Cooper v. Asplundh Tree Expert Co.

• Decision Date: 15 January 1988
• Docket Number: Nos. 85-2316,85-2369,s. 85-2316
• Citation: 836 F.2d 1544
• Parties: 45 Fair Empl.Prac.Cas. 1386, 45 Empl. Prac. Dec. P 37,725, 56 USLW 2414, 10 Fed.R.Serv.3d 430, 24 Fed. R. Evid. Serv. 875 Joe E. COOPER, Plaintiff-Appellee/Cross-Appellant, v. ASPLUNDH TREE EXPERT COMPANY, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1544

836 F.2d 1544

45 Fair Empl.Prac.Cas. 1386,

45 Empl. Prac. Dec. P 37,725, 56 USLW 2414,

10 Fed.R.Serv.3d 430, 24 Fed. R. Evid. Serv. 875

Joe E. COOPER, Plaintiff-Appellee/Cross-Appellant, v. ASPLUNDH TREE EXPERT COMPANY, Defendant-Appellant/Cross-Appellee.

Nos. 85-2316, 85-2369.

United States Court of Appeals,

Tenth Circuit.

Jan. 15, 1988.

Richard G. McManus, Jr., of Miles, McManus & Epstein, Denver, Colo., for defendant-appellant/cross-appellee Asplundh Tree Expert Co.

Jeffrey Menter, Denver, Colo., for plaintiff-appellee/cross-appellant Joe E. Cooper.

Before LOGAN, BARRETT, and ANDERSON, Circuit Judges.

LOGAN, Circuit Judge.

Joe E. Cooper brought this action against his former employer, Asplundh Tree Expert Company (Asplundh), under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634, alleging that Asplundh willfully discriminated against Cooper in firing him. A jury, answering special interrogatories, found both that Asplundh intentionally discriminated against Cooper and that such discrimination was willful. The district court denied Asplundh's motion for judgment n.o.v. and subsequently entered judgment for Cooper in the amount of $32,000 for back pay, an additional $32,000 in liquidated damages, $63,000 in front pay, and $12,255 in attorney's fees. Both parties have appealed.

On appeal Asplundh challenges the sufficiency of the evidence to support the jury's verdict on liability and willfulness. Asplundh alleges that the trial court erred when it allowed the testimony of a witness who was not listed on the court's pretrial order, when it permitted that witness to testify about another witness' reputation for truthfulness, and when it allowed Cooper's counsel to read during closing argument from an affidavit not admitted into evidence. Asplundh also asserts that the trial court improperly awarded front pay, erred in not setting off an arbitral award previously entered in Cooper's favor, erred in not setting off Cooper's unemployment compensation, and improperly awarded attorney's fees.

Cooper, on cross-appeal, argues that the district court improperly refused to award liquidated damages in connection with his front pay award.

I

In reviewing a district court's denial of a motion for a judgment n.o.v., we may find error only when the evidence points but one way and is susceptible to no reasonable inferences sustaining the position of the party against whom the motion is made. EEOC v. Prudential Federal Savings & Loan Ass'n, 763 F.2d 1166, 1171 (10th Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985). While a scintilla of evidence is not enough, we must affirm if evidence was before the jury upon which it could properly find against the movant. Hurd v. American Hoist & Derrick Co., 734 F.2d 495, 499 (10th Cir.1984).

An employee alleging intentional discrimination under the ADEA must prove that age was a "determinative factor" in the defendant employer's action toward him. Prudential, 763 F.2d at 1171. Age need not be the sole reason for the employer's acts, but plaintiff must show that age "made a difference" in the employer's decision. Perrell v. FinanceAmerica Corp., 726 F.2d 654, 656 (10th Cir.1984).

The proof scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981), applies here. As adapted to an age discrimination ¹ discharge claim, a plaintiff establishes a prima facie case by showing "(1) he is within the protected age group, (2) he was doing satisfactory work, (3) he was discharged despite the adequacy of his work, and (4) his position was filled by a person younger than he." Cockrell v. Boise Cascade Corp., 781 F.2d 173, 177 (10th Cir.1986). The burden of production then shifts to the employer to show a legitimate, nondiscriminatory reason for the challenged action. Id. The plaintiff retains the ultimate burden of persuasion, which he may carry directly by proving that age was more likely than not a determinative factor in the employment decision, or indirectly by establishing that the employer's proffered explanation is mere pretext. Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1542 (10th Cir.1987).

Cooper worked at Asplundh as a foreman from shortly after his hiring in 1966 until his discharge on January 24, 1984. He was forty-nine years old when discharged and was replaced by a worker thirty-two or thirty-three years old. On appeal, only the interrelated second and third elements of the test elucidated above are in issue--whether Cooper was doing satisfactory work at the time of his discharge. Asplundh presented undisputed evidence that Cooper violated company rules by, inter alia, buying food during working hours, wearing spikes while climbing live trees in violation of a Denver ordinance, using personal vehicles on the job site, and failing to have his crew wear hard hats on the job site.

Cooper, however, countered with testimony that Asplundh did not uniformly enforce these rules, thereby raising the inference that Asplundh selectively enforced its rules against Cooper and that the rules were but a pretext to mask age discrimination. Cooper testified that Asplundh had not criticized other crews which bought food during working hours, and Asplundh employees Orville Puterbaugh and Dean Tygrett testified that they did not believe such action violated company policy. Kenneth Williams, who replaced Cooper, testified that he himself wore spikes on live trees in Denver as a safety measure. Puterbaugh testified that company practice was to wear spikes for safety. Puterbaugh further testified that Asplundh did not uniformly enforce its rules against using personal vehicles at job sites and that John Maxwell, an Asplundh supervisor, had told workers they need not wear hard hats. Finally, Cooper countered Asplundh's evidence that his work was sub-par with testimony from three disinterested witnesses that his work was average or better. A Public Service Company report showed Cooper's crew average or above average in most areas. Cooper's evidence, if believed, adequately established the second and third elements of a prima facie case--that Cooper was doing satisfactory work but was nevertheless discharged.

After Asplundh produced evidence that reasonable factors other than age--Cooper's violation of work rules and poor attitude toward management--motivated its decision, Cooper presented sufficient evidence to satisfy his ultimate burden of proof. Steve Kershman, an Asplundh supervisor, admitted at trial that he had remarked that "guys forty years old are too old to work here." II R. 123. While Kershman testified that he made this remark only in jest, another Asplundh employee, Gerald Lopez, testified that Kershman had, in all seriousness, said words to the effect that "people over forty should be fired or gotten rid of." III R. 223. ² Lopez also testified that Kershman favored younger workers, and that he thought age had something to do with Cooper's termination. Cooper testified that in December 1982 Maxwell had described another worker who was over fifty as "just too old for the job," II R. 39. In addition, both Puterbaugh and Hansen testified that Maxwell commented about problems with older workers. We therefore conclude that Cooper presented sufficient evidence that age was a "determinative factor" in his dismissal to support the jury's verdict.

II

Asplundh next challenges the sufficiency of the evidence supporting the jury's finding of a willful violation. The ADEA provides that a plaintiff may recover double or liquidated damages whenever an employer "willfully" violates the Act. 29 U.S.C. Sec. 626(b).

Courts have long struggled to define "willful" under the ADEA. ³ The Supreme Court recently illuminated the issue in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 85 L.Ed.2d 523 (1985). In Thurston, the Court addressed a claim that TWA's personnel reduction policy violated the ADEA. This policy allowed captains under sixty years of age to transfer to the position of flight engineer and, if necessary, to "bump" less senior flight engineers in order to retain a position with TWA. Captains sixty years of age or older were not allowed to transfer to flight engineer positions and were terminated. The Court held that this policy violated the ADEA but concluded that it was not willful. In finding TWA's acts not willful, the Court noted that Congress intended liquidated damages to be "punitive in nature," id. at 125, 105 S.Ct. at 624, and desired a two-tiered liability scheme, with liquidated damages available only for more serious violations. The Court adopted the standard that a violation is willful if "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." Id. at 128, 105 S.Ct. at 625. The Court concluded that TWA's discrimination was not willful because it adopted its retirement policy only after meeting with its lawyers and union officials to determine the legality of the plan. Because TWA officials acted "reasonably and in good faith" in attempting to see whether their plan would violate the ADEA, no willful violation occurred.

Thurston involved a company-wide plan or policy that adversely affected a segment of the work force. In this adverse impact context, the "knew or reckless disregard" standard is particularly useful. A court must focus upon whether the employer formulated its policy in good faith after research and inquiry and in the belief that it comported with the ADEA, or whether the employer made its policy knowing that it violated the ADEA or in reckless disregard of the Act. See, e.g., EEOC v. Wyoming Retirement System, 771 F.2d 1425, 1431 (10th Cir.1985) (liquidated damages inappropriate when defendant relied in good faith on state Attorney...