722 F.2d 374 (8th Cir. 1983), 83-1024, Dace v. ACF Industries, Inc.

Docket Nº:83-1024.
Citation:722 F.2d 374
Party Name:Loyd S. DACE, Appellant, v. ACF INDUSTRIES, INC., Appellee.
Case Date:November 30, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 374

722 F.2d 374 (8th Cir. 1983)

Loyd S. DACE, Appellant,



No. 83-1024.

United States Court of Appeals, Eighth Circuit

November 30, 1983

Submitted Sept. 15, 1983.

Rehearing Denied Feb. 16, 1984.

Michael P. Bastian (argued), and Nangle & Nangle, P.C., Bruce Nangle, Clayton, Mo., for appellant.

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Law Offices of Gerald Tockman, A Professional Corporation, Louis N. Laderman (argued), St. Louis, Mo., for petitioner.

Before BRIGHT, ARNOLD, and FAGG, Circuit Judges.

ARNOLD, Circuit Judge.

Loyd Dace appeals from the District Court's order dismissing his action against ACF Industries, Inc., for age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634. Dace charges that ACF demoted him from his position as a supervisor in the punch-press department of a carburetor factory to a job as an hourly worker in the assembly department of the factory because of his age. He asserts that ACF demoted him rather than a younger employee with less seniority because it would save money by demoting an employee with more seniority. The case was tried before a jury. After the close of the defendant's case, the District Court, 553 F.Supp. 545, granted the defendant's motion for directed verdict without allowing the plaintiff to present rebuttal testimony, although the plaintiff did make an offer of proof indicating the substance of that testimony. On appeal the plaintiff argues that the District Court erred in granting ACF's motion for directed verdict. 1 We agree that the case should have been allowed to go to the jury, and we therefore reverse and remand for a new trial.


In reviewing the District Court's decision to direct the verdict in favor of ACF, we must first determine the standard for directed verdicts. This Court has said many times that

a directed verdict should be granted only when all the evidence points one way and is susceptible of no reasonable inferences sustaining the position of the nonmoving party.

Decker-Ruhl Ford Sales, Inc. v. Ford Motor Credit Co., 523 F.2d 833, 836 (8th Cir.1975). See, e.g., Tribble v. Westinghouse Electric Corp., 669 F.2d 1193, 1195 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1767, 76 L.Ed.2d 342 (1983); Smith v. Hussmann Refrigerator Co., 619 F.2d 1229, 1235 (8th Cir.1980) (en banc), cert. denied, 449 U.S. 839, 101 S.Ct. 116, 66 L.Ed.2d 46 (1980); Barclay v. Burlington Northern, Inc., 536 F.2d 263, 267 (8th Cir.1976).

We have also often quoted the standard we first articulated in Giordano v. Lee, 434 F.2d 1227, 1231 (8th Cir.1970), cert. denied, 403 U.S. 931, 91 S.Ct. 2250, 29 L.Ed.2d 709 (1971), that

a motion for directed verdict is properly denied where the evidence presented allows reasonable men in a fair exercise of their judgment to draw different conclusions.... In making this determination, the evidence, together with all reasonable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party.

See, e.g., Tribble, supra, 669 F.2d at 1196; Smith, supra, 619 F.2d at 1235; Vickers v. Gifford-Hill & Co., 534 F.2d 1311, 1315 (8th Cir.1976).

We have interpreted the instruction to view the evidence favorably to the nonmovant as requiring the court to (1) resolve direct factual conflicts in favor of the nonmovant, (2) assume as true all facts supporting the nonmovant which the evidence tended to prove, (3) give the nonmovant the benefit of all reasonable inferences, and (4) deny the motion if the evidence so viewed would allow reasonable jurors to differ as to the conclusions that could be drawn. See Brown v. Missouri Pacific Railroad, 703 F.2d 1050, 1052 (8th Cir.1983); Rogers v.

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Allis-Chalmers Credit Corp., 679 F.2d 138, 140 (8th Cir.1982); Hanson v. Ford Motor Co., 278 F.2d 586, 596 (8th Cir.1960) (Blackmun, J.).

The question arises whether the court is permitted to consider evidence that is unfavorable to the party opposing the motion. 2 While the second statement quoted above can be read to allow consideration of the evidence supporting the moving party, 3 our precedents predominantly support the general proposition that only the evidence favoring the nonmoving party (usually, as here, the plaintiff) should be considered. 4 We have recently stated flatly that on a motion for directed verdict "[a]ny evidence produced by the prevailing party must be disregarded." Koch Security v. Secretary of the Department of Health, Education & Welfare, 590 F.2d 260, 261 (8th Cir.1978) (citations omitted). And several times we have said that the court is not to consider questions of credibility when deciding whether to grant a directed verdict. E.g., Banks v. Koehring Co., 538 F.2d 176, 178 (8th Cir.1976); Barclay v. Burlington Northern, Inc., supra, 536 F.2d at 267. That statement necessarily implies that evidence favorable to the moving party may not be considered, because if it were the court would have to pass on the credibility of that party's witnesses.

The Supreme Court has also stated the same rule:

It is the established rule that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given.

Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497 (1949). In other words, when a motion for directed verdict or for judgment notwithstanding the verdict is made, the court must assume that all of the evidence supporting the party opposing the motion is true, and must, in addition, give that party the benefit of all reasonable inferences drawn from that evidence. The case may be taken from the jury only if no rational jury could find against the moving party on the evidence so...

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