Acrey v. American Sheep Industry Ass'n

• Decision Date: 29 December 1992
• Docket Number: No. 91-1321,91-1321
• Citation: 981 F.2d 1569
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 833, 60 Empl. Prac. Dec. P 41,944 Maxine E. ACREY, Plaintiff-Appellee, v. AMERICAN SHEEP INDUSTRY ASSOCIATION, a Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1569

981 F.2d 1569

60 Fair Empl.Prac.Cas. (BNA) 833,

60 Empl. Prac. Dec. P 41,944

Maxine E. ACREY, Plaintiff-Appellee, v. AMERICAN SHEEP INDUSTRY ASSOCIATION, a Corporation,

Defendant-Appellant.

No. 91-1321.

United States Court of Appeals, Tenth Circuit.

Dec. 29, 1992.

John M. Husband (Brian M. Mumaugh with him, on the brief) of Holland & Hart, Denver, CO, for defendant-appellant.

Penfield W. Tate, II of Trimble, Tate and Nulan, Denver, CO (John Mosby, with him on the brief), for plaintiff-appellee.

Before LOGAN, LAY ^* and BARRETT, Circuit Judges.

LOGAN, Circuit Judge.

Defendant American Sheep Industry Association (ASI) appeals from judgment entered following a jury verdict in favor of plaintiff Maxine E. Acrey in her action brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. The jury found not only discrimination but willful violation of the ADEA. The award included $147,000 in front pay in lieu of reinstatement, $76,000 for willful violation, attorneys' fees of $55,168, and interest. ASI appeals from the district court's denial of its motion for judgment notwithstanding the verdict, or in the alternative, for new trial.

ASI argues on appeal that plaintiff did not produce sufficient evidence to meet her burden of proof in four respects: (1) to establish that she was satisfactorily performing her job, (2) to support a finding of constructive discharge, (3) to rebut ASI's articulated nondiscriminatory business reasons for its handling of plaintiff, and (4) to support a finding of willfulness. ASI also asserts that the district court erred in allowing testimony from another former employee, in awarding front pay, and in not reducing the damages award for plaintiff's failure to mitigate damages.

I

Plaintiff was hired in 1984 at the age of forty-five as operations manager for the American Sheep Producers Council (ASPC). She had had more than twenty years of accounting and administrative experience, including work as an auditor with a major CPA firm and as an assistant financial director for IT & T. II R. 36-37. Her responsibilities with ASPC included finance, accounting, building maintenance, benefits, personnel, and general operations. Early in her tenure with ASPC she computerized the manual bookkeeping system working with the in-house programmer to develop the accounting procedures. II R. 38.

On January 24, 1989, ASPC voted to merge with the National Wool Growers Association (NWGA) to form ASI. The merger of the ASPC and NWGA necessitated many corporate changes. Among those were making personnel decisions, relocating the organization, relinquishing existing office space, complying with United States Department of Agriculture regulations, and merging the accounting records of the two organizations. Changing ASI's accounting method from a cash basis system to a more complex accrual accounting system was a major result of the merger. VII R. 120. Some of these merger activities, including finalizing the new accounting system, went on for several months.

Plaintiff resigned effective September 29, 1989. She was replaced shortly thereafter by a twenty-seven year old male, Paul Zulauf. Evidence at the trial focused principally upon whether plaintiff could satisfactorily perform the job she held after the merger, whether her termination was a constructive discharge, and, if so whether plaintiff rebutted the employer's alleged nondiscriminatory business reasons for the termination. We discuss below the relevant evidence on these points that the jury could rely upon to support its verdict in favor of plaintiff.

ASI's motion for judgment notwithstanding the verdict challenged the sufficiency of the evidence to support the verdict. The standard of review for denial of a motion for judgment notwithstanding the verdict requires us to "view the evidence most favorably to the non-moving party and give that party the benefit of all reasonable inferences to be drawn from the evidence." Spulak v. K Mart Corp., 894 F.2d 1150, 1153 (10th Cir.1990). We must affirm denial of defendant's motion if the record reveals sufficient evidence for the jury to have found in favor of plaintiff. Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th Cir.1988). We were unable to evaluate the appeal satisfactorily on the basis of the appendices provided by the parties. Therefore, we obtained and read the entire transcript of the trial. See Fed.R.App.P. 10(e), 11(f). Record citations herein are to the trial transcript.

II

ASI challenges whether plaintiff made a prima facie case, contending she did not establish that she was satisfactorily performing her job at the time of her termination of employment. We have carefully examined the record and believe that a jury could conclude that plaintiff was performing satisfactorily before the merger and that any post-merger deficiencies were a consequence of her receiving a less than adequate opportunity during the transition period to become adept at her new and more complex job responsibilities.

Plaintiff's three supervisors during her employment, Rita Kourlis (1984-86), Rodger Wasson (1986) and Eldon White (1987-89), all testified. Although Wasson and White presented testimony about plaintiff's performance problems before the merger, White also indicated those performance deficiencies had been rectified. III R. 90. White, plaintiff's immediate supervisor at the time of her alleged constructive discharge, and representatives from defendant's independent accounting firm, Dollinger, Smith & Co. (Dollinger firm), confirmed that plaintiff was properly performing her job before the merger, VII R. 106; that they were unaware of significant deficiencies, III R. 33, 43; and that plaintiff was needed to facilitate the merger. V R. 54.

Much of plaintiff's evidence concerned her treatment during the months following the January 1989 merger vote, focusing on her exclusion from merger decisions, ASI's failure to provide her with training on the new accounting system, and ASI's communication in both words and deeds that her services were no longer needed. Plaintiff testified that she was excluded from pre-merger meetings; that she was told not to work with the Dollinger firm on the new accounting system; that information she needed to formulate the new budget was withheld from her; that her role in attending Board of Directors meetings was curtailed; that she received minimal training on the new Solomon computerized accounting system; and that White again began criticizing her work performance. II R. 54-65, 70, 76, 98; III R. 9.

ASI's responsive evidence concerning plaintiff's treatment during the seven or eight months immediately preceding her alleged constructive discharge was somewhat inconsistent. Much of ASI's evidence about plaintiff's performance consisted of testimony concerning a meeting in the middle of February 1989 in which plaintiff's performance was evaluated in her absence, and a second meeting in August 1989 attended by plaintiff, Wasson and White, in which they discussed plaintiff's alleged performance deficiencies. Despite plaintiff's satisfactory work record when the merger was approved, both her supervisor and Dollinger firm representatives concluded in February 1989, only a few days after the merger, that plaintiff lacked the ability to assist in creating and utilizing the new and more complex accounting system developed as a consequence of the merger. III R. 37-38; V R. 77; VII R. 86-87. See also V R. 44. White testified that the Dollinger firm objected to having plaintiff involved in the development of the new accounting system, despite his and Wasson's insistence that she remain involved. V R. 41; VI R. 26-27. White further stated that plaintiff attended numerous meetings regarding the merger of the accounting functions. VI R. 8. But he also testified that as early as the February 1989 meeting he had determined that plaintiff lacked the ability to manage the creation of the new accounting system. VI R. 9. Plaintiff testified that White asked her to quit on at least two occasions, February 8 and April 12, 1989, stating that she was "too old ... and did not fit the image [ASI] wished to project." II R. 55, 63, 81, 157.

Wasson testified that he depended upon the Dollinger firm to evaluate whether plaintiff had the ability to "carry out the new job." VI R. 27. Larry Dollinger reported to Wasson that plaintiff lacked the vision to manage the new accounting system, and he continued to believe she was incapable. VI R. 26-27; VII R. 97. Paul Zulauf, a senior auditor with the Dollinger firm, testified that plaintiff lacked the ability to manage the Solomon system, which was to be the replacement software. Zulauf, who was apparently the principal individual charged with training ASI employees on the new system, see VII R. 134, testified that he did train plaintiff during the implementation of the new computer system, III R. 38-41, 52, but he was unable to identify that training specifically. He agrees she was not given training on the Solomon software system. III R. 58. Zulauf also admitted to meeting with White in August 1989, before plaintiff's termination, to discuss his being hired to replace plaintiff. III R. 29, 48.

Although the Dollinger firm representatives testified that they worked with plaintiff extensively, their billings to ASI reflected the ongoing training they provided to plaintiff's younger counterpart at NWGA, Sue Sharnas, but none for training plaintiff. VII R. 114.

We believe that from this evidence the jury could conclude plaintiff was performing satisfactorily before the merger. We also believe the jury could conclude that proper training to enable her to operate under the new accounting system was deliberately withheld from her during the transition period. The jury was entitled to infer that one reason for this was White's desire to force plaintiff to quit or to have an excuse to fire her. The jury was...