Roush v. KFC Nat. Management Co.

• Decision Date: 27 January 1994
• Docket Number: No. 92-5802,92-5802
• Citation: 10 F.3d 392
• Parties: 63 Fair Empl.Prac.Cas. (BNA) 609, 63 Empl. Prac. Dec. P 42,716 Betty ROUSH, Plaintiff-Appellee, v. KFC NATIONAL MANAGEMENT COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 392

10 F.3d 392

63 Fair Empl.Prac.Cas. (BNA) 609,

63 Empl. Prac. Dec. P 42,716

Betty ROUSH, Plaintiff-Appellee, v. KFC NATIONAL MANAGEMENT COMPANY, Defendant-Appellant.

No. 92-5802.

United States Court of Appeals Sixth Circuit.

Argued June 14, 1993.

Decided Dec. 2, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 27, 1994.

Priscilla S. Diamond, Louisville, KY (argued and briefed), for Betty Roush.

Steven T. Catlett, Jones, Day, Reavis & Pogue, Columbus, OH (briefed), Pamela M. Greenwell, KFC Nat. Management Co., Louisville, KY, Stanley Weiner, Jones, Day, Reavis & Pogue, Dallas, TX (argued and briefed), for KFC Nat. Management Co.

Before: GUY and BATCHELDER, Circuit Judges; and MILES, Senior District Judge ^*.

MILES, Senior District Judge.

Defendant-appellant KFC National Management Company ("KFC") appeals a judgment in favor of the plaintiff-appellee Betty Roush in this action alleging violation of the Age Discrimination in Employment Act and intentional infliction of emotional distress. For the reasons which follow, we AFFIRM IN PART, REVERSE IN PART, and REMAND the case for entry of judgment consistent with this opinion.

I

Betty Roush began working in KFC's Louisville, Kentucky payroll processing department in 1980. Her duties generally consisted of entering payroll information from individual KFC stores into a computer system, editing proofs of the data, and making necessary corrections. Beginning early in her career at KFC, Roush was cited during performance reviews for certain deficiencies and problems in her performance. Twice--in 1983 and again in 1985--Roush was placed on probation. Roush appears to have had particular difficulty getting along with her last immediate supervisor, Judy Sanders. Roush felt that she was deliberately overworked in an attempt to test her because of her age. Sanders, in turn, appears to have had no particular fondness for Roush. In 1985, Sanders began documenting deficiencies in Roush's performance. On more than one occasion, Sanders made derogatory age-related comments about Roush, and mocked her. Other KFC employees joined in the mocking.

In 1985, Roush was warned by another payroll employee, Wetonah Crabb, that she was about to be fired. Crabb suggested that Roush take a sick leave for a period of time long enough for her pension to vest. ¹ Roush accepted this advice. Thereafter, she returned to the payroll department for a few weeks to a newly-created position. ² On September 20, 1985, Roush was informed that she was being terminated because of poor work performance and failure to improve after repeated warnings. Roush was given the option of accepting early retirement in lieu of termination, and she elected to accept the early retirement. Roush was 61 years old at the time of her discharge. ³

Roush filed this action against KFC in state court in September, 1986. Roush thereafter filed an amended complaint asserting a claim of discrimination on the basis of age under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621 to 634. Roush's amended complaint also contained a pendent state law claim for intentional infliction of emotional distress. KFC filed a petition for removal on October 8, 1987. The case was tried to a jury, which returned a verdict in favor of Roush in the amount of $100,000 on her ADEA claim. In response to a special interrogatory, the jury also found that the discrimination against Roush was willful. The jury additionally found in favor of Roush on her state law claim of intentional infliction of emotional distress, awarding damages on this claim in the amount of $50,000. Judgment was entered in accordance with the jury's verdict in the total amount of $150,000.

KFC thereafter moved for judgment notwithstanding the verdict ("j.n.o.v.") or, alternatively, for a new trial. Roush, in turn, made her own post-trial motion, requesting that the ADEA award be doubled as liquidated damages, based on the jury's finding of willful discrimination. The district court granted KFC's motion for j.n.o.v. on the issue of willfulness, but denied it on all other grounds. The court, having granted j.n.o.v. on the willfulness issue, also denied Roush's motion to double the ADEA award. KFC appealed. ⁴

II

KFC argues that the district court erred in denying its motion for j.n.o.v. on Roush's ADEA claim, because the evidence was insufficient to show that Roush's age, and not other, legitimate considerations, was a reason for her discharge. In our de novo review of the district court's denial of j.n.o.v., we must determine

... whether, viewing the evidence and reasonable inferences therefrom in the light most favorable to the non-moving party and without considering the credibility of the witnesses or the weight of the evidence, the only reasonable conclusion is a verdict against the nonmovant.

Moody v. Pepsi-Cola Metro. Bottling Co., Inc., 915 F.2d 201, 208 (6th Cir.1990) (citing Erskine v. Consolidated Rail Corp., 814 F.2d 266, 269 (6th Cir.1987)).

The ultimate issue in an age discrimination action is whether age was "a determining factor" in the employer's decision to fire the plaintiff. Fite v. First Tennessee Prod. Credit Assn., 861 F.2d 884, 890 (6th Cir.1988); Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1180 (6th Cir.1983). Roush must prove that "but for" KFC's discriminatory motive, she would not have been discharged. Fite, 861 F.2d at 889. This court has adopted a modified version of the guidelines established in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) in age discrimination cases. Using these criteria, a plaintiff can establish a prima facie case by demonstrating that (1) she was a member of a protected class; (2) she was discharged; (3) she was qualified for the position; and (4) she was replaced by a younger person. Blackwell, 696 F.2d at 1180. Once the plaintiff establishes a prima facie case, the defendant must then come forward with evidence of a legitimate, non-discriminatory reason for the discharge. The plaintiff must then carry the ultimate burden of proving by a preponderance of the evidence that the reasons offered by the defendant were a pretext for discrimination. See Fite, 861 F.2d at 890. The plaintiff may carry this burden either directly by persuading the jury that a discriminatory motive more likely motivated the employer, or indirectly by showing that the proffered reason is unworthy of belief. Moody, 915 F.2d at 208. ⁵

KFC does not dispute that the plaintiff established a prima facie case of discrimination. Moreover, although Roush suggests otherwise, KFC did offer evidence of a legitimate, non-discriminatory reason for Roush's discharge: poor performance. The real crux of this case is whether Roush carried her burden of proving that this reason was a pretext for age discrimination; in other words, whether she proved that she would not have been discharged but for her age. In support of its position that Roush was discharged for poor performance, KFC presented evidence that throughout her career with the company, Roush was informed in a number of performance reviews that her performance was inadequate in four areas: she did not follow company procedures; she did not properly prioritize her work; she spent too much time talking on the telephone; and her work area was disorganized. Roush also received four separate disciplinary notices, the first in December, 1982 for failing to follow departmental procedures. Four months later, in April, 1983, Roush was again put on probation when the following problem areas were identified in her work performance: communication and cooperation deficiencies; failure to perform work on a timely basis; too much talking on the telephone; failure to prioritize work; and failure to follow company standards and procedures. These same problems in Roush's performance were again documented in 1985, at a time closer to her discharge.

However, notwithstanding this evidence showing that problems had been identified in her performance, Roush demonstrated that her performance problems would not have led to her dismissal but for her age. First, we note that the same employment evaluations which KFC contends document certain inadequacies in Roush's performance also reflect overall ratings of her performance as either "meet[ing] expectations" or "exceed[ing] expectations." In addition, Roush presented evidence showing that her last immediate supervisor, Judy Sanders, referred to her using age-related, derogatory terms such as "old bag" or "old gummer." Finally, Roush presented testimony that a former supervisor, Ron Fantino, refused to recommend her for an assignment training other employees which required travel to Baltimore because she was "too old." Under the circumstances, a reasonable jury could have found that but for her age, Roush's employment with KFC would not have been terminated. We therefore conclude that the district court's partial denial of j.n.o.v. on Roush's ADEA claim was proper.

III

KFC attacks the award of damages to Roush on her ADEA claim on two fronts. First, KFC argues that the award appears to have improperly included an amount representing front pay, although the court's instructions to the jury did not authorize such an award. Second, KFC argues that an award of front pay was improper in any event because the district court did not properly consider the preferred remedy of reinstatement in lieu of front pay, and because Roush simply did not establish her entitlement to such an award.

At the outset, we address an argument by Roush that the damages issues raised by KFC have not properly preserved for appeal. Roush contends that KFC did not object to any part of the extensive testimony offered by her at trial on damages. She also contends, with regard to KFC's argument that the jury's award did not conform with the court's instructions on damages, that this specific issue was not properly preserved because...