Normand v. Research Institute of America, Inc.

Citation927 F.2d 857
Decision Date02 April 1991
Docket NumberNo. 90-4328,90-4328
Parties55 Fair Empl.Prac.Cas. 875, 56 Empl. Prac. Dec. P 40,675 Simms T. NORMAND, Plaintiff-Appellant, v. The RESEARCH INSTITUTE OF AMERICA, INC., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Henry C. Walker, Walker, Tooke, Perlman, Lyons & Greer, Shreveport, La., Andrew C. Partee, Jr., Partee & Evans, New Orleans, La., for plaintiff-appellant.

A. Richard Gear, Cook, Yancey, King & Galloway, Shreveport, La., Eugene D. Ulterino, Nixon, Hargrave, Devans & Doyle, Rochester, N.Y., Abbie Reardon, Nixon, Hargrave, Devans & Doyle, New York City, for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before POLITZ, WILLIAMS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Plaintiff-appellant Simms T. Normand sued Research Institute of America, Inc., (RIA) for constructive discharge in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-34. The jury returned a special verdict finding that: RIA constructively discharged Normand; RIA discriminated against Normand because of his age; RIA's conduct was willful; and Normand mitigated his damages. RIA moved for judgment notwithstanding the verdict (j.n.o.v.) or, alternatively, for a new trial or remittitur. The district court, after exhaustively reviewing the evidence, held that the evidence did not support the jury's findings of discrimination, willful misconduct, or mitigation. On these issues, it granted RIA's motion for judgment n.o.v. We disagree with the district court--except on the issue of RIA's willfulness--and reinstate the relevant portion of the jury verdict on this over-prosecuted case.

By characterizing this case as "over-prosecuted," we intend no ad hominem criticism of appellant's counsel. ADEA cases must often be founded on circumstantial evidence of "old-age" animus, and it is understandable that counsel will adduce as much of the circumstances surrounding a plaintiff's termination as possible. If plaintiffs fail to discriminate between the truly probative circumstances and mere matters of innuendo or gossip, however, they run the risk of obtaining a flawed jury verdict. In this case, as will be seen, Normand relied upon at least one charge--age bias in RIA's territorial realignment--that had no evidentiary support. Normand's counsel should have recognized this fact before trial and not pursued it, although it is easy to see that the careful district judge could have been persuaded to let such "evidence" in. After this "evidence" led down a blind alley, the court was understandably concerned about its prejudicial effect on the jury verdict. We share that concern. We disagree with the district court's legal conclusion that there was insufficient evidence to support the jury verdict, but in another case we might be more reluctant to countermand an order for a new trial when a

plaintiff has burdened the record with evidence of business practices that do not reflect age discrimination.

DISCUSSION
A. Standard of Review.

The standard of review on appeal from a judgment n.o.v. is the same as that used by the district court. Springborn v. American Comm. Barge Lines, Inc., 767 F.2d 89, 94 (5th Cir.1985). We review a judgment n.o.v. under the standard set forth in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc):

On motions ... for judgment notwithstanding the verdict the Court should consider all of the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. 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 of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla is insufficient to present a question for the jury. The motions for ... judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as a traditional finder of facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Id. at 374-75 (citations omitted).

B. Discrimination under the ADEA.

The elements of a Title VII case, as set forth in McDonell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), apply to suits arising under the ADEA. 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) (citing Reeves v. General Food Corp., 682 F.2d 515 (5th Cir.1982)). To establish a prima facie showing of age discrimination the plaintiff must demonstrate that: (1) he was a member of the protected class; (2) he was qualified to perform the job; (3) he was discharged; and (4) he was replaced by a person outside the protected class. Id. (citations omitted). A prima facie case creates a rebuttable presumption of intentional discrimination. Laurence v. Chevron, U.S.A., Inc., 885 F.2d 280, 283 (5th Cir.1989) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981)). To rebut this presumption, the employer must articulate some legitimate, non-discriminatory reason for its action. Id. (citing Burdine, 450 U.S. at 254, 101 S.Ct. at 1094). An employer may sustain this burden by introducing admissible evidence of an explanation that would be "legally sufficient to justify a judgment for the defendant." Bohrer, 715 F.2d at 218 (quoting Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1094 (1981)). The employer need not persuade the court that its proffered reason actually motivated its decision, but the defendant's evidence must raise a "genuine issue of fact" as to whether it discriminated against the plaintiff. Bohrer, 715 F.2d at 218.

If the employer articulates legitimate, non-discriminatory reasons for its actions, the presumption created by the plaintiff's prima facie case dissolves and the burden reverts to the plaintiff to prove that the employer's reasons were pretextual. Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 646 (5th Cir.1985) (citing Burdine, 450 U.S. at 253-55, 101 S.Ct. at 1093-94). The plaintiff can establish pretext by introducing evidence to prove that the reason stated by the employer, "though facially adequate, was untrue as a matter of fact or was, although true, a mere cover or pretext" for illegal discrimination. Elliott v. Group Medical & Surgical Both Normand's prima facie case of discrimination and RIA's articulated legitimate reasons for its employment decision, i.e., Normand's poor sales performance, are conceded here. The parties vigorously dispute whether Normand introduced sufficient evidence to establish that RIA's explanation of its employment decision was a pretext for age discrimination. Persuaded by RIA, the district court held that "the plaintiff wholly failed to show RIA's decision to terminate him was pretextual, and that age was a determinative factor in any employment decision relating to the plaintiff." To determine whether a reasonable trier of fact could have concluded that age was a determinative factor in RIA's treatment of Normand, we must review the record in detail.

Servs., 714 F.2d 556, 566 (5th Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2658, 81 L.Ed.2d 364 (1984). The trier of fact may not disregard the defendant's explanation without countervailing evidence that it was not the real reason for the discharge. Id.

C. Facts.
1. Normand's Employment Record.

RIA, a subsidiary of the Lawyer's Cooperative Publishing Company, sells loose-leaf service publications for professionals, particularly tax specialists. Normand worked for RIA for nine years before being forced to resign. Four issues dominated the trial: whether RIA simply discharged Normand because of his poor sales performance; whether RIA altered sales territories nationwide to reduce the number of older sales representatives; whether Normand was treated worse than his thirty-one year old successor; and whether Normand's immediate superiors reflected an age bias that pervaded RIA. Each of these issues may be assessed in turn.

In 1977, RIA hired Normand, then fifty years old, as its exclusive sales representative in the Shreveport, Louisiana territory. With marked success, he increased the subscription sales in his territory from eighty-seven quota products in 1977 to 450 quota products in 1980. RIA recognized Normand's achievement by making him a member of the "$100,000 Club" and the "President's Board," and he won a trip to Puerto Villarta in 1979. In 1980, Normand was promoted to regional manager, was named top manager in the nation, and was awarded an Alaskan cruise for his performance. Voluntarily returning to field sales in 1983, he again experienced success. In 1984, he was commended for "carrying the entire region" and earned $67,742 in commissions. In 1985, Normand led the south central region with $45,304 in commissions, which exceeded the national average. In 1986, Normand earned $31,468 in commissions, ranking fourth in his nine salesperson region. 1

Normand's sales performance began to decline in 1985. In October, regional manager Bob Hale sent a memorandum to Normand requesting that he increase his sales calls from eleven and one-half to twenty per week, as required by the RIA territory management procedures. By December,...

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