Bethea v. Levi Strauss & Co., 86-2217

• Citation: 827 F.2d 355
• Decision Date: 13 November 1987
• Docket Number: No. 86-2217,86-2217
• Parties: 44 Fair Empl.Prac.Cas. 1204, 44 Empl. Prac. Dec. P 37,381, 45 Empl. Prac. Dec. P 37,650, 2 Indiv.Empl.Rts.Cas. 734 Charles H. BETHEA, Appellee, v. LEVI STRAUSS & CO., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 355

827 F.2d 355

44 Fair Empl.Prac.Cas. 1204,

44 Empl. Prac. Dec. P 37,381,

45 Empl. Prac. Dec. P 37,650,

2 Indiv.Empl.Rts.Cas. 734

Charles H. BETHEA, Appellee, v. LEVI STRAUSS & CO., Appellant.

No. 86-2217.

United States Court of Appeals Eighth Circuit.

Submitted April 16, 1987.

Decided Aug. 27, 1987.

Rehearings and Rehearings En Banc Denied Nov. 13, 1987.

Thomas Walsh, St. Louis, Mo., for appellant.

Dale C. Doerhoff, Jefferson City, Mo., for appellee.

Before ROSS, Circuit Judge, ^* FLOYD R. GIBSON and HENLEY, Senior Circuit Judges.

ROSS, Senior Circuit Judge.

Levi Strauss & Co. (Levi) appeals from the district court's judgment entered for Charles Bethea on a jury verdict of breach of contract and of willful discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-34. Levi also appeals from the order of the district court denying its motion for judgment notwithstanding the verdict or, in the alternative, motion for a new trial. Levi argues that (1) Bethea failed to make a submissible case of age discrimination; (2) there was no evidence to support a finding of willfulness that would entitle Bethea to double damages under the ADEA; and (3) Bethea's contract claim was insufficient as a matter of law. We affirm in part and reverse in part.

Facts

Charles Bethea began working for Levi in 1974 in the Arkansas employee purchase plan distribution center. He became a sales representative in 1977. Bethea's accounts during the relevant time period were mostly smaller stores in outlying areas of Missouri and in southern Illinois.

In 1984 Levi decided to restructure its sales force to counter slipping sales and reduced profits in a time of depressed market conditions and increased competition. Bethea, age 56, was one of five salesmen in the Missouri-southern Illinois territory in 1984. He, Richard Tolan, age 55, and Paul Caracker, age 29, were preliminarily selected by the national sales managers as the three salesmen in that territory to be laid off. After these preliminary selections Bethea filed suit alleging age discrimination and breach of employment contract. The jury returned a verdict for Bethea for $82,000 on the age discrimination claim. The jury also found that Levi's violation of the ADEA was willful, and the trial court accordingly assessed an additional $82,000 for liquidated damages pursuant to 29 U.S.C. Sec. 626(b). On the contract claim, the jury found that Bethea had been damaged in the amount of $500,000. The court ruled that the actual damages on both counts overlapped and thus entered judgment for $500,000 actual damages, $82,000 in liquidated damages, and $9,868.74 for attorney fees and expenses.

                were made, Levi utilized an employee evaluation procedure called an objective job quotient (OJQ).  The OJQ consisted of a series of comparative ratings of the womenswear sales representatives in which each sales representative was ranked in comparison to the others in various categories. 1   The ratings were done by supervisors and coworkers.  Levi felt the OJQ confirmed the previous subjective judgments.  Bethea was laid off in August 1984, and was given severance pay of $23,808, plus an additional $4,762 in lieu of thirty days' notice.  The territory was divided between the two retained salesmen, John Mason, age 30, and Maurice Rosga, age 36
                

Discussion

ADEA Claim

Levi first argues that Bethea failed to make a submissible case of age discrimination. In addition Levi contends that it articulated a legitimate nondiscriminatory reason for Bethea's layoff--a reduction in force mandated by adverse economic and competitive conditions. Thus Levi argues the district court erred in not granting its motions for a directed verdict and for judgment notwithstanding the verdict.

The ADEA proscribes discrimination against any individual who is "at least 40 years of age but less than 70 years of age", 29 U.S.C. Sec. 631(a), with respect to "compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. Sec. 623(a). Dreyer v. Arco Chemical Co., 801 F.2d 651, 653 (3d Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987). To recover in an action brought under the ADEA, the plaintiff has the burden of establishing a prima facie case of age discrimination. Gilkerson v. Toastmaster, Inc., 770 F.2d 133, 135 (8th Cir.1985); Jorgensen v. Modern Woodmen of America, 761 F.2d 502, 504 (8th Cir.1985). Once such a showing has been made, the burden of production shifts to the employer to produce evidence showing that its actions were taken for legitimate, nondiscriminatory reasons. Gilkerson, supra, 770 F.2d at 135; Jorgensen, supra, 761 F.2d at 504. If the employer makes such a showing, the ultimate burden that a plaintiff must meet is to show that age was a determining factor in the actions taken by the employer. Gilkerson, supra, 770 F.2d at 135; Jorgensen, supra, 761 F.2d at 504; Cleverly v. Western Elec. Co., 594 F.2d 638, 641 (8th Cir.1979); Cova v. Coca-Cola Bottling Co., 574 F.2d 958, 960 (8th Cir.1978).

As the Supreme Court has said, the "ultimate factual issue" in cases such as this is whether the employer intentionally discriminated against the employee. United States Postal Service v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403; Gilkerson, supra, 770 F.2d at 135; Jorgensen, supra, 761 F.2d at 505. On appeal, "because the case was fully tried on the merits, we focus our attention on the ultimate question presented and not on the adequacy of a party's showing at any particular stage of the analysis set down in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) as applied in an age discrimination case." Gilkerson, supra, 770 F.2d at 135. "[O]nce a finding of discrimination vel non has been made, and Levi offered evidence of a legitimate nondiscriminatory reason for discharging Bethea, in claiming that the reduction in force was necessary and that Bethea did not have major metropolitan accounts, the focus of the reorganized marketing structure. Simply because Levi articulated a legitimate nondiscriminatory reason for firing Bethea does not, however, entitle it to a verdict in its favor or a judgment notwithstanding the verdict. Gilkerson, supra, 770 F.2d at 135. For an order entering judgment notwithstanding the verdict to be proper, "all the evidence points one way and is susceptible of no reasonable inferences sustaining the position" of Bethea. Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1164 (8th Cir.1985) (quoting Crues v. KFC Corp., 729 F.2d 1145, 1148 (8th Cir.1984); Gilkerson, supra, 770 F.2d at 136; Brown v. Syntex Laboratories, Inc., 755 F.2d 668, 671 (8th Cir.1985). In its consideration of all the evidence the jury could still find that Bethea's evidence established that the reasons articulated were pretextual. See Gilkerson, supra, 770 F.2d at 135-36. Based upon the verdict for Bethea, we believe that the jury adopted his version of the case and considered the reasons proffered by Levi to be pretextual and Levi's actions to be discriminatory.

                the resulting judgment is being evaluated on appeal, [the] presumptions [described in McDonnell Douglas ] fade away, and the appellate court should simply study the record with a view to determining whether the evidence is sufficient to support whatever finding was made at trial.  This is the teaching of Aikens."   Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 278, 93 L.Ed.2d 254 (1986)
                

We have carefully reviewed the record before us and conclude that, while this is a close case, there was sufficient evidence to support the jury's verdict on the age discrimination claim. In reviewing the district court's denial of Levi's motion for judgment notwithstanding the verdict, the standard to be applied by the district court and by this court is the same. Chappell v. GTE Products Corp., 803 F.2d 261, 265 (6th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987); Cleverly, supra, 594 F.2d at 641. In either case, the evidence must be considered in the light most favorable to Bethea, as the party who prevailed with the jury. Gilkerson, supra, 770 F.2d at 136; Cleverly, supra, 594 F.2d at 641. All conflicts in the evidence must be resolved in a manner which favors the jury's verdict, and all facts which Bethea's evidence tends to prove must be assumed to have been proven. Gilkerson, supra, 770 F.2d at 136; Cleverly, supra, 594 F.2d at 641. Bethea must be given the benefit of all favorable inferences which may reasonably be drawn from the facts proved. Gilkerson, supra, 770 F.2d at 136; Cleverly, supra, 594 F.2d at 641. The motion denying judgment n.o.v. must be affirmed if, reviewing the evidence in this light, reasonable persons could differ as to the conclusions to be drawn from it. Gilkerson, supra, 770 F.2d at 136; Cleverly, supra, 594 F.2d at 641.

Reviewing Bethea's evidence in light of the above, we cannot say that no reasonable trier of fact could have found in favor of Bethea. The jury had before it evidence that 1) he received a number of awards and recognitions including a double commission in February 1983 for exceeding his sales targets; 2) he received a letter of commendation from his regional manager in January 1984; 3) he received a distinguished service award at a national sales meeting in March 1984; 4) subjective decisions about Bethea's termination were made before the OJQ results were available. The jury could have reasonably believed that age was a determining factor in Levi's decision to discharge Bethea. We think the district court properly denied Levi's motion for judgment notwithstanding the verdict, or alternatively, a new trial.

Willfulness Claim

Next, Levi challenges the jury's award of liquidated damages. Under the ADEA, liquidated damages are permitted only in cases of ...