Dace v. ACF Industries, Inc.

• Decision Date: 16 February 1984
• Docket Number: No. 83-1024,83-1024
• Citation: 722 F.2d 374
• Parties: 33 Fair Empl.Prac.Cas. 788, 32 Empl. Prac. Dec. P 33,949 Loyd S. DACE, Appellant, v. ACF INDUSTRIES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 374

722 F.2d 374

33 Fair Empl.Prac.Cas. 788,

32 Empl. Prac. Dec. P 33,949

Loyd S. DACE, Appellant, v. ACF INDUSTRIES, INC., Appellee.

No. 83-1024.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 15, 1983.

Decided Nov. 30, 1983.

Rehearing Denied Feb. 16, 1984.

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

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.

I.

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 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 viewed. Probably this formulation will result in fewer grants of motions for directed verdict than would result if judges were free to take cases from the jury because of what they view as very strong evidence supporting the moving party. Occasionally verdicts may be returned with which judges strongly disagree. ⁵ This is a price, we think, worth paying for the jury system, which is enshrined in the Bill of Rights and sanctified by centuries of history. When questions of fact are involved, common sense is usually more important than technical knowledge, and twelve heads are better than one. ⁶

II.

Having determined that our consideration should be limited to evidence which supports the party opposing the motion for directed verdict, we turn now to apply the standard to this case. In an age-discrimination suit, like a suit for sex or race discrimination, the plaintiff can prove his case by showing either direct evidence of discrimination or evidence that the reasons given for the adverse action are a pretext to cloak the discriminatory motive. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981).

As to direct proof of age discrimination, the evidence here shows that Dace was 53 when demoted from the punch-press position, for which he was qualified, and replaced by Bill Whitney, aged 40. ⁷ The plaintiff also introduced evidence that tended to show that ACF would save money by demoting Dace rather than Whitney or a younger man, since ACF would have to pay more separation pay to an employee with greater seniority upon the scheduled closing of the factory in June 1984. Tr. II: 69-70, 74-75. In support of Dace's theory that the company demoted him to save money, he presented evidence that the ACF "benefits" man, Leo Goebels, was at the meeting which made final the company's decision to demote Dace. Tr. I: 158. ⁸ The testimony showed that Goebels was familiar with the years of salaried service of employees and their overall years of service. This evidence would support a reasonable inference that ACF demoted Dace rather than Whitney or another younger man in order to save money.

In addressing this inference the District Court stated:

[P]laintiff has sought to introduce circumstantial evidence based upon the seniority achieved by plaintiff, that cost was the primary factor leading to the adverse action taken against him. From this, plaintiff would have the jury further infer that age was the true motivation. This would require an inference upon an inference, and one the Court believes does not logically follow of necessity. Simply put, plaintiff has not offered sufficient direct or indirect evidence to carry the ultimate burden of showing that age was a criterion considered by the defendant, let alone a determining consideration.

Dace v. ACF Industries, Inc., 553 F.Supp. at 546 (E.D.Mo. Nov. 4, 1982) (emphasis in original).

We do not agree that the evidence showing ACF demoted Dace to save money could not have been linked to age discrimination. Here the saving of money allegedly stemmed directly from Dace's greater seniority. In a case decided after the District Court's decision, we held that discrimination on the basis of factors, like seniority, that invariably would have a disparate impact on older employees is improper under the ADEA. In Leftwich v. Harris-Stowe State College, 702 F.2d 686 (8th Cir.1983), we stated:

Here, the defendants' selection plan was based on tenure status rather than explicitly on age. Nonetheless, because of the close relationship between tenure status and age, the plain intent and effect of the defendants' practice was to eliminate older workers who had built up, through years of satisfactory service, higher salaries than their younger counterparts. If the existence of such higher salaries can be used to justify discharging older employees, then the purpose of the ADEA will be defeated.

Id. at 691. Given the close link between seniority and age, this rationale is equally applicable when seniority instead of academic tenure is used as a basis for adverse...