Coker v. Amoco Oil Co., Nos. 81-7656

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore TJOFLAT, HILL and JOHNSON; JAMES C. HILL; JOHNSON
Citation709 F.2d 1433
Docket Number81-8042,Nos. 81-7656
Decision Date18 July 1983
Parties32 Fair Empl.Prac.Cas. 702, 32 Empl. Prac. Dec. P 33,814 Lewis K. COKER, Plaintiff-Appellee, v. AMOCO OIL COMPANY, a corporation, Defendant-Appellant. Lewis K. COKER, Plaintiff-Appellant, v. AMOCO OIL COMPANY, a corporation; Standard Oil Company (Indiana), a corporation, Defendants-Appellees.

Page 1433

709 F.2d 1433
32 Fair Empl.Prac.Cas. 702,
32 Empl. Prac. Dec. P 33,814
Lewis K. COKER, Plaintiff-Appellee,
v.
AMOCO OIL COMPANY, a corporation, Defendant-Appellant.
Lewis K. COKER, Plaintiff-Appellant,
v.
AMOCO OIL COMPANY, a corporation; Standard Oil Company
(Indiana), a corporation, Defendants-Appellees.
Nos. 81-7656, 81-8042.
United States Court of Appeals,
Eleventh Circuit.
July 18, 1983.

Page 1436

Elarbee, Clark & Paul, J. Lewis Sapp, Stephen M. Paskoff, Atlanta, Ga., Engel, Hairston, Moses & Johanson, William B. Hairston, Jr., Birmingham, Ala., for defendant-appellant in No. 81-7656 and defendants-appellees in No. 81-8042.

Lorant, Harris & Yearout, J. Gusty Yearout, Michael J. Evans, Birmingham, Ala., for plaintiff-appellee in No. 81-7656 and plaintiff-appellant in No. 81-8042.

G. Thomas Yearout, Rutledge & Yearout, Birmingham, Ala., for plaintiff-appellant in No. 81-8042.

Appeals from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, HILL and JOHNSON, Circuit Judges.

JAMES C. HILL, Circuit Judge:

These consolidated cases arose from the termination of the employment relationship between Lewis Coker and Amoco Oil Company. In No. 81-7656, Coker brought an action in federal court on April 5, 1979 alleging that his July 22, 1978 termination violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634 (1976). A jury awarded Coker $6,993 in damages and Amoco appeals. In No. 81-8042, Coker filed a complaint in state court on June 22, 1979 against Amoco and unnamed in-state defendants alleging that his discharge resulted from fraud and breach of contract. Amoco, after unsuccessfully seeking dismissal of the unnamed defendants in state court, removed the action to federal court on September 15, 1980. Coker appeals the federal court's denial of his motion to remand the action to state court and dismissal on res judicata grounds. We affirm the district court's judgment in No. 81-7656 and vacate and remand the district court's denial of the motion to remand in No. 81-8042.

Lewis Coker began working for Major Gas Company, a corporate predecessor of Amoco, in 1964 as a route salesman. His

Page 1437

duties included selling and distributing liquified petroleum (LP) gas and other merchandise ("Class A" merchandise) to private and industrial customers in areas designated by the company for each salesman. As part of their compensation, Amoco employees participated in a comprehensive benefit plan including a pension plan and life and health insurance coverage. An employee qualified for benefits under the retirement program when he accumulated seventy-five points.

At the trial of the ADEA case, Coker adduced evidence that at the time of his termination, he was fifty-seven years old and had accumulated seventy-one of the required seventy-five points. In order to earn the four additional points, Coker would have needed to work an additional twenty-one months. In 1973, Joe Bearden, Amoco's territorial manager and Coker's supervisor, and Vernon Hargrove, Amoco's Area Sales Manager, began evaluating salesmen on the basis of annual review forms. The forms used until 1975 did not ask any questions concerning the employee's age. Coker received an overall excellent rating in 1974 and an "above average" rating in 1975. The form which Bearden and Hargrove began using in 1976 included questions regarding the employee's years in service and age.

Amoco argues that in 1978, it decided to reduce costs by discharging a salesman. Amoco asserts that it based its decision to terminate Coker on the amount of LP gas and Class A merchandise sales which he had made during 1977 and the first five months of 1978 compared to those of other salesmen. Coker's LP gas sales were the lowest for this period and his sales of Class A merchandise were lowest in 1978 and next to lowest in 1977. Amoco also discharged Jimmy Culbert, a thirty-five year old route salesman, on the same day.

Coker argued to the jury that he was discharged on the basis of age discrimination. He noted that in 1975, Jaffee-Wohl, Coker's largest LP gas customer, switched to natural gas. Despite this loss, Amoco neither reduced Coker's sales goal nor gave Coker any new customer to offset this loss, though Amoco allegedly reduced other sales quotas when younger employees lost customers in similar circumstances. Coker also noted that Amoco did not rehire him for similar positions that became available shortly after his termination.

At the conclusion of the plaintiff's case, Amoco unsuccessfully moved for a directed verdict. The defendant did not, however, renew this motion after presenting its case. Coker did not present any rebuttal evidence. Despite not having filed a motion for directed verdict after presenting its evidence, Amoco argues that the evidence was insufficient to support the jury's verdict. It is well-established, however, that an appellate court cannot examine the sufficiency of the evidence supporting the jury's verdict unless the objecting party filed a timely motion for directed verdict with the trial court. Quinn v. Southwest Wood Products, Inc., 597 F.2d 1018, 1024 (5th Cir.1979); Special Promotions, Inc. v. Southwest Photos, Ltd., 559 F.2d 430, 432 (5th Cir.1977); Little v. Bankers Life and Casualty Co., 426 F.2d 509, 510-11 (5th Cir.1970). We may inquire into whether any evidence supported submission of the issue but we may not question the sufficiency of whatever evidence we do find. We must limit our examination to whether the trial court committed plain error which, if not noticed, would result in a manifest miscarriage of justice. Special Promotions, Inc., 559 F.2d at 432; Little, 426 F.2d at 511.

Amoco asserts that we should not apply this standard since it presented only one witness whose testimony comprises only nine pages of the transcript after making its directed verdict motion. See Martinez Moll v. Levitt & Sons of Puerto Rico, Inc., 583 F.2d 565, 569 (1st Cir.1978); Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 971 (1st Cir.1969) (requirement of directed verdict motion at end of all the evidence could be deemed nonessential upon a showing of a court's continuing disinclination to grant such a motion). We decline to adopt this position. Federal Rule of Civil Procedure

Page 1438

50(b) clearly requires a movant to file a directed verdict motion at the end of all the evidence in order to challenge the sufficiency of the evidence on appeal. The length of a movant's evidentiary presentation or demonstration, after the fact, that compliance would probably have been futile does not satisfy the rule's requirement. 1 See Martinez Moll, 583 F.2d at 569.

In order to establish a prima facie case of age discrimination in a reduction-in-force situation, plaintiff must: (1) show that he belongs to the statutorily protected age group (40-70); (2) show that he was discharged or demoted; (3) demonstrate that he was qualified to assume another position at the time of his discharge or demotion; and (4) produce evidence, circumstantial or direct, from which a fact finder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue. Hedrick v. Hercules, Inc., 658 F.2d 1088, 1094 (5th Cir. Unit B 1981); Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir. Unit B 1981). To satisfy this final requirement, plaintiff must present evidence from which a fact finder might reasonably conclude either that the defendant consciously refused to consider retaining or relocating a plaintiff because of his age or that defendant regarded age as a negative factor in such consideration. Hedrick v. Hercules, Inc., 658 F.2d at 1094; Williams v. General Motors Corp., 656 F.2d at 129-30. In the case at bar, Coker presented evidence satisfying each of the elements of a prima facie case. We therefore affirm the judgment in No. 81-7656.

No. 81-8042 presents problems concerning both removability and the res judicata effect of No. 81-7656. Coker filed his complaint in state court alleging fraud and breach of contract. This was on June 22, 1979, three months after he filed his ADEA complaint and ten months before the trial in the ADEA case commenced. In the state court complaint, Coker alleged that unnamed in-state defendants had participated in the alleged fraud and breach of contract. The state court denied Amoco's motion for partial summary judgment against the unnamed defendants on March 31, 1980. On April 23, 1980, Coker filed a motion to amend his complaint in the ADEA case to allege that Amoco, Standard Oil of Indiana and unnamed agents, servants, and/or employees defrauded him and breached agreements. By this motion, Coker sought to bring the two claims together in the federal court. The federal court denied the motion on the ground of lack of jurisdiction but stated that the order "in no way effects the rights of the parties to proceed in any other forum." On September 15, 1980, four months after the proposed amendment and fifteen months after the state action had been filed, Amoco petitioned to remove the fraud/breach of contract action to federal court. Noting that the presence of fictitious resident defendants destroyed diversity jurisdiction, Amoco filed a motion to strike the fictitious parties as defendants. On December 3, 1980, Coker moved to remand the action and on December 23, 1980 filed a motion to amend this complaint to substitute Joe Bearden and Vernon Hargrove for the unnamed defendants. On January 9, 1981, the district court denied both of Coker's motions. On February 19, the court granted Amoco's motion to dismiss the fictitious defendants. On November 17, 1981, the district court dismissed the action on res judicata grounds holding that the prior decision in the ADEA case barred litigation of these claims which might have been raised in the ADEA action.

As a preliminary matter, we must determine whether the removal petition,...

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