Gilchrist v. Jim Slemons Imports, Inc.

• Decision Date: 06 November 1986
• Docket Number: No. 85-5813,85-5813
• Citation: 803 F.2d 1488
• Parties: 42 Fair Empl.Prac.Cas. 314, 41 Empl. Prac. Dec. P 36,656, 55 USLW 2280, 1 Indiv.Empl.Rts.Cas. 1053 Bruce GILCHRIST, Plaintiff-Appellee, v. JIM SLEMONS IMPORTS, INC., and Jim Slemons, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1488

803 F.2d 1488

42 Fair Empl.Prac.Cas. 314,

41 Empl. Prac. Dec. P 36,656, 55 USLW 2280,

1 Indiv.Empl.Rts.Cas. 1053

Bruce GILCHRIST, Plaintiff-Appellee, v. JIM SLEMONS IMPORTS, INC., and Jim Slemons, Defendants-Appellants.

No. 85-5813.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 1986.

Decided Nov. 6, 1986.

Barbara Lane, Fairfield, McDonald, Sullard, & Lane, Ventura, Cal., for plaintiff-appellee.

Richard Simmons, Dana D. Howells, Musick, Peeler, & Garrett, Los Angeles, Cal., for defendants-appellants.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, WALLACE, and KOZINSKI, Circuit Judges.

WALLACE, Circuit Judge:

Jim Slemons Imports, Inc. (Slemons) appeals from a jury verdict in favor of Gilchrist on a claim for age discrimination in violation of the Age Discrimination in Employment Act of 1967 (the Act), 29 U.S.C. Secs. 621-634, and on a state law claim for breach of the implied covenant of good faith and fair dealing. Slemons contends that the jury verdict was not supported by the evidence, that the district judge erred in instructing the jury, that the state law claim was preempted, and that the district judge erred in admitting evidence. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm in part, and reverse in part and remand.

I

In November 1971, Slemons hired Gilchrist to be a salesman at its Mercedes dealership in Newport Beach, California. Slemons later promoted Gilchrist to the position of a new car manager. In 1981, Slemons consolidated its used car operation, which was located in Costa Mesa, California, and its Newport Beach new car operation. The consolidated operation was located in Newport Beach.

Six months after the consolidation, Slemons concluded, it contends for business reasons, that it no longer needed two new car managers in order to operate the Newport Beach dealership. Consequently, Slemons terminated Gilchrist. At the time of his termination, Gilchrist was 58 years old. Wright, the new car manager who was not terminated, was also 58 years old. Four months after Gilchrist was terminated, Slemons terminated Wright, allegedly for behavioral problems. Slemons then hired a new car manager who was 35 years old to take Wright's place.

Slemons alleges that when it terminated Gilchrist as a new car manager it offered him a position either as a salesman at its Newport Beach dealership or as chief executive officer of a new company, Overseas Auto Delivery, Inc. (Overseas). Gilchrist contends that no offer of a salesman position was made and that the position with Overseas, a then nonexistent company, did not include pay during the start-up period.

Gilchrist filed an age discrimination claim with the Equal Employment Opportunity Commission (EEOC), which, in April 1983, issued a letter of violation charging Slemons with violating the Act. In May 1983, Slemons offered Gilchrist a position as a salesman at its Honda dealership in San Juan Capistrano, California. Gilchrist rejected the offer, and alleges that it was conditioned on his waiver of any claim for back pay or lost medical benefits and on his passing a lie detector test. Slemons argues that it did not place any conditions on the offer of employment.

In October 1983, Gilchrist filed suit against Slemons, alleging that Slemons terminated him because of his age in violation of the Act and in violation of a state law implied covenant of good faith and fair dealing. The jury returned a verdict in favor of Gilchrist on both claims, and awarded him $300,000 in actual damages and $300,000 in liquidated damages pursuant to the Act, and, on the state claim, $600,000 in actual damages and $100,000 in emotional distress damages.

The district judge discovered an inconsistency between the jury's award of $300,000 in actual damages pursuant to the Act and $600,000 in actual damages pursuant to the state law claim. Consequently, Slemons and Gilchrist stipulated that the actual damages "total would be $300,000, whether it be on the [Act] claim or the good faith claim." Gilchrist therefore was awarded $300,000 in actual damages under either the Act or the state law claim, $300,000 in liquidated damages under the Act, and $100,000 in emotional distress damages under the state law claim.

Slemons moved for a new trial, alleging that the damages were excessive, that the evidence was insufficient to support the verdict, and that the district court committed errors of law. The district judge granted conditionally Slemons's motion for a new trial but only as to damages. In order to avoid a new trial, Gilchrist agreed to a remittitur that reduced the actual damages amount to $225,000, with an equal reduction in liquidated damages, and a reduction in emotional distress damages to $50,000, for a total of $500,000 in damages.

II

In attacking the Act claim, Slemons contends that Gilchrist failed to establish a prima facie case of age discrimination, that he failed to demonstrate that the business reasons advanced by Slemons for terminating Gilchrist were a pretext for terminating him because of his age, that the district court failed to instruct the jury properly concerning Gilchrist's burden of proof, and that the district court's jury instructions concerning liquidated damages under the Act were contrary to Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) (Thurston ).

A.

To prevail under a disparate treatment theory, Gilchrist must demonstrate that Slemons intentionally discriminated against him based on his age. See Sakellar v. Lockheed Missiles & Space Co., 765 F.2d 1453, 1455 (9th Cir.1985) (Sakellar ), cert. denied, --- U.S. ---, 106 S.Ct. 856, 88 L.Ed.2d 896 (1986). Slemons contends that Gilchrist failed to establish a prima facie case of age discrimination. As we review this case, however, we are not concerned with the specific elements of a prima facie case or with whether they have been met. Requiring a plaintiff initially to establish his case to a prima facie level of proof is merely an orderly way of trying a case in the district court. Id. "Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant." United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (Aikens ).

Similarly, Slemons contended in the district court that Gilchrist was terminated because of legitimate business reasons resulting from the consolidation of the new and used car operations. Gilchrist was entitled to "an adequate opportunity to demonstrate that [Slemons's] proffered reasons were not the true reasons" for his being terminated as a new car manager. Sakellar, 765 F.2d at 1455. It was properly left to the jury to decide "which party's explanation of [Slemons's] motivation it believe[d]." Aikens, 460 U.S. at 716, 103 S.Ct. at 1482. Consequently, Slemons's argument that Gilchrist failed both to establish a prima facie case and to prove that its justification for his discharge was pretextual are encompassed within one question--whether the jury erred in finding that Slemons intentionally discriminated against Gilchrist based on his age.

We typically review a jury's findings of fact for substantial evidence. See Transgo, Inc. v. AJAC Transmission Parts Corp., 768 F.2d 1001, 1013-14 (9th Cir.1985), cert. denied, --- U.S. ---, 106 S.Ct. 802, 88 L.Ed.2d 778 (1986). We are unable to perform such a review here on the Act claim. At the close of evidence, Slemons moved for a directed verdict on the state law claim for breach of the implied covenant of good faith and fair dealing. Slemons did not move for a directed verdict on Gilchrist's Act claim. We have previously concluded that "[t]he ground that there was not substantial evidence to support the jury's verdict ... is not before this court [unless the a]ppellant ..., at the close of the evidence or case, interpose[d] a motion for directed verdict." Oslund v. State Farm Mutual Automobile Insurance Co., 242 F.2d 813, 815 (9th Cir.1957); see Farley Transportation Co. v. Santa Fe Trail Transportation Co., 786 F.2d 1342, 1345-46 (9th Cir.1985) (Farley Transportation ); Trans World Airlines, Inc. v. Shirley, 295 F.2d 678, 678 (9th Cir.1961); see also 9 C. Wright & A. Miller, Federal Practice and Procedure, Sec. 2536, at 593 (1971) (Wright & Miller). Because Slemons failed to move for a directed verdict on Gilchrist's Act claim, our review of that claim is limited to Slemons's motion for a new trial. Farley Transportation, 786 F.2d at 1347.

The district court's denial of Slemons's motion for a new trial on the Act claim "is reversible only if the record contains no evidence in support of the verdict." Id. Although the evidence on the record is for the most part circumstantial, we conclude that the record contains some evidence in support of the verdict.

B.

Slemons contends that the district court also erred in instructing the jury concerning Gilchrist's proper burden of proof on a variety of issues associated with his Act claim. Slemons and Gilchrist, however, jointly submitted all of the jury instructions given by the court. A party who requests an instruction invites any error contained therein and, absent an objection before the instruction is given, waives appellate review of the correctness of the instruction. See 999 v. C.I.T. Corp., 776 F.2d 866, 870 (9th Cir.1985) (999 ); Deland v. Old Republic Life Insurance Co., 758 F.2d 1331, 1337 (9th Cir.1985); Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 58, 59, 74 L.Ed.2d 62 (1982); see also Fed.R.Civ.P. 51; Wright & Miller, Sec. 2558, at 675-76.

Slemons suggests, however, that we review the now challenged jury instructions pursuant to dicta found in Brown v. Avemco Investment Corp., 603 F.2d...