Cline v. Roadway Exp., Inc.

• Decision Date: 16 September 1982
• Docket Number: No. 81-1833,81-1833
• Citation: 689 F.2d 481
• Parties: 29 Fair Empl.Prac.Cas. 1365, 30 Empl. Prac. Dec. P 33,042, 11 Fed. R. Evid. Serv. 1018 Carlyle S. CLINE, Appellee, v. ROADWAY EXPRESS, INC., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 481

689 F.2d 481

29 Fair Empl.Prac.Cas. 1365,

30 Empl. Prac. Dec. P 33,042,

11 Fed. R. Evid. Serv. 1018

Carlyle S. CLINE, Appellee, v. ROADWAY EXPRESS, INC., Appellant.

No. 81-1833.

United States Court of Appeals Fourth Circuit.

Argued Jan. 7, 1982.

Decided Sept. 16, 1982.

Harry A. Rissetto, Washington, D. C. (Thomas E. Reinert, Jr., Morgan, Lewis & Bockius, William S. McLean, McLean, Stacy, Henry & McLean, Lumberton, N. C., on brief), for appellant.

I. Murchison Biggs, Lumberton, N. C. (I. Murchison Biggs, P. A., Lumberton, N. C., on brief), for appellee.

Before WINTER, Chief Judge, and PHILLIPS and SPROUSE, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

Roadway Express has appealed the district court's judgment, following bench trial, awarding reinstatement with back pay and interest to Carlyle Cline on the basis of factual findings that Roadway discharged Cline because of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621, et seq. We affirm the judgment in all respects save the award of back pay; we remand that portion with instructions for modification.

I

Cline, who was 42 at the time of his discharge in 1976, had been employed by Roadway since 1967 and had worked as a dock foreman at its Lumberton, North Carolina, terminal since 1972. During his employment he had been given regular promotions and merit pay increases. According to a contemporaneous entry in his personnel file, Cline's June 1975 merit increase "place(d) (him) into the mid-range of salaries in his classification!" and was given "in consideration of time of service and recently added extra duties." Earlier evaluations indicated he "continues to do a fine job" and that he "gets along well with co-workers" and "supervises men and accepts responsibility well" but was "weak in carrying out instructions and is sloppy in detail work" and "seems to have lack of interest in work" and "has some trouble handling large crews."

In 1975, R. W. Haus became vice-president for the southern division of Roadway Express and soon determined that the division needed to upgrade the quality of its personnel. To implement this policy, Haus directed district and terminal managers to "look at" employees who had been with the company for five years without being promoted or were unwilling to move to see if they should be replaced with higher quality employees, preferably college graduates. District and terminal managers were informed of the upgrading policy at several meetings held in 1976. Haus left the implementation of the policy to the managers, since they were familiar with the employees, and did not tell them that they were not to consider age when determining promotability.

Cline's terminal manager and immediate supervisor, Gary Alley, informed Cline of the new policy. Cline offered to transfer to Florida, where a new Roadway terminal needed experienced men, but Roadway never acted on this offer. In December 1976, after consulting with his district manager, Frank Creteman, Alley discharged Cline because, according to Alley, he was "not promotable." ¹ Cline's employment status form in his personnel file recited the reason for his discharge as "poor work performance." Alley elaborated on the employment status form that

Mr. Cline has a negative attitude. He will lose his temper quickly if things are not going smoothly with the day's operations. He is unable to handle new procedures without close supervision. He has no drive to keep up with company changes. Defensive when ask (sic) questions or when suggestions are made on how he has handled his job. I have found men working on overtime while other men are working and will not even make 45 hours just so he can close the terminal early. Problems with customers is (sic) not handled in a business like manner. He is unable to get along with drivers and other employees. Mr. Cline has been working in the afternoon shift due to his inability to handle the paperwork and unable (sic) to coordinate the drivers and freight delivery of the morning shift.

Roadway immediately replaced Cline with a man in his early 30's and this suit followed.

The district court determined that Roadway had violated Cline's statutory rights under the Act by discharging him "because of his age," and awarded reinstatement with back pay, pre- and post-judgment interest, and attorney fees. On this appeal, Roadway challenges both the determination of liability and the award of relief.

On the liability issue, the challenge is to the court's critical findings of fact; to the legal standards by which proof of discriminatory discharge was assessed; and to the admission of certain evidence. On the remedial issue, the challenge is to the court's failure to apply applicable mitigation principles; to its award of pre-judgment interest; to its decree of reinstatement; and to its refusal to off-set against the backpay award the value of a stock bonus given Cline in connection with his discharge. We take the liability issue first.

I

A

Roadway's basic challenge is to the district court's mode of assessment of the proof of age discrimination in Cline's discharge. The contention is that the court wrongly assessed Roadway's evidence that unsatisfactory performance was the actual reason for Cline's discharge and, in consequence, erroneously rejected it. The evidence was offered, Roadway urges, simply to dispel Cline's prima facie proof under the McDonnell Douglas ² Title VII proof scheme as adapted to ADEA litigation, whereas the court assessed it as if it were offered to establish the ADEA statutory affirmative defense of "good cause" provided by 29 U.S.C. § 623(f)(3). Rightly assessed, the argument runs, the burden of proof to dispel the presumption was easily carried, being only the relatively light production burden defined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Wrongly understood and applied however as a burden of persuasion to establish an affirmative defense, the burden was wrongly adjudged not to have been carried.

This argument completely misconceives both what the district court in fact did here, and, more fundamentally, the appropriate legal basis for assessing the evidence in this case. Rightly analyzed, the court's assessment of the evidence was within the proper legal framework and its critical findings of fact on the dispositive issue are not reversible under the standard of review we apply.

The dispositive ³ liability issue was the narrow motivational one central to any ADEA claim: whether Cline "was discharged 'because of his age,' " Loeb v. Textron, Inc., 600 F.2d 1003, 1017 (1st Cir. 1979), or more precisely, whether "age was a determining factor" in the sense that " 'but for' his employer's motive to discriminate against him because of his age, he would not have (suffered the unfavorable action)," Spagnuola v. Whirlpool Corp., 641 F.2d 1109, 1112 (4th Cir. 1981). On this, issue was clearly joined at trial.

Though, as we have recently pointed out, see Lovelace v. Sherwin-Williams Co., 681 F.2d 230 (4th Cir. 1982), the McDonnell Douglas proof scheme with its first stage presumption favoring claimants may be employed in resolving this motivational issue, it need not be, and in some cases its use would indeed be improper. That age was a determining factor in a challenged employment decision "may of course be proved under ordinary principles of proof by any direct or indirect evidence relevant to and sufficiently probative of the issue, ... without resort to any special judicially created presumptions or inferences related to the evidence." Id., at 239; see also Loeb, 600 F.2d at 1018.

Such unaided proof may consist of direct evidence that the employer announced, or admitted, or otherwise unmistakably indicated that age was a determining factor, see, e.g., Spagnuola, 641 F.2d at 1113, or of circumstantial evidence, including but not limited to proof of the claimant's general qualifications, ⁴ from which the inference of age discrimination may rationally be drawn independently of any presumption. See Lovelace, at 242-243. When this kind of direct or circumstantial proof is adduced, there is no need to employ the McDonnell Douglas presumption-based proof scheme either to determine its sufficiency to raise issues for the trier of fact or for resolution of the issue by that trier. See Spagnuola, 641 F.2d at 1113. Assuming that the evidence supporting the inference of discrimination is sufficient, assessed under ordinary standards, to survive a motion to dismiss, Fed.R.Civ.P. 50, a bench trial judge properly proceeds directly to consider the evidence pro and con bearing upon the motivational issue without resort to any judicially created presumption. To the extent the defendant's evidence tends to suggest any other legitimate motivation for the challenged action, it is simply evidence offered, as in any context, to rebut proof of an essential element of any claim. As such it is properly assessed neither as evidence offered to "dispel" a judicial presumption nor to "prove" an affirmative defense, but simply for its effect in rebutting the claimant's proof on the issue.

Here, this was the pattern of proof as developed in both parties' evidence, and the district court properly so saw and assessed it. Though Roadway has sought on this appeal to force analysis into the "three-stage minuet" of the McDonnell Douglas proof scheme, we decline to review the district court's fact findings on that constricted basis. ⁵

As the district court rightly saw the case, it was a simple one involving attempted proof by the plaintiff through circumstantial evidence that age was a determining factor in his discharge, countered by the defendant's attempt, through proof of sufficient other causes for the discharge, to rebut the plaintiff's proof. The record reveals that the court correctly saw this as the dispositive issue, that it...