Bohrer v. Hanes Corp.

• Citation: 715 F.2d 213
• Decision Date: 23 September 1983
• Docket Number: No. 82-1314,82-1314
• Parties: 32 Fair Empl.Prac.Cas. (BNA) 1578, 32 Empl. Prac. Dec. P 33,836 Paul BOHRER, Plaintiff-Appellant, v. HANES CORPORATION, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 213

715 F.2d 213

32 Fair Empl.Prac.Cas. (BNA) 1578,

32 Empl. Prac. Dec. P 33,836

Paul BOHRER, Plaintiff-Appellant, v. HANES CORPORATION, et al., Defendants-Appellees.

No. 82-1314.

United States Court of Appeals, Fifth Circuit.

Sept. 23, 1983.

Smith, Patterson, Follin, Curtis, James & Harkavy, Norman B. Smith, Jonathan R. Harkavy, Greensboro, N.C., for plaintiff-appellant.

Groce, Locke & Hebdon, J. Michael Myers, John J. Franco, Jr., San Antonio, Tex., for defendants-appellees.

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

Before POLITZ and JOLLY, Circuit Judges, and STAGG ^*, District Judge.

POLITZ, Circuit Judge:

Paul Bohrer brought suit under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., alleging that defendants Hanes Corporation and its division, Hanes Hosiery, Inc., ¹ had reduced his sales territory ² and later terminated his employment because of age. A jury returned a special verdict finding that age was a determinative factor in Bohrer's discharge, that this discriminatory act was willful, and that Bohrer was entitled to damages in the amount of $167,320. Acting on defendants' motion for judgment notwithstanding the verdict, the district court entered judgment in favor of defendants. Finding no reversible error in the district court's disposition of the case, we affirm.

Facts

Bohrer had been employed as a salesman for over 20 years by the Texas Hosiery Company, a small, family-owned business which served as Hanes' exclusive distributor in southern Texas, when in January 1977 Hanes assumed direct responsibility for the marketing of its products. Hanes extended offers of employment to plaintiff and several other Texas Hosiery employees. Bohrer, then 55 years old, accepted a sales position.

Although plaintiff achieved moderate success in meeting his sales quotas, his performance in other areas deemed important by the employer was markedly deficient. Specifically, plaintiff consistently failed to prepare reports known as "management reviews," designed to advise major retail accounts of the status of their sales of defendants' merchandise and to suggest methods to improve sales, to aggressively solicit as customers such nontraditional retail outlets as college bookstores, drugstores and supermarkets, to take adequate inventories in stores which he serviced on behalf of Hanes and to maintain stock control books, to respond to company requests for "fast track" reports which enabled it to monitor the results of sales promotions of six hosiery items during 1977, and to correctly complete weekly "call" reports informing management of his travels and accomplishments during the week. Hanes received repeated complaints from one of Bohrer's three major retail accounts, Joske's Department Store.

On various occasions during the first eight months of 1977, Bohrer was admonished to correct the deficiencies noted. A counseling session between plaintiff and his immediate supervisor, Dorlan Johnson, and Harold Liebes, Hanes' general field sales manager was ultimately held on October 3, 1977. In the course of this meeting, Bohrer was warned to increase sales and to otherwise fulfill Hanes' requirements with respect to the compilation of reports, servicing of accounts, participation in sales promotions programs, and conduct of inventories. Bohrer acknowledged the validity of the employer's criticisms, and expressly resolved to comply with management's goals and directives.

In early 1978, however, Bohrer's superiors again complained of his job performance. A sales representative review outlined plaintiff's continued refusal to adhere to any company policy or management instruction with which he disagreed. Johnson and Liebes subsequently met with plaintiff on April 18, 1978, for the purpose of discussing the adverse findings contained in the review. At the conclusion of this discussion Bohrer was discharged. He was replaced by a 28 year-old man.

Bohrer now contends that the trial judge erred both in entertaining the motion for judgment n.o.v. and in granting it. The former challenge is based on defendants' failure to move for a directed verdict at the close of the evidence as required by Fed.R.Civ.P. 50(b), which prescribes that "a party who has moved for a directed verdict may move to have the verdict and any judgment thereon set aside and to have judgment entered in accordance with his motion for a directed verdict...." The latter is based on the evidence adduced at trial. We find neither challenge sufficient for reversal.

Procedural Requirements

Rule 50(b) of the Federal Rules of Civil Procedure precludes a district court from entertaining a motion for judgment notwithstanding the verdict unless the movant has first sought a directed verdict after presentation of all the evidence. See Perricone v. Kansas City Southern Ry. Co., 704 F.2d 1376 (5th Cir.1983); 5A J. Moore & J. Lucas, Moore's Federal Practice p 50.08 (2d ed. 1982). Where this prerequisite has not been satisfied, a party cannot later challenge the sufficiency of the evidence either through a j.n.o.v. motion or on appeal. Myers v. Norfolk Livestock Market, Inc., 696 F.2d 555 (8th Cir.1982); ( citing Rawls v. Daughters of Charity of St. Vincent DePaul, Inc., 491 F.2d 141 (5th Cir.), cert. denied, 419 U.S. 1032, 95 S.Ct. 513, 42 L.Ed.2d 307 (1974)). A litigant who has moved for a directed verdict at some point prior to the conclusion of trial, but failed to renew the motion at the close of all the evidence, is thus held to have waived the right to move for judgment non obstante veredicto. Bonner v. Coughlin, 657 F.2d 931 (7th Cir.1981); Smith v. University of North Carolina, 632 F.2d 316 (4th Cir.1980); 5A J. Moore & J. Lucas, Moore's Federal Practice at p 50.08. This rule serves two essential purposes: to enable the trial court to re-examine the question of evidentiary insufficiency as a matter of law if the jury returns a verdict contrary to the movant, and to alert the opposing party to the insufficiency before the case is submitted to the jury, thereby affording it an opportunity to cure any defects in proof should the motion have merit. See Halsell v. Kimberly-Clark Corp., 683 F.2d 285 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983); see also Ohio-Sealy Mattress Co. v. Sealy, Inc., 585 F.2d 821 (7th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Martinez Moll v. Levitt & Sons of Puerto Rico, Inc., 583 F.2d 565 (1st Cir.1978).

Some courts have strictly enforced Rule 50(b), see, e.g., Martinez Moll v. Levitt & Sons of Puerto Rico, Inc.; DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193 (3d Cir.1978), whereas others have adopted a more flexible approach toward a party's noncompliance with its terms. Myers v. Norfolk Livestock Market, Inc.; 5A J. Moore & J. Lucas, Moore's Federal Practice at p 50.08; 9 C. Wright and A. Miller, Federal Practice and Procedure: Civil § 2537 (1971 & 1982 Supp.). See, e.g., Halsell v. Kimberly Clark Corp.; Bonner v. Coughlin; Miller v. Premier Corp., 608 F.2d 973 (4th Cir.1979); Bachtel v. Mammoth Bulk Carriers, Ltd., 605 F.2d 438 (9th Cir.1979), overruled on other grounds, Brown v. American Mail Line, Ltd., 625 F.2d 221, 223 (9th Cir.1980); Quinn v. Southwest Wood Prods., Inc., 597 F.2d 1018 (5th Cir.1979); Beaumont v. Morgan, 427 F.2d 667 (1st Cir.), cert. denied, 400 U.S. 882, 91 S.Ct. 120, 27 L.Ed.2d 121 (1970); Jack Cole Co. v. Hudson, 409 F.2d 188 (5th Cir.1969). Recognizing the liberal spirit imbuing the Federal Rules of Civil Procedure, Fed.R.Civ.P. 1, we agree with the Seventh Circuit's pronouncement that while:

[I]t is certainly the better and safer practice to renew the motion for directed verdict at the close of all the evidence, ... "[t]he application of Rule 50(b) in any case 'should be examined in the light of the accomplishment of [its] particular purpose[s] as well as in the general context of securing a fair trial for all concerned in the quest for truth.' "

Bonner v. Coughlin, 657 F.2d at 939 (quoting from Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 585 F.2d at 825).

With these principles in mind, we turn to the record before us. Once plaintiff rested, defendants moved for a directed verdict and asked the district court to reserve its ruling. At this juncture the court articulated its strong misgivings as to the adequacy of plaintiff's proof and the propriety of allowing the case to go to the jury. A tape recording of the April 4, 1978 termination meeting, made by Bohrer and played at defendants' request following the close of plaintiff's evidence, evidently persuaded the court of the substantial likelihood that plaintiff had failed to establish a prima facie case or, if he did, that defendants had articulated a legitimate, nondiscriminatory reason for discharge. The court's comments at this point reflect a concern that the evidence did not pose a jury issue. Cognizant, however, of the stringency of this circuit's review of a directed verdict, and sensitive to the potential unfairness to the defendants were the case to be withdrawn from the jury's consideration and summarily reversed on appeal, the court determined to permit the case to go to the jury and announced that the motion would be taken under advisement. The court invited defendants to reurge their attack on the sufficiency of plaintiff's evidence "by motion for judgment n.o.v. or motion at the close of the evidence."

After moving for a directed verdict, defendants introduced substantial evidence bearing on Bohrer's unsatisfactory job performance. Plaintiff offered no rebuttal. In setting aside the verdict and entering judgment for defendants, the trial judge observed that "the verdict returned by the jury is against the clear weight of the evidence, and if allowed to stand, would result in a miscarriage of justice," and "the evidence and reasonable inferences drawn therefrom point so strongly in favor...