Coburn v. Pan American World Airways, Inc., 82-1543

• Decision Date: 28 June 1983
• Docket Number: No. 82-1543,82-1543
• Parties: 32 Fair Empl.Prac.Cas. (BNA) 843, 32 Empl. Prac. Dec. P 33,723, 229 U.S.App.D.C. 61 Peter D. COBURN, Appellant v. PAN AMERICAN WORLD AIRWAYS, INC.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 339

711 F.2d 339

32 Fair Empl.Prac.Cas. (BNA) 843,

32 Empl. Prac. Dec. P 33,723, 229 U.S.App.D.C. 61

Peter D. COBURN, Appellant v. PAN AMERICAN WORLD AIRWAYS, INC.

No. 82-1543.

United States Court of Appeals District of Columbia Circuit.

Argued April 29, 1983.

Decided June 28, 1983.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-01086).

June D.W. Kalijarvi, Washington, D.C., with whom George M. Chuzi and Pamela A. Shea, Washington, D.C., were on the brief, for appellant.

Jeffrey S. Berlin, Washington, D.C., with whom Richard L. Cys, Washington, D.C., was on the brief, for appellee.

Before TAMM and WILKEY, Circuit Judges, and McNICHOLS, ^* Senior District Judge, United States District Court for the District of Idaho.

Opinion for the court filed by Senior District Judge RAY McNICHOLS.

RAY McNICHOLS, Senior District Judge:

Peter Coburn appeals the district court's entry of judgment non obstante veredicto (j.n.o.v.) in favor of his employer, Pan Am, in Coburn's action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the ADEA). Coburn contends the order is improper because he made out a prima facie case of age discrimination and the company's purported reason for firing him was a pretext for age discrimination. He protests that the trial court invaded the province of the jury by weighing the evidence and assessing the credibility of the witnesses in order to overturn the jury verdict in his favor. He also contests several evidentiary rulings and the court's verdict as the trier of fact in a companion Title VII sex discrimination case.

Coburn, who served 17 years as a Pan Am employee, was 43 at the time of his termination in August of 1980. He was a management employee classified as a Reservations Supervisor in Pan Am's Reservations and Ticket Office in Washington, D.C. He was one of four Reservations Supervisors, all of whom have the same general managerial responsibilities.

In the late summer of 1980 Pan Am's financial situation was precarious. Top management instituted numerous cost-cutting measures, including a reduction of the work-force. The reduction-in-force was implemented after a Management Retirement Incentive Program failed to produce adequate cost-savings. The reduction-in-force plan implemented by management called for the termination of two management employees in the Eastern Central Region, one from the Washington Reservations and Ticket Office.

Pan Am policy mandated termination of the least productive employee in a designated peer group (groups of employees performing the same function). After designation of a peer group and its approval by Richard Carlson, Regional Managing Director, a peer group analysis was performed by Edward Cooper, manager of the Washington office. Coburn ranked lowest in his peer group and Cooper recommended his termination. Coburn was notified effective August 18, 1980.

On May 18, 1981 Coburn filed suit under the ADEA seeking both damages and equitable relief. He amended his complaint on July 2 to include a sex discrimination count under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976) (Title VII). Before trial, Pan Am moved unsuccessfully for summary judgment. At trial, after plaintiff's presentation of the case-in-chief, the trial court denied Pan Am's motion for directed verdict. A like motion was denied before the case went to the jury. The jury returned a verdict including special interrogatories in favor of Coburn on the ADEA claim, finding Pan Am willfully terminated him because of his age. As the trier of fact, the trial court found for Pan Am on the Title VII claim. After entry of judgment of the ADEA claim, Pan Am moved for judgment n.o.v. The trial court eventually granted judgment n.o.v. and an alternative motion for new trial, ruling that no evidence supported the jury finding that Coburn was discriminated against because of his age. Coburn appeals the verdict on his Title VII claim, the judgment n.o.v. on his ADEA claim, and several other rulings of the trial court which, because of our disposition of the former issues, we do not discuss. We turn initially to the ADEA

claim and the propriety of the trial court's grant of judgment n.o.v.

THE ADEA CLAIM

Standard of Review

The standard for awarding a judgment n.o.v. is the same as that applied when ruling on a motion for a directed verdict. Vander Zee v. Karabatsos, 589 F.2d 723 (D.C.Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1066 (1979). As this court has stated, "the motion should not be granted unless the evidence, together with all the inferences that can reasonably be drawn therefrom is so one-sided that reasonable men could not disagree on the verdict." Murphy v. United States, 653 F.2d 637, 640 (D.C.Cir.1981), quoting Vander Zee, supra, 589 F.2d at 726. Judgment n.o.v.

is proper only if "there can be but one reasonable conclusion" drawn from the evidence viewed "in the light most favorable to the plaintiffs [in this case], giving them the advantage of every fair and reasonable inference that the evidence may justify", Foster v. Maryland State Savings and Loan Association, 191 U.S.App.D.C. 226, 228, 590 F.2d 928, 930 (1978), cert. denied, 439 U.S. 1071, 99 S.Ct. 842, 59 L.Ed.2d 37 (1979).

Metrocare v. Washington Metro. Area Transit Auth., 679 F.2d 922, 924-25 (D.C.Cir.1982). "The trial court may not assess the credibility of the witnesses or weigh the evidence", id. at 925, citing Boutros v. Riggs National Bank, D.C., 655 F.2d 1257, 1258 (D.C.Cir.1981) and if "fair minded people might differ as to the conclusion appropriate", Murphy, 653 F.2d at 640, the court must let the jury verdict stand.

The Merits

The evidentiary guidelines governing the proof in discrimination cases were first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a suit arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The same analysis is generally applicable in ADEA cases. Sutton v. Atlantic Richfield Co., 646 F.2d 407 (D.C.Cir.1981). We thus face the question whether reasonable persons could have concluded on the basis of the evidence at trial that Pan Am discriminated against Coburn on the basis of his age.

In the recent case of Cuddy v. Carmen, 694 F.2d 853 (D.C.Cir.1982), this court articulated the standard for review of a plaintiff's age discrimination action. To make out a prima facie case "a plaintiff must demonstrate facts sufficient to create a reasonable inference that age discrimination was 'a determining factor' in the employment decision." Id. at 856-57. By adopting the language "a determining factor" this circuit joined several other circuits which now use that standard. See id. at 857, n. 19. An inference of discrimination is created if the plaintiff shows that he (1) belongs to the statutorily protected age group (40-70), (2) was qualified for the position, (3) was terminated, and (4) was disadvantaged in favor of a younger person, id. at 857. The court went on to describe as follows:

Once a prima facie case has been established, the employer has the burden of producing evidence tending to show that the applicant was denied employment for a legitimate, nondiscriminatory reason. If the employer does so, and if his evidence is credible, the plaintiff must show by a preponderance of the evidence that the employer's asserted legitimate reason is merely pretextual. (citations omitted). Once this stage is reached, the order and allocation of proof has served its purpose of bringing "the litigants and the court expeditiously to [the] ultimate question" of discrimination. Burdine, supra, 450 U.S. at 253, 101 S.Ct. [1089] at 1093 . The plaintiff, who at all times retains the burden of persuasion, must then show by a preponderance of the evidence that age was "a determining factor" in the employer's decision.

Cuddy, 694 F.2d at 857.

This analysis is easily adaptable from a failure to hire situation to the context of this case, an allegedly discriminatory discharge. Metrocare, 679 F.2d at 922. The The District Court granted judgment n.o.v. for two reasons. The court first ruled that Coburn failed to prove a prima facie case because none of the evidence at trial would support an inference of discrimination, and for a jury to so infer would be a result of "impermissible conjecture and surmise". Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163, 167-68 (2d Cir.1980). The District Court further ruled that even assuming plaintiff proved a prima facie case, the evidence was insufficient to support a jury finding that defendant's reasons for terminating Coburn were a pretext for discrimination. According to the District Court, the record was devoid of any evidence that Coburn's age was a determining factor in Pan Am's decision to fire him. Because we believe Coburn failed to carry his burden of proving discriminatory motive, we affirm the trial court's judgment.

issue before us is whether reasonable jurors could have decided on the basis of the evidence at trial that Peter Coburn's age was a determining factor in Pan Am's decision to fire him.

The District Court rendered its opinion on May 7, 1983. Subsequent to that time, this court decided the Cuddy case, in which we articulated the previously outlined framework for analyzing ADEA claims. Thus the trial court did not have the benefit of our reasoning in Cuddy for guidance. While the Cuddy decision has much bearing on this case, it does not compel us to reverse.

We rule initially, contra to the district court, that Coburn created a reasonable inference of discrimination by making out a prima facie case under the ADEA. Coburn was (1) 43 years old, (2) acknowledged by all to be qualified as a Reservations Supervisor, and (3) was fired while (4) younger persons were retained and others later promoted. The evidence produced at trial was...