E.E.O.C. v. Pape Lift, Inc.

• Decision Date: 02 June 1997
• Docket Number: 94-35654,Nos. 94-35603,s. 94-35603
• Citation: 115 F.3d 676
• Parties: 73 Fair Empl.Prac.Cas. (BNA) 1870, 70 Empl. Prac. Dec. P 44,781, 97 Cal. Daily Op. Serv. 4129, 97 Daily Journal D.A.R. 6923 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant-Cross-Appellee, v. PAPE LIFT, INC., d/b/a Hyster Sales Company, Defendant-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 676

115 F.3d 676

73 Fair Empl.Prac.Cas. (BNA) 1870,

70 Empl. Prac. Dec. P 44,781,

97 Cal. Daily Op. Serv. 4129,

97 Daily Journal D.A.R. 6923

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff-Appellant-Cross-Appellee, v. PAPE LIFT, INC., d/b/a Hyster Sales Company Defendant-Appellee-Cross-Appellant.

Nos. 94-35603, 94-35654.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 19, 1995.

Decided June 2, 1997.

James R. Neely, Jr., Gwendolyn Young Reams, Lorraine C. Davis, Jennifer S. Goldstein, Equal Employment Opportunity Commission, Washington, DC, for plaintiff-appellant-cross-appellee.

Dennis W. Percell, Linda J. Kessel, Arnold Gallagher Saydack, Percell & Roberts, Eugene, OR, for defendant-appellee-cross-appellant.

Appeal from the United States District Court for the District of Oregon; Janice M. Stewart, Magistrate Judge, Presiding. No. CV-93-11-JMS.

Before: WALLACE, D. W. NELSON and BRUNETTI, Circuit Judges.

D. W. NELSON, Circuit Judge.

Appellant Equal Employment Opportunity Commission ("EEOC") instituted this action against Appellee Pape Lift ("Pape"), alleging that Pape violated the Age Discrimination in Employment Act ("ADEA") when it discharged Bill Waters, a Pape employee. At the conclusion of the jury trial, the jury returned a verdict for the EEOC, finding that Pape terminated Waters because of his age, and awarding back pay and front pay. Moreover, because the jury found that the violations were willful, it awarded liquidated damages.

Pape then filed a motion for judgment as a matter of law and alternative motions for a new trial and remittitur. The district court granted the motions in part, eliminating the award of front pay and liquidated damages. The court also issued an order reducing the costs to be awarded to the EEOC. The

EEOC and Pape now appeal. We affirm in part, and reverse in part.

BACKGROUND

Bill Waters was in his 24th year of employment with the Hyster Sales Company, a retail outlet for forklift trucks, when Pape purchased the company in August 1990. Waters worked as a general parts and service manager in one of the company's branch offices; his responsibilities included supervising the managers of the parts and service departments. After the purchase, Pape installed Dennis Brown as the new general manager to supervise Waters. In February 1991, Brown told Waters that the company would be eliminating the position of parts and service manager and gave him the option of managing either the parts or the service department. Waters chose the parts department.

Philip Hill, Waters' former supervisor who had been promoted to vice-president for marketing after the Pape purchase, testified that Brown had attempted to transfer Waters from Brown's department to a corporate position under Hill's supervision. Hill maintained that Brown said that "[Waters] was old and burnt out [and] that he was hurting the store image, meaning [Brown's] branch, because [he] did not fit the Pape mold of a young, aggressive type manager like they had in most other management positions." Hill also alleged that Brown told him that age was affecting Waters' memory and that Brown felt Waters was too old to change. When asked whether Brown had told him of any specific problems with Waters, Hill testified that he did not, but that "[h]e just kept saying, 'I don't think Bill fits the mold of the young, aggressive manager.' " Hill testified that since "[Waters] had done an excellent job for me for 20 years," he was "puzzled" by Brown's criticisms, and that he did not understand "why just with the flip of a switch [Waters was] so incompetent." Hill told Brown that he would not interview Waters for the available corporate position because he "viewed [that] job as a potential stepping stone" to his job, and Waters was close to retirement. In addition, the EEOC introduced evidence that Brown had made age-related comments about Waters on other occasions, at different times referring to him as an "old geezer" and "old fart."

Brown terminated Waters on August 7, 1991. He alleges that he came to that decision only as a result of attending the company's mid-year meeting, when he realized that Waters was "not going to change enough to meet the marketing goals of the company." A secretary in the parts department testified that after Waters left Pape, she heard Brown tell the company president "I finally forced Bill Waters out."

Waters then filed an age discrimination complaint with the EEOC. In response to the charge, Pape's personnel service manager, Lee Wood, sent a letter to the EEOC explaining the reasons for Waters' termination; the reasons she gave, however, were inconsistent with those provided by Brown.

After his termination, Waters checked the want ads for new work, but did not, according to the district court and Pape, actively look for work until July 1993. He sent out six letters with resumes and received a response from the manager of a lift truck company interested in hiring Waters as a parts manager. The job would have entailed "several hours waiting on customers" and paid about half of what Waters made at Pape; Waters testified that he "avoided the job." The record suggests that Waters made little effort to seek employment after the fall of 1993.

At trial, the EEOC introduced evidence that called into question both Brown's and Woods' explanations of Waters' termination. In addition, while Pape argued that Waters had failed to mitigate his damages, and presented evidence of available employment opportunities, the EEOC's employment expert challenged the suitability of those positions. The jury returned a verdict for Waters, and awarded back pay, front pay, and liquidated damages. The district court then partially granted Pape's motion for judgment as a matter of law, eliminating the front pay and liquidated damages awards, and reducing the costs to be awarded to the EEOC. Both parties now appeal.

STANDARD OF REVIEW

A district court's decision to grant judgment as a matter of law is reviewed de novo. Montiel v. City of Los Angeles, 2 F.3d 335, 342 (9th Cir.1993). A district court's decision concerning a motion for a new trial is reviewed for an abuse of discretion. Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278, 109 S.Ct. 2909, 2921, 106 L.Ed.2d 219 (1989). Although the court's ruling on an alternative motion for a new trial involves the exercise of some discretion, "a stringent standard applies when the motion is based on insufficiency of the evidence." Venegas v. Wagner, 831 F.2d 1514, 1519 (9th Cir.1987). A motion will be granted on this ground only if the verdict "is against the 'great weight' of the evidence, or 'it is quite clear that the jury has reached a seriously erroneous result.' " Id. (quoting Digidyne Corp. v. Data Gen. Corp., 734 F.2d 1336, 1347 (9th Cir.1984), cert. denied, 473 U.S. 908, 105 S.Ct. 3534, 87 L.Ed.2d 657 (1985)).

A district court's award of costs is reviewed for an abuse of discretion. National Info. Servs., Inc. v. TRW, Inc., 51 F.3d 1470, 1471 (9th Cir.1995). Evidentiary rulings are reviewed for an abuse of discretion and should not be reversed absent some prejudice. City of Long Beach v. Standard Oil Co., 46 F.3d 929, 936 (9th Cir.1995).

DISCUSSION

I. Willfulness of the ADEA Violation

In Hazen Paper Co. v. Biggins, 507 U.S. 604, 617, 113 S.Ct. 1701, 1709, 123 L.Ed.2d 338 (1993), the Supreme Court held that a willful violation of the ADEA would be shown where the defendant "knew or showed reckless disregard" for the matter of whether its conduct was prohibited. In so holding, the Court recognized the continuing vitality of the definition of willfulness adopted in TWA, Inc. v. Thurston, 469 U.S. 111, 126-27, 105 S.Ct. 613, 623-24, 83 L.Ed.2d 523 (1985). Thurston held that this interpretation of willful was consistent with the meaning derived from other criminal and civil statutes. Id.; see, e.g., United States v. Illinois Central R.R. Co., 303 U.S. 239, 242-43, 58 S.Ct. 533, 534-35, 82 L.Ed. 773 (1938) (holding that "willfulness" is to be defined as a disregard for the governing statute and an indifference to its requirements).

Pape argues that there has been no showing of willfulness in this matter, claiming that there is no proof that Brown's comments were uttered in the context of the decision to terminate Waters. Moreover, Pape contends that even if they were, those comments neither prove that Brown was aware of the ADEA nor support an inference that he knew of the potential applicability of the Act.

However, Pape's claims of ignorance are belied by the evidence in this case. After Brown terminated Waters, both he and Pape's personnel director, Lee Wood, appear to have made attempts to conceal evidence of any wrongdoing by offering pretextual reasons for the termination. Not only did they put forward two different sets of reasons for Waters' termination, but the EEOC presented evidence that called into question the veracity of both explanations. The jury was entitled to credit the EEOC's evidence, which supported a conclusion that the discrepant (and perhaps, incredible) responses proffered by Brown and Wood were unsuccessful attempts to mask a statutory violation. Indeed, this apparent subterfuge certainly suggests that both Brown and Wood were aware of Pape's potential liability for Waters' termination.

Moreover, in Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1348 (9th Cir.1987), cert. denied, 484 U.S. 1047, 108 S.Ct. 785, 98 L.Ed.2d 870 (1988), we held that "[w]illfulness may be shown by circumstantial evidence, including statistical evidence and discriminatory statements." The district court in this matter attempted to distinguish Cassino by suggesting that in that case "there was evidence, in addition to age-related comments, from which an inference of knowledge or reckless disregard could be drawn." The Cassino holding, however, was not premised on the notion that discriminatory...