Morgan v. Arkansas Gazette

• Decision Date: 14 May 1990
• Docket Number: No. 88-1901,88-1901
• Citation: 897 F.2d 945
• Parties: 52 Fair Empl.Prac.Cas. 431, 53 Empl. Prac. Dec. P 39,751, 58 USLW 2587 John MORGAN, Appellee, v. The ARKANSAS GAZETTE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 945

897 F.2d 945

52 Fair Empl.Prac.Cas. 431,

53 Empl. Prac. Dec. P 39,751, 58 USLW 2587

John MORGAN, Appellee, v. The ARKANSAS GAZETTE, Appellant.

No. 88-1901.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 9, 1989.

Decided March 2, 1990.

Rehearing and Rehearing En Banc Denied May 14, 1990.

Janet L. Pulliam, Little Rock, Ark., for appellant.

Richard Quiggle, Little Rock, Ark., for appellee.

Before JOHN R. GIBSON, Circuit Judge, BRIGHT, Senior Circuit Judge, and WATERS, ^* District Judge.

JOHN R. GIBSON, Circuit Judge.

A jury found that the Arkansas Gazette Company willfully discriminated against John Morgan in violation of the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 (1982 & Supp. V 1987) (ADEA). The jury awarded Morgan back pay and liquidated damages, and the district court ¹ ordered reinstatement and an award of prejudgment interest. On appeal, the Gazette argues that: (1) the district court erred in not granting the Gazette's motion for a judgment notwithstanding the verdict not only because there was insufficient evidence to support the jury verdict, but also because of certain statements of Morgan, (2) the court erred by refusing to give a "good faith" instruction to the jury; (3) the court made various evidentiary errors; (4) the court abused its discretion in ordering that Morgan be reinstated; (5) the award of front pay has been waived or is precluded under the facts; and (6) the court erred in allowing Morgan to recover both liquidated damages and prejudgment interest. For the reasons stated below, we affirm Morgan's judgment of actual damages but reverse the award of liquidated damages because the evidence was insufficient to show a willful violation of the ADEA. We also affirm the court's order granting Morgan reinstatement and prejudgment interest.

Morgan began working for the Gazette in 1974. After serving in various positions in the circulation department, he worked as a circulation branch manager until he was terminated in 1986 at the age of forty-four. He was fired by the city circulation manager, Tony Tinker, age thirty-three, and replaced by Brad Cromley, age twenty-eight. Morgan filed suit against the Gazette, claiming that he was discharged because of his age. He alleged a pattern and practice of age discrimination in terminations and transfers.

The Gazette argues that Morgan was terminated because of his poor performance and his falsification of sensitive documents. It claims that Morgan knowingly submitted false circulation figures to the Audit Bureau of Circulation. The Audit Bureau determines the rates that a newspaper may charge its advertisers based on the circulation figures submitted by each newspaper. Morgan admits that he submitted false circulation data but claims that his immediate supervisor, Jake Mathews, ordered him to falsify the information and that Tony Tinker, the city circulation manager, was aware of the scam. The Gazette denies Morgan's accusation and claims that its policy is to fire all employees who falsify documents.

More detailed evidence surrounding this controversy will be set forth later as we discuss issues which make it relevant.

At the conclusion of the five day trial, the district court submitted special interrogatories to the jury. The jury's answers to those interrogatories reveal that it found that Morgan's age was a determining factor in the Gazette's decision to discharge him and that it was a willful decision to discharge him because of his age. Based on these findings and the jury's determination of damages, Morgan was awarded $35,641.40 in back pay and another $35,641.40 in liquidated damages for the willful violation. The court also ordered that Morgan be reinstated to his former position with the Gazette or a similar position because it found that there were no exceptional circumstances which would justify not reinstating him. Specifically, the court observed that Morgan's position was not a high level, unique, or unusually sensitive position and that any animosity between the parties was largely eradicated because the employees most closely associated with the case were no longer working for the Gazette. In addition, the court granted Morgan's request for prejudgment interest and rejected the Gazette's argument that awarding both prejudgment interest and liquidated damages constituted a double recovery. This appeal followed.

I.

The Gazette asserts that it was entitled to a judgment notwithstanding the verdict as a matter of law and, alternatively, that the evidence was insufficient to support a finding of age discrimination. The ADEA protects individuals who are at least forty years of age from discrimination in "compensation, terms, conditions, or privileges of employment because of such individual's age." 29 U.S.C. Sec. 623(a)(1).

We have dealt with claims of insufficient evidence in age discrimination cases on numerous occasions. It is well-established that the allocation of burdens and ordering of proof set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973), applies to age discrimination cases brought under the ADEA. Hall v. American Bakeries Co., 873 F.2d 1133, 1134 (8th Cir.1989). Under the McDonnell Douglas guidelines:

[T]he plaintiff has the burden of establishing a prima facie case of age discrimination. 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 ultimate burden that a plaintiff must meet is to show that age was a determining factor in the actions taken by the employer.

Bethea v. Levi Strauss & Co., 827 F.2d 355, 357 (8th Cir.1987) (citations omitted).

Our task upon appeal of an age discrimination case, however, is a limited one. This court will not assess the adequacy of a party's showing at any particular stage of the McDonnell Douglas analysis. Gilkerson v. Toastmaster, 770 F.2d 133, 135 (8th Cir.1985). Rather, we are directed to focus our attention upon the ultimate factual issue of whether the employer intentionally discriminated against the employee. United States Postal Serv. Bd. of Gov. v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983). Once a finding of discrimination has been made and that judgment is being considered on appeal, the McDonnell Douglas "presumptions fade away, and the appellate court should simply study the record with a view to determining whether the evidence is sufficient to support whatever finding was made at trial." Barber v. American Airlines, 791 F.2d 658, 660 (8th Cir.), cert. denied, 479 U.S. 885, 107 S.Ct. 278, 93 L.Ed.2d 254 (1986).

In reviewing the district court's denial of the Gazette's motion for a judgment notwithstanding the verdict, we apply the same standard as the district court. Cleverly v. Western Elec. Co., 594 F.2d 638, 641 (8th Cir.1979) (per curiam). This standard requires that we:

1) consider the evidence in the light most favorable to [Morgan], who prevailed with the jury; 2) assume that all conflicts in the evidence were resolved by the jury in [Morgan's] favor; 3) assume as proved all facts which [Morgan's] evidence tends to prove; 4) give [Morgan] the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and 5) affirm the denial of the motion if reasonable persons could differ as to the conclusions to be drawn from it.

Gilkerson, 770 F.2d at 136. This court, in an opinion authorized by Judge Arnold, discussed in detail the application of this standard in Dace v. ACF Industries, 722 F.2d 374 (8th Cir.1983), also an age discrimination case. We noted that "our precedents predominantly support the general proposition that only the evidence favoring the nonmoving party (usually, as here, the plaintiff) should be considered." Id. at 376. We further stated that "evidence favorable to the moving party may not be considered, because if it were the court would have to pass on the credibility of that party's witnesses." Id. As the Supreme Court has declared, "in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given." Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497 (1949). This careful analysis by Judge Arnold in Dace has been followed by this court on numerous occasions. See Brooks v. Woodline Motor Freight, 852 F.2d 1061, 1063 (8th Cir.1988); Taylor v. Cochran, 830 F.2d 900, 902 (8th Cir.1987), cert. denied, 485 U.S. 1009, 108 S.Ct. 1476, 99 L.Ed.2d 704 (1988); Glismann v. AT & T Technologies, 827 F.2d 262, 265 (8th Cir.1987).

Thus, our task is to apply this standard of review to determine whether the evidence supports submission of the age discrimination issue to the jury. Both parties presented evidence at trial which is totally irrelevant to the age discrimination issue. In truth, the record as a whole contains relatively little discussion of the age issue but instead appears to have served primarily as a means for the parties to ventilate their differences. It is only by painstaking study of the transcript as a whole that we are able to glean the limited references to the age discrimination issue. We must look only to this evidence with respect to the age issue, and determine whether, in the light most favorable to Morgan, giving him the benefit of all favorable inferences, there was sufficient evidence to support the jury's finding that age was a determining factor in the Gazette's decision to discharge him.

Doyle Cates, age fifty-seven and a former assistant circulation branch manager at the Gazette currently on long-term medical leave, testified that he had discussed the subject of age...