Thomure v. Phillips Furniture Co., s. 93-2916

Decision Date12 October 1994
Docket Number93-2917,Nos. 93-2916,s. 93-2916
Citation30 F.3d 1020
Parties65 Fair Empl.Prac.Cas. (BNA) 976, 65 Empl. Prac. Dec. P 43,236 Andrew J. THOMURE; Joe Williams, Appellees, v. PHILLIPS FURNITURE COMPANY; Tom E. Phillips, Sr.; Tom E. Phillips, Jr., Appellants. Andrew J. THOMURE; Joe Williams, Appellants, v. PHILLIPS FURNITURE COMPANY; Tom E. Phillips, Sr.; Tom E. Phillips, Jr., Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Francis E. Pennington, Clayton, MO, argued (Francis E. Pennington, III and Joe D. Jacobson, St. Louis, MO, on the brief), for appellants/cross-appellees.

John D. Lynn, St. Louis, MO, argued (Michael J. Hoare and John D. Lynn, St. Louis, MO, on the brief), for appellees/cross-appellants.

Before BOWMAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

BOWMAN, Circuit Judge.

Andrew "Jody" Thomure and Joe Williams sought actual and punitive damages and equitable relief under the Missouri Human Rights Act (MHRA) and the federal Age Discrimination in Employment Act (ADEA) in an action against Phillips Furniture Company, Tom Phillips Sr., and Tom Phillips Jr. (collectively, Phillips or the company). A magistrate judge, presiding over the case by consent of the parties, granted Phillips's motion for summary judgment on Williams's claims, holding that Williams failed to file a timely charge with either the federal Equal Employment Opportunity Commission (EEOC) or the sister state agency, a prerequisite to suit. After Thomure's trial, the jury returned a verdict for Thomure for $23,880 in lost wages and benefits, $20,000 for mental anguish and emotional distress, and $20,000 in punitive damages, and found that the company's discrimination against Thomure because of his age was willful.

The court vacated the award of punitive damages, which had been granted under the MHRA, finding the award duplicative in view of the liquidated damages due Thomure under the ADEA because of the finding that Phillips acted willfully. The court also vacated the mental anguish and emotional distress damages because Thomure presented no medical evidence to support his claim. The court granted Phillips Sr. and Phillips Jr. judgment as a matter of law on the MHRA claims, holding that the Phillipses were not added as defendants within the MHRA's two-year statute of limitations. Thomure's backpay award was increased to account for wages lost from the end of trial to entry of judgment and then was doubled for Phillips's willful actions, and the court ordered Thomure's wages increased prospectively. The court denied Thomure's request for an award of prejudgment interest. Attorney fees, reduced from the amount requested, were awarded to Thomure.

Phillips appeals, challenging, among other things, the court's failure to grant judgment as a matter of law, contending that the evidence does not support the jury verdict. On cross-appeal, Williams challenges the summary judgment entered against him and Thomure raises various other issues.

We reverse the court's judgment on Thomure's claims and affirm the summary judgment as to Williams. Because of the result we reach on Phillips's appeal, it is unnecessary for us to consider Thomure's arguments on cross-appeal or to consider Phillips's arguments other than the one challenging the submissibility of the case.

I.

When reviewing a decision to deny judgment as a matter of law in the face of a jury verdict finding age discrimination, we must consider the evidence in the light most favorable to sustaining the verdict, resolving evidentiary conflicts in favor of the verdict. See Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 450 (8th Cir.1993); Glover v. McDonnell Douglas Corp., 981 F.2d 388, 391 (8th Cir.1992), vacated and remanded for reconsideration of other issues, --- U.S. ----, 114 S.Ct. 42, 126 L.Ed.2d 13 (1993). We recite the evidence here keeping that standard in mind.

A.

In 1988, Thomure was fifty-eight years old and had worked for Phillips for more than thirty years as a furniture repairman. As a group, the furniture repairmen were the highest paid of the Phillips warehouse employees. At $15.75 per hour, Thomure was receiving the highest wage of any warehouse employee in 1988. He was considered a valuable employee.

In 1988, for various reasons, Phillips was experiencing serious financial difficulties. The company closed a store in St. Charles, Missouri, that had just opened--with a very successful start--in 1987. The store opened with the assistance of bank loans and a long-term, relatively expensive lease, obligations that had to be met or renegotiated despite the store's closing. Many of the St. Charles store employees lost their jobs, but Williams, then fifty-six years old, who was working at the store when it closed, was moved to another store.

During the summer of 1988, Phillips laid off three warehouse employees, none of whom were in the protected age group (over forty years old). In July 1988, wages of the warehouse employees were cut five percent across the board, except that the highest paid employees, who were among the most senior and the oldest, were cut more severely, and those employees earning less than $6.00 per hour were not cut at all. Phillips Sr., himself born in 1930, already had taken a pay cut of fifteen percent earlier in 1988. Phillips Jr. and his three brothers who also worked for Phillips already had seen their salaries reduced by $250 per month. Thomure's wages were cut eleven percent, as were the salaries of Williams and Harry Thurmond, then fifty-seven years old. Alvah Montgomery, age sixty-two, had his wages cut thirteen percent. Dan O'Neill at age thirty-five was cut nine percent, and Bob Moore at age fifty-one was cut eight percent. Thomure and Williams started working for Phillips in 1955; Thomure had worked there ever since but Williams had a nineteen-month break in employment in the early 1960s. Thurmond, the warehouse manager, had been with the company for approximately nine years. Montgomery started with Phillips in 1953, and worked for the company continuously except for a four-year break in service.

In 1989 and 1990, the company continued to experience financial setbacks. In April 1989, on the day Montgomery retired, he overheard Phillips Jr. say, "Now if we could just get rid of Joe [Williams] and Jody [Thomure], everything would be alright." Trial Transcript Vol. I at 49. Later in 1989, only the wages of Thomure, Williams, and Thurmond (Montgomery had retired by then), plus the Phillipses, were cut again. Phillips originally intended to cut Thomure from an hourly wage of $14.00 to $11.00 per hour, in keeping with its revised wage range for his job classification, and Tom Phillips Sr. advised him of the cut. When Thomure protested the cut, Phillips Sr. suggested to Thomure that he might want to consider retiring. Thomure responded that he was not old enough to retire. After Phillips Sr. and Jr. discussed the cut and Thomure's reaction to it, they decided, and Phillips Jr. so advised Thomure, that the cut would be only to $12.00 per hour. Thomure also was permitted to return to working ten hours per day, four days per week, instead of five eight-hour days. Thomure preferred this schedule as it permitted him to have a full workday to care for his rental properties so he did not have to hire someone to do it for him. At some point, when Thomure asked Phillips Jr. if everyone in the warehouse was cut in 1989, Phillips Jr. responded no and told Thomure he could quit if he did not like it.

At the same time in 1989, the salary of an employee in the unprotected age group also was supposed to have been cut. As the result of a clerical error, however, that salary was not cut and another lower paid employee's salary actually was raised. One name was just below the other on the employee roster, and the bookkeeper evidently put down the wrong employee number when recording the salary change. The error was not discovered for some time, and the reason for it did not become apparent until some time after the discovery.

Phillips later tried to cut Thomure's hours from forty per week to thirty-two, but that plan was abandoned never having been implemented when it became apparent that there was sufficient work to keep Thomure busy for a forty-hour week.

In 1990, after Thomure filed his complaint with the EEOC, the company capped the annual paid vacation time to which employees were entitled at two weeks. This new policy affected only Thomure and Williams, as they had more than twenty-five years of service with Phillips and therefore had been receiving four weeks of vacation. Also after the charge was filed, Phillips Jr. asked Thomure what he hoped to gain by filing the charges, and Thomure responded that he wanted to recover the amount of lost wages above five percent. Phillips Jr. accused him of not caring about the company and told Thomure he would "be history" with Phillips. Trial Transcript Vol. II at 77.

Between 1987 and 1990, through Phillips's financial crisis, staffing in the warehouse was reduced from approximately eighty employees to approximately thirty. As of trial, Thomure was still a Phillips employee and was still the highest paid employee in the warehouse, having received salary increases in 1990 and in 1991.

B.

Because Thomure's age discrimination complaint concerns a reduction in wages made necessary by concerns for the financial health of the employer, we will review it as we would a reduction-in-force (RIF) case. The RIF case is more analogous to the wage reduction situation than the more common termination, demotion, or failure to hire or promote age discrimination case. Thus the prima facie case that must be proved by the plaintiff to make a submissible case includes not only the employee's membership in the protected age group, his ability to meet job...

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