Bell v. Gas Service Co., 85-1114

• Decision Date: 05 December 1985
• Docket Number: No. 85-1114,85-1114
• Citation: 778 F.2d 512
• Parties: 120 L.R.R.M. (BNA) 3515, 39 Fair Empl.Prac.Cas. 826, 38 Empl. Prac. Dec. P 35,741 Eleanor M. BELL, Appellant, v. GAS SERVICE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 512

778 F.2d 512

120 L.R.R.M. (BNA) 3515, 39 Fair Empl.Prac.Cas. 826,

38 Empl. Prac. Dec. P 35,741

Eleanor M. BELL, Appellant, v. GAS SERVICE COMPANY, Appellee.

No. 85-1114.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 10, 1985.

Decided Dec. 5, 1985.

Richard E. Armitage, Kansas City, Mo., for appellant.

Steven Carr, Kansas City, Mo., for appellee.

Before ROSS, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and ARNOLD, Circuit Judge.

ROSS, Circuit Judge.

Appellant Eleanor M. Bell appeals from an adverse judgment in her age discrimination suit brought against her employer, Gas Service Company (appellee). Because we agree with the district court's ¹ ultimate disposition of the case, we affirm the judgment of the district court.

I. FACTS

Appellant began working as a clerk for appellee on July 24, 1978, when she was 51 years of age. On May 16, 1980, appellant bid and was accepted for promotion to the position of Customer Service Representative (CSR). After she completed a trial period appellant was permanently assigned to the CSR position. As a CSR her duties consisted mainly of answering the phone, responding to service requests from customers and filling out call slips regarding customer calls. During her employment as a CSR, appellant received 28 documented warnings and reprimands concerning deficiencies in her job performance.

Two supervisors reviewed the work of the sixteen CSRs in appellant's work area. Each supervisor could monitor the calls and conversation between the CSRs and customers. The supervisors monitored the CSRs periodically during the day and the CSR was unaware that he or she was being monitored. Appellee had a policy which stated that any CSR who deliberately disconnected a customer's call would immediately be discharged. All CSRs, including appellant, initialed the office memorandum outlining this policy. Appellee also had a policy which provided that an employee who is not adequately performing in a position to which he or she was promoted, could be "disqualified" back to the lower position.

On September 8, 1982, one of appellant's supervisors, Jenna Jo Kinchelow, monitored the appellant and heard a customer's call be disconnected without appellant speaking. Kinchelow inspected appellant's call slips and ascertained that appellant had filled out call slip # 45 for the call that had been disconnected. Kinchelow continued to monitor the appellant for five or six additional calls which appellant handled properly.

At a meeting held the next day, attended by appellant, her union steward, and her supervisors, appellant denied deliberately disconnecting any customer and stated that her equipment hadn't been working correctly. Appellant volunteered that if she had disconnected a customer that she had not done it intentionally. Appellant also denied falsifying call slip # 45. Appellant was discharged on or about September 24, 1982, for violation of the company policy against disconnecting customers and for falsification of the call slip.

Following her discharge appellant filed a grievance under her union contract, and proceeded to arbitration which resulted in a finding that appellee had just cause to terminate her. Appellant's union grievance did not allege age discrimination. Appellant also filed a complaint with the EEOC alleging age discrimination which resulted in a finding that further action by the EEOC on her age claim was unwarranted. Upon receipt of the EEOC letter appellant filed this action alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634 (1985). Appellant later amended her complaint to add a claim that appellee had fraudulently induced her to accept the CSR position with knowledge that she was unqualified.

Before trial the district court dismissed the misrepresentation claim for lack of subject matter jurisdiction after finding that appellee's conduct was arguably protected by section 157 of the National Labor Relations Act (NLRA), 29 U.S.C. Secs. 151-168 (1985) or arguably prohibited by section 158 of the NLRA. Appellant's age discrimination claim proceeded to trial before a jury which found in favor of appellant and awarded $29,770 in actual damages. The jury separately found that appellee's conduct was willful.

Subsequent to the jury verdict the district court granted appellee's motion for judgment notwithstanding the verdict (judgment n.o.v.) and conditionally ordered a new trial if the judgment for appellee is reversed. Appellant filed this appeal contesting the district court's entry of the judgment n.o.v. and conditional grant of a new trial on the age discrimination claim and the dismissal of the misrepresentation claim.

II. DISCUSSION

A. Judgment N.O.V. on Age Claim

The standard for granting a judgment n.o.v. is well established in this circuit. This court has stated that in determining whether a party is entitled to judgment notwithstanding an adverse jury verdict, the trial court must view the evidence in the light most favorable to the party who prevailed before the jury. Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 295 (8th Cir.1982), cert. denied, 459 U.S. 1205, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983). Like a directed verdict, a judgment n.o.v. should be granted only when all the evidence points one way and is susceptible of no reasonable inferences sustaining the position of the nonmoving party. Dace v. ACF Industries, Inc., 722 F.2d 374, 375 (8th Cir.1983) (quoting Decker-Ruhl Ford Sales, Inc. v. Ford Motor Credit Co., 523 F.2d 833, 836 (8th Cir.1975) ).

This standard requires both the trial court and this court ² to resolve direct factual conflicts in favor of appellant, assume all facts in her favor which the evidence tends to prove and give her the benefit of all reasonable inferences. Craft v. Metromedia, Inc., 766 F.2d 1205, 1218 (8th Cir.1985). Thus keeping this standard in mind, we must consider the nature of proof required under the ADEA and evaluate the evidence appellant presented at trial against such requirements. Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1164 (8th Cir.1985).

The evidentiary burdens in an ADEA case are the same as those applied in a Title VII case. Id. To prove an age discrimination case a plaintiff such as Bell must establish a prima facie case by showing that she is within the protected group; that her performance met her employer's legitimate expectations; that she was fired and that afterwards the employer sought a replacement for the position. Halsell, supra, 683 F.2d at 289. If plaintiff establishes a prima facie case, then the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the discharge. In the case of an alleged age discrimination violation based on discharge, an employer may meet its burden by showing that the discharge was for good cause as prescribed in 29 U.S.C. Sec. 623(f)(3). If the employer meets its burden, plaintiff must then show by a preponderance of the evidence that the reasons offered by the employer were not the true reasons, but were a pretext for discrimination. Id., citing, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The ultimate burden that a plaintiff must meet is to show that her age was a determining factor in the discharge. Tribble v. Westinghouse Electric Corp., 669 F.2d 1193, 1196 (8th Cir.1982), cert. denied, 460 U.S. 1080, 103 S.Ct. 1767, 76 L.Ed.2d 342 (1983); Cleverly v. Western Electric Co., 594 F.2d 638, 641 (8th Cir.1979); and Cova v. Coca-Cola Bottling Co. of St. Louis, 574 F.2d 958, 960 (8th Cir.1978). On review, however, we need not discuss the record in terms of whether or not appellant established a prima facie case since the case proceeded to a full trial on the merits. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-14, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983). We focus instead on the ultimate question whether the appellant has sufficiently established a case of intentional age discrimination.

In the present case appellant tried to prove age discrimination three ways. Using a theory of disparate treatment, appellant attempted to establish that she was discharged because of her age, that she was denied the use of a handphone and was verbally abused because of her age, and that she was not disqualified to another position because of her age. Appellant argues that she proved these violations of the ADEA through use of circumstantial evidence and reasonable inferences and that she proved that the appellee's reasons for its employment decisions were a pretext for age discrimination.

As for the discharge violation, appellant's evidence established that she was discharged because of the September 8, 1982 disconnection and the filling out of call slip # 45. Appellant offered her own testimony that she accepted that the disconnection occurred, but that it was not intentional on her part and that she did actually take a customer's call that was reflected on call slip # 45. While this evidence supports the inference that the appellee did not believe appellant when she denied deliberately disconnecting a customer and denied falsifying call slip # 45, we are not satisfied that it demonstrated that the appellee terminated appellant because of her age. There is simply no evidence in the record that the appellee's reliance on its supervisor's account of what transpired on September 8, 1982, had anything to do with the fact of appellant's age. In this case we are not concerned with whether the appellee was correct to believe Kinchelow rather than appellant, but whether the reasons for doing so were based upon an impermissible factor such as appellant's age. As we stated in Jorgensen v. Modern Woodmen of America, 761 F.2d 502, 505 (8th Cir.1985), "[t]he ADEA is not intended to be used as a means of reviewing the propriety of a business decision on the...