Lucas v. Dover Corp., Norris Div.

Decision Date27 September 1988
Docket NumberNo. 85-2002,85-2002
Citation857 F.2d 1397
Parties47 Fair Empl.Prac.Cas. 1713, 47 Empl. Prac. Dec. P 38,331 William LUCAS, Jim House, John Thomason, and Howard McCully, Plaintiffs/Appellants, v. DOVER CORPORATION, NORRIS DIVISION, Defendant/Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Fred C. Cornish, Cornish & Renbarger, Inc., Tulsa, Okl. (Robert Renbarger, Cornish & Renbarger, Inc., and Alvin Hayes, Jr., Tulsa, Okl., with him, on the brief), for plaintiffs/appellants.

Richard L. Barnes, Tulsa, Okl., for defendant/appellee.

Before HOLLOWAY, Chief Judge, SETH and STEPHEN H. ANDERSON, Circuit judges.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiffs/Appellants, four former supervisory employees of defendant Dover Corporation, Norris Division ("Dover"), brought an action against Dover pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634, alleging that Dover had terminated their employment in violation of the ADEA. A jury returned verdicts for plaintiffs and further found that Dover had willfully violated the ADEA. The district court accordingly awarded damages, costs, and attorney's fees to plaintiffs. The district court subsequently granted Dover's motion for judgment notwithstanding the verdict and dismissed plaintiffs' claims. Plaintiff appeal. For the reasons set forth below, we affirm.

BACKGROUND

Dover manufactures valves and other energy-industry-related equipment at its Elwood plant in Tulsa, Oklahoma. In 1982, Dover encountered a significant downturn in business, due to the energy recession, and was accordingly required to reduce its work force dramatically. 1 Plaintiffs were four of approximately eighteen supervisory employees who were terminated pursuant to the reduction in force. 2 Of the eighteen who were terminated for economic reasons, eleven were under the age of forty and seven were over the age of forty. Defendant's Ex. 5. The parties do not dispute the severity of the energy recession nor the necessity for Dover to reduce its work force significantly.

Four management employees established the criteria for determining which employees would be fired pursuant to the reduction in force. These employees were Edwin Bechtold, the President of Dover's Norris Division, Brad Bertram, the Vice President of Operations and General Manager at the Elwood Plant, Charles Chatnuef, the Manufacturing Manager at the Elwood Plant, and Paul Lane, the Material Manager at the plant. The criteria were management and supervisory ability, technical skills, ability to get along with people, and length of service. 3 Bertram testified that he reminded his supervisory employees of the ADEA when he told them the retention criteria to be used. Bechtold testified that he had final authority for all terminations that occurred in 1982. R.Vol. IV at 329.

Plaintiff Lucas was sixty-two when he was terminated in December 1982. He had worked for Dover for over forty-two years. He had held various supervisory positions for many years, including the position of Supervisor of Inspections. In 1980, Lucas was transferred from the position of Supervisor of Inspections to the position of Supervisor of the Tool and Die Department. In July 1982, Dover initially transferred Lucas to the position of Final Inspection Foreman and filled the position of Supervisor of Tool and Die with a man in his late thirties. Dover ultimately decided to consolidate the position of Supervisor of Tool and Die with a supervisory position in Tool Grinding, which was held at that time by a younger employee, Johnny Six. It determined to retain Six instead of Lucas to fill the consolidated position. Bertram testified that Six's greater knowledge of tool grinding made him more qualified for the position than Lucas. In December 1982, Dover eliminated the position of Final Inspection Foreman and discharged Lucas. Another younger employee, Danny Day Plaintiff House was forty-seven and held the position of Supervisor of Drafting when he was terminated in September 1982. He had worked for Dover for over nineteen years. Pursuant to the reduction in force in 1982, the drafting department at Dover was reduced to two draftsmen, and House's duties as Supervisor of Drafting were initially consolidated under the chief engineer and House was terminated. When the chief engineer complained to Bertram that he was unable to supervise the Drafting Department and perform his duties as chief engineer, Dover assigned House's duties as Drafting Supervisor to thirty-year-old Dennis Mannon, a designer at Dover. Dover justifies that decision on the basis that, while both House and Mannon were qualified draftsmen, Mannon had education and experience as a designer, whereas House did not.

                had been awarded the position of Supervisor of Inspections.  At the time of Lucas' termination, Dover decided to retain Day in that position instead of putting Lucas there.  Chatnuef testified that Day had better skills in handling people and had "more than adequate technical skills."    R.Vol. IV at 384
                

Plaintiff Thomason was sixty years old and held the position of Supervisor of Receiving and Materials Storage when he was terminated in July 1982. He had worked for Dover for more than eight years. When the positions of Supervisor of Receiving and Materials Storage and Supervisor of Valve Parts Warehouse were consolidated during the reduction in force, Dover retained Lewis Williams, the thirty-nine-year-old Supervisor of Valve Parts Warehouse, and terminated Thomason. Dover's explanation for that decision is that Williams had greater technical knowledge of valves and thus had superior ability to supervise the consolidated area. 4

Plaintiff McCully was sixty-one years old and had worked for Dover for more than thirty-six years when he was terminated in December 1982. He held the position of Maintenance Foreman at that time. When Dover decided to consolidate McCully's duties with those of another maintenance foreman, thirty-three-year-old Bill Moutschka, Dover retained Moutschka and terminated McCully. Dover presented testimony that its decision to retain Moutschka over McCully was based on Moutschka's superior knowledge of electronics, which was important to the maintenance of newer machines.

Thus, each plaintiff lost his job pursuant to a consolidation of his job with another position, or when his job position was eliminated. It is undisputed that plaintiffs were in the protected age group of between forty years and seventy years of age, and Dover does not dispute the district court's finding, supported by the record, that each plaintiff was qualified for the position he held at the time of termination. 5 It also appears undisputed that when the newly consolidated positions were filled, a younger person was selected over each plaintiff. 6

The essence of plaintiffs' complaint in this case is that, in determining which employees to retain and which to fire in the course of its reduction in force, Dover manipulated its stated criteria so that, when the individual decisions were made to retain plaintiffs or younger employees, the younger employees were always retained and plaintiffs were fired. Dover's motive, plaintiffs argue, was to build a "team for the future" of employees who would be able to contribute many more years of service to Dover. Dover argues that adverse economic conditions necessitated a reduction in its work force and a consolidation of various positions and that it terminated plaintiffs, not because of their age, but because they were less qualified to perform The district court granted Dover's motion for judgment n.o.v. "because the plaintiffs did not present sufficient evidence to create a factual question that there was a reasonable probability the defendant's articulated reasons for plaintiffs' terminations were pretextual." 7 Plaintiffs' appeal argues that there was substantial evidence supporting the jury's verdict and that the district court, in granting Dover's motion, impermissibly substituted its own judgment for that of the jury.

in the newly consolidated positions than those retained.

DISCUSSION

Judgment n.o.v. "should be cautiously and sparingly granted." E.E.O.C. v. Prudential Federal Sav. & Loan Ass'n, 763 F.2d 1166, 1171 (10th Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985) (quoting Joyce v. Atlantic Richfield Co., 651 F.2d 676, 680 (10th Cir.1981)). It is "appropriate only when 'the evidence points but one way and is susceptible to no reasonable inferences which may sustain the position of the party against whom the motion is made.' " Id. (quoting Symons v. Mueller Co., 493 F.2d 972, 976 (10th Cir.1974)). In determining whether the grant of a motion for judgment n.o.v. is appropriate, the court must view the evidence and indulge all inferences in favor of the party opposing the motion and " 'cannot weigh the evidence, consider the credibility of witnesses or substitute its judgment for that of the jury.' " Id. (quoting Joyce, 651 F.2d at 680 n. 2). Applying those standards to this case, we find that judgment n.o.v. was properly entered for Dover.

It is well settled that an ADEA plaintiff must establish that age was a "determining factor" in the employer's challenged decision. E.E.O.C. v. Sperry Corp., 852 F.2d 503, 507 (10th Cir.1988). "Plaintiff need not prove that age was the sole reason for the employer's acts, but must show that age 'made the [sic] difference' in the employer's decision." Id. (citing E.E.O.C. v. Prudential Federal Sav. & Loan Ass'n, 763 F.2d at 1170); see also Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th Cir.1988).

A party may attempt to "meet his burden directly, by presenting direct or circumstantial evidence that age was a determining factor in his discharge." La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir.1984). Or, more typically, a party may rely on the proof scheme established in McDonnell Douglas Corp. v....

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