865 F.2d 1461 (5th Cir. 1989), 87-1717, Hansard v. Pepsi-Cola Metropolitan Bottling Co., Inc.

Docket Nº:87-1717.
Citation:865 F.2d 1461
Party Name:Andrew W. HANSARD, Plaintiff-Appellee, Cross-Appellant, v. PEPSI-COLA METROPOLITAN BOTTLING CO., INC., d/b/a Pepsi-Cola Bottling Group, Defendant-Appellant, Cross-Appellee.
Case Date:February 21, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1461

865 F.2d 1461 (5th Cir. 1989)

Andrew W. HANSARD, Plaintiff-Appellee, Cross-Appellant,



Bottling Group, Defendant-Appellant, Cross-Appellee.

No. 87-1717.

United States Court of Appeals, Fifth Circuit

February 21, 1989

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[Copyrighted Material Omitted]

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Richard E. Lieberman, James M. Gecker, Ross & Hardies, Chicago, Ill., for defendant-appellant, cross-appellee.

Art Brender, Terry M. Casey, Law Offices of Art Brender, Ft. Worth, Tex., for plaintiff-appellee, cross-appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, SNEED, [*] and WILLIAMS, Circuit Judges.

SNEED, Circuit Judge:

Pepsi-Cola Bottling Co., Inc. (Pepsi) was held liable for violating the Age Discrimination in Employment Act (ADEA) by discharging and later refusing to rehire Andrew Hansard. Pepsi appeals the jury's verdict on liability and damages. We affirm the district court's judgment on the merits, but we reverse and remand the award of damages. Hansard cross-appeals the district court's refusal to award liquidated damages and prejudgment interest. We affirm the district court's refusal to award liquidated damages, but reverse its refusal to award prejudgment interest. The jurisdiction of the district court rested on 29 U.S.C. Sec. 626 (1982) and 28 U.S.C. Sec. 1331 (1982). This court has jurisdiction under 28 U.S.C. Sec. 1291.



Hansard was employed by Uncle Joe's Bottling Co. from 1974 until 1979 in Fort Worth, Texas. II Tr. 4, 12. In 1979, Pepsi acquired Uncle Joe's Bottling Co. and Hansard became a Pepsi employee. II Tr. 4, 15, 68-69. For most of his tenure, Hansard worked on a delivery route servicing vending machines. II Tr. 14. In early 1983, the number of stops on Hansard's route decreased, but instead of reducing his hours, Pepsi permitted Hansard to work in the warehouse after his delivery route was finished. II Tr. 22-25, 68-69.

In 1983, Pepsi reorganized its corporate structure, and responsibility for Hansard's job was transferred to a different department. II Tr. 126-27. On June 20, 1983, Hansard met with three members of Pepsi's management: Scott Barth, the regional sales manager; Ms. Michael Miller, the employee relations manager; and Mark Esselman, an employee relations trainee. II Tr. 30-31. Hansard was the only employee invited to such a meeting. II Tr. 166. Hansard testified that Ms. Miller said that Hansard's department was being reorganized and that Hansard would be delivering vending machines and syrup instead of stocking vending machines. Ms. Miller asked Hansard: "Do you think you can handle it [the job]?" II Tr. 32. Earlier Ms. Miller, in a discussion with Barth and Esselman, had questioned Hansard's ability to do the new job. II Tr. 141. Hansard testified that he responded to Ms. Miller: "Yes. I probably could handle it because I have done hard work all my life," but "I would rather not do it if I could get out of it." II Tr. 32. Ms. Miller's version was different. She testified that Hansard refused the job and that she told Hansard that the only alternative was unemployment. II Tr. 132. Hansard testified there was "no way" he

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refused a job and that "[t]here is nobody in there that I would think that I left [with] the impression that I wouldn't do it, because I was willing to do it." II Tr. 33. Hansard, who was fifty-nine, was replaced by a twenty-five-year-old man. II Tr. 4, 104.

Actions after the meeting increase the confusion. Pepsi's personnel forms indicate Hansard "left work," not that he was either fired or quit. II Tr. 163. Pepsi did not oppose Hansard's application for unemployment benefits, which they were entitled to do if he had quit. II Tr. 172, 178. Finally, this incident occurred only seven months before Hansard's pension rights were to vest. II Tr. 40.

In August 1983, Phillip Garcia, the regional sales manager, sought to create a "checker" position at the Fort Worth Pepsi plant. IV Tr. 10, 12. He asked Charles Miller, the warehouse manager, to fill the position. III Tr. 10, 18-19. Miller contacted Hansard, who was interested in the position, and recommended that Hansard be hired. II Tr. 19-20. Pepsi's Employee Relations Department rejected this request, citing a company policy that forbade rehiring former employees. III Tr. 20-21; IV Tr. 15-16. Miller testified that he had never heard of such a policy. III Tr. 27. Miller further testified that he believed that Hansard was not rehired because of Pepsi's "youth movement." III Tr. 17. Pepsi was unable to produce any documentary evidence of the "no rehire" policy. Later, a twenty-three or twenty-four-year-old man was hired for this position. III Tr. 28.

A jury trial was held in July 1986. The jury returned a verdict in favor of Hansard. R. 531-37. Hansard was awarded $61,149.44 in back wages (wages from the date of termination to trial) and $45,496.40 as front pay (lost wages from the date of trial until Hansard's retirement). The jury also found that Pepsi's actions were willful. See R. 532, 535.

The trial court refused to grant Pepsi's motion for J.N.O.V. It declined to award Hansard liquidated damages, however, ruling that by carrying Pepsi's motion for a directed verdict, it could review the sufficiency of the evidence on this issue. R. 784. The court also denied Hansard's request for prejudgment interest on Hansard's back pay award. R. 629-30.

We shall address the following issues in the order and under the headings indicated:


  1. Discharge

  2. Age Discrimination

  3. Refusal to Rehire




  4. Back Pay

  5. Front Pay




    A. Discharge

    Pepsi first argues that the trial court erred in refusing to grant its motion for J.N.O.V. because there was insufficient evidence to support the jury's finding that Hansard was discharged. The proper standard for reviewing the trial court's refusal to grant a motion for J.N.O.V. was set out in Boeing Co. v. Shipman:

    If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting the motion[ ] is proper. On the other hand, if there is ... evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion[ ] should be denied....

    411 F.2d 365, 374 (5th Cir.1969) (en banc).

    The evidence in this case supported neither side overwhelmingly. It follows that there is sufficient evidence to support

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    the jury's determination that Hansard was discharged. The jury was free to believe Hansard when he testified that he did not refuse any job that was offered to him. II Tr. 32. The fact that Hansard was the only employee with whom such a meeting was held lends circumstantial support to his testimony, particularly in combination with the absence of any Pepsi records to indicate that Hansard quit and Pepsi's failure to contest Hansard's unemployment benefits.

    Pepsi relies on Elliott v. Group Medical & Surgical Serv., 714 F.2d 556 (5th Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2658, 81 L.Ed.2d 364 (1984), to argue that Hansard never rebutted its evidence that Hansard voluntarily quit. In Elliott this court reiterated that if an employer suggests "an adequate, nondiscriminatory" reason for the plaintiff's discharge, "the trier of fact is not free to disregard that explanation without countervailing evidence...." Id. at 566.

    There was such evidence here. Aside from Hansard's testimony, there were the circumstances of Hansard's meeting, Pepsi's failure to contest payment of unemployment benefits, the ambiguity in Pepsi's own records as to the reason for Hansard's absence, and the inability of Ms. Miller to explain why Pepsi's records failed to indicate that Hansard quit, despite her conclusion that he had. See II Tr. 163. This case involved a factual dispute between the witnesses for each party and credibility determinations were made by the jury. See Guthrie v. J.C. Penney Co., 803 F.2d 202, 207 (5th Cir.1986); see also Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258, 262 (3d Cir.1987) ("Evaluation of witness credibility is the exclusive function of the jury, and where the only evidence of intent is oral testimony, a jury could always choose to discredit it."), cert. denied, ---U.S. ----, 109 S.Ct. 782, 102 L.Ed.2d 774 (1988). This is as it should be. Pepsi is not entitled to a J.N.O.V. on the issue whether Hansard quit his employment.

    B. Age Discrimination

    Next, Pepsi argues that there was no evidence that Hansard was terminated because of his age. Under the ADEA, the plaintiff must prove that age was a "determinative factor" in his discharge. Bohrer v. Hanes Corp., 715 F.2d 213, 218 (5th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984); see Reeves v. General Foods Corp., 682 F.2d 515, 523 n. 12 (1982). To repeat, our test is to determine whether "reasonable men" could find sufficient evidence that age was such a factor. Boeing, 411 F.2d at 374.

    Hansard relied on the testimony of Charles Miller who testified that he believed Hansard was terminated as part of Pepsi's "youth movement." III Tr. 14-17. The challenge to the admissibility of this evidence is discussed in Part III infra. Although Charles Miller had no first-hand knowledge of the circumstances leading to Hansard's termination, his...

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