852 F.2d 1061 (8th Cir. 1988), 87-1437, Brooks v. Woodline Motor Freight, Inc.

Docket Nº:87-1437.
Citation:852 F.2d 1061
Party Name:3 Indiv.Empl.Rts.Cas. 940 Sam J. BROOKS, Appellee, v. WOODLINE MOTOR FREIGHT, INC., Appellant.
Case Date:July 28, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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852 F.2d 1061 (8th Cir. 1988)

3 Indiv.Empl.Rts.Cas. 940

Sam J. BROOKS, Appellee,



No. 87-1437.

United States Court of Appeals, Eighth Circuit

July 28, 1988

        Submitted Jan. 11, 1988.

        Rehearing Denied Sept. 2, 1988.

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        William C. Martucci, St. Louis, Mo., for appellant.

        Arthur A. Benson II, Kansas City, Mo., for appellee.

        Before McMILLIAN and ARNOLD, Circuit Judges, and HARPER, [*] Senior District Judge.

        McMILLIAN, Circuit Judge.

        Woodline Motor Freight, Inc. (Woodline), an Arkansas corporation authorized to do business in Missouri, appeals from a final judgment entered in the District Court 1 for the Western District of Missouri upon a jury verdict finding that Woodline had discriminated against Sam J. Brooks on the basis of age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq., and had violated the Missouri service letter statute, Mo.Ann.Stat. Sec. 290.140 (Vernon Supp.1988).

        The jury awarded Brooks backpay in the amount of $43,500 for the age discrimination claim, and nominal damages in the amount of $1 and punitive damages in the amount of $26,000 for the service letter violation. After the district court denied Woodline's post-trial motions for judgment notwithstanding the verdict (j.n.o.v.), new trial or remittitur, the parties were directed to submit briefs on Brooks's other remedy claims. The district court denied Brooks's request for reinstatement, but awarded him $43,100 as frontpay in lieu of reinstatement, and also awarded him $17,714.50 for attorney's fees and $661.60 for expenses.

        For reversal, Woodline argues that the district court erred in (1) denying its motion for j.n.o.v., (2) instructing the jury on mitigation of damages, (3) awarding frontpay, (4) instructing the jury on punitive damages, and (5) refusing to give a proposed cautionary instruction. For the reasons discussed below, we affirm the judgment of the district court on all issues except the award of punitive damages, which we reverse and remand to the district court for further proceedings.

        In May 1982 Brooks, then fifty-five years old, began working as a sales representative at Woodline's Kansas City area terminal. His primary responsibilities were to

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obtain shipping business, oversee sales operations, and deal with other local cartage agents. During Brooks's tenure as sales representative, his sales efforts accounted for more than ninety percent of Woodline's Kansas City sales revenues. The record also shows Brooks was the most efficient of Woodline's Kansas City sales representatives because, on a comparative basis over a five-month period, he produced $33 to $52 in revenue for each dollar spent, whereas his replacements brought in only $7.94 for each dollar spent. Woodline granted Brooks two salary increases during his period of employment. Woodline discharged Brooks in 1984.

        At trial, Woodline contended that it discharged Brooks because of poor job performance. Woodline asserted that Brooks had failed to generate a proper ratio between less-than-load shipments and volume (full trailer) shipments, develop a satisfactory working relationship with local cartage agents, and adequately supervise the sales staff. Although Woodline was requested on at least three occasions to set forth its specific reasons for the discharge, Woodline did not do so until trial. Woodline maintained that it was unable to reduce Brooks's "overall, inadequate performance into discrete components."

Denial of Motion for j.n.o.v.

        Woodline first argues that the district court erred in denying its motion for j.n.o.v. The standard for granting a j.n.o.v. is whether there is sufficient evidence to support the jury verdict. The decision of the district court is subject to de novo review. In deciding whether to grant a motion for j.n.o.v., the district court, as well as the appellate court, must view the evidence in the light most favorable to the prevailing party. See, e.g., Bell v. Gas Service Co., 778 F.2d 512, 514 (8th Cir.1985); Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 295 (8th Cir.1982), cert. denied, 459 U.S. 1205, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983). Like a directed verdict, j.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 non-moving party. Bell v. Gas Service Co., 778 F.2d at 514. This standard requires the district court, as well as this court on appeal, to resolve all factual conflicts in favor of Brooks as the prevailing party, assume all facts in his favor which the evidence tends to prove and give him the benefit of all reasonable inferences. Keeping this standard and the nature of proof required under the ADEA in mind, we must evaluate the evidence Brooks presented at trial.

        The evidence presented by Brooks, and the reasonable inferences that can be drawn therefrom, provided a sufficient basis from which the jury could have reasonably concluded that Brooks's age was a determining factor in Woodline's decision to discharge him: (1) Brooks's job performance met Woodline's legitimate expectations, (2) Brooks was between 40 and 70 years old and thus a member of the group protected by the ADEA, (3) Woodline's articulated reasons for discharging Brooks were pretextual, and (4) Woodline replaced Brooks with significantly younger employees. It is undisputed that Brooks was a member of the group protected by the ADEA and that he was replaced by significantly younger employees. While there is conflicting evidence about whether Brooks's job performance met Woodline's legitimate expectations, the jury chose to accept Brooks's evidence.

        Woodline vigorously argues that there is no evidence to support the jury's finding that age was a determining factor in the discharge decision. If direct evidence was the only way to prove that age was a determining factor in the employer's decision, then we would agree with Woodline. Much of Brooks's evidence of age discrimination is indirect and circumstantial. However, age discrimination plaintiffs do not have to establish by direct evidence that age was a "determining factor" in the employer's decision in order to prevail. They can prove their case "by showing either direct evidence of discrimination or evidence that the reasons given for the adverse action are a pretext to cloak the discriminatory motive." Dace v. ACF Industries, Inc., 722 F.2d 374, 377 (8th Cir.1983). "The special virtue of the indirect

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method of proof is that it allows victims of age discrimination to prevail without presenting any evidence that age was a determining factor in the employer's motivation." La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409-10 (7th Cir.1984) (emphasis in original); see, e.g., Holley v. Sanyo Manufacturing, Inc., 771 F.2d 1161, 1164 (8th Cir.1985). See also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983) (Title VII); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981) (Title VII); Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (Title VII); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973) (McDonnell Douglas ) (Title VII).

        Age discrimination is often subtle and "may simply arise from an unconscious application of stereotyped notions of ability rather than from a deliberate desire to remove older employees from the workforce." Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149, 154-55 (7th Cir.1981) (emphasis in original).

Even an employer who knowingly discriminates on the basis of age may leave no written records revealing the forbidden motive and may communicate it orally to no one. When evidence is in existence, it is likely to be under the control of the employer, and the plaintiff may not succeed in turning it up. The indirect method...

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