Reeves v. General Foods Corp.

• Citation: 682 F.2d 515
• Decision Date: 13 August 1982
• Docket Number: No. 81-2359,81-2359
• Parties: 29 Fair Empl.Prac.Cas. 779, 29 Empl. Prac. Dec. P 32,967 Richard R. REEVES, Plaintiff-Appellee, v. GENERAL FOODS CORPORATION, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 515

682 F.2d 515

29 Fair Empl.Prac.Cas. 779,

29 Empl. Prac. Dec. P 32,967

Richard R. REEVES, Plaintiff-Appellee, v. GENERAL FOODS CORPORATION, Defendant-Appellant.

No. 81-2359.

United States Court of Appeals Fifth Circuit.

Aug. 13, 1982.

Thompson & Knight, William T. Hankinson, Stephen F. Fink, Dallas, Tex., for defendant-appellant.

Daves, McCabe & Crews, Larry R. Daves, Ellen Hahn, Tyler, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before BROWN and RANDALL, Circuit Judges, and DUPLANTIER, District Judge ^*.

RANDALL, Circuit Judge:

Defendant-Appellant General Foods Corporation appeals from a jury award of damages and attorney's fees based on a finding that it had discriminated against Plaintiff-Appellee Richard R. Reeves because of his age. The sole question presented for review is whether there was substantial evidence of intentional, age-based discrimination to support the jury's verdict. We find there was substantial evidence and affirm the verdict.

I. Facts and Procedural History

Richard Reeves was employed as a sales representative by the Maxwell House Division of General Foods in 1962, calling on grocery stores and wholesale businesses to sell coffee. In 1968 he was promoted to the position of account manager. During his tenure with General Foods, he worked in Oklahoma, Washington D.C. and Texas. He was supervised by an assistant territory manager, a territory manager and a district manager.

From the time of his employment in 1962 until 1976, Reeves received satisfactory job performance ratings. ¹ In April, 1976, however, Reeves was personally reviewed by district manager Andy Anderson who, in a memorandum, noted deficiencies in Reeves' performance. ² Anderson concluded the memorandum by asking territory manager John Biltgen to keep him posted on Reeves' performance. Reeves continued to be employed by General Foods, although, according to his supervisors, problems continued. In August, 1976, a conference was held with Reeves, Anderson, Tom O'Quinn, assistant territory manager, and Ray Kostick, regional sales manager. As a result of that meeting, Reeves was warned that he faced discharge if his performance did not improve. He was given a partial performance rating of "F" (fair), although a total performance rating was not completed. At Reeves' next appraisal in December, 1976, he received a "good plus" rating. In addition, on January 10, 1977, he was recommended for a pay increase to $22,300 from his current salary of $19,800. In February, 1977, however, Reeves' supervisors again complained of employment deficiencies. Biltgen, in a memorandum, noted alleged performance deterioration. Anderson subsequently asked several supervisors to follow Reeves in his day-to-day activity and, on May 24, 1977, Anderson personally followed Reeves ³ as he called on various accounts. ⁴ Anderson and Reeves then discussed the observations of the supervisors in which the deficiencies were noted. ⁵ At the conclusion of the discussion Anderson discharged Reeves. Reeves was forty-six years of age at the time of the discharge.

During the time of the written and oral criticism noted above, Reeves also received oral and written praise for various aspects of his work and his sales volume remained consistently high.

Reeves filed suit in federal district court alleging that General Foods terminated him because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. A jury trial was held. By its answers to specific interrogatories, the jury found that General Foods had willfully terminated Reeves because of his age. General Foods moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The district court denied both motions. General Foods appeals, alleging that Reeves did not produce sufficient evidence of intentional age-based discrimination to support the jury's verdict.

II. Sufficiency of the Evidence

A. Standards of Review

Since General Foods moved both for a judgment notwithstanding the verdict and for a new trial, we must first establish the appropriate standards of review for each motion.

The standard of review of a denial of a judgment notwithstanding the verdict was set forth in Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc), and recently articulated in the context of an age discrimination verdict.

This court, in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc), set forth the standard by which to judge the propriety of a judgment notwithstanding the verdict The Court should consider all of the evidence-not just that evidence which supports the nonmover's case-but in a light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences and determine the credibility of witnesses.

Id. at 374-75. This standard applies as well in our review of the trial court's granting of a judgment n.o.v. Maxey v. Freightliner Corp., 623 F.2d 395, 397 (5th Cir. 1980).

Houser v. Sears, Roebuck & Co., 627 F.2d 756, 757 (5th Cir. 1980) (emphasis added).

A district court's denial of a new trial is reviewed under a different standard and may not be disturbed by this court "absent a clear showing of abuse of discretion." Valley View Cattle Co. v. Iowa Beef Processors, Inc., 548 F.2d 1219, 1220 n.2 (5th Cir. 1977). ⁶

In Massey (v. Gulf Oil Corp., 507 F.2d 92, 94-95 (5th Cir. 1975) ) we stated:

"(T)he operative factors underlying review of a ruling on a new trial motion are deference to the trial judge, who has had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record, deference to the jury's determination of weight of the evidence and quantum of damages, and the constitutional allocation to juries of questions of fact.... (W)here the judge denies the motion and leaves undisturbed the jury's determination, all factors press in the direction of leaving the trial judge's ruling undisturbed...."

508 F.2d at 94-95.

Id. at 1220-21 n.2.

Thus we must review the jury verdict to determine whether there was substantial evidence, evidence of such quality that reasonable and fair-minded men might reach different conclusions and whether the district court abused its discretion in the denial of the motion for a new trial. Additionally, because our review occurs in an age discrimination case, we must first examine what special effect, if any, initial proof of a prima facie case had, after articulation of non-discriminatory reasons for the discharge, on the determination whether substantial evidence existed which justified sending the case to the jury.

B. The Prima Facie Case, Presumption or Inference of Discrimination?

In McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the United States Supreme Court set forth one common order of proof occurring in a suit brought under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq.

The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination.

....

The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection.... (Plaintiff) must then be afforded a fair opportunity to demonstrate that (the employer's) assigned reason for refusing to re-employ was a pretext....

Id. at 802-803, 805, 93 S.Ct. at 1824 (emphasis added).

This court has held that the McDonnell-Douglas elements of a prima facie case "constitute a prima facie ADEA case ⁷ as well." Marshall v. Goodyear Tire and Rubber Co., 554 F.2d 730 (5th Cir. 1977). Accord, Williams v. General Motors Corp., 656 F.2d 120, 127 (5th Cir. 1981). We have further articulated the effect of proof of these elements: "The phrase (prima facie) simply refers to evidence sufficient for a finding in plaintiff's favor unless rebutted. United States v. Wiggins, 39 U.S. (14 Pet.) 334, 347, 10 L.Ed. 481, 488 (1840)." Marshall v. Goodyear Tire & Rubber Co., 554 F.2d at 735.

This articulation of the effect of the prima facie case gave rise to two questions concerning the evidentiary posture of a discrimination trial. The first question was whether, upon a plaintiff's proof of a prima facie case, the burden of persuasion shifted to the defendant to prove legitimate nondiscriminatory reasons for the employment action or whether only the burden of production of evidence sufficient to raise a fact question on that issue shifted to the defendant.

The Supreme Court answered this question in the context of a Title VII case:

The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court...