Fallis v. Kerr-McGee Corp.

• Decision Date: 10 September 1991
• Docket Number: KERR-M,Nos. 89-6304,89-6318,s. 89-6304
• Parties: 56 Fair Empl.Prac.Cas. (BNA) 1462, 57 Empl. Prac. Dec. P 40,936 J. Fred FALLIS, Plaintiff-Appellee/Cross-Appellant, v.cGEE CORPORATION, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 743

944 F.2d 743

56 Fair Empl.Prac.Cas. (BNA) 1462,

57 Empl. Prac. Dec. P 40,936

J. Fred FALLIS, Plaintiff-Appellee/Cross-Appellant, v. KERR-McGEE CORPORATION, Defendant-Appellant/Cross-Appellee.

Nos. 89-6304, 89-6318.

United States Court of Appeals, Tenth Circuit.

Sept. 10, 1991.

Ben A. Goff of Goff and Meador, Dallas, Tex., for plaintiff-appellee/cross-appellant.

Carolyn Gregg Hill, Oklahoma City, Okl., for defendant-appellant/cross-appellee.

Before ANDERSON, BARRETT and TACHA, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Defendant Kerr-McGee Corporation appeals from a district court judgment awarding plaintiff J. Fred Fallis jury-determined damages and attorney's fees on a claim brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. ¹ Plaintiff cross-appeals challenging the size of the damages verdict and the district court's calculation of attorney's fees. Because we conclude that plaintiff failed to present a triable issue of age discrimination and, therefore, hold that Kerr-McGee is entitled to judgment as a matter of law, we do not reach the matters raised on plaintiff's cross-appeal. See Mitchell v. Mobil Oil Corp., 896 F.2d 463, 473 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 252, 112 L.Ed.2d 210 (1990).

Plaintiff was terminated in March 1986 by Kerr-McGee when he was fifty-three years old and employed as a senior exploration geologist. Kerr-McGee's explanation was that plaintiff was let go along with other geologists during a reduction in force necessitated by economic conditions. The decision to terminate plaintiff and the other geologists, according to Kerr-McGee, was based solely on their location and their 1985 performance evaluations.

Under Kerr-McGee's evaluation system, plaintiff's performance was assessed by his supervisor on three grounds: (1) what work he did, i.e., the quality and quantity of his work and his effectiveness in meeting job-related objectives; (2) how he worked, i.e., his demonstrated job knowledge and his effectiveness in working with normal supervision, planning and organizing job assignments, working with others, and communicating; and (3) his skills, i.e., analytical ability, judgment, initiative, dependability, and ability to meet deadlines. See Addendum to Opening Brief of Appellant at 2. The evaluation system called for utilizing these factors to assign plaintiff an overall performance score on a scale of 1 to 5, with 1 the highest performance level and 5 the lowest.

Plaintiff, in 1985, was initially rated a "4" by his immediate supervisor. However, when his performance was ranked with that of other geologists at Kerr-McGee and fitted into a bell curve, plaintiff was the lowest ranked geologist. Therefore, plaintiff's "4" rating was changed to a "5." According to Kerr-McGee, United States-based geologists whose performances were rated "4" or "5" were let go in the March 1986 reduction in force.

At the trial, Kerr-McGee moved for a directed verdict at the close of the evidence and, later, for judgment notwithstanding the verdict (JNOV), in both instances insisting that as a matter of law, plaintiff had not met his burden of proof on the elements of age discrimination. The district court denied both motions. These twin rulings, see Zimmerman v. First Fed. Sav. & Loan Ass'n, 848 F.2d 1047, 1051 (10th Cir.1988), claim our de novo review under the same standard applied by the district court, Guilfoyle ex rel. Wild v. Missouri, Kan. & Tex. R.R., 812 F.2d 1290, 1292 (10th Cir.1987). That is, "[w]e will reverse the trial court's denial of a motion for a directed verdict or [JNOV] only if, viewed in the light most favorable to the nonmoving party, the evidence and all reasonable inferences to be drawn therefrom point but one way, in favor of the moving party." Mitchell, 896 F.2d at 467.

At this stage in the proceedings, after a full trial on the merits, the sequential analytical model adopted from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-04, 93 S.Ct. 1817, 1823-25, 36 L.Ed.2d 668 (1973), consisting of (1) the plaintiff's prima facie case of age discrimination, (2) the defendant's legitimate business justification, and (3) the plaintiff's rebuttal showing of pretext and/or improper motivation, which guided the trier's consideration of this case, drops out and we are left with the single overarching issue whether plaintiff adduced sufficient evidence to warrant a jury's determination that adverse employment action was taken against him on the basis of age. Messina v. Kroblin Transp. Sys., Inc., 903 F.2d 1306, 1308 (10th Cir.1990); see also Pitre v. Western Elec. Co., 843 F.2d 1262, 1266 (10th Cir.1988). In his appellate brief, plaintiff raises numerous factual claims which he asserts could justifiably lead a reasonable jury to conclude that Kerr-McGee discharged him on the basis of his age. See Brief of Appellee at 3-8. ² We will take each of plaintiff's factual claims individually.

First, plaintiff asserts that Kerr-McGee's performance rating system was inherently biased against older workers. To support this argument, plaintiff points out that first-year employees were excluded from the evaluation scheme. Plaintiff also relies on testimony at trial from his supervisors for the years 1981-85 who evaluated plaintiff's performance and stated that plaintiff was in a high-level position and more was expected of him than lower-level, presumably younger, geologists. See Tr. pp. 132, 151-52. Apparently, plaintiff believes that the higher standard he was held to should have been taken into account when the March 1986 reduction in force was implemented.

In our view, plaintiff's specific arguments merely indicate that age may have entered indirectly into the decision to terminate him, but plaintiff fails to establish that the decision was not controlled by other nondiscriminatory factors. Not evaluating first-year employees when there is no basis upon which to assess their performance does not suggest age discrimination. Similarly, Kerr-McGee's evaluation of plaintiff on a higher standard than that used on younger, less experienced geologists who were not in plaintiff's position also does not raise an inference of age discrimination. The pivotal issue, in our view, is whether it was a sham to hold plaintiff to such higher expectations. If other geologists similarly situated to plaintiff were not held to higher standards vis-a-vis lower-level geologists, or if all geologists at Kerr-McGee essentially did the same type of work and plaintiff's duties or responsibilities as a senior exploration geologist were no different from other geologists, then Kerr-McGee's evaluation of plaintiff under criteria different from that used on other geologists could support an inference of age discrimination. However, plaintiff presented no evidence to indicate that Kerr-McGee could not justifiably evaluate him under standards higher than those applied to lower-level, younger geologists. Thus, plaintiff has not established any unfairness in Kerr-McGee's evaluation scheme that would support an inference of age discrimination.

That said, the next question is whether it was permissible for Kerr-McGee to terminate plaintiff without taking into account the higher standard plaintiff was held to. In our view, the failure to take into account the higher standard would only be a problem if plaintiff had some right to compete with the other Kerr-McGee geologists for the lower-level geologist positions that remained following the March 1986 reduction in force. If this were the case, then all geologists at Kerr-McGee would have been competing for the same positions, and plaintiff would have been denied one of those positions because of a standard not applicable to those positions and not applied to other geologists. However, as with the absence of evidence that Kerr-McGee's method of evaluating plaintiff was a sham, plaintiff has failed to establish that he had any rights, regardless the source, to compete for the remaining lower-level geologist positions. The only job open to plaintiff was senior exploration geologist. His performance was measured against the yardstick appropriate for that job, and he failed to measure up. This does not evidence age discrimination.

As his next theory of discrimination, plaintiff argues that statistical evidence regarding the geologists terminated by Kerr-McGee during the March 1986 reduction in force supports an inference of age discrimination. The statistical evidence in this case shows that Kerr-McGee employed fifty-one nonmanagerial geologists, including plaintiff, at the time of the March 1986 reduction in force. See Tr. 197 (testimony of Gene Ratcliff, vice president of exploration in oil and gas division of Kerr-McGee). Of those fifty-one geologists, forty-two were under forty, and nine were over forty. Id. As a result of the March 1986 reduction in force, four of the forty-two geologists under forty, i.e., 10%, were laid off, while three of the nine geologists over forty, i.e., 33%, were let go. Id. ³

It is uniformly recognized that statistical data showing an employer's pattern of conduct toward a protected class can create an inference that an employer discriminated against individual members of the class. See Barnes v. GenCorp Inc., 896 F.2d 1457, 1466 (6th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 211, 112 L.Ed.2d 171 (1990). However, we...