Beshears v. Asbill

Decision Date24 May 1991
Docket NumberNos. 89-2798,89-2929,s. 89-2798
Citation930 F.2d 1348
Parties55 Fair Empl.Prac.Cas. 1383, 56 Empl. Prac. Dec. P 40,717, 59 USLW 2759 Kenneth BESHEARS, Robert Johnson, Appellants, v. Ross ASBILL, v. COMMUNICATIONS SERVICES, INC., Appellee. Kenneth BESHEARS, Robert Johnson, Ross Asbill, Appellees, v. COMMUNICATIONS SERVICES, INC., Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

W. Asa Hutchinson, Fort Smith, Ark., for appellants.

William S. Robbins, Jr., Kansas City, Mo., for appellee.

Before BOWMAN and WOLLMAN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Kenneth Beshears and Robert Johnson appeal from the order of the District Court 1 dismissing their claims under 29 U.S.C. Sec. 621 et seq. (1988), the Age Discrimination in Employment Act of 1967 ("ADEA"), against Communications Services, Inc. ("CSI"). CSI cross-appeals the judgment of the District Court on a jury verdict in favor of Ross Asbill on his age discrimination claim. We affirm.


In the latter part of 1985 CSI, a Kansas corporation engaged in the cable television business, approached Rogers Communications about a possible acquisition of Rogers Cablesystems of Fort Smith, Inc. ("Rogers"). Rogers operated the cable service for Fort Smith, Arkansas. The contract that CSI and Rogers signed in February 1986 included a stipulation prohibiting CSI from discussing staff changes with Rogers employees until the time of acquisition.

Prior to CSI's acquisition of the Fort Smith system, the Fort Smith operation was very different from CSI's other cable service operations. Its salaries were at least twenty-five percent higher and its employee structure was markedly different, as were its management and employee policies. CSI, after evaluating the Fort Smith operation, decided to make a number of changes, including the elimination of twenty employee positions.

To this end, CSI representatives met with Rogers' employees on three separate occasions during the early part of 1986. At the first of these meetings, CSI's president, Bruce Plankington, addressed Rogers' entire employee complement. When he was asked how CSI felt about older employees, employees claim Plankington responded that, although he did not foresee any problems, it was his experience that they sometimes had difficulty adjusting to change.

At the next of these meetings, Gary Cox, CSI's vice-president of operations, conducted interviews with Rogers' technical personnel. Cox met with Beshears, Johnson, and Asbill, among others, to discuss their job responsibilities and experience and to notify them that there would be some changes in the company's structure.

Beshears, who was 42 in 1986, was a service technician for Rogers. He had been with the company for seven and one-half years, and his hourly rate of pay was $10.76. Johnson, 43, had been a Rogers employee for approximately 23 years. In his position as a project supervisor, Johnson supervised various construction jobs. His annual salary was over $31,000.00. Asbill, 57, had been with Rogers for approximately 18 years. He was paid $13.12 an hour as a dispatcher scheduling customer service calls.

After meeting with the employees individually, CSI officials made their final employment decisions. The decisions were conveyed to Rogers' staff on June 12 and 13, 1986. Beshears was informed that he would not be offered a job as a service technician with CSI; Johnson that CSI was eliminating the construction department and that his position no longer existed; Asbill that CSI's structure did not require a separate dispatcher position, as CSI's customer service representatives, earning $4.25 an hour, would perform the duties of a dispatcher. CSI did ask Asbill to continue dispatching for a short transitional period during which a new computer system would be installed. Asbill accepted the $10.50 per hour position and worked until August 15, 1986. CSI did not offer the three men alternative employment.

A group of Rogers employees, including Beshears, Johnson, and Asbill, filed a charge of age discrimination against CSI with the Equal Employment Opportunity Commission on January 26, 1987. This filing did not comply with the ADEA's 180-day notification requirement. On June 15, 1988, eleven former Rogers employees, again including Beshears, Johnson, and Asbill, filed a complaint against CSI in the District Court alleging violations of the ADEA and setting forth pendent state claims. CSI's motion for summary judgment resulted in the dismissal of the claims of three of these employees. The claims of five additional employees were dismissed on the basis of a confidential settlement.

Beshears, Johnson, and Asbill proceeded to trial on September 27, 1989. The trial was conducted in two phases. The first phase was concerned with the question of whether the ADEA's 180-day filing period had been tolled (under the doctrine of equitable tolling). Three interrogatories were submitted to the jury: (1) whether the employer had posted the required statutory notice in a prominent and readily-accessible place; (2) whether Beshears, Johnson, and Asbill knew within the 180-day period that it was illegal for their employer to discriminate against them because of age; and (3) whether they had the means to acquire that knowledge before the 180 days expired. The jury answered all three questions in the negative as to Asbill, but found that Beshears and Johnson had the means to acquire the requisite knowledge within the 180 days. Based upon these findings, the District Court dismissed the claims of Beshears and Johnson as barred by their failure to comply with the statutory filing period.

The second phase of the trial went forward on the merits of Asbill's age discrimination claim. The jury returned a verdict in Asbill's favor and awarded him back pay in the amount of $24,331.67. As authorized by the ADEA, liquidated damages in an equal amount were assessed based upon the jury's finding of "willfulness."

Beshears and Johnson appeal, contending that the District Court erred by instructing the jury that the employees had the burden of proving they did not have the means to acquire knowledge that age discrimination was illegal. CSI cross-appeals, arguing that: (1) CSI's employee manual provided Asbill with the means to become aware that age discrimination was prohibited; (2) the evidence was insufficient to impose the burden-shifting standards applicable to "mixed motive" discrimination cases; (3) CSI would not have retained Asbill "but for" his age; (4) Asbill is not entitled to back wages for the time period in which he received social security disability benefits; and (5) the evidence was insufficient to support the jury's finding of "willfulness." We affirm in all respects.


The appeal of Beshears and Johnson raises only one issue that warrants discussion: whether the District Court's jury instruction regarding equitable tolling "was an improper instruction on the law and placed [upon them] an undue burden of proof." Brief of Beshears and Johnson at 7. Their argument implicates the court's allocation of the burden of proof.

We quote the contested instruction:

The plaintiffs have the burden of proving that as to each one of them, no poster describing an employee's rights under the age discrimination law was placed in a prominent, accessible, and readily observable place.

They have the additional burden of proving that they did not know until after July 30, 1986 that discrimination against them by an employer because of age was illegal, and that they did not have the means to acquire that knowledge before then.

Phase One Trial Transcript at 181. Accompanying this instruction were the three interrogatories mentioned above. The third interrogatory required the jury to find whether "from a preponderance of the evidence that any of the plaintiffs ... had the means to acquire knowledge before July 30, 1986, that discrimination against him by an employer because of age was illegal[.]" Phase One Trial Transcript at 183. 2

The instruction at issue was based upon our decision in DeBrunner v. Midway Equip. Co., 803 F.2d 950 (8th Cir.1986).

An employer's failure to post notice of ADEA rights as required by 29 U.S.C. Sec. 627 may be grounds for tolling the 180-day period until the employee acquires "actual knowledge" of his rights or retains an attorney. However, an employer's failure to post the requisite notice will not equitably toll the 180-day filing period once an employee acquires "general knowledge" of his or her right not to be discriminated against on account of age, or the means of obtaining such knowledge.

Id. at 952. 3

The court's instruction, although otherwise proper, incorrectly allocates the burden of proof among the parties. The law on this point is clear. "The employee bears the burden of proving the absence of notice to justify equitable considerations." 3A A. Larson & L. Larson, Employment Discrimination, Sec. 102.12 at 21-234 (1991). However, as this Court stated in DeBrunner, "[t]he employer bears the burden of proving that the employee was generally aware of his or her right [not to be discriminated against on account of age] if notice was not posted." DeBrunner, 803 F.2d at 952. Although here the instruction misallocated the burden of proof with respect to "general knowledge" and "the means of obtaining such knowledge," we are satisfied that in the circumstances of this case the error was harmless. See Fed.R.Civ.P. 61.

We find this to be so for several reasons. First, the faulty instruction was accompanied by the three interrogatories, which focused the jury's attention upon the evidentiary issues related to equitable tolling. The interrogatories make no reference to the burden of proof. Further, CSI elicited much of the evidence relevant to the issue, and the evidence strongly supports the finding...

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