Deloach v. Delchamps, Inc.

• Decision Date: 06 April 1990
• Docket Number: 89-4708,Nos. 89-4157,s. 89-4157
• Parties: 52 Fair Empl.Prac.Cas. 1121, 53 Empl. Prac. Dec. P 39,834, 58 USLW 2675, 29 Fed. R. Evid. Serv. 1210 Richard DELOACH, Plaintiff-Appellee, Cross-Appellant, v. DELCHAMPS, INC., Defendant-Appellant, Cross-Appellee. Richard DELOACH, Plaintiff-Appellant, v. DELCHAMPS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 815

897 F.2d 815

52 Fair Empl.Prac.Cas. 1121,

53 Empl. Prac. Dec. P 39,834, 58 USLW 2675,

29 Fed. R. Evid. Serv. 1210

Richard DELOACH, Plaintiff-Appellee, Cross-Appellant, v. DELCHAMPS, INC., Defendant-Appellant, Cross-Appellee.

Richard DELOACH, Plaintiff-Appellant, v. DELCHAMPS, INC., Defendant-Appellee.

Nos. 89-4157, 89-4708.

United States Court of Appeals, Fifth Circuit.

April 6, 1990.

William C. Tidwell, III, Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, Ala., Joel E. Gooch, Allen, Gooch, Bourgeois, Breaux & Robinson, Lafayette, La., for defendant-appellant, cross-appellee.

Sue Fontenot, Abbeville, La., Anthony D. Moroux, Moroux, Domengeaux & Davis, Lafayette, La., for plaintiff-appellee, cross-appellant.

Appeals from the United States District Court for the Western District of Louisiana.

Before GEE, REAVLEY and GARWOOD, Circuit Judges.

REAVLEY, Circuit Judge:

Defendant Delchamps, Inc. ("Delchamps") appeals the denial of its motion for a new trial after a jury found that it had discharged plaintiff Richard Deloach, a former employee, in violation of the Louisiana Age Discrimination in Employment Act ("LADEA"). La.Rev.Stat.Ann. Secs. 23:971-:975 (West 1985 & Supp.1990). Delchamps also appeals the award of front pay. Plaintiff cross-appealed the denial of general and liquidated damages and the denial of attorney's fees. Deciding the district court did not abuse its discretion in denying the motion for a new trial, we affirm the award of back pay. Deciding an award of front pay appropriate, but the specific amount unsupported, we remand on that issue. The denial of general and liquidated damages and attorney's fees is affirmed.

Background

Delchamps operates retail grocery stores. Each store is under the direct supervision of a Store Manager. The stores are organized into areas and are supervised by Area Supervisors. The areas are organized into zones, which are supervised by Zone Managers.

In 1958, at the age of nineteen, Deloach began working for Delchamps as a stock clerk. Over approximately the next nine years, he rose through the ranks to become a Store Manager. He managed a store in Alabama for eleven years and then relocated to Lafayette, Louisiana where he ultimately opened two new stores. In 1981, Deloach was promoted to Area Supervisor. In that position he continued to supervise several existing stores in Louisiana and the opening of new stores. In 1986, Emmett Easterling was promoted from Louisiana Zone Manager to Director of Supermarket Operations. Although Deloach was the most senior Area Supervisor in Louisiana, the Zone Manager position was awarded to Richard Pridgen, who was fifteen years younger than Deloach and had three years less experience as an Area Supervisor. Eight weeks after Pridgen was promoted, he recommended to Easterling that Deloach be fired for "ineffective job performance." Easterling concurred in the decision and obtained further approval from Mack Rhodes, the Vice-President of Operations. Deloach was discharged on June 16, 1986. At that time he was forty-seven years old, had worked for Delchamps twenty-eight years, and had two years until his pension would vest. Deloach was replaced by William Fairchilds, who was thirty-two years old. Deloach immediately found other employment with a grocery wholesaler, although at reduced pay and benefits.

Deloach originally brought a wrongful discharge suit, which was dismissed with prejudice. He then brought this diversity action, claiming that he had been discharged in violation of the LADEA. He subsequently filed an amended complaint adding additional claims for, among other things, general and liquidated damages. All the added claims were dismissed and the case was tried to a jury. The district court determined that the amount of front pay presented an equitable issue for the court to decide, but submitted it to the jury in an advisory capacity.

The jury found that age was a determinative factor in Deloach's discharge and that he was entitled to $46,500 in back pay and $494,000 in front pay. The court then found that Deloach was entitled to no more than five years front pay and determined that he would be adequately compensated with $215,000. On November 17, 1988, judgment was entered for the plaintiff, awarding him $46,500 in back pay and $215,000 in front pay. ¹ The judgment additionally stated that Deloach was entitled to attorney's fees in an amount that would be determined subsequently.

Delchamps' post-trial motions to vacate the jury verdict and to grant a new trial or in the alternative to grant conditionally a new trial on the issue of front pay were denied. Delchamps appealed and Deloach cross-appealed. In later proceedings to determine the award of attorney's fees, the district court noted that there may not be a statutory basis for awarding attorney's fees and requested briefing on that issue. On August 11, 1989, a Memorandum Ruling was issued, denying Deloach attorney's fees. A final judgment based upon that Memorandum was entered on September 13, from which Deloach appeals. The two appeals have been consolidated.

Discussion

Although this case was brought pursuant to the LADEA, there is little case law offering interpretive guidance for that statute. However, because the Louisiana statute is essentially patterned after the federal Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 ("ADEA"), we have looked to federal precedent when appropriate.

I. Age Discrimination

Disparate treatment cases, such as this, are analyzed under the test developed for Title VII plaintiffs in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). See, e.g., Thornbrough v. Columbus & G.R.R., 760 F.2d 633, 638-39 (5th Cir.1985). Under McDonnell Douglas, a plaintiff creates a rebuttable presumption of discrimination by establishing a prima facie case. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). A prima facie case of employment discrimination based on age requires showing: (1) that the plaintiff is between forty and seventy years of age, see La.Rev.Stat.Ann. Sec. 23:972 G (West 1985); (2) that he was qualified for the job at issue; and (3) that an employee outside the protected class was treated more favorably. See, e.g., McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Thornbrough, 760 F.2d at 638-39.

An employer may rebut that presumption by articulating some legitimate, nondiscriminatory reason for its action. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. If an employer carries that burden, the plaintiff may establish discrimination by showing that the reason is merely pretextual and that age was a determinative reason for the employer's action. Id. at 256, 101 S.Ct. at 1095; Laurence v. Chevron, U.S.A., Inc., 885 F.2d 280, 283 (5th Cir.1989).

A. Evidence

The parties do not dispute that Deloach established a prima facie case of employment discrimination based on age. Delchamps argues, however, that the great weight of the evidence demonstrates that Deloach was terminated for legitimate reasons and that age was not a determinative factor in his discharge.

Deloach was officially terminated for "ineffective job performance." The specific problems stemmed from an alleged inability to give his subordinates the leadership, direction, and development they needed. According to his supervisors, Deloach was unable to select and train managers sufficiently to ensure that Delchamps' policies and procedures would be implemented. They also claimed that his employees were losing confidence in him because he was not responsive to their complaints and that he was unable to discipline managers who did not keep clean, well-stocked stores. Consequently, they claimed that the stores he managed were poorly organized and that he was unable to control overtime costs and grocery shrink. ² To support these claims, Delchamps presented the testimony of the three supervisors who had concurred in the termination decision, Mack Rhodes, Richard Pridgen, and Emmett Easterling. Each verified the reasons offered for termination and denied considering age as a factor in any of the relevant employment decisions. Delchamps also offered seven supervisory reports written by Easterling describing Deloach's faulty performance and one report written by Pridgen reflecting the same problems. Additionally, Delchamps presented several witnesses who testified to the poor conditions in the stores that Deloach supervised and the difficulty they had in getting Deloach to respond to their complaints. Several witnesses also testified that both store conditions and responsiveness improved dramatically following Deloach's replacement.

The decision to terminate apparently originated with Pridgen, who testified that the decision was based upon his personal view of the conditions in Deloach's stores and the previous reports that had been written by Easterling. Under the Store Managers Operations Manual, which Pridgen conceded applied to higher supervisory personnel, an employee who is to be discharged for violating company policy should be informed of the violation and suspended, pending investigation and review of the violation. Additionally, although Rhodes, Easterling, and Pridgen apparently had differing views on exactly how supervisory reports were to be used, their testimony indicated that reports generally are used as training tools rather than disciplinary tools. Rhodes testified that employees should always be given copies and Pridgen testified that he would only have an employee sign a supervisory report if it involved serious problems.

To show that Delchamps' reasons were pretextual, Deloach pointed out several irregularities in the circumstances regarding his discharge. Deloach noted that only two of the supervisory reports were signed. He testified that he had never been told that five of Easterling's reports were being...