Corneveaux v. Cuna Mut. Ins. Group

• Decision Date: 21 February 1996
• Docket Number: Nos. 94-4167,94-4174,s. 94-4167
• Citation: 76 F.3d 1498
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 247, 67 Empl. Prac. Dec. P 43,940, 43 Fed. R. Evid. Serv. 1022 Mary CORNEVEAUX, Plaintiff-Appellant and Cross-Appellee, v. CUNA MUTUAL INSURANCE GROUP, Defendant-Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1498

76 F.3d 1498

70 Fair Empl.Prac.Cas. (BNA) 247,

67 Empl. Prac. Dec. P 43,940,

43 Fed. R. Evid. Serv. 1022

Mary CORNEVEAUX, Plaintiff-Appellant and Cross-Appellee, v. CUNA MUTUAL INSURANCE GROUP, Defendant-Appellee and Cross-Appellant.

Nos. 94-4167, 94-4174.

United States Court of Appeals, Tenth Circuit.

Feb. 21, 1996.

Erik Strindberg (Ralph E. Chamness, with him on the briefs) of Cohne, Rappaport & Segal, P.C., Salt Lake City, Utah, for Plaintiff-Appellant and Cross-Appellee.

J. Michael Hansen (Claudia F. Berry, with him on the brief) of Suitter Axland & Hanson, Salt Lake City, Utah, for Defendant-Appellee and Cross-Appellant.

Before MOORE, BRORBY and KELLY, Circuit Judges.

BRORBY, Circuit Judge.

Mary Corneveaux brought suit against CUNA Mutual Insurance Society (hereinafter "CUNA") alleging age discrimination and retaliation under 29 U.S.C. § 623(a) and (d) and § 626, sexual and religious discrimination under 42 U.S.C. § 2000e-2(a) and breach of an implied contract under Utah law. After a five-day trial, the district judge granted CUNA's Motion for Judgment as a Matter of Law on all claims. Ms. Corneveaux appeals on five issues, claiming: 1) the trial court erred by granting CUNA's Motion for Judgment As a Matter of Law as to Ms. Corneveaux's age discrimination claim; 2) the trial court abused its discretion by refusing to allow certain expert testimony; 3) the trial court erred by granting CUNA's Motion for Judgment as a Matter of Law on the implied-in-fact contract claim; 4) the trial court erred by refusing to allow the jury to decide Ms. Corneveaux's age retaliation claim; and 5) the trial court erred in determining Ms. Corneveaux's Title VII claims were frivolous and groundless and thereby awarding attorney's fees and costs to CUNA. CUNA cross-appeals alleging the district court erred in awarding CUNA only $5,000 in attorney's fees when "the undisputed evidence showed that it had expended $125,172.23 in fees and costs" and that the district court erred in awarding attorney's fees against Ms. Corneveaux's counsel under 42 U.S.C. § 2000e-5(k) rather than under an alternative theory of liability. We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

Ms. Corneveaux was employed by CUNA for thirteen years. She was hired as a claims trainee, became a claims adjuster and then was promoted to a branch claims manager. In 1985 her position as branch claims manager was eliminated and she was made a resident claims adjuster. In 1989, due to company-wide downsizing, CUNA phased out Ms. Corneveaux's position as a resident adjuster. In response to the company-wide downsizing, CUNA's president, Richard Heins, circulated a letter stating displaced employees "should have preference" for new jobs within the company and retraining would be provided. Ms. Corneveaux applied for a company opening to be a service specialist. She was given a cursory interview with Nile Peterson, a group sales manager who was responsible for hiring, and two tests to rate her personality and aptitude. Mr. Peterson hired Jonathan Nichols, a man under age forty who had not been previously employed by the company, for the position. Ms. Corneveaux did not obtain other employment with CUNA.

I

Ms. Corneveaux first contends the district court erred in granting CUNA judgment as a matter of law on her age discrimination claim. Judgement as a matter of law is appropriate "[i]f during a jury trial a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed.R.Civ.P. 50(a). We review de novo a grant or denial of a judgment as a matter of law. Sheets v. Salt Lake County, 45 F.3d 1383, 1387 (10th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 74, 133 L.Ed.2d 34 (1995). " '[W]e must construe the evidence and inferences most favorably to the nonmoving party.' " F.D.I.C. v. United Pacific Ins. Co., 20 F.3d 1070, 1079 (10th Cir.1994) (quoting Ralston Dev. Corp. v. United States, 937 F.2d 510, 512 (10th Cir.1991)).

The district court granted CUNA judgment as a matter of law after Ms. Corneveaux had rested her case. The court held Ms. Corneveaux did not make a prima facie case for age discrimination, that she had not produced "sufficient evidence from which a reasonable jury could conclude that the defendant discriminated against her on the basis of her age," and "that the evidence the other way is overwhelming." The Age Discrimination in Employment Act states:

It shall be unlawful for an employer--

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.

29 U.S.C. § 623(a). To establish a prima facie case of age discrimination the plaintiff must show by a preponderance of the evidence: 1) she was within the protected age group; 2) she was qualified for the position for which she applied; 3) she was adversely affected by an employment decision of the defendant; and 4) a younger person was hired. See Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 529 (10th Cir.1994).

At trial Ms. Corneveaux introduced evidence sufficient to allow a reasonable jury to find she established a prima facie case of age discrimination. Ms. Corneveaux satisfied the first prong by showing she was over age forty when she applied for the position. 29 U.S.C. § 631(a); Thomas v. International Business Machines, 48 F.3d 478, 485 (10th Cir.1995). She addressed the second prong by showing she met the listed qualifications for the job and was capable of being trained to meet any unwritten qualifications. She met the third prong by showing she was not hired for the position and as a result was forced to look for alternative employment. Finally, she met the fourth prong by showing the position was filled by a younger person.

Once Ms. Corneveaux established a prima facie case, the burden shifted to CUNA to produce evidence of a facially nondiscriminatory reason for its employment decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973); see Bolton v. Scrivner, Inc., 36 F.3d 939, 944 (10th Cir.1994) ("ADEA claims are analyzed under the three-step framework outlined in McDonnell Douglas."), cert. denied, --- U.S. ----, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995). If CUNA met its burden of production, Ms. Corneveaux's burden of persuasion then required that she show either age was a determinative factor in the employment decision or CUNA's explanations for its action were merely pretexts. Cone, 14 F.3d at 526. A showing of either one of these elements will permit a jury to find "the defendant discriminated on the illegal basis of age." Id.

CUNA offered five nondiscriminatory reasons why it did not hire Ms. Corneveaux for the position. ¹ She challenged each one. First, CUNA alleged Ms. Corneveaux had been involved in several personality conflicts with different people throughout the years, which made others not want to work with her. For the most part, these minor incidents were reported on a second-hand basis and ranged from Ms. Corneveaux snapping at a secretary for forwarding a call to yelling at an employee because someone turned off the lights in the women's restroom while she was in it. None of the incidents had resulted in a verbal or written reprimand to Ms. Corneveaux. Mr. Peterson expressed a particular concern that Ms. Corneveaux would be unable to work with Don Bleazard, "the current manager of a very large credit union," because of an alleged confrontation between Ms. Corneveaux and Don Bleazard, several years earlier. Interestingly enough, Mr. Bleazard testified he did not remember the alleged incident and had not had any particular problems with Ms. Corneveaux. To further rebut these allegations, Ms. Corneveaux called several coworkers as witnesses, both those she supervised and those who supervised her, who all testified she was highly professional and pleasant to work with. She also produced copies of her performance evaluations, which were very complimentary.

Second, CUNA claimed Ms. Corneveaux was not qualified for the position because she did not possess sales experience or a sales license. In response, Ms. Corneveaux introduced evidence that she was never told she needed a sales license; the job description did not list a sales license as a requirement; it was not a company-wide policy to require a sales license for the position; Mr. Peterson had hired someone as a service specialist six months earlier who did not have a sales license; and the beginning of the job provided for a training period during which time she could have studied for and obtained a license. She also introduced evidence that although she did not have sales experience per se, she had a great deal more experience in the insurance industry than the person hired for the position, that the position itself did not involve sales, and that she had sales-related experience prior to her tenure at CUNA she was never given an opportunity to discuss.

Third, CUNA also claimed Ms. Corneveaux's scores on two personality profile and aptitude tests indicated she was "not the best person for the job." In response, Ms. Corneveaux demonstrated she received higher scores on these tests than any other applicant and, in any event, a similarly situated employee had not been required to take the tests before being transferred to a new position within the company. Also, she showed the test results described her as easy to train. Furthermore, Ms. Corneveaux attempted to introduce expert testimony challenging the validity and application of the test results. The district court ruled this testimony was inadmissible. Ms. Corneveaux challenges this finding separately, and we will address her argument shortly.

Fourth, CUNA stated the fact Ms. Corneveaux would have gone from a position where she was...