Krause v. Dresser Industries, Inc.

• Decision Date: 23 July 1990
• Docket Number: Nos. 88-2559,88-2642,s. 88-2559
• Citation: 910 F.2d 674
• Parties: 53 Fair Empl.Prac.Cas. 771, 54 Empl. Prac. Dec. P 40,107, 116 Lab.Cas. P 56,356, 5 Indiv.Empl.Rts.Cas. 1178 Thomas L. KRAUSE, Sr., Plaintiff-Appellee/Cross-Appellant, v. DRESSER INDUSTRIES, INCORPORATED, a foreign corporation doing business in Oklahoma, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 674

910 F.2d 674

53 Fair Empl.Prac.Cas. 771,

54 Empl. Prac. Dec. P 40,107,

116 Lab.Cas. P 56,356,

5 Indiv.Empl.Rts.Cas. 1178

Thomas L. KRAUSE, Sr., Plaintiff-Appellee/Cross-Appellant, v. DRESSER INDUSTRIES, INCORPORATED, a foreign corporation

doing business in Oklahoma,

Defendant-Appellant/Cross-Appellee.

Nos. 88-2559, 88-2642.

United States Court of Appeals, Tenth Circuit.

July 23, 1990.

Terry A. Hall (Page Dobson and John R. Denney, also of Holloway Dobson Hudson and Bachman with him on the briefs) Oklahoma City, Okl., for defendant-appellant/cross-appellee.

Clell I. Cunningham III (Janice M. Dansby, also of Miller, Dollarhide, Dawson & Shaw with him on the briefs) Oklahoma City, Okl., for plaintiff-appellee/cross-appellant.

Before LOGAN and BALDOCK, Circuit Judges, and SAFFELS, District Judge. ^*

LOGAN, Circuit Judge.

Defendant Dresser Industries, Inc. (Dresser) appeals from judgment entered on a jury verdict for plaintiff Thomas L. Krause on claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. ch. 14, the Employee Retirement Income Security Act (ERISA), 29 U.S.C. ch. 18, and for breach of an implied contract of tenured employment.

Krause began his employment with Dufek Oilwell Service District as a file clerk in 1958. Dufek was acquired by the Magcobar division of Dresser in 1960, and Krause was transferred to Oklahoma City, where he worked until 1968, advancing to the position of senior billing clerk. In 1968, Krause was transferred to Shreveport, Louisiana, where he was promoted in 1969 to area administrative manager and controller, the highest accounting management position for the South Louisiana area of Magcobar. He remained in that position until 1983, when the Magcobar controller offices were reduced from eight to three with a general cutback in accounting personnel. Krause was then transferred to Oklahoma City, where he filled an area accountant position, one step below his former position. In 1986, there was another reduction in force in which Krause was terminated.

Krause brought this suit alleging that (1) he was terminated as a result of age discrimination, (2) his termination was motivated by an intent to deny him certain pension benefits in violation of ERISA, ¹ and (3) he was terminated in breach of an implied promise of tenured employment. The jury returned a verdict for plaintiff on all three claims, and Dresser appeals.

I

A

Dresser challenges the sufficiency of the evidence to support a jury verdict on age discrimination. Of course, we can disturb that verdict only if the evidence so conclusively favors defendant that reasonable jurors could not arrive at a contrary verdict. See EEOC v. University of Oklahoma, 774 F.2d 999, 1001 (10th Cir.1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1637, 90 L.Ed.2d 183 (1986). We hold that Krause presented sufficient evidence of age discrimination to support the jury's verdict.

The evidence showed that Magcobar's vice-president and controller, Bobby Kennedy, issued a directive to Krause's supervisor, Richard Schaper, that due to the reduction in force, Schaper could retain only one other accountant in his office. Krause and Will Bradford, the son of a Dresser senior vice-president, were the only other accountants in the office. Bradford was twenty-nine years old at the time and had been employed by Magcobar for six years. Both were doing adequate work, but Schaper decided to terminate Krause and retain Bradford. As Dresser admits, Krause established his prima facie case of age discrimination by showing that he (1) was fifty-two years old when he was discharged, and thus, within the protected age group, (2) was doing satisfactory work, (3) was discharged despite the adequacy of his work, and (4) a younger employee was retained. See Lucas v. Dover Corp., 857 F.2d 1397, 1400-01 (10th Cir.1988).

Schaper proffered as justification for his decision that Bradford was more efficient, had better communication skills, and was less resistant to new computer applications. These are, of course, all legitimate reasons to choose Bradford over Krause. Nevertheless, the jury was entitled to disbelieve these proffered reasons or infer that age was also a determining factor in the decision, if there was contrary evidence upon which it could rely. Other than the inference of discrimination inherent in Krause's prima facie case, Schaper testified that although seniority was normally a factor to be weighed in favor of retention of an employee, seniority was not considered in Krause's termination. III R. 207-08. Dresser offered Bradford's various computer skills as a justification for its decision, but many of those skills were attained through Dresser training only after Krause was terminated, id. at 182-83 (Bradford testimony), 255-56 (Schaper testimony). Krause also presented evidence of a long and stellar career with Magcobar, with no complaints in those areas offered to justify his termination.

Admittedly, this evidence is entirely circumstantial and very thin. Krause is not required, however, to present direct evidence of discriminatory intent. United States Postal Serv. Bd. of Governors v. Aiken, 460 U.S. 711, 714 n. 3, 717, 103 S.Ct. 1478, 1481 n. 3, 75 L.Ed.2d 403 (1983). He is only required to show "that the employer's proffered explanation is unworthy of credence." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). We believe that a reasonable jury could have disbelieved Dresser's contention that age was not a determining factor in Krause's termination, as this jury obviously did.

B

Dresser urges on appeal that the evidence was insufficient to support the jury's damage award. The district court instructed the jury that Krause could recover damages only up to the date it found Krause would have been terminated for a nondiscriminatory reason. Dresser contends that damages should be limited to the point in time it could have terminated Krause for a nondiscriminatory reason. But this argument proves too much, for Dresser could have terminated Krause for a nondiscriminatory reason when it did terminate him. Even though the Oklahoma City office was closed one month after Krause's termination and the Magcobar division ceased doing business seven months later, both Schaper and Bradford retained positions with Dresser. Therefore, the jury could conclude that Krause also would have been retained if Dresser had not discriminatorily discharged him.

Dresser argues that Krause was not qualified to testify to the amount his pension benefits were reduced because of his premature discharge. At trial, defense counsel declined to voir dire plaintiff as to his competence on these issues, opting instead to test the weight of the evidence on cross-examination. III R. 161-62. Therefore, we will not allow Dresser now to challenge Krause's competence.

Dresser also contends that the jury's award for lost pension benefits exceeded Krause's own evidence. But as the district court noted, the figure that Krause produced at trial was an example of the extra benefits plaintiff would have received had he worked only three years more to age fifty-five. Plaintiff testified, however, that he fully intended to work to age sixty-five. The jury had before it ample evidence on the workings of the pension plan, and we will not second guess the manner in which it arrived at lost pension benefits.

C

The jury not only found that Krause's age was a determining factor in Dresser's decision to terminate him, but also found that age was the predominant factor in that decision, thus entitling Krause to liquidated damages under 29 U.S.C. Sec. 626(b) for a willful violation. See Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1551 (10th Cir.1988). The district court, however, granted Dresser's motion for judgment notwithstanding the verdict with regard to willfulness, finding that reasonable minds could not conclude that age was the predominant factor in plaintiff's termination. Krause cross-appeals that ruling.

Anderson v. Phillips Petroleum Co., 861 F.2d 631, 635-37 (10th Cir.1988), illustrates that evidence sufficient to support a jury verdict of age discrimination in a disparate treatment case will not necessarily support a willfulness verdict. In Spulak v. K Mart Corp., 894 F.2d 1150, 1159 & n. 5 (10th Cir.1990), we explained that "something more" is required to support a willfulness verdict. We agree with the district court that the evidence in this case was too thin to supply an inference that age was the predominant factor in Krause's termination. See also Bethea v. Levi Strauss & Co., 827 F.2d 355, 358-59 (8th Cir.1987) and Gilliam v. Armtex, Inc., 820 F.2d 1387, 1389-91 (4th Cir.1987) (relied upon in Cooper, 836 F.2d at 1550-51).

II

A

Dresser contends that there was insufficient evidence from which the jury could conclude that Dresser breached its employment contract with Krause. The district court submitted Krause's contract claim to the jury on a theory of implied contract for permanent employment or tenured job security, based upon the Oklahoma Supreme Court's general approval of the doctrine in Hinson v. Cameron, 742 P.2d 549, 554-57 (Okla.1987). In Hinson, the court stated:

"Factors which have been isolated as critical to evaluate whether an implied contract right to job security exists are: (a) evidence of some 'separate consideration' beyond the employee's services to support the implied term, (b) longevity of employment, (c) employer hand-books and policy manuals, (d) detrimental reliance on oral assurances, pre-employment interviews, company policy and past practices and (e) promotions and commendations."

Id. at 554-55 (footnote omitted). Our court, in applying Hinson and Langdon v. Saga Corp., 569 P.2d 524 (Okla.Ct.App.1977), emphasized that inducement and reliance seem to be the hallmarks of the Oklahoma implied contract for tenured job security, and "[t]he inquiry is essentially one...