UNPUBLISHED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.

_________________________________________________________________

Affirmed and remanded by unpublished per curiam opinion.

_________________________________________________________________

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, BALD-
WIN, JOHNSON & GREAVES, P.A., Charlotte, North Carolina, for
Appellant. Alan D. Toporek, URRICHIO, HOWE, KRELL, JACOB-
SON, TOPOREK, THEOS & JOHNSTON, P.A., Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

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 Dis-
crimination 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 manage-
ment 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 deci-
sions. Numerous other Penney stylists confirmed that the hiring pol-
icy had changed and that Mobbs had assumed Vitello's role in hiring

                    2
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 styl-
ists 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 com-
ments 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 "clien-
tele 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?"

                     3
After a series of meetings at which Visconti and/or Woodruff criti-
cized 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 Vir-
ginia Mobbs to hire the stylists that Vitello referred to Mobbs. Vis-
conti 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 Wood-
ruff, 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 cus-
tomers 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 Wood-
ruff 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 mini-
mum 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 responsibil-
ities, she would not "be able to make it" on a stylist's wages. Wood-
ruff insisted and Vitello felt like a "nobody" with "no self esteem,"
who was "shred of everything."

                     4
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 subse-
quently 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 re-
employment of Vitello and so the court, after conducting an evidenti-
ary hearing, awarded Vitello $124,557 in front pay damages. Penney
appeals.1
_________________________________________________________________

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 appen-
dix itself in order to find something referred to by joint appendix page
in the briefs. The index to the appendix was useless, referring to "tran-
script of evidence" rather than identifying the trial testimony by witness.

                    5
II.

Penney's primary challenges on appeal are evidentiary ones. It
maintains that the district court erred in denying its motion for a judg-
ment as a matter of law with regard to the age discrimination and con-
structive 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 nonmov-
ing 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 unfa-
vorable employment action where the employee's age was a deter-
mining 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
_________________________________________________________________
The joint appendix totalled more than 1,000 pages and yet failed to con-
tain 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 cir-
cuit, 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 inade-
quate joint appendix in this court.

                     6
qualifications who was substantially younger. See O'Connor v. Con-
solidated 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 legiti-
mate, 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 ratio-
nale 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 styl-
ists. Further, the jury could also have considered the extensive testi-
mony 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.

                     7
B.

In order to recover on a constructive discharge claim, a plaintiff
must show that her employer deliberately made her working condi-
tions 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 "in-
tended 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 per-
sonnel 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 sev-
eral times whether she would "give it up," could be regarded as a
deliberate attempt to upset Vitello so she would quit. The daily meet-
ings 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

                    8
while remedial measures can signal an employer's lack of deliberate-
ness, see Holsey, 743 F.2d at 209, an employer's failure to remedy
charges of discrimination provide evidence of an employer's deliber-
ateness. 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 employ-
ment, "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 Pen-
ney, 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.

                    9
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 discrimina-
tory 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) (con-
structive 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 lim-
iting 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 per-
sonal 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 sug-
gested 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 percent-
age 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 indi-
cate 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 discre-
tion, 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 mer-
ited.

Vitello presented sufficient evidence to support an award of front
pay. An economist, Dr. Perry Woodside, estimated Vitello's lost earn-
ings at $149,683, and her lost health benefits, pension and savings
plans at $61,419. Based on Vitello's projected income level, Wood-
_________________________________________________________________
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 instruc-
tions adequately explained to the jury what it must find to return a ver-
dict for the plaintiff.

                     11
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 sixty-
five. 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

                    12
