McCann v. Texas City Refining, Inc.

• Decision Date: 01 March 1993
• Docket Number: No. 91-2538,91-2538
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 288, 61 Empl. Prac. Dec. P 42,142, 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.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 667

984 F.2d 667

61 Fair Empl.Prac.Cas. (BNA) 288,

61 Empl. Prac. Dec. P 42,142, 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.

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 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

A. Hill Petroleum's Appeal

Hill purports to raise two different issues before this Court. First, Hill argues 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 verdict on the issue of willfulness was not made at the conclusion of all the evidence in this trial. At the close of the plaintiffs' case, Hill did move for judgment on the ground that the plaintiffs had not shown that Hill intended to violate the ADEA. See supra note 4. That motion, however, was not renewed at the conclusion of all evidence. Hill's failure to renew its motion for directed verdict has two severe consequences. First, the earlier motion for directed verdict cannot be the basis for a challenge before this Court to the sufficiency of the plaintiffs' evidence. It is well-established law that the sufficiency of the evidence is not reviewable on appeal unless a motion for directed verdict was made in the trial court at the conclusion of all the evidence. Hall v. Crown Zellerbach Corp., 715 F.2d 983, 986 (5th Cir.1983); CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 593 (1971). By introducing its own evidence and failing to renew the motion for directed verdict after all the evidence was in, Hill waived any objection to the sufficiency of the plaintiffs' prima facie case. McCabe & Steen Constr. Co. v. Wilson, 209 U.S. 275, 276, 28 S.Ct. 558, 559, 52 L.Ed. 788 (1908); Hernandez v. Employers Mut. Liab. Ins. Co., 346 F.2d 154, 155 (5th Cir.1965); 5A JEREMY C. MOORE ET AL., MOORE'S FEDERAL PRACTICE p 50.05 (2d ed. 1992).

Second, Hill's earlier motion cannot serve as a predicate for a motion for judgment notwithstanding the verdict. Whatever the merits of Hill's substantive argument, it is well established that a party waives the right to challenge the sufficiency of the evidence with a JNOV unless a motion for directed verdict is made or renewed at the close of all evidence. FED.R.CIV.P. 50(b); Scheib v. Williams-McWilliams Co., 628 F.2d 509, 512 (5th Cir.1980). The district court should not have even considered Hill's motion for JNOV. Scheib, 628 F.2d at 511 n. 1.

In the past, this Court has been willing to excuse certain "de minimis" departures from technical compliance with Rule 50(b). See, e.g., Davis v. First Nat'l Bank, 976 F.2d 944, 948-49 (5th Cir.1992); Merwine v. Board of Trustees, 754 F.2d 631, 634-35 (5th Cir.), cert. denied, 474 U.S. 823, 106 S.Ct. 76, 88 L.Ed.2d 62 (1985); Bohrer v. Hanes Corp., 715 F.2d 213, 216-17 (5th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984). This Court has repeatedly emphasized that the application of Rule 50(b) " 'should be examined in the light of the accomplishment of [its] particular purpose[s] as well as in the general context of securing a fair trial for all concerned in the quest for truth.' " Merwine, 754 F.2d at 634 (quoting Bohrer, 715 F.2d at 217) (alterations in original). In each case where we have excused noncompliance with Rule 50(b), this Court has concluded that the purposes of the rule had been satisfied. In each case, the trial court had reserved a ruling on an earlier motion for directed verdict (made at the close of the plaintiff's evidence); the defendant called no more than two witnesses before closing; only a few minutes elapsed between the motion for directed verdict and the conclusion of all the evidence; and the plaintiff introduced no rebuttal evidence. Davis, 976 F.2d at 948-49; Merwine, 754 F.2d at 634-35; Bohrer, 715 F.2d at 217.

In the instant case, however, the situation was very different. The district court did not reserve a ruling on Hill's motion for directed verdict; instead the court flatly denied the...