UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARY JEAN VITELLO,

Plaintiff-Appellee,

v.

No. 96-1141

J.C. PENNEY COMPANY,

INCORPORATED,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Robert S. Carr, Magistrate Judge.

(CA-93-1177-2-22AJ)

Argued: January 29, 1997

Decided: March 3, 1997

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Nicholas A. O'Kelly, Personnel Relations Attorney, J.C.

PENNEY COMPANY, INC., Plano, Texas, for Appellant. Coming

Ball Gibbs, Jr., GIBBS & HOLMES, Charleston, South Carolina, for

Appellee. ON BRIEF: Robert S. Phifer, HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, P.A., Charlotte, North Carolina, for

Appellant. Alan D. Toporek, URRICHIO, HOWE, KRELL, JACOBSON, TOPOREK, THEOS & JOHNSTON, P.A., Charleston, South

Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Mary Jean Vitello ("Vitello") worked for J.C. Penney Co., Inc.

("Penney") for sixteen years. In 1992, the fifty-four year old Vitello

resigned; subsequently, she filed this action pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.A. §§ 621-634

(West, WESTLAW through Nov. 11, 1996). At the conclusion of a

multi-day trial, a jury found in Vitello's favor. Penney appeals. We

affirm in most respects but remand for recalculation of damages.

I.

In 1976, six months after Vitello began working for Penney as a

hairstylist, she was promoted to supervisor of the styling salon. She

remained in that post during her remaining fifteen and a half years

with Penney. As supervisor, Vitello still continued to be an active

stylist and, over the years, built a large customer base of her own. In

1989, however, Penney redefined the supervisor's duties to focus less

on styling and more on managerial responsibilities; Vitello's direct

supervisor, Kenneth Woodruff, told her to concentrate on management and assign three-fourths of her clientele to other stylists, which

she did.

Vitello generally received good reviews on her performance until

March, 1991, when Woodruff complained to Vitello that she was not

hiring new stylists, who were needed to generate greater sales volume

in the salon. This continued to be Penney's principal complaint with

Vitello for her remaining year with the company. But Vitello testified

that in 1989 Penney had eliminated her hiring authority; at that time,

Vitello was told to refer all applicants to the personnel administrator,

Virginia Mobbs, who would interview them and make all hiring decisions. Numerous other Penney stylists confirmed that the hiring policy had changed and that Mobbs had assumed Vitello's role in hiring

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stylists. Moreover, Vitello testified that when she reminded Woodruff

that she no longer had hiring authority and asked him to instruct

Mobbs to hire more stylists, he told her that "Virginia Mobbs knew

what the J. C. Penney Company needed and for [Vitello] to leave it

at that." The only other complaint that Penney advanced against

Vitello was Woodruff's suggestion at trial that Vitello did not get

along with the salon stylists. However, in previous evaluations,

Woodruff had praised Vitello for her good working relations and stylists testified at trial that they were on good terms with Vitello and had

no complaints as to her management style.

Beginning in the later part of 1991, Woodruff often made comments regarding Vitello's age and the age of her clientele. For

instance, Woodruff frequently referred to Vitello as"grandma" and

stated that the salon reminded him of an "old folks home." When she

was on the escalator with another employee, Woodruff told her,

"Jean, you better hold on, you know you're getting old, grandma." In

September 1991, Woodruff called Vitello into his office, and told her

that the salon's clientele was so old, it depressed him. He said that "he

didn't want any more old people, and he wanted [her] to get young,

cute stylists." On another occasion, Woodruff told Vitello her "clientele had some age on them" and "it was so depressing they were so

old." At trial, Woodruff admitted telling Vitello that she needed to

bring in a younger clientele but he denied making most of the other

comments. However, several stylists confirmed Vitello's account,

saying they had overheard Woodruff make such comments. Even a

customer testified she had heard Woodruff say that"they needed

young blood in there."

During this same period, members of Penney management also

made several comments linking Vitello's age to her continued

employment by the company. For instance, Alan Visconti, the store

manager, asked her in October 1991, "don't you want to step down?

Jean you're getting older. If you can't handle it, just step down."

When Vitello asked him to get Virginia Mobbs to"hire the people I

send up," Visconti replied, "Virginia Mobbs knows what this store

needs" and again suggested to Vitello: "don't you want to step down?

You know you're getting older." Woodruff admitted that he also

asked Vitello "had she thought about stepping down?"

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After a series of meetings at which Visconti and/or Woodruff criticized Vitello for the lack of salon sales and berated her as "grandma,"

they met with her on March 13, 1992 for three consecutive hours.

They again informed Vitello of their negative appraisal of her work

and put her on a ninety-day probation period. When criticized about

the shortage of stylists, Vitello again asked Visconti to instruct Virginia Mobbs to hire the stylists that Vitello referred to Mobbs. Visconti again told her "that Virginia knows what the styling salon

needs." He then urged her, "Jean, why don't you just give it up?"

Vitello said she "was not a quitter" and refused to "give up." But she

wept and was so distraught that after the meeting she had to seek

immediate medical assistance.

During the ninety-day probation period, Penney required Vitello to

meet with Woodruff or Visconti every day. At meetings with Woodruff, he continued to call her "grandma" and to ask her, "why don't

you just give it up?" He would also criticize Vitello in front of customers and other stylists. On April 10, 1992, Vitello filed an EEOC

age discrimination complaint against Penney. The company received

a copy of the complaint but took no steps to address her charges.

Indeed, in its appellate brief, Penney proclaims that "[t]he [EEOC]

charge did not alter" anything; "the evaluation period continued just

as it had . . . ." Vitello testified that management's treatment of her

even worsened after she filed the EEOC complaint.

In May 1992, assertedly because of "deterioration in . . . the styling

salon," Woodruff sent an e-mail to Penney's labor attorney, inquiring

whether he could "make a move on Jean by June 1" -- a month prior

to the end of Vitello's probation period. The attorney advised Woodruff to wait until the end of that period and so he did. However, at the

end of the probation on July 3, 1992, Woodruff informed Vitello that

she would be removed from her supervisory salaried position and

required to work as an ordinary stylist; she was to"go back to minimum wage and go behind a chair." Vitello told Woodruff that because

she had followed his instructions "to give away over three-fourths of

[her] clientele" in order to take on the greater supervisory responsibilities, she would not "be able to make it" on a stylist's wages. Woodruff insisted and Vitello felt like a "nobody" with "no self esteem,"

who was "shred of everything."

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When Vitello returned to her office a few days after this meeting,

she discovered that Woodruff had gone through her desk, taken

everything she had, and put it in the trash. "[I]mportant color books,

techniques books there, all of that were missing" and Vitello never

was able to recover them. In addition, Woodruff had also turned her

desk against the wall so that she could not get into the drawers. That

day, Woodruff was taking a day off so Vitello went to see Visconti.

She resigned, explaining to him:

[T]he way I've been talked to, I've been badgered, I've been

put down, I've been called a grandma, I've been told my

customers are too old, how can I work under those kind of

environments [sic]? And then the last straw was to go in and

find Mr. Woodruff had went through my personal things and

thrown them away.

Penney replaced Vitello with one stylist who remained a month, and

then another. Both were in their early to mid-forties. Vitello subsequently worked part-time for herself, earning roughly $4,000 per year

after expenses.

On May 18, 1993, Vitello filed this action. After several days of

trial, a jury found that Penney discriminated against Vitello because

of her age and caused her constructive discharge. The jury awarded

Vitello $50,658 in back pay. Penney refused to consider reemployment of Vitello and so the court, after conducting an evidentiary hearing, awarded Vitello $124,557 in front pay damages. Penney

appeals.1

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1 In ascertaining the facts, we had to look to the record and expected

to rely on the joint appendix as setting forth the relevant portions of the

record. After all, the joint appendix is supposed to assist an appellate

court by being a compilation of those portions of the record necessary to

decide the appeal; however, the appendix prepared in this case was far

from helpful. Mechanically, it was a mess -- too many pages were put

in a volume so that the volumes fell apart. Page numbers were largely

unreadable so the court was reduced to counting each page of the appendix itself in order to find something referred to by joint appendix page

in the briefs. The index to the appendix was useless, referring to "transcript of evidence" rather than identifying the trial testimony by witness.

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II.

Penney's primary challenges on appeal are evidentiary ones. It

maintains that the district court erred in denying its motion for a judgment as a matter of law with regard to the age discrimination and constructive discharge claims. We address each claim in turn. In doing

so, we keep in mind that when reviewing a court's denial of a motion

for judgment after a jury verdict, we must view the facts in the light

most favorable to the non-moving party, drawing all inferences in that

party's favor. See Martin v. Cavalier Hotel, 48 F.3d 1343, 1349-50

(4th Cir. 1995). We must affirm if there is "evidence of such quality

and weight that reasonable and fair-minded men in the exercise of

impartial judgment could reasonably return a verdict for the nonmoving party," Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888,

891 (4th Cir. 1980), even if our own judgment of the evidence might

be different. See Duke v. Uniroyal Inc., 928 F.2d 1413, 1417 (4th Cir.

1991).

A.

Under the ADEA, an eligible employee can seek redress for unfavorable employment action where the employee's age was a determining factor in the action. See Tuck v. Henkel Corp., 973 F.2d 371,

374 (4th Cir. 1992). Pursuant to a modified version of the proof

scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 793 (1973), an employee can establish a prima facie case of age

discrimination by showing that: (1) she is a member of the protected

age group (over 40 years old); (2) she suffered an adverse job action;

(3) she was performing at a level that met her employer's legitimate

expectations; and (4) she was replaced by someone of comparable

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The joint appendix totalled more than 1,000 pages and yet failed to contain the complaint and other crucial portions of the record. In short, the

joint appendix was a disaster that utterly failed to comply with the letter

or spirit of Fed. R. App. P. 30. Although counsel for appellant bears the

principal responsibility for preparation of the joint appendix, in this circuit, appellee's counsel shares this responsibility. See 4th Cir. I.O.P.-

30.2. We trust that counsel will never again file such a woefully inadequate joint appendix in this court.

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qualifications who was substantially younger. See O'Connor v. Consolidated Coin Caterers Corp., 116 S. Ct. 1307 (1996) (modifying the

fourth prong of the scheme); Burns v. AAF-McQuay, Inc., 96 F.3d

728, 731 (4th Cir. 1996). If an employee establishes a prima facie

case, the burden of production then shifts to the defendant employer

who can rebut the prima facie case by presenting evidence of legitimate, non-discriminatory reasons for its action. See Burns, 96 F.3d at

731 (quoting Tuck, 973 F.2d at 375). The employee must then show

that the employer's proffered reason was not the"true reason for the

employment decision." St. Mary's Honor Center v. Hicks, 113 S. Ct.

2742, 2747 (1993) (quoting Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 256 (1981)). The burden of persuasion

remains with the employee at all times. See Burns, 96 F.3d at 731.

Penney does not assert that Vitello failed to make out a prima facie

showing of age discrimination. The company, however, does maintain

it rebutted that showing with a legitimate, non-discriminatory rationale for its employment decision -- declining economic performance

in the salon and low morale of salon employees. We agree. Thus, the

critical question is whether Vitello presented sufficient evidence so

that the jury could conclude that Penney's rationale was a pretext for

age discrimination.

We believe she did. Viewing the facts in the light most favorable

to Vitello, as we must, a reasonable jury could conclude that Penney

deprived Vitello of any authority to hire stylists during the period at

issue, and thus, she was not directly responsible for low sales in the

salon. Similarly, although Penney asserts that lack of staff in the salon

resulted in part from Vitello's inability to get along with the stylists,

a jury could credit the testimony of several stylists who testified that

Vitello was a good manager who got along well with the other stylists. Further, the jury could also have considered the extensive testimony as to Woodruff's comments about Vitello's age and the age of

her clientele. This testimony, damaging in itself, was substantiated by

Woodruff's admission that he instructed Vitello"to attract a younger

clientele." Based on this evidence, the jury could reasonably infer that

Penney's alleged dissatisfaction with Vitello's performance was a

pretext designed to insulate Penney from liability for discriminating

against her because of her age.

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B.

In order to recover on a constructive discharge claim, a plaintiff

must show that her employer deliberately made her working conditions so intolerable that she was forced to resign. See Bristow v. Daily

Press, Inc. 770 F.2d 1251, 1255 (4th Cir. 1985). Thus, a constructive

discharge claim consists of two elements: (1) deliberateness of the

employer's action and (2) intolerability of the working conditions. See

Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1132 (4th

Cir. 1995); Bristow, 770 F.2d at 1255.

Deliberateness exists when the actions of the employer were "intended by the employer as an effort to force the employee to quit."

Martin, 48 F.3d at 1354. Such intent can be inferred from actual or

circumstantial evidence. See Holsey v. Armour & Co., 743 F.2d 199,

209 (4th Cir. 1984) (citing United States Postal Services v. Aikens,

460 U.S. 711 (1983)). Deliberateness is also shown if company personnel know of the untenable conditions, and take no steps to remedy

the situation. Id.

The evidence was sufficient to support a conclusion that Penney's

actions were deliberate. Although Penney argues its managers were

merely attempting to enhance sales, a reasonable jury could conclude

that the true -- albeit unstated -- purpose behind management's

actions was to force Vitello to leave. Evidence of such deliberateness

can be found in Woodruff's often-made comment that Vitello should

just "give it up." Further, the three-hour meeting on March 13, 1992,

at which Vitello was referred to as "grandma," and again asked several times whether she would "give it up," could be regarded as a

deliberate attempt to upset Vitello so she would quit. The daily meetings with Woodruff during the probation period, at which similar

comments were made, likewise evidence a deliberate effort to force

Vitello to quit. Such evidence, coupled with testimony of Woodruff's

other comments on how the salon looked like an "old folks home,"

and that the salon needed to hire "young, cute stylists," could imply

a deliberate policy of pushing out an older supervisor in order to

employ younger personnel to attract a younger clientele. Finally, even

after Vitello formally placed Penney on notice of her charges of age

discrimination by filing the EEOC claim, the company failed to take

any measures to remedy the situation. We have repeatedly held that

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while remedial measures can signal an employer's lack of deliberateness, see Holsey, 743 F.2d at 209, an employer's failure to remedy

charges of discrimination provide evidence of an employer's deliberateness. See Amirmokri, 60 F.3d at 1133; Paroline v. Unisys Corp.,

879 F.2d 100, 114 (4th Cir. 1989) (Wilkinson, J., dissenting), vacated

in part, 900 F.2d 27 (1990) (en banc) (adopting Judge Wilkinson's

dissent). Here, it is undisputed that Penney did not offer any response

to Vitello's charges; the company did not even investigate them. A

jury could certainly have concluded Penney acted deliberately.

Having determined that the evidence supports an inference of a

deliberateness by Penney, we now turn to the question of whether

Vitello's work environment was intolerable. Intolerability is evaluated

under an objective standard of whether a reasonable person in the

employee's position would have felt compelled to resign. See

Bristow, 770 F.2d at 1255. Intolerable conditions are often associated

with "egregious personal harassment." Diamond v. T. Rowe Price

Assoc., Inc., 852 F. Supp. 372, 398 (D.Md. 1994). Demoting an

employee can constitute an unreasonably harsh condition of employment, "especially where the demotion is essentially a career-ending

action or a harbinger of dismissal." Carter v. Ball, 33 F.3d 450, 459

(4th Cir. 1994). However, a "slight decrease in pay coupled with

some loss of supervisory responsibilities" will not suffice to prove

constructive discharge. Id. (quoting Jurgens v. EEOC, 903 F.2d 386,

392 (5th Cir. 1990)).

Stephens v. C.I.T. Group/Equipment Fin., Inc. , 955 F.2d 1023 (5th

Cir. 1992), is instructive here. There, as in the instant case, an

employer appealed a jury verdict for an employee on a claim of age

discrimination and constructive discharge. The employer, like Penney, had demoted and reduced the employee's responsibilities. His

salary was also cut by twenty percent. In evaluating the evidence, the

Fifth Circuit concluded that:

The combination of the demotion, the continuing limitations

on his salary and responsibility, and [his boss's] repeatedly

asking him whether he was going to quit his job, could make

working conditions intolerable for a reasonable person in

Stephens's position.

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Id. at 1027. See also J.P. Stevens & Co. v. NLRB, 461 F.2d 490, 494

(4th Cir. 1972) (reducing employee's rate of pay with a discriminatory intent constitutes constructive discharge); Guthrie v. Tifco Indus.,

941 F.2d 374, 377 (5th Cir. 1991) (demotion from vice president and

general manager to senior buyer with substantial reduction in salary

establishes prima facie case of constructive discharge); Zabielski v.

Montgomery Ward & Co., 919 F.2d 1276, 1281 (7th Cir. 1990) (constructive discharge can be evidenced by demotion from managerial to

sales job and accompanying loss of salary).

Similarly, a reasonable jury could find that Vitello's demotion and

resulting substantial cut in pay, the haranguing about sales while limiting her ability to respond, the incessant meetings, and the derogatory

age-related comments, had the cumulative effect of making Vitello's

working conditions intolerable. Certainly, she faced"egregious personal harassment," Diamond, 852 F. Supp. at 398, in comments about

her age, the age of her clientele, and her need to retire.

Indeed, the evidence of intolerable working conditions is even

stronger here than in Stephens. There, the employer repeatedly asked

the employee if he was "going to quit;" here, Penney management did

not merely inquire as to whether Vitello would quit, but often suggested she do so. Of course, Penney asserts that its constant urgings

that she "give it up" were simply meant to encourage Vitello to take

a demotion, but a jury could have concluded that Penney was urging

Vitello to "give up" employment with Penney. Moreover, the percentage wage reduction here was greater than that at issue in Stephens.

And in the case at hand, there was evidence that management

demoted Vitello to an hourly position after she had, at management's

request, given away most of her customer base. In addition to losing

all managerial responsibility, Vitello faced the loss of any chance of

earning a salary approaching her previous wage; her treatment clearly

goes beyond a "slight decrease in pay coupled with some loss of

supervisory responsibilities," factors that we cautioned did not indicate constructive discharge in Carter, 33 F.3d at 459.

Finally, Vitello's physician testified at trial that while Vitello had

previously been calm, pleasant, anxious to please, and cooperative,

her work conditions caused acute stress resulting in a "total change

[in] this individual's personality." On the basis of such evidence, a

 10
reasonable jury could conclude that Vitello's working conditions were

intolerable. In sum, the court did not err in denying Penney's motion

for judgment.2

III.

Finally, Penney maintains that the court erred in awarding front

pay, asserting the award is not supported by reliable evidence.

The equitable remedy of front pay is generally available when an

employer terminates an employee unlawfully and reinstatement is not

possible. See Duke, 928 F.2d at 1423. However, we will set aside

such an award if we conclude that the district court abused its discretion, or that findings of fact on which the award is based are clearly

erroneous. See Scarfo v. Cabletron Sys., Inc. , 54 F.3d 931, 954 (1st

Cir. 1995). Penney stated that it would not reinstate Vitello. Thus, it

fell to the trial court to determine what, if any, front pay Vitello merited.

Vitello presented sufficient evidence to support an award of front

pay. An economist, Dr. Perry Woodside, estimated Vitello's lost earnings at $149,683, and her lost health benefits, pension and savings

plans at $61,419. Based on Vitello's projected income level, Wood-

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2 Penney also contends that the court erred in not granting its motion

for a new trial, asserting that the verdict was against the weight of the

evidence. A trial court's determination on whether to grant the motion

falls within its sound discretion. See Poynter v. Ratcliff, 874 F.2d 219,

223 (4th Cir. 1989). We may overturn that decision only if the trial court

abused its discretion. See Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433

(4th Cir. 1985). Because, as explained in text, the verdict was not against

the weight of the evidence, there was no abuse here. Penny's contention

that the court wrongly refused to submit special interrogatories to the

jury is similarly meritless. Like the new trial decision, whether to use

special interrogatories is a matter within the discretion of the trial court,

Deadwyler v. Volkswagen of America, Inc., 884 F.2d 779, 782 (4th Cir.

1989); its decision will only be reversed for abuse of discretion. See

Norfolk S. R.R. Co. v. Davis Frozen Foods, Inc., 195 F.2d 662, 666 (4th

Cir. 1952). Again there was no abuse of discretion-- the jury instructions adequately explained to the jury what it must find to return a verdict for the plaintiff.

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side estimated that Vitello would make only $46,581 from the date

the trial began until she would have retired in 2003 at the age of sixtyfive. Discounting to the present value, Woodside fixed Vitello's total

losses at $211,102. The district court rightly lowered that figure due

to Vitello's failure to mitigate her losses. Drawing from the highest

income presented by Penney's witnesses, the court estimated that

Vitello could be making $17,000 a year if she were working full-time.

It therefore subtracted that amount for each year from the front pay

total.

All of the above calculations were within the court's discretion.

The court was also justified in factoring in benefits, and discounting

to present value. It would appear, however, that the calculations

described by the trial court yield an award for front pay lower than

$124,557. We, therefore, remand for a recalculation of this award.

IV.

For the reasons set forth above, the judgment is affirmed on all

respects except that we remand for the court to recalculate the front

pay award.

AFFIRMED AND REMANDED

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