Sherrod v. Sears, Roebuck & Co.

• Citation: 785 F.2d 1312
• Decision Date: 02 April 1986
• Docket Number: No. 85-2351,85-2351
• Parties: 40 Fair Empl.Prac.Cas. 717, 39 Empl. Prac. Dec. P 36,073 Robert SHERROD, Plaintiff-Appellee, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1312

785 F.2d 1312

40 Fair Empl.Prac.Cas. 717,

39 Empl. Prac. Dec. P 36,073

Robert SHERROD, Plaintiff-Appellee, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellant.

No. 85-2351.

United States Court of Appeals Fifth Circuit.

April 2, 1986.

Richard R. Brann, Baker & Botts, Tony P. Rosenstein, Houston, Tex., for defendant-appellant.

Donna Cywinski, McKenna & Cywinski, Houston, Tex., for plaintiff-appellee.

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

Before JOLLY and HILL, Circuit Judges, and EDWIN F. HUNTER, ^* District Judge.

ROBERT MADDEN HILL, Circuit Judge:

Sears, Roebuck & Company (Sears) appeals from a judgment entered on a jury verdict finding that Robert Sherrod's age was a determining factor in Sears' decision to terminate his employment. Because we conclude that the evidence was insufficient to support this finding, we reverse.

I. FACTS

Robert Sherrod, born on September 24, 1942, began his employment with Sears in 1968. Over the following years Sherrod worked in several Sears locations in Texas. Sherrod received high performance evaluations, pay raises, and promotions. By 1977, Sherrod had assumed the position of credit manager at the Sears store in Orange, Texas, where he worked for two and one-half years and received an excellent performance rating.

In 1979, Sears consolidated the Orange store's credit accounts with those of two other stores, and Sherrod was transferred to manage commercial credit accounts at the Merchant's Charge Account (MCA) Central in Houston. Following this transfer L.W. Case, Sherrod's supervisor at MCA Central, wrote a letter on April 22, 1981, to Sherrod critical of his performance. Case's letter stated that "you are not involved in the every day operation at your department," and that "[c]orrective action can and must be taken immediately." Case made reference to a performance review conducted by two Sears auditors which concluded: "Activities in this office are poorly organized and Mr. Sherrod is not attuned to or involved in the details of the business." Despite this criticism Sherrod received a performance evaluation of "outstanding" while at this position. ¹

In the fall of 1981 Sherrod became co-authorization manager at the Greenspoint Credit Central in Houston when he was replaced at MCA Central by a more senior employee who had also been displaced as a result of recent consolidations within Sears. After four to five months as co-authorization manager, Sherrod became collections manager at Greenspoint. His predecessor in this position was Sandra Evans, five years younger than Sherrod, who was transferred to Baybrook Credit Central as a credit authorization manager.

At Greenspoint Sherrod began receiving a number of unfavorable evaluations. A performance evaluation dated March 19, 1982, prepared by Sid Douthit, Sherrod's supervisor, stated that "[c]urrent performance is unsatisfactory and is due principally to failure to supervise (ie) train, direct and follow-up." ² A similar evaluation dated September 22 concluded that "[f]ailure to attain or achieve satisfactory collection results in Inactivity and delinquency which is Robert Sherrod's principal accountability," and that "[a] lack of urgency prevails in Robert's Collection Division." This latter evaluation rated Sherrod's performance as "fair," which is fifth from the top on a six-point scale. See supra note 1. Soon after the replacement of Douthit by Curtis Goode, Goode gave Sherrod a "Memo of Understanding" dated December 9 which was also critical of Sherrod's performance, claiming that "collection ratios in sections supervised by Robert Sherrod have been unsatisfactory during recent months." Goode's memo outlined four areas of potential improvement for Sherrod and warned that "[a] sense of urgency must be present and displayed continuously."

Sherrod was discharged fewer than four months after his fortieth birthday, on January 19, 1983, coincident with the consolidation of the Greenspoint office with the Baybrook office. John Merrill, Sears' General Credit Manager for the Southern Territory, made the decision to terminate Sherrod rather than transfer him to Baybrook. Sherrod was not replaced, as his termination was an element in an ongoing reduction in staff. Sherrod later found employment as a credit manager in a Galveston, Texas, furniture store.

At the time of his termination Sherrod worked with six other managerial personnel at Greenspoint Credit Central. These six had received performance ratings ranging from "distinguished" (first on a scale of six graduations) to "good" (fourth), see supra note 1, and all six received transfers to Baybrook. Of these six, three were older than Sherrod and three were younger. Among the four personnel listed as collections managers, Sherrod was the oldest.

At his termination interview, Merrill asked Sherrod to sign a release of liability in exchange for $5,105.26, an amount in addition to Sherrod's accrued vacation and service allowances. Sherrod refused to sign the proffered agreement. Sherrod later filed a complaint with the Equal Employment Opportunity Commission, which determined not to further process the complaint because its investigation had failed to substantiate Sherrod's allegations of age discrimination.

Sherrod sued in federal district court, claiming relief under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-34. After a mistrial was declared in which the jurors were unable to agree on a verdict, Sherrod prevailed in a second jury trial, and the district court entered judgment on the verdict. Sears' motion for directed verdict and motion for judgment notwithstanding the verdict having been denied, it appeals. Sears' sole argument is that the evidence was insufficient to uphold the jury's findings of age discrimination.

II. SUFFICIENCY OF THE EVIDENCE

The standard of review for factual issues in an age discrimination case is the same as that normally applied in other cases. Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 564 (5th Cir.1983) (citing United States Postal Service Board of Governers v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)), cert. denied, 467 U.S. 1215, 104 S.Ct. 2658, 81 L.Ed.2d 364 (1984). Our task is "to determine whether the record contains evidence upon the basis of which a reasonable trier of fact could have concluded as the jury did." Elliott, 714 F.2d at 564; see also Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). "A mere scintilla of evidence is insufficient to present a question for the jury." Id. "Self-serving and speculative testimony is subject to especially searching scrutiny." Elliott, 714 F.2d at 564.

One way to establish a prima facie case ³ in an ADEA claim where a reduction in force has occurred is to show three elements: first, that an ADEA plaintiff is within the protected age group ⁴ and that he has been adversely affected by the employment decision; second, that he was qualified to assume another position at the time of discharge or demotion; and third, that he has shown "producing evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue." Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). ⁵ Sears concedes that Sherrod meets the first two elements, but argues that there is no evidence of discriminatory intent.

As circumstantial evidence of discriminatory intent, Sherrod relies heavily on the fact that he was the oldest of the four persons listed as Greenspoint collections managers and the only one to be fired. ⁶ However, both Sherrod and Goode testified that the youngest of these four, notwithstanding her job title, did not perform a collections manager's duties; her tasks were apparently of a more clerical nature. Additionally, the evidence showed that in making his decision to fire Sherrod, Merrill compared him to the entire group of Greenspoint credit managerial personnel--a group which also included a fifty-four-year-old credit authorization manager (who transferred to Baybrook in the same position) and a fifty-six-year-old operating manager (who transferred to Baybrook as a credit authorization manager). There was no evidence that Merrill considered only the group of collection managers when deciding whom to terminate. While Sherrod initially testified that the positions of collections manager and authorization manager were distinct, he later conceded on cross-examination that they were "interchangeable." Thus, what meager statistical evidence exists is equivocal. ⁷ See Elliott, 714 F.2d at 566.

Sherrod points to the fact that a younger employee, Sandra Evans, was previously transferred from Greenspoint to Baybrook as evidence of age discrimination. However, Evans was not working in the Greenspoint office at the time of Sherrod's discharge. Thus, Evans was not one of the managers against whom Sherrod was compared in January 1983. She was not similarly situated to Sherrod, and the fact that she had been transferred rather than discharged constitutes no proof of discrimination against Sherrod. Absent a successful statistical demonstration, such an isolated datum represents scant evidence to support a jury finding. See Elliott, 714 F.2d at 567.

As a last resort, Sherrod claims that the release of liability offered to him upon his discharge constituted evidence sufficient to uphold the jury's finding. Merrill testified without contradiction that the release, a general waiver of claims, was required of all employees who were given the extra severance benefit. This amount of extra benefit was based on the cost of outplacement, a service Sears had previously provided its managerial employees but had discontinued prior to Sherrod's discharge. Sherrod has not shown any connection between the release and...