Cooley v. Carmike Cinemas, Inc.

• Decision Date: 14 June 1994
• Docket Number: No. 93-5110,93-5110
• Citation: 25 F.3d 1325
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 46, 64 Empl. Prac. Dec. P 43,151, 39 Fed. R. Evid. Serv. 950 Aaron COOLEY, Plaintiff-Appellee, v. CARMIKE CINEMAS, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1325

25 F.3d 1325

65 Fair Empl.Prac.Cas. (BNA) 46, 64 Empl.

Prac. Dec. P 43,151,

39 Fed. R. Evid. Serv. 950

Aaron COOLEY, Plaintiff-Appellee, v. CARMIKE CINEMAS, INC., Defendant-Appellant.

No. 93-5110.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 6, 1993.

Decided June 14, 1994.

Anita B. Hardeman (briefed), Harry F. Burnette (argued), Michael S. Pineda, Brown, Dobson, Burnette & Kesler, Chattanooga, TN, for plaintiff-appellee.

Sam C. Elliott (briefed), Gearhiser, Peters & Horton, Chattanooga, TN, Daniel S. Reinhardt (briefed), William N. Withrow (argued and briefed), Jana E. Hubbard (briefed), Troutman Sanders, Atlanta, GA, for defendant-appellant.

Before: BOGGS and NORRIS, Circuit Judges; and BELL, District Judge. ^*

BOGGS, Circuit Judge.

This appeal stems from an action claiming wrongful termination, brought under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. Secs. 621-634, and the Tennessee Human Rights Act (THRA), Tenn.Code Ann. Secs. 4-21-101 to -806 (1991 & Supp.1993). A jury returned a verdict for the terminated employee of about $500,000, and the employer appeals. For the reasons set forth below, we affirm.

I

Aaron Cooley had worked for the same theater chain since 1953, working his way up from "popcorn man" to Chattanooga city manager, when the chain came under new management in 1982. The new owner, Carmike Cinemas ("Carmike"), was headed by Michael Patrick, the president, chief executive officer, and principal stockholder. ¹ Cooley continued in his job, supervising eighty-five employees, and handling everything from auditing ticket sales to advertising to maintenance. In his trial court testimony, Cooley spoke proudly of his 80-hour work week and of his devotion to his job. He testified that he had even changed his planned wedding date in 1956 to accommodate a prior board chairman's request that he relocate from Florida to Georgia by a certain date. As Carmike's Chattanooga city manager, Cooley answered to Lloyd Reddish, the district manager. Reddish's direct superior in 1988 was Buren ("Tiny") Eidson, the division manager.

In December 1988, in the face of competition from other movie theaters in the Chattanooga area, Eidson ordered Cooley to run a full daily schedule of five shows, consisting of three matinees and two evening screenings, through the Christmas season. Cooley passed along the information to Reddish, his district manager. Eidson wanted the first matinee to be shown on Christmas Day, too, but Reddish, who had decided in previous years not to screen the early show on Christmas, indicated to Cooley that, despite the new directive, the Chattanooga district would continue to drop the early Christmas matinee, just as it had done in the past. Based on his immediate superior's decision, Cooley placed advertising in the local newspaper that omitted the early matinee from the Christmas Day schedule.

On Wednesday, December 21, Reddish reversed himself and told Cooley that Carmike management was insistent that the fifth showing be screened on Christmas Day; therefore, the local theater would indeed have to run the full schedule. Cooley tried to reach his account representative at the newspaper in which he advertised to insert the extra showing time. He phoned a number of times. Unfortunately, the receptionist who answered his calls insisted that no one but Cooley's direct sales representative had the authority to change an advertisement that he had already placed, and that representative could not be reached. When Cooley explained the logistical problem to his district manager, Reddish decided to leave the advertisement as it was and to drop the first show, after all.

The early matinee was not screened on Christmas Day. Eidson fired Cooley.

At trial, Eidson testified that he investigated the entire incident, calling the newspaper and also talking to Cooley. As a result, he testified that he decided on January 2 to fire Cooley, and he hired the new city manager only after reaching that determination. However, Reddish testified at deposition ² that he had already been told on December 31 to fire Cooley, even though he responded that management was "firing the wrong person. I'm the person that you should be firing because I made the decision not to run the first show." Moreover, Melvin Cates testified that he was hired on December 31 to replace Cooley and that he arrived in Chattanooga on January 1, all before Cooley's January 2 dismissal.

Carmike maintains that it fired Cooley primarily for three manifestations of "insubordination": (1) he failed to change the newspaper advertisement; (2) he did not screen the first Christmas show; and (3) he ran ads on AM radio despite clear instructions that he was to purchase FM radio time only. However, the jury believed Cooley's version of events, supported by testimony that he tried to change the display ad and that he merely followed Reddish's directions. Moreover, Cooley showed that he had complied with corporate policy and had purchased FM time exclusively; the FM station, for its own promotional reasons, "threw in" additional advertising on its AM station as part of a "package" that it offered all its advertisers.

The jury believed Cooley's contention that Carmike's Christmas story was humbug and that he was really fired as part of a corporate effort to clear out older employees. In the course of proving his contention, Cooley testified that Patrick despised older people. For example, he related that Reddish, who had previously held the higher corporate position of vice president and general manager in Columbus, Georgia, had once told him of a strange conversation with Patrick that had taken place on a Thanksgiving Day. As Cooley remembered it, Reddish said to him:

"[On] Thanksgiving [Patrick] made the statement, 'I got to go over to my mom's and dad's and have lunch today with them.... I don't want to go.' "

[Reddish] said, "Well, Mike, why? This is Thanksgiving."

And [Patrick's] words were, " 'Well, my grandmother is over there, and I just don't want to be--I don't like to be around old people.' "

Cooley further testified that, back in 1968, when Patrick was eighteen-years-old, he had come out of the movie theater after seeing "Wild in the Streets" ³ and said to Cooley, "Yeah, I believe that. Everybody over 30 years old needs to be put in a pen. Yeah, if they don't want to be put in a pen, they should be confined to a concentration camp."

The jury, persuaded that Cooley was fired because of his age, found that Patrick and Carmike had violated the ADEA and awarded Cooley $116,363 in back pay, $249,741 in front pay, $85,000 for mental distress, plus interest and costs. The district judge later assessed Carmike an additional $65,837 in attorney's fees and costs. Carmike appeals from certain evidentiary rulings made by the district judge; from a portion of the jury instructions; and from the jury award, which it characterizes as "excessive."

II

In evaluating age-discrimination claims, this court applies the four-step "McDonnell Douglas Test." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Ang v. Procter & Gamble Co., 932 F.2d 540, 548 (6th Cir.1991); McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th Cir.1990). Under this test, to establish a prima facie case of age discrimination, the plaintiff bears the initial burden to prove by a preponderance of the evidence that: (1) he was at least 40 years of age at the time of the alleged discrimination ("a member of a protected class"); (2) he was subjected to adverse employment action; (3) he was qualified for the position; and (4) he was replaced by a younger person. Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 376, 121 L.Ed.2d 287 (1992).

Once the plaintiff proves his prima facie case, the burden shifts to the employer to "articulate some legitimate non-discriminatory reason for the employee's discharge." The employer need not persuade the court that it was actually motivated by the proffered reasons. West v. Wright Constr. Co., 756 F.2d 31, 33 (6th Cir.1985). It is sufficient if the employer raises a genuine issue of fact as to whether or not it discriminated. The explanation must be legally sufficient to justify a judgment for the defendant. Ibid. "Where two or more alternative and independent legitimate, nondiscriminatory reasons are articulated by the defendant employer, the falsity or incorrectness of one may not impeach the credibility of the remaining articulated reason(s)." Sims v. Cleland, 813 F.2d 790, 793 (6th Cir.1987). If the employer meets the burden of articulation, then the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the reason proffered by the employer was not its true reason but merely a pretext for discrimination. Ang, 932 F.2d at 548.

A plaintiff can prove pretext "by showing that the Company's reasons have no basis in fact, or if they have a basis in fact, by showing that they were not really factors motivating the discharge, or, if they were factors, by showing that they were jointly insufficient to motivate the discharge." Ridenour v. Lawson Co., 791 F.2d 52, 56 (6th Cir.1986) (quoting La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1414-15 (7th Cir.1984)). "The trier of fact may rely on the evidence introduced to establish the prima facie case and any inferences properly drawn therefrom." Ibid.

In this case, Carmike claims that it more than met its burden of articulation, presenting at least three legitimate non-discriminatory reasons for Cooley's discharge. Although the jury found those reasons to be pretextual, Carmike contends that the weight of the admissible evidence did not support the jury's finding that the company had discriminated. Rather, Carmike maintains, the court abused its discretion under Federal Rule of Evidence 403 and committed reversible error...