E.E.O.C. v. Sperry Corp.

• Decision Date: 18 July 1988
• Docket Number: 86-1917,Nos. 86-1869,s. 86-1869
• Citation: 852 F.2d 503
• Parties: 47 Fair Empl.Prac.Cas. 433, 47 Empl. Prac. Dec. P 38,143 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee/Cross-Appellant, v. SPERRY CORPORATION, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 503

852 F.2d 503

47 Fair Empl.Prac.Cas. 433,

47 Empl. Prac. Dec. P 38,143

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee/Cross-Appellant, v. SPERRY CORPORATION, Defendant-Appellant/Cross-Appellee.

Nos. 86-1869, 86-1917.

United States Court of Appeals, Tenth Circuit.

July 18, 1988.

Donna J. Brusoski, Atty. (Johnny J. Butler, Acting Gen. Counsel, Gwendolyn Young Reams, Acting Associate Gen. Counsel, and Mark S. Flynn, Acting Asst. Atty. Gen., with her on the briefs), E.E.O.C., Washington, D.C., for plaintiff-appellee/cross-appellant.

Chris Wangsgard (Patrick J. O'Hara, with him on the briefs), Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, for defendant-appellant/cross-appellee.

Before LOGAN and SETH, Circuit Judges, and BOHANON, District Judge. ^*

LOGAN, Circuit Judge.

In this age discrimination case, the Equal Employment Opportunity Commission (EEOC) alleges that defendant Sperry Corporation (Sperry) improperly discharged and then failed to rehire Elizabeth Koyen, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq.

After a jury found for EEOC and Koyen at trial, both parties appealed. Because all other issues depend on an initial finding of liability, we need address only one issue here: Whether the district court improperly denied Sperry's motions for a directed verdict and judgment n.o.v.

Elizabeth Koyen, a clerical worker for Sperry in Salt Lake City, then 54 years of age, took a leave of absence from January 8, 1979, until June 8, 1979, to permit her to move to Hawaii to consider a marriage proposal. Shortly before the end of her leave, she tried to get her old job back at Sperry. When told that the position had been filled, she applied for other openings at Sperry without success. ¹ In suing Sperry on Koyen's behalf, EEOC argues that the facts support four separate theories of age discrimination. Because the case turns on whether the evidence supports the jury's finding of intentional discrimination, we set forth each of these theories in some detail and weigh every reasonable inference from the facts in evidence in favor of EEOC. We conclude that EEOC did not present sufficient evidence to prove discrimination on any of these theories.

I

In reviewing an appeal from a denial of a motion for judgment n.o.v., we uphold the district court "unless the evidence points but one way and is susceptible to no reasonable inferences which may sustain the position of the party against whom the motion is made." Symons v. Mueller Co., 493 F.2d 972, 976 (10th Cir.1974). The nonmovant's position, however, must be supported by more than a scintilla of evidence, id.; there must be evidence upon which the jury could properly find a verdict for the nonmovant. Hurd v. American Hoist & Derrick Co., 734 F.2d 495, 499 (10th Cir.1984). Such evidence is lacking in this case.

Under the ADEA, plaintiff must prove that age was a determining factor in defendant's treatment of the complaining employee. Perrell v. FinanceAmerica Corp., 726 F.2d 654, 656 (10th Cir.1984). Plaintiff need not prove that age was the sole reason for the employer's acts, but must show that age "made the difference" in the employer's decision. EEOC v. Prudential Federal Savings & Loan Ass'n, 763 F.2d 1166, 1170 (10th Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985).

Courts regularly adapt the framework developed in the Title VII cases, 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), to individual disparate treatment claims under ADEA. See EEOC v. University of Oklahoma, 774 F.2d 999, 1002 (10th Cir.1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1637, 90 L.Ed.2d 183 (1986). As so adapted, a plaintiff establishes a prima facie case by showing that (1) the affected employee was within the protected age group; (2) she was doing satisfactory work; (3) she was discharged despite the adequacy of this work; and (4) a younger person replaced her. Cockrell v. Boise Cascade Co., 781 F.2d 173, 177 (10th Cir.1986). The burden of production then shifts to defendant to show that a legitimate, nondiscriminatory reason motivated the decision. Id. Finally, plaintiff must rebut the employer's showing by demonstrating that the proffered justification is a pretext. Id. When both parties have presented their evidence, the central question becomes whether plaintiff has presented enough evidence to permit a reasonable factfinder to conclude that age was a determinative factor in the employer's decision. Prudential Federal Savings & Loan, 763 F.2d at 1171. It is to this question which we now turn.

A

EEOC's first theory alleges that Sperry promised to return Koyen to her former job, if still open at the end of her leave, and that Sperry breached this promise. More specifically, EEOC claims that Koyen's former position was vacant when she called Sperry to indicate that she wished to return to Sperry at the end of her leave. Sperry disagrees. Koyen worked for Sperry in Salt Lake City from January 1962 until January 1979, when she took her leave. After being on leave for over a month, Koyen returned to Salt Lake City in February 1979, where she had lunch with her former supervisor, Rita Morgan, and other coworkers. During the course of this lunch, Koyen remarked that she was seriously considering returning to work at Sperry, V R. 164; VII R. 439-42, but did not state that she would definitely return. Koyen did not express a definite intent to return to Sperry until May 25, 1979, when she notified Morgan that she would return when her leave expired. VII R. 444-46, 500.

EEOC argues that Sperry scrambled to fill Koyen's position after learning on May 25 that she would return, and that this scrambling occurred in response to Koyen's May 25 phone call. The only evidence of this is the testimony of Joyce Shadrick, the woman who had temporarily filled Koyen's position when Koyen commenced her leave. Shadrick recollected that she gave notice on May 25 of her resignation from Sperry and left that very same day. V R. 165, 168. The crux of EEOC's argument is that Shadrick's testimony would allow a reasonable jury to find that Koyen's old position was vacant when she telephoned Morgan on May 25, 1979, and that Morgan shuffled employees in her unit to make the position appear filled.

The record, however, does not reasonably support this inference. The entire evidence clearly shows that Sperry had known of Shadrick's impending departure for "a couple of months" before May 25, V R. 166-67, and that Morgan on May 23 prepared personnel documents in response to Shadrick's resignation. VIII R. 642-43, Ex. 57-b. Evidence also shows that Sperry decided to transfer another worker, Donna Hansen, into Koyen's job, V R. 81-82, 116, 120-21, and interviewed and hired a replacement for Hansen, Kathleen Ives, on May 24. VIII R. 642-46; V R. 159. ² Finally, Koyen herself testified that Morgan told her during the May 25 phone call, "I wish you had called me yesterday because I just promised your job to someone else." VII R. 446 (see also testimony of Morgan, V R. 121).

In sum, the evidence overwhelms EEOC's case on this theory. The only conflict is between Shadrick's recollection of her resignation date and Sperry's memorialization, in unchallenged personnel records, of the actual resignation date. Contemporaneous documentation is more reliable than a witness' memory of an event which occurred years earlier; and Sperry's other evidence as well as Koyen's own testimony support the personnel records. The jury could not rationally infer from the evidence that Koyen's old job was open and unfilled on May 25, the date of her call; the only rational inference is that all personnel decisions concerning Koyen's old position had been made before May 25.

We also reject EEOC's claim that Sperry "knew," on the basis of the February 1979 luncheon, that Koyen would return at the end of her leave. The record is clear that Koyen stated only that she was "seriously considering" going back to Sperry, not that she had made up her mind to return. V R. 164; VII R. 439-42. Further, EEOC's allegation, even if true, does not state a valid claim under the ADEA. If Sperry knew of Koyen's impending return, her only potential claim would be under state law for breach of contract. ³ To state an ADEA claim, EEOC must show that Sperry honored its contracts only with younger workers or showed some discriminatory animus against older employees.

B

EEOC's second theory of discrimination asserts that even if Koyen's former position was no longer vacant on May 25, the jury could infer intent to discriminate from the operation of Sperry's personnel policies, particularly its Internal Placement System (IPS). Under the IPS Sperry gives the first opportunity to apply for certain open positions to those workers already at Sperry. The IPS rules state, however, that an employee returning from a leave whose former position is taken cannot compete for that job through the IPS. The operation of the IPS, together with Koyen's inability to compete through it, made it very unlikely that she could regain her old position. V R. 216-18.

EEOC concedes that the IPS limited the positions available to employees returning from leaves, and that it did so in a way which, by its terms, did not discriminate against older applicants. EEOC argues, however, that the IPS was "not the true reason for Sperry's decision not to rehire Ms. Koyen, but rather a pretext for discrimination." Answer-Opening Brief of EEOC at 19. This pretext argument, however, wholly lacks support. EEOC presented no evidence of how Sperry manipulated the IPS so that it would operate differently in Koyen's case than for other individuals; and no other evidence suggested that Sperry in other instances either used or...