E.E.O.C. v. Liberal R-II School Dist.

• Decision Date: 31 December 2002
• Docket Number: No. 02-1025.,No. 02-1029.,02-1025.,02-1029.
• Citation: 314 F.3d 920
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. LIBERAL R-II SCHOOL DISTRICT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 920

314 F.3d 920

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. LIBERAL R-II SCHOOL DISTRICT, Appellee.

No. 02-1025.

No. 02-1029.

United States Court of Appeals, Eighth Circuit.

Submitted: September 12, 2002.

Filed: December 31, 2002.

Julie L. Gantz, argued, E.E.O.C., Washington, DC, for appellant.

Margaret A. Hesse, argued, St. Louis, MO (Thomas A. Mickes and Stephanie T. Reh, on the brief), for appellee.

Before HANSEN, Chief Judge, RILEY, and SMITH, Circuit Judges.

RILEY, Circuit Judge.

The Equal Employment Opportunity Commission (EEOC) sued the Liberal R-II School District (District) for violating the Age Discrimination in Employment Act (ADEA) when the District failed to renew the contract of 70-year old school bus driver George Trout (Trout). The district court granted summary judgment to the District and awarded it $47,332.50 for attorney fees and expenses under the Equal Access to Justice Act (EAJA). The EEOC appeals. Because sufficient direct evidence of age discrimination exists to create an issue of material fact, we reverse the district court's grant of summary judgment and vacate the order awarding attorney fees.

I. BACKGROUND

In October 1994, the District hired Trout as a school bus driver. At that time, Trout was 66 years old. On April 20, 1998, the District's Board of Education (Board) voted 4-1 not to rehire Trout for the following school year. The Board hired three additional bus drivers between the ages of 39 and 43. A 67-year old bus driver was reassigned to drive Trout's former route.

The Board had the sole legal authority to make the District's hiring and firing decisions. Notwithstanding, the District's superintendent, H.G. Gretlein (Gretlein), also had employee responsibilities. During the April 20 board meeting, Gretlein recommended all employment contracts be renewed, including Trout's. Gretlein was the only non-board member present during the Board's closed door meeting to deny renewal to Trout, but did not participate in the Board's discussion. He was also responsible for informing employees of the Board's decision and indeed informed Trout that the Board had decided not to renew his contract. Gretlein also represented the Board in opposing Trout's application for unemployment benefits.

In May or June 1998 (after the Board's April 20 meeting), Trout alleges he asked Gretlein why he was not going to be employed the following school year and Gretlein said "that the Board thought that [Trout] was too old." Trout also claims Gretlein informed him the Board "felt" he "was too old to drive a bus." Gretlein "absolutely" and "vehemently" denies saying Trout was fired because he was too old. The Board members deny age was discussed and deny Trout's age entered into their decision, citing instead safety concerns.

Trout applied for unemployment benefits after the District did not renew his employment contract. On the District's behalf, Gretlein protested the payment of unemployment benefits to Trout by responding with the following written statement to the Missouri Department of Labor and Industrial Relations, Division of Employment Security:

On behalf of the Liberal R-II School District, I wish to protest the payment of benefits to the above individual. Mr. George Trout had served as a bus driver for the district. The fact that Mr. Trout is now 70½ years of age and that the public had voiced concerns about his driving safety, his continuation as a bus driver for the coming year was not approved by the Board of Education. The Board cited student safety as their reason for Mr. Trout's noncontinuation as a bus driver.

(Emphasis added.) When asked at his deposition why he mentioned Trout's age, Gretlein responded by saying "I really don't know. I assume that it was probably because he was retirement age." Gretlein labeled Trout's assertion that Gretlein had said the Board felt Trout was "too old" as "[l]ibelous, slanderous, whatever the word is." Gretlein did not apply a similar label to his age comment about Trout in the District's unemployment benefits response.

The District claims Trout was not rehired because of safety reasons and explains the Board discussed only safety-related issues when deciding not to renew Trout's employment contract. The District provided evidence Trout drove a bus full of children the wrong way on a highway entrance ramp. Trout claims the ramp's signs were mismarked. The District presented evidence Trout cut off another driver, but Trout claims another bus driver was involved in that incident. The District also alleged Trout pulled out in front of another driver, but Trout claims the other driver was mistaken. In the face of evidence showing Trout was an unsafe driver, the EEOC offered evidence that (1) not all Board members knew about all of these safety issues and (2) the District had not removed younger drivers when safety complaints had been lodged against them.

II. DISCUSSION

A. Standard of Review

The district court's grant of summary judgment to the District must be reviewed de novo, viewing the record in the light most favorable to the EEOC and giving the EEOC the benefit of all reasonable inferences. Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir.1999). This circuit "has repeatedly cautioned that summary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact based." Id. In addition, "[s]ummary judgment should be cautiously granted in discrimination cases because such cases often depend on inferences rather than on direct evidence." Jacob-Mua v. Veneman, 289 F.3d 517, 520 (8th Cir.2002).

The district court's interpretation of the EAJA and its applicability to ADEA actions are legal conclusions that are reviewed de novo. Madison v. IBP, Inc., 257 F.3d 780, 796 (8th Cir.2001), vacated by ___ U.S. ___, 122 S.Ct. 2583, 153 L.Ed.2d 773 (2002) (unrelated issue). The district court's award of attorney fees under the EAJA is reviewed under an abuse of discretion standard. Friends of the Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 884 (8th Cir.1995).

B. Age Discrimination in Employment Act

The ADEA prohibits an employer from discharging "any individual or otherwise discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1) (2000). The ADEA only protects individuals who are at least forty years old. Id. at § 631. The core issue in this case is whether the District intentionally discriminated against Trout based on his age. Kneibert v. Thomson Newspapers, Inc., 129 F.3d 444, 451 (8th Cir.1997).

The EEOC has two methods available to prove the District intentionally discriminated against Trout based on his age. First, the EEOC can utilize the Price Waterhouse method by producing direct evidence that age "played a motivating part in [the District's] employment decision." Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). If the EEOC can produce such direct evidence of age discrimination, "the burden then rests with the [District] to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor." Id. at 276, 109 S.Ct. 1775 (O'Connor, J., concurring); see also id. at 258, 109 S.Ct. 1775.

The second method available to the EEOC to prove intentional age discrimination is the well-established McDonnell Douglas three-part burden shifting analysis, which is used solely for cases devoid of direct evidence of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The McDonnell Douglas analytical framework using circumstantial evidence has developed because direct evidence of discrimination is rare. The Supreme Court has made the following observation: "All courts have recognized that the question facing triers of fact in discrimination cases is both sensitive and difficult.... There will seldom be `eyewitness' testimony as to the employer's mental processes." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). This court has expounded on this observation by explaining that "`[t]here will seldom be eyewitness testimony as to the employer's mental processes' because a shrewd employer will not leave a trail of direct inculpatory evidence for the plaintiff to bring into court." Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir.1996) (quoting Aikens, 460 U.S. at 716, 103 S.Ct. 1478) (alteration in original). A "smoking-gun" case in the discrimination arena is rare. Id.

Is there potential eyewitness testimony as to the Board's mental processes in this case? Has the EEOC presented direct evidence of discrimination in this case so that the Price Waterhouse standard applies? We believe so.

C. Direct Evidence of Age Discrimination

The Supreme Court has defined direct evidence in the negative by stating that it excludes "stray remarks in the workplace," "statements by nondecisionmakers," and "statements by decisionmakers unrelated to the decisional process itself." Price Waterhouse, 490 U.S. at 277, 109 S.Ct. 1775 (O'Connor, J., concurring) ("What is required is ... direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision."). This circuit has stated that "direct evidence may include evidence of actions or remarks of the employer that reflect a discriminatory attitude." Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir.1991) (quoting Gray v. Univ. of Ark., 883 F.2d 1394, 1398 (8th Cir.1989)). In addition, "[c]omments which demonstrate a `discriminatory animus in the decisional process' ... or those uttered by individuals closely involved in employment decisions may constitute direct evidence within the meaning of Price Waterhouse." Beshears, 930...