Fite v. First Tennessee Production Credit Ass'n

• Citation: 861 F.2d 884
• Decision Date: 24 January 1989
• Docket Number: 87-5805,Nos. 87-5728,s. 87-5728
• Parties: 48 Fair Empl.Prac.Cas. 449, 48 Empl. Prac. Dec. P 38,457, 57 USLW 2358 Walker Boyd FITE, Plaintiff-Appellee, v. FIRST TENNESSEE PRODUCTION CREDIT ASSOCIATION, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 884

861 F.2d 884

48 Fair Empl.Prac.Cas. 449,

48 Empl. Prac. Dec. P 38,457, 57 USLW 2358

Walker Boyd FITE, Plaintiff-Appellee, v. FIRST TENNESSEE PRODUCTION CREDIT ASSOCIATION, Defendant-Appellant.

Nos. 87-5728, 87-5805.

United States Court of Appeals, Sixth Circuit.

Argued May 17, 1988.

Decided Nov. 4, 1988.

Rehearing and Rehearing En Banc Denied Jan. 24, 1989.

Charles L. Trotter, Jr., Huntingdon, Tenn., Charles Hampton White (argued), Cornelius & Collins, Nashville, Tenn., for defendant-appellant.

Roger Keith Rutledge (argued), Memphis, Tenn., for plaintiff-appellee.

Before KEITH and WELLFORD, Circuit Judges, and EDWARDS, Senior Circuit Judge.

KEITH, Circuit Judge.

Appellant, First Tennessee Production Credit Association ("FTPCA"), appeals from a jury verdict in favor of Appellee, Walker Boyd Fite, in this action brought pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 621 et seq. Appellant also appeals from the jury's award of damages totaling $270,000 and the district court's award of attorney's fees and costs in the amount of $71,373.93. For the reasons set forth below, we affirm the judgment of Judge Julia Smith Gibbons.

I.

On October 30, 1984, appellee brought suit against appellant, his employer of record, and the Federal Intermediate Credit Bank ("FICB"), ¹ alleging that he had been discharged in violation of the ADEA.

In the course of discovery, both FTPCA and FICB objected to the disclosure of certain information contained in or relating to credit reviews which were claimed to be privileged. Appellee sought an order compelling the discovery, which was granted by the United States Magistrate on January 7, 1986. In the appeal of the magistrate's ruling to the district court, FTPCA and FICB were joined by the United States, which filed a Suggestion of Interest asserting that the credit reviews were deemed under regulations of the Farm Credit Administration to be governmental records covered by a privilege against disclosure. After conducting a hearing, the court, on March 4, 1986, entered an order compelling both FICB and FTPCA to comply with the discovery request. When FTPCA failed or refused to abide by the order compelling discovery, appellee sought and obtained attorney's fees as sanctions. ² Prior to trial, FICB filed two motions for summary judgment on the issue of liability to appellee. The court denied both motions. However, on April 23, 1986, the court granted FICB's motion for partial dismissal of appellee's claims for punitive and liquidated damages.

Upon the completion of discovery and preliminary motions, a jury of seven persons was impaneled, and on February 9, 1987, the trial commenced. At the close of appellee's case-in-chief, FTPCA and FICB filed motions for a directed verdict. The court denied these motions. At the conclusion of all the proofs, FTPCA and FICB again moved for directed verdicts. The court denied FTPCA's motion, but granted a directed verdict to FICB on the "single employer" issue.

The court then charged the jury, which deliberated and on February 13, 1987, found in favor of appellee and assessed damages in the amount of $270,000. The court entered judgment on February 19, 1987. On February 27, 1987, FTPCA moved for a judgment notwithstanding the verdict ("JNOV") or a new trial. On April 9, 1987, appellee moved the court for an award of attorney's fees to cover all services rendered in connection with the litigation. The court entered an order on May 22, 1987, denying FTPCA's motion for JNOV or a new trial and awarding attorney's fees in the amount of $69,378.75, plus $1,955.88 in costs.

II.

FTPCA is a corporation with its principal office in Covington, Tennessee. It is part of the Farm Credit System, and its chief function is to lend money to assist farmers in their farming operations.

Appellee was employed by FTPCA for nineteen years. FTPCA forced appellee to take early retirement effective December 31, 1983. At the time his employment ended, appellee was fifty-seven years old and was assistant vice-president for related services. Appellee served in this capacity for three years. Prior to that, he served as vice president-credit. While appellee was vice president-credit, FTPCA received credit quality ratings of ninety percent acceptable or better from FICB.

Appellee worked in the central headquarters office in Covington when he was vice president-credit. Loans originating from the county field offices would typically be approved at the county level if they did not exceed a certain amount. Larger loans were approved at the central office by the loan committee, which was composed of the president of FTPCA, the vice president of credit and the chairman and vice chairman of the Board of Directors ("Board"). ³

One of the county managers for FTPCA while appellee was vice president-credit was Michael H. Moore. In the Spring of 1980, Bobby German, president of FTPCA, found what he thought were falsified reports by Moore in the Ripley office files. German fined Moore and called in the Federal Bureau of Investigation ("FBI"). Because appellee initiated some of the questioned reports, German concluded that he was involved.

No criminal prosecution resulted from the FBI investigation, and German's two attempts to remove appellee from his position were rejected by the Board. ⁴ German resigned as president of FTPCA effective June 1, 1980. ⁵ The Board elected Frank Burnett to succeed German. Burnett made several changes in personnel assignments, including the transfer of appellee to assistant vice president for related services and the assignment of William McQueen to vice president-credit. ⁶ As vice president for related services, appellee was responsible for handling loans in the process of liquidation (215 loans), as well as public relations. Appellee was also in charge of the crop hail insurance program and the FTPCA magazine. This new position increased appellee's workload and elevated him in the chain of command, although his salary and benefits remained the same.

The farm economy declined during 1980 through 1983, and FTPCA had an increasing number of problem loans. Such loans failed due to the declining economy, as well as bad judgment on the part of county managers and central office personnel on the loan committee. Credit reviewers from FICB identified and analyzed problem loans, but their analysis did not provide sufficient information to ascribe fault to a particular individual.

In 1983, FTPCA merged with the Jackson Production Credit Association. Burnett chose the occasion of the merger to resign as president. Burnett's successor, Wayne Giles, assumed the presidency in Covington on May 16, 1983. On October 26, 1983, Giles approached appellee about retiring early. ⁷ Giles insists that he mentioned job performance as a reason for the recommended retirement. Appellee, however, states that Giles only talked about the fact that FTPCA was losing $20,000 to $30,000 per month and that he was attempting to balance the budget. Giles did not deny that talk of the budget may have come up. ⁸

On December 26, 1983, appellee entered a hospital with a kidney stone; he remained in the hospital until January 1, 1984. After returning home, his sick leave was extended due to a reaction to medication. On January 5, 1984, Giles called appellee at home and informed him that he had retired appellee effective December 31, 1983. ⁹ Giles offered to trigger appellee's retirement benefits; appellee told Giles that he would be in the office the following Monday to get things straightened out.

Appellee reported to work on Monday and was again informed by Giles that he was retired. Appellee asked for a letter explaining why he was being terminated. Three days later, on Thursday, Giles furnished the letter. Appellee claims that his receipt of this letter was the first time that he was put on notice that his job performance was poor. Appellee claims that Giles had neither administered any performance evaluations, nor had he given any warning letters or reprimands, despite the specific provisions for such in Sec. 235 of the FTPCA employer manual.

Appellee's claims are supported by the testimony of Giles. Prior to appellee's termination, Giles did not comment on his job performance. Giles admits that he knew nothing about appellee's job performance. Giles further admits that prior to the time he approached appellee about taking early retirement, he talked with appellee only once about the quality of appellee's work. This discussion occurred when appellee was attending a bankruptcy involving a $2,000 loan, and Giles suggested that appellee might better use his time on the larger accounts. ¹⁰

After Giles terminated appellee, he assigned each of the three vice presidents in the credit department to handle the 215 accounts. This resulted in an increased workload for the vice presidents. To compensate for this, Giles moved the manager of the Hardemna County office, Frank Moore, into the central office at Covington. Giles assigned him to do loan analyses or precalculations on new loan packages coming in from the field offices, duties which were previously handled by the vice presidents. Moore also took over the hail crop insurance program and the FTPCA magazine. Moore was in his early thirties.

Following his retirement, appellee maintained his desire to be reinstated. Thus, he made only a few contacts about temporary employment. However, in the second year following his retirement, he began making applications for other jobs. Appellee made about twenty-eight applications in all and accepted a temporary position with the State of Tennessee as a property appraiser. He commenced employment on January 20, 1987, in Tipton County. The job paid approximately $924 per month.

III.

A. Motion For Directed Verdict At End Of Appellee's Case-In-Chief

In an age discrimination case, the plaintiff carries the ultimate burden of persuasion to establish by...