E.E.O.C. v. University of Oklahoma, s. 84-1475

• Decision Date: 02 October 1985
• Docket Number: 84-1571,Nos. 84-1475,s. 84-1475
• Citation: 774 F.2d 999
• Parties: 38 Fair Empl.Prac.Cas. 1751, 38 Empl. Prac. Dec. P 35,569, 28 Ed. Law Rep. 25 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, Cross-Appellee, v. UNIVERSITY OF OKLAHOMA, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 999

774 F.2d 999

38 Fair Empl.Prac.Cas. 1751,

38 Empl. Prac. Dec. P 35,569, 28 Ed. Law Rep. 25

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff-Appellant, Cross-Appellee, v. UNIVERSITY OF OKLAHOMA, Defendant-Appellee, Cross-Appellant.

Nos. 84-1475, 84-1571.

United States Court of Appeals Tenth Circuit.

Oct. 2, 1985.

Warren Bo Duplinsky, Atty. (Johnny J. Butler, Gen. Counsel, Philip B. Sklover, Associate Gen. Counsel, and Susan Buckingham Reilly, Atty., with him on briefs), E.E.O.C., Washington, D.C., for plaintiff-appellant, cross-appellee.

Susan Gail Seamans, The University of Okl., Norman, Okl. (Stanley M. Ward and Kurt F. Ockershauser, The University of Okl., Norman, Okl., and Melvin F. Pierce, Oklahoma City, Okl., with her on brief), for defendant-appellee, cross-appellant.

Before MOORE, and SETH, Circuit Judges, and MATSCH, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

This is an appeal in an age discrimination case filed by the Equal Employment Opportunity Commission (EEOC) on behalf of Marion E. Clark against the University of Oklahoma (OU). The EEOC appeals from an order granting OU's motion for judgment notwithstanding the verdict (j.n.o.v.) on the finding of age discrimination. In a cross appeal, OU seeks to set aside a verdict that OU retaliated against Clark because she had filed an age discrimination complaint with the EEOC. The questions presented are whether the evidence justifies the interference with the verdict and whether the jury was improperly influenced by conduct of counsel in arriving at its verdict on retaliation. We conclude the verdict was improperly set aside and that the record does not support the claim of improper conduct. We therefore reverse in part and affirm in part.

Marion Clark, age 59 when this action was filed, is a cartographer in the Cartography Section (the section) of the Oklahoma Geological Survey (OGS or the Survey), a department of OU. Dr. Charles Mankin is the director of the OGS. Roy Davis, who was age 54 at the time of the subject events, was the head of the section. An undercurrent of rancor and animosity among Davis, Mankin, and Clark eventually precipitated the resignation of Davis as section chief, although he stayed on with the section as senior cartographer.

A search for a new chief was announced. Clark, who had worked in the section since 1957, was the only internal applicant ¹ for the promotion. Departing from the usual OU practice, Mankin advertised the position nationally and attracted several applications. The final choice was narrowed to Marion Clark, T. Wayne Furr (then age 36), and Richard Dillon (then age 43). After interviews and discussions in which a search committee actively participated, Mankin distributed a series of secret ballots ² pairing the three final candidates to determine the preferred candidate. Furr received the most votes.

The parties stipulated to a prima facie case under the Age Discrimination in Employment Act (ADEA): that Marion Clark applied for an available position for which she was qualified, but was rejected under circumstances which gave rise to an inference of unlawful discrimination. Evidence of OU's legitimate, nondiscriminatory objectives in its employment decision was received, to which the EEOC offered testimony to show that the proffered reasons were pretextual. The jury also heard conflicting testimony related to OU's alleged retaliation against Clark.

In granting OU's motion for j.n.o.v., 554 F.Supp. 735, the district court reviewed the conflicting evidence within a scheme of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and concluded it was "satisfied that there was no evidence whatsoever that the defendant's decision was based on age discrimination." The court rejected as "murky theories" the inferences that the jury drew from the EEOC's circumstantial evidence, finding instead that the evidence viewed as a whole could not support a finding of age discrimination.

The EEOC contends that the trial court reweighed the evidence and substituted its determination of credibility for that of the jury, thus erroneously granting j.n.o.v. in favor of OU. OU cross appeals the finding of retaliation, which was not raised in the motion for j.n.o.v., and argues that the jury was improperly confused and prejudiced by the EEOC.

I. Judgment Notwithstanding the Verdict

In EEOC v. Prudential Federal Savings & Loan Assn., 763 F.2d 1166 (10th Cir.1985), we reiterated the standard for granting of j.n.o.v. Only when "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" is j.n.o.v. appropriate. Id. at 1171 (citation omitted). "The question in each instance is not whether there is no evidence supporting the party against whom the motion is made, but whether there is evidence upon which the jury could probably find a verdict for that party." Yazzie v. Sullivent, 561 F.2d 183 (10th Cir.1977). While a scintilla of evidence is insufficient to submit the case to the jury, Symons v. Mueller Co., 493 F.2d 972 (10th Cir.1974), the trial court cannot deprive the non-moving party of a jury determination unless it is certain that the evidence "conclusively favors one party such that reasonable men could not arrive at a contrary verdict." Western Plains Service Corp. v. Ponderosa Development Corp., 769 F.2d 654, 656 (10th Cir.1985). This standard must be rigorously applied in Title V cases.

Our review of the record, guided by these concerns, mandates the conclusion that, in granting j.n.o.v., the district court reweighed the evidence and factored in its view of the credibility of the witnesses. While much of the evidence was circumstantial, all of the evidence and any inferences logically flowing therefrom must be examined to determine whether the jury's verdict was a reasonable conclusion and not an irrational speculation. Although the evidence is far from conclusive, we believe it is sufficient to support the jury's verdict.

II. Age Discrimination

We, too, have organized the record within the order of proof set forth in McDonnell Douglas, supra, and Burdine, supra. The stipulation to the prima facie case of age discrimination "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (cited in Burdine ). With the stipulation, the burden of going forward shifted to the employer to rebut the presumption of discrimination by producing evidence that the employer's choice was motivated by a legitimate, non-discriminatory reason. If, by admissible evidence, the employer's explanation raises a genuine issue of fact that is legally sufficient to permit judgment in its favor, the burden of proof returns to the plaintiff. "[T]he factual inquiry proceeds to a new level of specificity." Burdine at 256, 101 S.Ct. at 1095. At that point, the plaintiff must demonstrate that the proffered reason is not the true reason and that a discriminatory purpose actually motivated the employer. The Burdine court explained that the plaintiff's proof at this stage may be either direct, by persuading the court that a discriminatory reason more likely motivated the employer, or indirect, by showing that the employer's proffered explanation is unworthy of credence. Burdine at 257 (citation omitted). This sequence of proof can be distilled into the question: Has the plaintiff produced sufficient evidence to permit a reasonable fact finder to conclude that age was a determining factor (not the single factor necessarily, but that age made the difference) in the employer's decision? EEOC v. Prudential Federal Savings & Loan, 763 F.2d 1166, 1171 (10th Cir.1985); Hagelthorn v. Kennecott Corp., 710 F.2d 76, 83 (2nd Cir.1983). Where there is evidence of both a discriminatory reason and a legitimate reason, the fact finder must decide whether the promotion would have been granted but for the plaintiff's age. Hagelthorn at 83.

OU offered evidence that enhancing the productivity of the section and injecting positive management skills were paramount factors in its search for a new section chief. Mankin testified there was general concern that the cartography section was not performing at a satisfactory level; that the performance of the section needed to be evaluated; and that new leadership was necessary to implement these goals. On cross-examination, however, Mankin admitted he had no way of knowing the productivity of the section, and he had no quantitative measure to demonstrate the fact. Eloise Dee Reynolds, appointed by the office of the provost to investigate Clark's grievance, testified that her committee found that management freely admitted that there was no method of measuring productivity prior to the selection of a new chief. Davis, the former section chief, testified that Mankin had never talked to him about productivity. To the contrary, the minutes of a cartography unit meeting held the year before Davis stepped down included Mankin's commendation of the section for the quantity and quality of its work.

Several other witnesses testified that in their perception no one in the section was responsible for a work bottleneck. Section members recalled that deadlines were rarely met, but on-going assignments would be routinely interrupted to work on projects that, they were told, had a higher priority.

In his deposition read at trial, Salman Bloch stated that Mankin told the search committee that productivity was low and only two of the candidates could turn that around. However, Bloch's testimony relating to Mankin's leadership of the Survey also echoes that of other...