Burns v. Texas City Refining, Inc.

• Decision Date: 18 December 1989
• Docket Number: No. 88-6178,88-6178
• Citation: 890 F.2d 747
• Parties: 51 Fair Empl.Prac.Cas. 1029, 52 Empl. Prac. Dec. P 39,532, 58 USLW 2416 Vernon F. BURNS and Thelma M. Barker, Plaintiffs-Appellees, v. TEXAS CITY REFINING, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 747

890 F.2d 747

51 Fair Empl.Prac.Cas. 1029,

52 Empl. Prac. Dec. P 39,532, 58 USLW 2416

Vernon F. BURNS and Thelma M. Barker, Plaintiffs-Appellees, v. TEXAS CITY REFINING, INC., Defendant-Appellant.

No. 88-6178.

United States Court of Appeals Fifth Circuit.

Dec. 18, 1989.

Rehearing and Rehearing En Banc Denied Feb. 5, 1990.

Douglas H. Chilton, Mabry, Herbeck & Chilton, Texas City, Tex., J. Bruce Bennett, Austin, Tex., for defendant-appellant.

Anthony P. Griffin, Yvonne M. Williams, Galveston, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, JOHNSON, and SMITH, Circuit Judges.

JOHNSON, Circuit Judge:

Texas City Refining appeals from the district court's award of damages to plaintiffs Vernon Burns and Thelma Barker following the jury's determination that Burns and Barker were improperly discharged on the basis of age. For the reasons set out below, we affirm in part, reverse in part, and remand to the district court with instructions to modify the judgment in a manner consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

In May of 1960, Texas City Refining, Inc. (TCR) hired Vernon Burns as a janitor at TCR's oil refining plant in Texas City, Texas. In 1967, TCR obtained the services of six janitors to assist Burns in cleaning the plant. These janitorial services were obtained through a contract between TCR and Mainland Janitorial Service. In 1968, TCR placed Burns in the position of supervising janitor; Burns' primary responsibility was to supervise the activities of the contract janitors supplied by Mainland. In March of 1977, TCR hired Thelma Barker, previously a contract janitor, as an assistant supervisor to Burns. As supervisors, both Burns and Barker were considered part of TCR's management.

In 1978, Burns started a janitorial service known as Star Janitorial. Star, a competitor of Mainland, obtained contracts to clean various buildings in the Texas City area, including the Texas City National Bank Building (TCNB). The practice of employees operating an outside business was not against TCR's policy. In fact, Star, through Burns, would rent equipment to TCR. Burns hired Doris Turner to oversee Star's day-to-day operations. Turner testified that she would often come to TCR at night, pick up a Star Janitorial van, drive to TCNB, and return the van after she finished cleaning the bank.

H.M. Nipp, TCR's Manager of Purchasing, was responsible for arranging janitorial services. In January of 1985, when Burns was sixty-three years old and Barker was fifty-one years old, Nipp approached Burns about getting a bid from Star Janitorial for the entire scope of janitorial work at TCR. Nipp's idea was that Burns and Barker would leave TCR's employ but continue to perform janitorial services at TCR as contractors with Star. Nipp made no guarantee that TCR would award the contract to Star rather than Mainland, or that the contract, worth $175,000 per year, would be renewed annually. Though Nipp testified that he knew Burns' retirement benefits had vested, both Nipp and Burns testified that Nipp never mentioned retirement in connection with his proposal. Furthermore, Burns testified that he asked Nipp about Barker's pension, and was told that he (Burns) could take care of Barker's pension himself. Burns refused the offer; one reason for the refusal was that Barker's pension had not yet vested.

Burns testified that, after he refused Nipp's offer to either retire or quit and take Barker with him to Star Janitorial, the scrutiny of his work and crew intensified. Burns claims that he was watched constantly by the guards. Burns also testified that he and his crew were given lie detector tests in connection with a theft of funds which Burns claimed took place nearly two hours before his crew came on duty. TCR rebutted with testimony that the theft took place between 5 p.m. and 7 a.m. when Burns and crew were on duty.

Nipp testified that the discharge of Burns and Barker stemmed from TCR's discovery of their alleged moonlighting. Specifically, he stated that on July 24, 1985, he received a telephone call from Carol Cline, TCR's Manager of Office Services and Burns' and Barker's immediate supervisor. Nipp testified that Cline informed him that she had been told by one of Mainland's contract janitors, Olga Alvarado, that either Burns or Barker was leaving TCR in the evenings and working at TCNB at the time they were supposed to be supervising the Mainland crew. Neither Alvarado nor Cline testified at trial. Both Burns and Barker were supposed to remain at TCR between the hours of 5:00 p.m. and 1:00 a.m., although Burns was allowed to leave to run any necessary errands.

Nipp testified that he decided to verify the accusations himself. Consequently, that evening he drove to TCR's refinery where he observed a Star Janitorial van leave. Nipp followed the van to TCNB. Nipp stated that, through the windows at the bank, he saw Barker performing janitorial work. The next morning, Nipp reported his observations to TCR's Vice President of Administrative Services, Rich Sherman. Sherman informed George Raven, TCR's Manager of Employee Relations. Raven testified that Carol Cline had also discussed the TCNB incident with him.

That evening, Nipp and Raven, in separate cars, performed the same stake-out at TCNB. Both testified that they observed Barker performing janitorial services in the bank and that they were close enough to make a positive identification. They reported to Sherman, who directed them to investigate further. On July 29, Raven again performed a stake-out, and testified that the same routine occurred.

Neither Raven nor Nipp discussed the alleged moonlighting with Burns or Barker until the company decided to conduct termination interviews. At the interview, which occurred on August 2, 1985, both Burns and Barker denied that they had been moonlighting for Star Janitorial. Nevertheless, both were presented with the option of resigning or being fired. Both chose to resign, and utilized the resignations which TCR had prepared before the interview. At the time of the discharge, Burns' pension benefits had vested; Barker's had not. A five year TCR employee named Bryl Mahoney, age thirty-six, was promoted from the mail department to fill Burns' position as supervising janitor.

On September 26, 1986, Burns and Barker filed a complaint alleging that their discharge was the result of racial and age discrimination in violation of 42 U.S.C. Sec. 1981 and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq. TCR denied the violations, and alleged that the discharges were for good cause. The case proceeded to a jury trial on the age discrimination claim only. TCR moved for a directed verdict following presentation of Burns' and Barker's case-in-chief. The district court denied the motion. TCR renewed the motion at the close of the evidence. ¹ The motion was again denied.

In answering the special interrogatories, the jury found that TCR had willfully discriminated against both Burns and Barker on the basis of age. Final judgment was entered, awarding $189,335.42 in back pay and liquidated damages to Burns, and $294,055.08 in front pay, back pay, and liquidated damages to Barker. Pre- and post-judgment interest was included in the computation of both awards.

TCR filed a timely notice of appeal to this Court attacking the sufficiency of the evidence to support the jury verdict. In addition, TCR argues that the district court erred in awarding liquidated damages and prejudgment interest, and in awarding front pay to Barker. After reviewing the record, we conclude that while there is sufficient evidence to support the jury's conclusion that the discharge was willful and discriminatorily motivated, there is insufficient evidence to support the front pay award. Additionally, we conclude that prejudgment interest is proper only on the back pay owing from August 2, 1985, to the date of judgment. Prejudgment interest should not have been awarded on the liquidated damage portion of the award. Consequently, we affirm in part and reverse in part.

II. DISCUSSION

A. Discriminatory Motive

In determining whether there is sufficient evidence to submit a case to a jury in an age discrimination case,

the Court should consider all of the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion [for directed verdict].

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969). Similarly, a jury verdict will not be overturned unless it is not supported by substantial evidence. Guthrie v. J.C. Penney Co., Inc., 803 F.2d 202, 207 (5th Cir.1986) (factual findings in age discrimination cases are reviewed on the same standard as in other cases). This is because the role of an appellate court reviewing a claim of insufficient evidence in an age discrimination case remains the same as that in any other case: to determine whether the record contains evidence upon the basis of which a reasonable trier of fact could have found as the jury did. In the instant case, TCR argues that this standard has not been met. Throughout the process of review, the realization that it is the province of the jury rather than the court, to review and weigh evidence must be kept firmly in mind.

In ADEA cases in which there is no direct evidence of age discrimination, the same evidentiary procedure formulated for Title VII cases applies. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). First, an employee must make a prima facie case by demonstrating that (1) he was discharged; (2) he was qualified for his position; (3) he was a member of the protected class at the time of discharge; and (4) he was replaced by someone outside the protected class. Bienkowski v. American Airlines, Inc., ...