Cox v. Dubuque Bank & Trust Co., 98-1477

• Citation: 163 F.3d 492
• Decision Date: 22 December 1998
• Docket Number: No. 98-1477,98-1477
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1229, 74 Empl. Prac. Dec. P 45,680 Holly COX, Appellee, v. DUBUQUE BANK & TRUST COMPANY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 492

163 F.3d 492

78 Fair Empl.Prac.Cas. (BNA) 1229,

74 Empl. Prac. Dec. P 45,680

Holly COX, Appellee, v. DUBUQUE BANK & TRUST COMPANY, Appellant.

No. 98-1477.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 15, 1998.

Decided Dec. 22, 1998.

David L. Charles, Des Moines, IA, argued (James R. Swanger and Margaret C. Callahan, on the brief), for Appellant.

Dorothy O'Brien, Davenport, IA, argued, for Appellee.

Before BOWMAN, Chief Judge, HANSEN, Circuit Judge, and VIETOR, ¹ District Judge.

BOWMAN, Chief Judge.

Holly Cox sued her former employer, Dubuque Bank and Trust ("DB & T" or "the Bank"), alleging the Bank had discharged her on the basis of her age and sex in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (1994), and Title VII of the Civil Right Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1994). A jury found for Ms. Cox on her ADEA age-discrimination claim, and the District Court entered judgment on the jury verdict. DB & T appeals, claiming the District Court erred when it (1) denied the Bank's motion for judgment as a matter of law; (2) refused to give a jury instruction the Bank proposed regarding an employer's right to make reasonable inquiries into an employee's retirement plans; and (3) refused to order Ms. Cox's reinstatement and instead calculated Ms. Cox's front pay in a manner DB & T contends was improper. This Court concludes the District Court erred when it denied the Bank's request that a jury instruction be given regarding an employer's right to make reasonable inquiries into an employee's retirement plans. Therefore, the case is reversed and remanded for a new trial.

I.

Because the Bank has appealed on the grounds it was entitled to judgment as a matter of law, we recite the facts of this case in the light most favorable to the jury verdict. See Newhouse v. McCormick & Co., 110 F.3d 635, 639 (8th Cir.1997). Ms. Cox was born on June 20, 1943, and started working for DB & T as a teller at its Main Bank in July 1968. She received a series of promotions, and in 1984 transferred from the Main Bank to serve as a loan officer and branch manager at the Plaza Branch, one of DB & T's four branches. Subsequently, the Bank made a number of changes to its organizational structure that affected Ms. Cox's title and duties. The Bank stopped designating individuals as branch managers, and it converted its loan officers into financial service counselors, who, in addition to lending responsibilities, had deposit duties and actively attempted to sell the Bank's retail services to deposit customers. By 1994, when the Bank discharged Ms. Cox, she was working as a loan officer and financial service counselor at the Plaza Branch.

In 1987, while she was working at the Plaza Branch, Ms. Cox became engaged to and subsequently married Don Cox. Mr. Cox served as an agency manager for State Farm Insurance Company and did considerable work with DB & T. Mr. Cox also socialized with several Bank officers and employees, who--because Mr. Cox was ten years older than Ms. Cox--believed Mr. Cox would soon retire. Soon after Ms. Cox's engagement, when Ms. Cox was in her mid-forties, these Bank officers and employees started referring to Ms. Cox as a "short-timer" and asking her if she planned to retire when her husband retired. Ms. Cox denied that she had such plans, but the rumor spread and DB & T employees persisted in asking Ms. Cox about her alleged impending retirement. Ms. Cox testified that, despite her denials, she was asked or heard comments about her retirement plans almost every week for more than two years.

On June 21, 1994, one day after Ms. Cox turned fifty-one years old, DB & T officers informed her that the Bank, based on responses to a customer survey, would close the Plaza Branch in November 1994. The Bank also informed Ms. Cox that it would have no position for her after the branch closed. However, the Bank did relocate all other Plaza Branch employees, including two tellers, a teller-supervisor, and nineteen or twenty employees from the Bank's Trust Department, which had been located in a storefront next to the Plaza Branch.

Ms. Cox timely filed a claim with the Iowa Civil Rights Commission and the Equal Employment Opportunity Commission. Upon receiving a right-to-sue letter, Ms. Cox filed suit against DB & T, alleging it had discriminated against her on the basis of her age and sex in violation of the ADEA and Title VII. To prove her age discrimination claim, Ms. Cox offered evidence that can be grouped in five categories. First, Ms. Cox introduced evidence that she, a member of the class protected by the ADEA, was the only Bank employee working at the Plaza Branch who was not offered another position at DB & T when it closed the branch. Second, Ms. Cox introduced evidence that, after she became engaged to Mr. Cox, she repeatedly had been referred to as a "short-timer" and asked by her co-workers and supervisors if she intended to retire at the same time as her husband. Third, Ms. Cox introduced evidence that in March 1994 DB & T hired two financial service counselors younger than Ms. Cox, and, after closing the Plaza Branch, retained both these employees instead of Ms. Cox, although the new financial service counselors had not yet assumed permanent duties. Fourth, Ms. Cox introduced evidence that her supervisor, twenty-seven-year-old Lisa Stevenson, had shown animosity toward Ms. Cox, and Ms. Cox introduced evidence from which a jury could infer that the animosity was based on age. For example, Ms. Cox showed Ms. Stevenson voiced reservations about supervising Ms. Cox, doubted Ms. Cox's ability to perform as a financial services counselor, and entered a series of memoranda critical of Ms. Cox's performance into Ms. Cox's personnel file without notifying Ms. Cox. In one of these memoranda, produced by Ms. Cox at trial, Ms. Stevenson said Ms. Cox's decades of banking experience were "irrelevant" to her performance as a financial service counselor. Finally, Ms. Cox introduced testimony that some Bank officers blamed Ms. Cox's discharge on her job performance, and she introduced evidence tending to show these claims were pretextual.

After a three-day trial, a jury returned a verdict finding the Bank had violated the ADEA by discriminating against Ms. Cox on the basis of her age when it discharged her. (The jury found for DB & T on the sex discrimination claim and a sex-and-age discrimination claim; these findings are not appealed.) The jury awarded Ms. Cox $20,000 in back pay. The District Court added $69,498.31 in front pay, $52,805.50 in attorney fees, and $4,246.12 in costs. DB & T moved for a judgment as a matter of law or a new trial. When the District Court denied this motion, DB & T appealed.

II.

DB & T first argues that the evidence of age discrimination presented at trial was not sufficient to sustain a verdict in Ms. Cox's favor, and that the District Court erred when it denied the Bank's motion for judgment as a matter of law. This Court reviews de novo a district court's denial of judgment as a matter of law. See Cross v. Cleaver, 142 F.3d 1059, 1066 (8th Cir.1998). Applying the same standard as the district court, this Court must determine whether Ms. Cox presented evidence sufficient to allow a reasonable jury to find that the Bank had discriminated against her on the basis of her age. See Newhouse, 110 F.3d at 639. This Court must affirm the jury's verdict unless, "after viewing the evidence in the light most favorable to the verdict, we conclude that no reasonable juror could have returned a verdict for the non-moving party." Id. (quoting Ryther v. KARE 11, 108 F.3d 832, 835 (8th Cir.) (en banc), cert. denied, 521 U.S. 1119, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997)).

After viewing the facts of this case in the light most favorable to Ms. Cox, this Court cannot conclude that no reasonable juror could find in her favor. After showing that she was a member of the class protected by the ADEA, Ms. Cox presented evidence that she was the only Bank employee not retained when DB & T closed the Plaza Branch. The Bank had found positions for all the other Plaza Branch employees, but said it could not find a position for her, an experienced and competent financial service counselor, despite the fact that it anticipated finding positions for two new, younger, unassigned financial service counselors. In addition, Ms. Cox presented evidence that Bank employees and officers, including those with decision-making authority regarding her employment, repeatedly asked Ms. Cox when she would retire and indicated they expected her to retire soon. Ms. Cox also presented testimony from which a reasonable juror could find that Ms. Cox's immediate supervisor, Lisa Stevenson, showed animosity toward Ms. Cox on the basis of her age, and that this age-based animosity might have been a cause for Ms. Cox's discharge.

This Court has some doubts regarding the sufficiency of Ms. Cox's evidence, particularly since two of the employees relocated by DB & T after the closing of Plaza Branch were older than Ms. Cox and one of the new, younger financial service counselors was only two years younger than Ms. Cox. However, we cannot conclude that no reasonable juror could find that DB & T had discriminated against Ms. Cox on the basis of her age when it discharged her. This Court therefore finds there is sufficient evidence to uphold the jury's verdict, and affirm the District Court's denial of the Bank's motion for judgment as a matter of law.

III.

Since this Court has found the evidence sufficient to uphold the jury's verdict, and thus cannot grant DB & T judgment as a matter of law, we must next determine if the District Court properly instructed the jury. At the instructions conference, DB & T asked the District Court to instruct the jury regarding an employer's right to make reasonable inquiries into an employee's retirement plans. The Bank proposed the...