Cockrell v. Boise Cascade Corp., 84-2225

Decision Date06 January 1986
Docket NumberNo. 84-2225,84-2225
Citation781 F.2d 173
Parties39 Fair Empl.Prac.Cas. 1201, 39 Empl. Prac. Dec. P 35,809 Carl H. COCKRELL, Plaintiff-Appellant, v. BOISE CASCADE CORPORATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Brian G. Grace, Wichita, Kan. (Susan K. McKee, Curfman, Harris, Stallings & Snow, Wichita, Kan., with him on briefs), for plaintiff-appellant.

Stephen M. Kite-Powell, Boise Cascade Corp., Boise, Idaho (Julie M. Marsh, Boise Cascade Corp., Boise, Idaho, and Mikel L. Stout and Gloria G. Flentje, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., with him on brief), for defendant-appellee.

Before McKAY and MOORE, Circuit Judges, and WEST, District Judge. *

JOHN P. MOORE, Circuit Judge.

This is an appeal from a judgment granting the defendant's motion for a directed verdict in an employment discrimination case. We reverse and remand for a new trial.

The plaintiff, Carl H. Cockrell, brought this action in the United States District Court for the District of Kansas under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 626 (1982) (ADEA). 1 Cockrell alleged that the defendant, Boise Cascade Corporation (Boise Cascade), illegally discriminated against him because of his age by offering him a demotion with the intent of forcing him to leave the company.

In directing a verdict for Boise Cascade, the district court stated that Cockrell failed to establish that he was constructively discharged and, therefore, failed to prove a prima facie case of age discrimination. Moreover, the court held Cockrell did not proffer any facts which would show that Boise Cascade's actions were motivated by a discriminatory purpose rather than legitimate business reasons. We disagree. A review of the facts will focus the issues presented by this appeal.

I.

Cockrell was employed as an area manager for Lone Star Industries, Inc., on July 1, 1979, when the company's sixty-one lumberyards and building material facilities were purchased by Boise Cascade. As an area manager for Lone Star, Cockrell supervised five yards located in Kansas. After the Boise Cascade takeover, he retained his supervisory position under the new title of district manager.

Cockrell testified that shortly after the takeover his supervisor from Boise Cascade, John Simianer, asked Cockrell if he would like to return to his old job as manager of the Dodge City lumberyard. Cockrell had managed the yard for twenty-five years before his promotion to area manager. Cockrell replied that he didn't want to run a lumberyard again.

On several occasions, Cockrell attempted to question Simianer about new company procedures and his responsibilities to the five yards under his supervision, but his queries were rebuffed. Boise Cascade officers attended several meetings to explain to the yard managers aspects of the lumber retailing business that had previously been Cockrell's duties. Cockrell testified that he did not receive any other information from Boise Cascade relating to a reorganization of the corporation or a different management philosophy which would eventually eliminate his job.

Cockrell testified that in mid-November he became seriously concerned about his employment after a yard manager told Cockrell it was rumored that he would not be with Boise Cascade long. Nevertheless, he was unsuccessful in his repeated attempts to find out what he was doing wrong. According to Cockrell, he never received any indication, written or otherwise, from Simianer that he was not doing his job. To the contrary, Cockrell offered into evidence a letter dated November 27, 1979, praising him for an appraisal he had done on one of his yards and encouraging him to do the same with his other managers. 2

On December 13, 1979, Simianer and Joel Richards, division employee relations manager, visited Cockrell in his district office. Simianer told Cockrell that he could accept the company's offer to manage the lumberyard in Dodge City, Kansas, or leave Boise Cascade. Salary was not discussed at the meeting, although Richards reminded Cockrell that if he chose to leave the company before December 31, 1979, he would receive $38,000 in severance pay from Lone Star.

As district manager Cockrell was earning $42,100 annually, plus expenses and a company car. Rather than accept what he thought would be a more than 40% reduction in pay 3 and an uncertain career with Boise Cascade, Cockrell refused the offer of employment and was terminated on December 31, 1979. Cockrell was then 57 years old. His position as district manager was filled by a man 39 years old who was paid less money and supervised more yards in Kansas and Arkansas. 4

Between December 13 and December 31, 1979, Cockrell and Simianer spoke on the telephone twice. Although Cockrell wanted to discuss their differences and his termination, Simianer refused. Simianer never attempted to further explain the Dodge City offer, make any other offer of employment, or in any way encourage Cockrell to reevaluate his decision to resign.

At the December 13 meeting, Simianer told Cockrell that Cockrell had lost the respect of his managers. Cockrell later learned that Simianer told the Dodge City manager that Cockrell was terminated because he was not following the rules and doing things the way Boise Cascade wanted them done. The personnel report indicates that Cockrell chose to leave the company during the reorganization of the Kansas district. Cockrell evinced evidence that Boise Cascade would save more than $120,000 by his termination. 5

Another former employee, Andy Anderson, testified that he had also been asked to choose between a demotion and leaving the company. Anderson was 61 years old and earned an annual salary of $48,000 plus expenses as an area manager of twenty-five Lone Star yards when Boise purchased the yards. Anderson testified that on December 13, 1979, two officers of the company offered him a position as product manager at $30,000 a year. Anderson resigned to take advantage of the Lone Star severance plan and was replaced by a man in his early thirties. He testified that he was never informed of any company-wide reorganization, nor did he know of any younger managers who were offered demotions to lesser-paying jobs to stay with Boise Cascade.

Cockrell also presented statistics which indicated that of the twenty-five middle management employees who, unlike Anderson and Cockrell, remained with Boise eight months, three received decreases in pay. All three were between the ages of 40 and 70. Moreover, a memo from Joel Richards listing acquisition decisions to be made by Boise Cascade officers discussed whether the company would retain employees older than 65 years of age.

Simianer and Richards testified that they were prepared to offer Cockrell the same salary he had been paid as a district manager to manage the Dodge City yard. Simianer admitted, however, that they never discussed salary at the December 13 meeting, nor did he elaborate on the offer to Cockrell in their two phone conversations subsequent to the meeting.

Boise Cascade officers testified that their management philosophy was to shift the responsibilities to the individual store managers and minimize the need for multiple levels of supervision. Toward that end, the company was strengthening the store managers, which in many instances meant intensive training. Simianer characterized Cockrell as inflexible, dominating, resistant to Boise Cascade's operating philosophy, and disruptive. He admitted that Cockrell was never expressly told that Boise Cascade intended to eliminate his position as soon as the Kansas managers became sufficiently independent. According to Simianer, the managership of the Dodge City yard would not have been a demotion for Cockrell since ultimately the stores would be more autonomous than under the Lone Star organization. Moreover, Simianer testified, the decision to relieve Cockrell of his supervisory responsibilities was based on his abrasive management style, which hampered training, and not his age. 6

II.
A.

A directed verdict deprives the non-moving party of a determination of the facts by a jury and, therefore, should be cautiously and sparingly granted. See Brown v. Reardon, 770 F.2d 896 (10th Cir.1985); Wilkin v. Sunbeam Corp., 377 F.2d 344 (10th Cir.), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 464 (1967). On review of the grant of a motion for a directed verdict, the court must view the evidence and all reasonable inferences which can be drawn from that evidence most favorably to the non-moving party. Smith Machinery Co., Inc. v. Jenkins, 654 F.2d 693 (10th Cir.1981); Brown v. Reardon, 770 F.2d at 903. If there is evidence upon which a reasonable jury could properly find a verdict for the party opposing the motion, the motion should be denied. Anthony v. Baker, 767 F.2d 657 (10th Cir.1985). In determining the sufficiency of the nonmovant's evidentiary showing, the trial court should refrain from weighing conflicting evidence, evaluating the credibility of witnesses, or substituting its judgment for that of the jury. Smith Machinery, 654 F.2d at 697.

These directed verdict standards are well recognized. They provide the context for our analysis.

B.

Section 4(a)(1) of the ADEA provides that it shall be unlawful for an employer 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." To establish a prima facie case of discrimination under the ADEA, the plaintiff must show (1) he is within the protected age group, (2) he was doing satisfactory work, (3) he was discharged despite the adequacy of his work, and (4) his position was filled by a person younger than he. Schwager v. Sun Oil Co. of Pennsylvania, 591 F.2d 58 (10th Cir.1979). The burden of going forward then shifts to the employer to show a legitimate, non-discriminatory reason...

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