110 F.3d 635 (8th Cir. 1997), 96-1456, Newhouse v. McCormick & Co., Inc.

Docket Nº:96-1456, 96-1535.
Citation:110 F.3d 635
Party Name:Richard NEWHOUSE, Cross-Appellant/Appellee, v. McCORMICK & CO., INC., Appellant/Cross-Appellee.
Case Date:April 14, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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110 F.3d 635 (8th Cir. 1997)

Richard NEWHOUSE, Cross-Appellant/Appellee,


McCORMICK & CO., INC., Appellant/Cross-Appellee.

Nos. 96-1456, 96-1535.

United States Court of Appeals,Eighth Circuit.

April 14, 1997

Submitted Nov. 19, 1996.

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[Copyrighted Material Omitted]

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Jerry L. Pigsley, Lincoln, NE, argued (Anne G. Kimball, Chicago, IL, on the brief), for appellant.

Carole McMahon-Boies, Lincoln, NE, argued, for appellee.

Before FAGG and HANSEN, Circuit Judges, and MAGNUSON, 1 District Judge.

HANSEN, Circuit Judge.

Richard Newhouse brought this suit against McCormick & Co., Inc., alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1994), and in violation of the Nebraska Act Prohibiting Unjust Discrimination in Employment Because of Age, Neb.Rev.Stat. §§ 48-1001 through 48-1010 (Reissue 1993). A jury decided the ADEA claim in favor of Newhouse, and the district court decided the claim under the Nebraska Act, also concluding that McCormick intentionally discriminated against Newhouse on account of his age. McCormick appeals on several grounds, and Newhouse cross-appeals the district court's refusal to provide him with an enhanced attorney fee award. We affirm in part and reverse in part.

I. Background

We recite the facts in the light most favorable to the jury verdict and the district court's findings. See Parrish v. Immanuel Medical Ctr., 92 F.3d 727, 731 (8th Cir.1996). On February 1, 1993, Richard Newhouse, then 61 years old, interviewed with McCormick & Co., Inc., for a position as a sales representative for McCormick's product line of Schilling spices, a job he had held in the past. Despite Newhouse's excellent credentials and spice sales experience, McCormick gave the job to a less-experienced 37-year-old man.

Newhouse had previously worked as a successful sales representative for McCormick, selling its line of Schilling spices for approximately 23 years. In 1987, McCormick terminated Newhouse's employment when it eliminated its direct sales force, electing instead to use a food broker to sell Schilling spices. Newhouse then obtained a job with the food broker, marketing McCormick products for the broker as he had done as a McCormick employee. The sales representatives whom McCormick terminated understood from representations

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of McCormick's vice president, Mr. Harris, that if McCormick decided to use a direct sales force again, they would be given first priority in the rehiring process.

Newhouse continued working for the food broker through 1992. While working in this capacity, Newhouse dealt with several grocery stores that purchased through a grocery wholesaler named Affiliated Foods. In late 1992, Affiliated Foods agreed to carry McCormick spices, but it required McCormick to deal with Affiliated through a direct sales force rather than a food broker. Thus, McCormick once again needed a direct sales force in Nebraska. McCormick created four sales positions.

The food broker for which Newhouse was working eliminated his position in January 1993. Newhouse had heard about an opening with McCormick and was very interested in returning to McCormick as a sales representative. Newhouse contacted Dale DeWit, the zone manager at McCormick who was in charge of hiring the new sales force, and expressed his interest in obtaining one of the sales positions. DeWit initially told Newhouse to contact him later because they were not yet ready to begin the hiring process. Newhouse called DeWit several times after that, and finally, DeWit agreed to interview him.

On January 15, 1993, DeWit interviewed Michael Soflin, a 37-year-old man with grocery and food sales experience. On February 1, 1993, DeWit interviewed Newhouse. Newhouse had sold McCormick's Schilling spices very successfully for approximately 29 years. He had received the C.P. McCormick award, which is the company's top sales award. Newhouse had routinely ranked among the top sales representatives for his zone and possessed a thorough knowledge of Schilling spices. DeWit assured Newhouse that he would not be making a hiring decision for some time. He did not tell Newhouse that he had obtained approval on January 29, 1993, to hire Soflin, two days prior to Newhouse's scheduled interview. Furthermore, DeWit hired Michael Soflin for the sales position the day after Newhouse's interview.

Of the four available positions, one was filled by a current McCormick employee, and DeWit interviewed applicants for the remaining openings. The applicants did not apply for positions at certain locations. DeWit decided which location to consider each applicant for, and once compartmentalized as he saw fit, he did not consider them for the other available locations. In each instance, DeWit passed over the oldest applicants for the position, regardless of qualifications. When one 59-year-old applicant inquired about the salary, DeWit responded, "normally, I hire younger people and start them out at $17,000 a year." (Trial Tr. at 542.) That applicant was not offered a job. DeWit also rejected another older applicant, who had 30 years of experience selling Schilling spices, as overqualified. Yet, DeWit initially told Newhouse that he was not qualified for the position (though Newhouse had 29 years of sales experience with McCormick spices).

McCormick offered various and changing reasons for not hiring Newhouse. DeWit initially told Newhouse that he was not qualified, while McCormick conceded at trial that Newhouse was qualified for the position, and the record amply supports the fact. Later, McCormick sent a letter explaining that Newhouse was not hired because Soflin had direct experience with its new customer, Affiliated Foods, yet DeWit rejected a 59-year-old applicant who was better known to Affiliated Foods than Soflin. In his affidavit, DeWit said that Soflin was hired not so much for his experience with Affiliated as for his ideas about expanding the business, while Soflin testified at trial that during his interview he did not present any ideas for expanding the business. DeWit also said that Soflin performed better in the interview than Newhouse, but he used no objective scoring or ranking devices, so no evidence was presented to corroborate this statement.

After learning that McCormick did not offer him a position, Newhouse sought other full-time employment. He applied with various food brokerage companies and sought help through the Nebraska job service, but his search proved unsuccessful in securing full-time employment. Newhouse did not want to retire, but because he was only able

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to obtain part-time work, he applied for and began receiving social security retirement benefits beginning in August 1994. He would not have retired at that time had he been employed full-time by McCormick.

On April 19, 1994, Newhouse filed this suit alleging age discrimination in violation of the ADEA, 29 U.S.C. §§ 621-634, and in violation of the Nebraska Act Prohibiting Unjust Discrimination in Employment Because of Age, Neb.Rev.Stat. §§ 48-1001 through 48-1010. He requested and received a jury trial on the ADEA claim, and the Nebraska claim was tried to the court. The jury found in favor of Newhouse and awarded him $59,426.76 in back pay and $206,359 in front pay from the date of the verdict until the date Newhouse normally would have retired. The jury also found...

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