212 F.3d 296 (5th Cir. 2000), 98-30287, Wyvill v United Companies Life Ins. Co.

Docket Nº:98-30287
Citation:212 F.3d 296
Case Date:May 31, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 296

212 F.3d 296 (5th Cir. 2000)

J.R. RIDGLEY WYVILL Plaintiff/Appellee/Cross-Appellant,




GERALD W. WALDROP, Plaintiff/Appellee/Cross-Appellant,




No. 98-30287

United States Court of Appeals, Fifth Circuit

May 31, 2000

Page 297

[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Middle District of Louisiana

Before JONES, BARKSDALE, and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant United Companies appeals from the judgment of the district court, entered upon a jury verdict, awarding substantial damages to two former employees under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Unfortunately, the verdict depends on evidence that this court and others have held inadmissible to support an inference of age discrimination. In particular, the district court allowed the plaintiffs to saturate the record with testimony pertaining to other employees in other branches of the company who held different positions under different supervisors and were terminated at different times. Shorn of this and other irrelevant evidence, the judgment cannot stand.


Gerald Waldrop began work with United Companies Lending Corporation (the "Lending Company"), a subsidiary company of defendant United Companies Financial Corporation ("United Companies"), in

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1983 as branch manager in Dalton, Georgia.1 Waldrop's duties included the production of a certain number of loans per month, ensuring that branch staff adequately processed new and existing loans, collecting loans to minimize delinquency rates, and maintaining balanced escrow logs. From 1991 to 1993, the period relevant to this litigation, Waldrop supervised four employees: Sandy Stafford, who was assistant manager; Pat McMillan; Cheryl Welch; and Pat Little. During this period, Waldrop was supervised by D.C. Brantley, who was two years older than Waldrop, and Brantley was in turn supervised by Joe Phillips. Waldrop was terminated from his job in January 1993 when he was forty-seven years old.

According to United Companies, Waldrop's relationship with Brantley began to deteriorate in 1990. Waldrop struck Brantley in the back of the head at a Company function, calling him a son-of-a-bitch, and threatening to "whip his ass" if he ever came to Dalton. When United Companies dismissed Waldrop's son in early 1991, the discord between Waldrop and Brantley escalated. During a telephone conversation among Waldrop, Brantley and Phillips, Waldrop allegedly threatened Brantley with physical harm and told him to keep out of the dispute. Waldrop's insubordination became so intolerable that Brantley sent a memorandum to Phillips asking to be relieved from supervision of the Dalton branch.

Waldrop also had problems with the Dalton branch employees. His abusive behavior towards staff and customers was brought to the attention of William S. Spann, Jr., United Companies' Director of Human Resources, by Sandy Stafford.

In May 1991, Waldrop was given a six-week paid leave of absence. Waldrop contends that medical problems associated with his diabetes forced this leave, while United Companies argues that the leave was necessitated by Waldrop's problems in the office and with his supervisor. Upon Waldrop's return, his relationship with his staff did not improve. In the fall of 1991, he brought both Stafford and Welch to tears after separate outbursts. In November 1991, Spann and Phillips reprimanded Waldrop and made him apologize to his employees.

A year later, two of the Dalton branch employees -- McMillan and Welch -- left the Lending Company. In post-resignation letters to Spann, they blamed Waldrop's behavior for their departures. After receiving these letters, Spann called McMillan, Welch, and Stafford and discovered that Waldrop's behavior had not improved. He discussed Waldrop's behavior with Phillips and they decided to terminate Waldrop. Spann (age 47), Phillips (age 45), and Brantley (age 49) attended the meeting at which Waldrop was dismissed.

Waldrop does not dispute these events. Rather, he points out that throughout his employment, he and his branch were consistently among the top ten performers in the Lending Company, in terms of quantity and profitability of the loans produced. He also asserts that new employees were often sent to him for training and that several of his assistant branch managers became successful managers of their own branches. In addition, he offered evidence that Stafford and McMillan visited his home after his termination, Stafford to ask for his blessing in succeeding him as branch manager, and McMillan to show him her grandchild. Waldrop contends that these visits were not the actions of employees afraid of or antagonized by an abusive and rude boss.

J.R. Ridgley Wyvill began employment with United Companies Life Insurance Company (the "Life Company"), a subsidiary of United Companies, in 1978. From 1980 until his dismissal in February 1993,

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Wyvill managed the credit life department in Baton Rouge, Louisiana. He was supervised by Lindsay Seals, an executive vice-president of the Life Company, who in turn reported to Gary Warrington, the president of the Life Company.

In January 1993, Wyvill made several allegedly disruptive phone calls to employees of the Lending Company about Waldrop's termination. Carl Scott, a Lending Corporation branch manager in Nashville, heard from Wyvill on January 29, 1993, three days after Waldrop had been fired. Wyvill informed Scott that United Companies "had gotten the Chief," referring to Waldrop, and he warned Scott to "watch his backside." Scott testified that he did not know Wyvill before this call and that the call upset him. He reported the call to Phillips.

The second call was made to Sandy Stafford, Waldrop's assistant manager. Like Scott, Stafford did not know Waldrop and had only met him on two previous occasions during her nine years with United Companies. Stafford was being considered as a replacement for Waldrop, and Wyvill warned her that if she took the position, she would be taking "blood money." Later, Wyvill called Stafford again and asked her to lie to United Companies management who were investigating his telephone calls. Stafford refused.

According to Wyvill, he placed these calls at the behest of Tee Brown, Jr., the son of Terrell Brown, Sr., the CEO of United Companies. The younger Brown wanted Wyvill to investigate an underground newspaper at United Companies, The Unlink, that had been critical of United Companies management.

Upon receiving Scott's report about Wyvill's phone call, Phillips pulled the telephone record of calls made from Wyvill's office and discovered that Wyvill had placed phone calls to several former employees who had been terminated or had left under unpleasant circumstances. Phillips notified Spann about these calls, and Spann and Roger Clark, the president of the Lending Corporation, called Stafford and were told about Wyvill's phone call to her.

A meeting was then held, attended by United Companies senior management and Wyvill, where Wyvill was questioned about the nature of his calls. Wyvill did not mention that the calls were part of his investigation into The Unlink. Finding Wyvill's explanations insufficient, Wyvill's direct supervisors, Seals (age 58) and Warrington (age 53), with the agreement of the assembled managers, terminated him effective February 1, 1993. Wyvill was fifty-three years old.

According to Wyvill, his silence with regard to The Unlink investigation was meant to protect Tee Brown. Wyvill later produced testimony that when Brown, Sr. discovered that his son had put Wyvill up to the calls, he paid Wyvill $5000 to "leave quietly."

Both Wyvill and Waldrop sued their former employers. Their cases were consolidated over the dissent of United Companies. After procedural skirmishing and a mistrial followed by a six-day trial, the jury returned a verdict finding that the plaintiffs had been discriminated against because of their age and that the discrimination had been willful. The jury awarded Waldrop $76,569.00 in back pay and Wyvill $186,939.00 in back pay. The district court entered judgment on the jury's verdict, effectively doubling each man's back pay award because of the finding of wilfullness. 29 U.S.C. § 626(b). Front-pay to Wyvill, pre-judgment interest, and attorneys' fees were added to the judgment.

United Companies appeals, renewing its arguments, properly preserved in the district court, that the verdict was not supported by substantial evidence and that the district court erred in admitting testimony about and from former United Companies employees who were not similarly situated to either Wyvill or Waldrop. In addition, United Companies appeals, and Wyvill and Waldrop cross-appeal, various

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issues relating to damages. Because we reverse for evidentiary errors and insufficient proof of liability, we do not reach the parties' other arguments.


A. Standard of Review

We review the district court's denial of a motion for judgment as a matter of law de novo. Scott v. Univ. of Miss., 148 F.3d 493, 503 (5th Cir. 1998). "'A motion for judgment as a matter of law . . . in an action tried by jury is a challenge to the legal sufficiency of the evidence.'" Id., quoting Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997). Jury verdicts are considered under the standards established in Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969)(en banc), overruled on...

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