831 F.2d 1404 (8th Cir. 1987), 86-2467, Washburn v. Kansas City Life Ins. Co.

Docket Nº:86-2467.
Citation:831 F.2d 1404
Party Name:2 Indiv.Empl.Rts.Cas. 1175 Jimmie C. WASHBURN, Jr., Appellant, v. KANSAS CITY LIFE INSURANCE CO., Appellee.
Case Date:October 28, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1404

831 F.2d 1404 (8th Cir. 1987)

2 Indiv.Empl.Rts.Cas. 1175

Jimmie C. WASHBURN, Jr., Appellant,



No. 86-2467.

United States Court of Appeals, Eighth Circuit

October 28, 1987

Submitted June 11, 1987.

Rehearing and Rehearing En Banc Denied Dec. 10, 1987.

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Kelly L. McClelland, Liberty, Mo., for appellant.

Jack B. Robertson, Kansas City, Mo., for appellee.

Before ROSS, Circuit Judge, [*] BRIGHT, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

ROSS, Senior Circuit Judge.

Jimmie C. Washburn, Jr., appeals from a judgment entered 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. Washburn also appeals the district court's dismissal of his fraud claim, and the court's conditional grant of a new trial on the breach of contract and age discrimination claims if the judgment for appellee is reversed. We affirm in part

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and reverse in part, and remand for further proceedings.


Washburn began his employment with Kansas City Life Insurance Co. (K.C. Life) in June, 1970 as a supervisor in the Kansas City Sales Agency, recruiting and training agents to sell life insurance for the company. Prior to that time, dating back to 1949, he was employed by other life insurance companies in sales, management and agent training programs. In his thirteen years with K.C. Life, Washburn worked in various management positions in the areas of insurance and pension sales, advanced underwriting and estate planning. His duties included, among other things, providing field agents with insurance analyses and planning advice and conducting training seminars and schools. Washburn received regular promotions throughout the years, and on April 1, 1982, he was named the Director of Estate Conservation. In this newly created position, Washburn was responsible for, among other things, increasing the life insurance sales of the company.

On October 27, 1982, K.C. Life issued a notice to all home office associates that it was offering a one-time early retirement option to K.C. Life associates who would be age 60 by December 31, 1982 with a minimum of ten years of service in the company. The early retirement option offered one full year's pay to any eligible employee taking the option. Washburn, who would be 60 in November, thus was eligible for the early retirement option.

That fall at a business luncheon, Washburn was asked by Dave Dysart, Executive Vice-President at K.C. Life, whether he was interested in taking the early retirement option. Washburn indicated that he was not. Nevertheless, Dysart continued to tell Washburn of the benefits of early retirement and strongly encouraged him to look into it.

Thereafter, Washburn asked his immediate supervisor, Glenn Cota, whether the company had any interest in his taking the early retirement offer. Cota responded that there was no such interest to his knowledge. Later in December of 1982, Washburn asked the same question of Donald Fromm, Vice-President in charge of the training area in which Washburn worked. Washburn testified that Fromm indicated to him at that time that his performance with the company was satisfactory and that K.C. Life was not attempting to force his retirement. After considering Fromm's comments and his available career options, Washburn later informed the personnel department that he would not be taking the early retirement option.

Four months later, on April 14, 1983, Washburn, age 60, was called to the office of Jim Davis, Regional Director of Sales and Washburn's supervisor since January 1, 1983. Also seated in the office was Michael DeMarea, Personnel Director at K.C. Life. At that time, Washburn was presented with a letter challenging certain expenses he had claimed during a business trip in March of 1983. Washburn explained to Davis that the expenses were legitimate and had been approved by his supervisors. Nonetheless, he offered to write a check for the entire amount to settle any questions about it. Washburn testified that Davis then responded to his offer of repayment, saying, "We don't want the [money]. We want you to retire." Washburn testified that Davis then proceeded to discuss the other contents of the letter, specifically, that Washburn had performed unsatisfactorily on two recent projects. Davis also criticized the creativity of Washburn's work. Washburn testified that he became incensed by Davis's comments and got up to leave, when Davis said, "Well, there may be an alternative to your firing and the alternative would be for you to take early retirement." Washburn testified that when he told Davis he wasn't interested in early retirement, Davis responded, "You weren't listening. Do you want to be fired or do you want to be interested in early retirement? And while you are thinking about it, Mr. DeMarea has some figures for you as to what we would do about early retirement." Mr. DeMarea then presented Washburn with some figures for early retirement which, Washburn believed, were considerably less than the

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full year's pay that was previously offered by the company as an inducement for early retirement. At the end of the meeting, Washburn was told to clean out his desk.

Washburn filed suit, alleging age discrimination, breach of employment contract, prima facie tort and fraud. At trial, K.C. Life asserted that Washburn was terminated for nondiscriminatory reasons, specifically, that (1) there had been a reduction in Washburn's workload due to estate tax law reform, (2) Washburn had unsatisfactorily performed in his new position as Director of Estate Conservation, and (3) Washburn had violated company policy by submitting unauthorized charges to his expense account. During the trial, the district court dismissed Washburn's fraud claim. The jury later returned verdicts in favor of Washburn on his age discrimination and breach of employment contract claims and awarded Washburn $82,245 on each count. The district court ruled, however, that Washburn could not recover the same items of damages under both counts and thus entered judgment for $82,245 actual damages. The district court later granted K.C. Life's motion for judgment notwithstanding the verdict (judgment n.o.v.) on both counts and conditionally granted a new trial if the judgment for K.C. Life is reversed. Washburn filed this appeal contesting the district court's entry of the judgment n.o.v. as to the age discrimination and breach of employment contract claims and conditional grant of a new trial on those claims and the dismissal of the fraud claim. 1


Judgment N.O.V. on Age Discrimination Claim

The standard for granting a judgment n.o.v. is well established in this circuit. In determining whether a party is entitled to a judgment notwithstanding an adverse jury verdict, the district court must view the evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the party who prevailed before the jury. Gilkerson v. Toastmaster, Inc., 770 F.2d 133, 136 (8th Cir.1985). Furthermore, like a directed verdict, a judgment n.o.v. should be granted only when all the evidence points one way and is susceptible of no reasonable inferences sustaining the position of the nonmoving party. Bell v. Gas Serv. Co., 778 F.2d 512, 514 (8th Cir.1985). Because the standards for appellate review of a judgment n.o.v. are the same as those which the district court must apply, Smith v. Monsanto Chem. Co., 770 F.2d 719, 722 (8th Cir.1985), cert. denied, 475 U.S. 1050, 106 S.Ct. 1273, 89 L.Ed.2d 581 (1986), this court must resolve factual disputes in favor of the appellant, assume all facts in his favor which the evidence tends to prove, and give him the benefit of all reasonable inferences. Bell, supra, 778 F.2d at 514-15. Keeping this standard in mind, the court must consider the nature of proof required under the ADEA and evaluate the evidence appellant presented at trial. Id. at 515.

The ADEA prohibits 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). Bethea v. Levi Strauss & Co., 827 F.2d 355, 357 (8th Cir.1987). In order to recover under the ADEA, the plaintiff has the initial burden of establishing a prima facie case of age discrimination, i.e., that he is within the protected group, that his performance met the employer's legitimate expectations, that he was terminated, and that afterwards the employer sought a replacement for the position. Bell, supra, 778 F.2d at 515. 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. If the employer makes such a showing, the plaintiff then has the ultimate burden of showing that the reasons offered by the employer are merely pretextual and

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that age was a determining factor in the discharge. Bethea, supra, at 357; Bell, supra, 778 F.2d at 515; Gilkerson, supra, 770 F.2d at 135.

As previously stated by the Supreme Court, the ultimate issue of fact in cases such as this is whether the employer intentionally discriminated against the employee. United States Postal Serv. v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); Gilkerson, supra, 770 F.2d at 135. Because the present case was fully tried on the merits, this court focuses its attention on the ultimate question presented and not on the adequacy of a party's showing at any particular stage of the analysis described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Gilkerson, supra, 770 F.2d at 135....

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