984 F.2d 667 (5th Cir. 1993), 91-2538, McCann v. Texas City Refining, Inc.

Docket Nº:91-2538.
Citation:984 F.2d 667
Party Name:, 25 Fed.R.Serv.3d 318 Jo Ann McCANN and Blanche Christine Hickman, Plaintiffs, Blanche Christine Hickman, (Linard Vergil Hickman, as Independent Executor of the estate of appellee, Blanche Christine Hickman, for Substitution in Place and Stead of Appellee Blanche Christine Hickman, deceased), Plaintiff-Appellee, Cross-Appellant, Jo Ann McCann, Pla
Case Date:March 01, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 667

984 F.2d 667 (5th Cir. 1993)

, 25 Fed.R.Serv.3d 318

Jo Ann McCANN and Blanche Christine Hickman, Plaintiffs,

Blanche Christine Hickman, (Linard Vergil Hickman, as

Independent Executor of the estate of appellee, Blanche

Christine Hickman, for Substitution in Place and Stead of

Appellee Blanche Christine Hickman, deceased),

Plaintiff-Appellee, Cross-Appellant,

Jo Ann McCann, Plaintiff-Appellant, Cross-Appellee,

v.

TEXAS CITY REFINING, INC., et al., Defendants-Appellees,

Hill Petroleum, Inc., Defendant-Appellant, Cross-Appellee,

Agway, Inc., et al., Defendants-Appellees, Cross-Appellants.

No. 91-2538.

United States Court of Appeals, Fifth Circuit

March 1, 1993

Page 668

[Copyrighted Material Omitted]

Page 669

John D. Giansello, Herbert J. Levine, Orrick, Herrington & Sutcliffe, New York City, Baker & Botts, L. Chapman Smith, Houston, TX, for Hill Petroleum Co.

Anthony P. Griffin, Galveston, TX, for McCann.

Ervin A. Apffel, Jr., Kenneth J. Bower, McLeod, Alexander, Powell & Apffel, Galveston, TX, for Agway, Agway Petroleum and Southern States.

Anthony P. Griffin, Galveston, TX, for Hickman.

Douglas H. Chilton, Mabry, Herbeck & Chilton, Texas City, TX, for Texas City Refining, Inc.

Appeals from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and JOHNSON and JOLLY, Circuit Judges.

PER CURIAM:

In the summer of 1989, Blanche Hickman and Jo Ann McCann lost their jobs. Hickman and McCann had been working at a refinery owned by Texas City Refining, Inc. (TCR). 1 When that refinery was sold to Hill Petroleum, Inc. (Hill), Hickman and McCann were not offered jobs by the new owners. Subsequently Hickman and McCann sued Hill, TCR, and TCR's parent corporations (collectively Agway) for violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. At trial, the jury found that Hill was guilty of willful age discrimination against Hickman; however, the jury found that McCann had not been a victim of age discrimination.

Hill now appeals the judgment entered by the district court pursuant to the jury's finding of willful discrimination against Hickman. Hickman cross-appeals the district court's denial of prejudgment interest on the award of backpay. McCann cross-appeals the district court's dismissal of TCR and Agway pursuant to a Rule 12(b)(6) motion. As for Hill's appeal, this Court remands the case for a new trial limited to the issue of whether Hill's discrimination against Hickman was willful. As to the issues raised by Hickman and McCann, we hold that the district court did not err either in denying Hickman prejudgment interest on the award of backpay or in holding that McCann's complaint failed to state a cause of action against TCR and Agway.

I. FACTS AND PROCEDURAL HISTORY

On June 30, 1988, Hill Petroleum purchased and took over the refining facility owned by TCR in Texas City, Texas. Hill restructured the work force and hired back approximately 300 of the 450 employees of TCR. All positions filled by Hill were staffed with former TCR employees. As a part of this restructuring, Hickman was laid off and her position as shift clerk was filled by younger employees, and McCann's position as a confidential secretary and personnel administrator was eliminated. Both Hickman and McCann had been long-time employees of TCR and were within the protected class of the ADEA. 2

Both Hickman and McCann filed suit against Hill, TCR, and Agway, alleging that the defendants had violated the ADEA and had conspired to deprive the plaintiffs of their civil rights in violation of 42 U.S.C. § 1985(3). The plaintiffs later dismissed their § 1985 action. After concluding that the remaining ADEA claims failed to state a cause of action against TCR and Agway, the district court dismissed those defendants. The plaintiffs later filed several motions to amend their complaint to add a pendant state-law claim of "tortious interference with employment contract" against TCR and Agway. The district court, however, denied the motions to amend, concluding that the amended complaints were subject to dismissal in the same manner as the original complaint.

Eventually the case went to trial against Hill alone. After the completion of the plaintiffs' case, Hill moved for a directed

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verdict 3 on the grounds that the plaintiffs had not shown intentional discrimination by Hill. 4 However, contrary to the assertions in the defendant's briefs before this Court, the Record shows that Hill did not specifically move for a directed verdict on the issue of willfulness. Also, the record shows that Hill failed to renew its motion for a directed verdict at the close of all of the evidence.

The jury subsequently returned a verdict in favor of Hickman, finding that Hill failed to hire Hickman because of her age. But the jury failed to find a violation with regard to Hill's non-retention of McCann. The jury found that Hickman suffered damages of $63,000 in lost backpay. In addition, the jury determined that Hill's conduct with regard to Hickman constituted a willful violation of the act. The ADEA provides for an award of liquidated damages in the case of willful discrimination. 29 U.S.C. § 626(b). Therefore, based upon the jury's finding, the district court imposed a statutory penalty of liquidated damages in the amount of $63,000. 5 In its final order, the district court denied Hickman prejudgment interest on the damage award.

II. DISCUSSION

  1. Hill Petroleum's Appeal

    Hill purports to raise two different issues before this Court. First, Hill argues

    Page 671

    that the evidence was insufficient to support the jury finding of willful discrimination, and second, Hill argues that the district court erroneously denied Hill's motions for directed verdict and for judgment notwithstanding the verdict on the issue of willfulness. In reality, these two arguments present only one issue. Reviewing a denial of a motion for directed verdict made at the end of trial and reviewing the sufficiency of the evidence are one and the same thing. Dickinson v. Auto Center Mfg. Co., 733 F.2d 1092, 1102 (5th Cir.1983); Murphy v. Georgia-Pacific Corp., 628 F.2d 862, 868 n. 13 (5th Cir.1980). Under either of Hill's arguments, the only question before this Court is whether there is "a lack of substantial evidence to support a jury verdict." Dickinson, 733 F.2d at 1102.

    What Hill has neglected to mention, either in briefs or at oral argument, is that a motion for a directed...

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