Cash Distributing Co., Inc. v. Neely, 2004-CT-01124-SCT.

CourtUnited States State Supreme Court of Mississippi
Citation947 So.2d 286
Docket NumberNo. 2004-CT-01124-SCT.,2004-CT-01124-SCT.
Decision Date25 January 2007
947 So.2d 286
James NEELY.
No. 2004-CT-01124-SCT.
Supreme Court of Mississippi.
January 25, 2007.

[947 So.2d 289]

Katherine S. Kerby, Columbus, attorney for appellant.

J. Douglas Ford, Rodney A. Ray, attorneys for appellee.



DICKINSON, Justice, for the Court.

¶ 1. James A. Neely sued his former employer, Cash Distributing Company, Inc. ("Cash"), claiming he was dismissed because of federally prohibited age discrimination.1 The jury returned a verdict in Neely's favor, and Cash appealed, urging us to either set aside the verdict because Neely failed to rebut every nondiscriminatory reason offered at trial for the dismissal.2 or to allow a set-off for the amount of retirement benefits paid to Neely subsequent to his termination. Neely cross-appealed, claiming he was entitled to additional damages.

¶ 2. A sharply divided Court of Appeals affirmed the trial court's decision as to Cash's appeal and affirmed in part and reversed and remanded in part as to Neely's cross-appeal. Cash Distributing Co. v. Neely, No. 2004-CA-01124-COA, 947 So.2d 317, 328, 2006 WL 52246, 2006 Miss.App. LEXIS 6, at *24 (Miss.Ct.App. Jan.3, 2006). Although we find the Court of Appeals reached the correct conclusion in this case, we granted certiorari to address the appropriate allocation of the burdens of proof (both production and persuasion) to be followed in our trial courts in employment discrimination cases.


¶ 3. Cash, is a regional Mississippi beer wholesale distributorship for Anheuser-Busch products, with offices in Starkville, Columbus, and Tupelo. The distributorship is a family-owned business founded in Columbus by the late Marvin and Emily Cash, whose grandson, Danny Cash ("Danny"), currently serves as CEO and equity owner. Cash operates pursuant to its distributorship agreement with the brewery, Anheuser-Busch ("the Brewery") in St. Louis, Missouri.

¶ 4. In 1973, Marvin hired Neely, who began a twenty-seven-year climb up the ladder at Cash. In 1996, Neely — who had served for ten years as Sales Manager — was considered for promotion to General Manager of Cash's Columbus operations. Marvin and his son, Mike Cash, who was the executive vice-president, voted in favor of promoting Neely, and Danny, who had

947 So.2d 290

just been named vice president, cast the sole dissenting vote.

¶ 5. According to Danny, when his grandfather hired Neely, there was a casual attitude at Cash, and the rules set by the Brewery were often relaxed or ignored. However, in 1997, the Brewery began a new approach to raise its wholesalers up to a minimum standards level. The new approach involved "assessments" which included a visit to the wholesaler by a Brewery representative each spring. At the conclusion of the visit, the Brewery representative provided a list of deficiencies to be addressed. The Brewery then followed up with another visit in the fall to determine whether the identified problems had been addressed and alleviated.

¶ 6. In April 1997, the Brewery's market manager visited Cash's Columbus operation for an assessment and provided a list of issues and problems to be addressed. Immediately after this visit, Danny issued a three-page, single-spaced memorandum to Neely pointing out these issues and demanded that Neely address them before the Brewery's follow-up visit in the fall. The topics listed included customer survey, employee survey, community involvement, standard operating procedures, employee training jacket, assessment manual main books, and steering team. The memo also addressed the need for a market plan.

¶ 7. The following year, Marvin died, and Danny became Cash's CEO. He announced that, due to the new requirements imposed by the Brewery upon its distributors, he intended to strictly enforce the policies and rules. These changes included strict documentation requirements3 in preparation for the Brewery's periodic assessments and evaluations of Cash's operations.

¶ 8. Danny began to require Neely to submit daily call sheets disclosing where he had been and what he had done each day, and to submit regular written evaluations of the employees who worked for him in the Columbus operation. Danny also instituted a "ride-with" policy, requiring managers (such as Neely) to ride in the truck and visit customers with Cash's salespersons. At trial, Neely testified he understood that the Brewery required these and other technological changes.

¶ 9. Neely frequently failed to timely complete his duties as assigned by Danny, often refusing to complete them at all. In fact, Neely freely admitted at trial that he refused to do tasks for Danny that he often happily did for Marvin. Danny's father, Mike, testified that Neely simply did not want to take orders from Danny. Despite being ordered to provide monthly evaluations on employees, Neely refused to do so. Neely testified that he might have submitted three evaluations on one of the employees from June 14, 1996, to March 3, 2000. Danny abandoned his efforts to obtain the required monthly evaluations, and he directed Neely to provide quarterly evaluations. These Neely also refused to complete. He also declined to use the required tracking forms to prevent out-of-date beer from being sold by Cash's customers.

¶ 10. Danny's evaluations of Neely included both criticism and praise. For instance, in the January evaluation, Danny told Neely he needed to work with team leaders on setting up on-premises promotions. In Neely's February evaluation, Danny stated, "[k]eep up the great job of reducing expenses." Danny's August 1998 evaluation of Neely began with praise: "The accounts I did visit looked really

947 So.2d 291

good. We really dominated the cooler displays and other aspects of the business. The trucks have looked good rolling down the road and the warehouse has been clean each time I visited." However, later in the memo, Danny stated, "[i]n order to provide more value vs. `twenty years of service' the positions need to keep adding abilities, not seniority. This is not a social security system."

¶ 11. In the "game plan" for 1999 — while Neely was the general manager of Cash's Columbus operations — Danny stated, "I'm very pleased with the overall direction the impact has given the Columbus operation." Then, in a document Danny prepared called "Jim Neely Time Line," when referring to an employee named Tony Carley who worked for Cash, Danny noted, "[h]e was later promoted to supervisor and actually did most of the work for the other too [sic] much older supervisors that were riding their time out."

¶ 12. In early 2000, Neely rode with one of his salesmen, Mickey Lewis, to visit his accounts. After the visits, neither Lewis nor Neely reported finding any out-of-date product at the customer locations. Soon thereafter, on March 3, 2000, Danny called Neely into a conference and terminated his employment with Cash, replacing him with Carley who, at that time, was 38 years old.

¶ 13. Neely filed suit against Cash in the Circuit Court of Lowndes County, alleging violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 ("ADEA"),4 and at the conclusion of the trial, the jury returned a verdict for Neely and awarded him $120,000.00 in back pay. The jury also found that Cash's violation of the ADEA was not willful.

¶ 14. Cash filed various post trial motions, including a motion for judgment notwithstanding the verdict. Neely also filed post trial motions, including a motion for an additur or, in the alternative, a new trial on damages, as well as a motion for prejudgment and post-judgment interest, attorney fees, and costs. The trial court denied all post trial motions.

¶ 15. Cash timely perfected its appeal, claiming it was entitled to judgment notwithstanding the verdict because Neely failed to rebut all of the nondiscriminatory reasons Cash presented at trial for his dismissal, and that, in any case, the verdict should be offset by $208,896.66 in retirement benefits paid to Neely after he was terminated. Neely cross-appealed, claiming as error the trial court's refusal to grant him an additur or new trial on damages, front pay, prejudgment and post-judgment interest, costs, and attorney fees.

¶ 16. In a majority opinion written by Judge Irving on behalf of a five-judge majority, the Court of Appeals affirmed the trial court on Cash's direct appeal and affirmed in part Neely's cross-appeal, conditioned on Cash's acceptance of an additur in the amount of $58,754; however the majority reversed and remanded on the trial court's failure to grant prejudgment interest, post-judgment interest, loss of insurance

947 So.2d 292

benefits, front pay, and attorneys' fees. Cash Distributing, 947 So.2d at 328, 2006 Miss.App. LEXIS 6, at *24.

¶ 17. Judge Griffis, joined by two judges, dissented, pointing out that the record included no direct evidence of age discrimination, because Danny's memos containing age-related comments, when viewed in context, were unrelated to any discriminatory purpose. Id. at 328, at *25 (Griffis, J., dissenting). Cash petitioned this Court for a writ of certiorari, which we granted.


¶ 18. In 1967, the United States Congress passed the ADEA, which "prohibit[s] arbitrary age discrimination in employment." 29 U.S.C. § 621(b). Specifically, the ADEA makes it "unlawful for an employer to . . . discharge any individual . . . because of such individual's age." Id. § 623(a)(1).

¶ 19. A plaintiff wishing to establish an employer's liability for violation of the ADEA may bring the claim in state or federal court. Id. § 626(c)(1). When a plaintiff brings an ADEA claim in our state courts, we are bound to apply the law as interpreted by the United States Supreme Court. See, e.g., Saunders v. Mullins, 412 So.2d 245, 246 (Miss.1982).5

¶ 20. In setting forth the standard of review for this case, we borrow the following from the Court of Appeals:


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