The trial court has

the authority "to grant such legal or equitable relief as may be appropriate to effectuate

the purposes" of the ADEA. See 29 U.S.C. § 626(b). The purposes of the ADEA are
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"to make persons whole for injuries suffered as a result of unlawful employment

discrimination" and "to restore [those] persons to the position where they would have

been if the illegal discrimination had not occurred." Gibson v. Mohawk Rubber Co.,

695 F.2d 1093, 1097 (8th Cir. 1982). 

Given the applicable law, we see no merit in Mr. Stolzenburg's novel suggestion

that his employment records should be changed to reflect that he is now a grade 10

employee and has been since October 1, 1990. For one thing, and perhaps this is the

main thing, such a statement would be manifestly untrue. For another,

Mr. Stolzenburg was awarded back pay commensurate with those lost years of

grade 10 employment; we therefore cannot say that forcing Ford to change its records

to reflect that Mr. Stolzenburg has been a grade 10 employee since 1990 would serve

any useful purpose. 

Mr. Stolzenburg's request that he be promoted to a grade 10 position within the

St. Louis area is likewise without merit. Ford offered evidence that promotion within

its ranks often requires that the employee relocate to a different city; forcing Ford to

promote Mr. Stolzenburg within St. Louis might well make him better off than he

would have been if Ford had not discriminated against him in the first place.

VII.

Ford cross-appeals, arguing that it was entitled to judgment because the jury's

answer to the first interrogatory precluded a judgment for Mr. Stolzenburg. Ford

contends that since the jury found that Ford’s decision to keep Mr. Stolzenburg in AP

status was not motivated by age, the jury was then precluded from finding that any of

the six discrete employment decisions at issue was so motivated, because the evidence

was all to the effect that Ford never promotes individuals who are classified as AP. 

Ford did indeed present evidence that Mr. Stolzenburg, once placed in AP status,

was not considered for any of these six promotions. At least one Ford employee,
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however, testified that Mr. Stolzenburg was considered for a grade 10 promotion

locally and regionally, even if he was not given final consideration at the national level.

Furthermore, a number of Ford employees testified that individuals who had been

designated as AP were sometimes promoted nevertheless. On this record, therefore,

the jury could have found that employees in AP status had a harder time obtaining a

promotion and that those responsible for promotion decisions needed to be convinced

that such employees’ abilities had truly improved, but that employees in AP status were

not completely excluded from consideration for advancement.

VIII.

For the foregoing reasons we affirm the judgment of the trial court.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.