Blackwell v. Sun Elec. Corp.

Decision Date10 January 1983
Docket NumberNo. 81-5517,81-5517
Citation696 F.2d 1176
Parties30 Fair Empl.Prac.Cas. 1177, 30 Empl. Prac. Dec. P 33,268 Thomas P. BLACKWELL, Jr., Plaintiff-Appellee, v. SUN ELECTRIC CORPORATION, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Cecil W. Laws, Gillenwater & Laws, Samuel W. Rutherford, Bristol, Tenn., Jeffrey K. Ross (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant-appellant.

David S. Haynes (argued), Bristol, Tenn., for plaintiff-appellee.

Before KEITH and KRUPANSKY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

KEITH, Circuit Judge.

This appeal raises the question of whether the district court's jury instructions setting forth the applicable law under the Age Discrimination in Employment Act. ("ADEA") 29 U.S.C. Secs. 621 et seq., (1967) 1 were misleading or improper. Because we find that the charge to the jury, taken as a whole, accurately stated the controlling law, we affirm the judgment of District Judge Robert Taylor.


In 1975 Sun Electric Corporation ("Sun") hired plaintiff-appellee Thomas P. Blackwell ("Plaintiff") as a sales representative in its Memphis, Tennessee, regional office. His responsibilities included selling and instructing customers on the use of electronic diagnosis equipment used to test automotive vehicles.

During his three-year tenure at the Memphis office, Plaintiff was in the top 15% of Sun's national salesmen, and twice received a sales award for "being in the top $100,000 sales volume." In August 1978, Plaintiff voluntarily took a leave of absence from Sun. In January 1979 he returned and was transferred to the Knoxville, Tennessee regional office.

In November 1979 Mike Eberhardt became regional manager for Sun's Knoxville office. In February, 1980, he warned Plaintiff that he would have to increase his sales. Between March and July 1980 plaintiff did improve his monthly gross sales volume. But on July 3, 1980, Eberhardt discharged Plaintiff, allegedly for his failure to meet the minimum net sales volume for his sales territory. According to Eberhardt, Plaintiff's net sales were far below the $8,000 monthly net sales needed to offset Sun's expenses in the territory. 2

However, Plaintiff maintained that Eberhardt fired him because of his age. He cited the fact that other older workers had also been fired, and that Eberhardt seemed to spend a lot of time socializing with the younger employees. He cited a comment made by Eberhardt to one of the other older employees, "Your get up and go has got up and gone." Finally, he noted that Eberhardt expanded the sales territory for the plaintiff's successor while refusing to expand the territory when the plaintiff asked him to do so.

On February 21, 1981, Plaintiff filed suit in the United States District Court for the Eastern District of Tennessee. He alleged that Sun had discharged him because he was sixty-four years old, in contravention of the ADEA. On June 11, 1981 the case was tried before a jury. The jury rendered a general verdict, finding Sun liable for age discrimination and awarding Plaintiff fifty-thousand dollars ($50,000) in damages. Sun appeals.


Sun argues that the district court erred by not instructing the jury on the essential elements of a prima facie case in an age discrimination suit. Specifically, Sun maintains that the jury should have been instructed that its proffered reason for Plaintiff's discharge was sufficient to dispel any inference of discrimination unless they found the reason to be a mere pretext. We disagree.

In the seminal case of Laugesen v. Anaconda, 510 F.2d 307, 312 (6th Cir.1975), we stated: "While it may not be unreasonable to assume that in a proper case the guidelines established in McDonnell Douglas v. Green [411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ] 3 can be applied in age discrimination jury cases, we believe it would be inappropriate to simply borrow and apply them automatically." The Laugesen court concluded that the strict evidentiary approach used in racial discrimination cases should not be blindly applied in an age discrimination case. See Laugesen, 510 F.2d at 312-13 n. 4. The court reasoned that while racial discrimination is most often based upon a desire to disadvantage a particular racial minority, employment decisions involving age may reflect the result of the universal progression of aging. The ADEA was designed to protect the older worker from arbitrary classifications on the basis of age, not to restrict the employer's right to make bona fide business decisions. Thus, in order to avoid interfering with legitimate business decisions, we opted for a case-by-case approach.

In subsequent cases, we have continued to eschew a rigid application of the McDonnell Douglas formula. In fact, in Sahadi v. Reynolds Chemical, 636 F.2d 1116 (6th Cir.1980), an employee was terminated during an economic cutback and a younger person was retained in a position the plaintiff was capable of performing and willing to relocate to perform. Nevertheless, the court held that the plaintiff had failed to establish a prima facie case of age discrimination. In Ackerman v. Diamond Shamrock, 670 F.2d 66 (6th Cir.1982), the court reaffirmed the case-by-case approach. Judge Phillips, speaking for the Court, noted:

A mechanical application of the McDonnell Douglas guidelines might bar the suit of a worthy ADEA claimant. In other cases, an overly mechanical application could supply an ADEA plaintiff with a triable claim where none exists.

Id. at 70. See also Locke v. Commercial Union Insurance, 676 F.2d 205 (6th Cir.1982).

The defendant relies upon opinions from several circuit courts which follow the McDonnell Douglas guidelines and order of proof in age discrimination cases. We interpret those opinions as allowing the use of the McDonnell Douglas guidelines, but not making them the exclusive criteria for establishing a prima facie case. Indeed, in several of those cases, the courts expressly disavowed any intent to preclude other methods of proving unlawful age discrimination. See, e.g., Loeb v. Textron, 600 F.2d 1003, 1018 (1st Cir.1979); Stanojev v. Ebasco Services, 643 F.2d 914, 920-22 (2d Cir.1981); Hedrick v. Hercules, 658 F.2d 1088, 1093 (5th Cir.1981). To the extent the cases cited by the defendant permit the McDonnell Douglas guidelines to be used to prove age discrimination, they are in full accord with the case-by-case approach of this court. We hold that it was not error for the court to refuse to instruct the jury on the prima facie elements of a discrimination case as set forth in McDonnell Douglas. 4 Moreover, we hold that the record reflects that the plaintiff introduced enough evidence to present a prima facie case of age discrimination.

The ultimate issue in this age discrimination suit is whether age was a determining factor in the employer's decision to fire the plaintiff. Ackerman, 670 F.2d at 70. Laugesen, 510 F.2d at 317. The plaintiff can establish a prima facie case of age discrimination by using the McDonnell Douglas criteria. The plaintiff can also establish a prima facie case using statistical information, direct evidence of discrimination, and circumstantial evidence other than that which is used in the McDonnell Douglas criteria. See Stanojev v. Ebasco Services, 643 F.2d at 920-21. Once a prima facie case is established through either of these methods, the burden shifts to the employer to produce a legitimate non-discriminatory reason for his decision. The ultimate burden of proving discrimination also remains with the plaintiff. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

The district court's charge adequately instructed the jury on the respective burdens and requisite elements of a prima facie case of age discrimination. Though the court did not adopt the language of McDonnell Douglas as modified for age discrimination cases, it simply and directly stated the issue for the jury. We agree with the First Circuit's reasoning in Loeb v. Textron:

The court should not force a case into a McDonnell Douglas format if to do so will merely divert the jury from the real issues; rather it should use its best judgment as to the proper organization of the evidence and the charge. In cases of this type, the best jury instruction may simply be one that emphasizes that plaintiff must prove by a preponderance of the evidence that he was discharged because of his age--with adequate explanation of the meaning of the age statute, the determinative role age must have played, etc.

600 F.2d at 1018. The district court's instructions included all of the relevant factors and provided sufficient guidance to the jury from which it could make an informed decision on the controlling issue. 5

We also disagree with defendant's assertion that the plaintiff failed to establish a prima facie case. Even if we were to strictly apply the McDonnell Douglas criteria, Plaintiff provided evidence that 1) he was a member of the protected class, 2) he was discharged, 3) he was qualified for the job, and 4) he was replaced by a younger worker outside the protected class. 6 We do not agree that the plaintiff failed to prove that he was qualified for the job. He had performed the job satisfactorily for several years. Moreover, if we were to hold that a plaintiff's prima facie case fails if his qualifications are challenged by the defendant, we would effectively preclude age discrimination suits of this kind. Then, a defendant would always be able to challenge the plaintiff's qualifications for the job, and the issue would be taken away from the jury. But it is the defendant's burden to produce enough evidence to convince the trier of fact that the plaintiff was fired because he was incapable of performing his job. The plaintiff in this case certainly presented enough evidence to raise an inference of age discrimination until such...

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