Greene v. Safeway Stores, Inc.

• Decision Date: 15 October 1996
• Docket Number: No. 95-1122,95-1122
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 85, 69 Empl. Prac. Dec. P 44,501, 65 USLW 2319 Robert D. GREENE, Plaintiff-Appellant, v. SAFEWAY STORES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 554

98 F.3d 554

72 Fair Empl.Prac.Cas. (BNA) 85, 69 Empl.

Prac. Dec. P 44,501,

65 USLW 2319

Robert D. GREENE, Plaintiff-Appellant, v. SAFEWAY STORES, INC., Defendant-Appellee.

No. 95-1122.

United States Court of Appeals, Tenth Circuit.

Oct. 15, 1996.

Elizabeth C. Moran of Pryor, Carney and Johnson, P.C., Englewood, CO (Thomas L. Roberts, Greenwood Village, CO, and JoAnne M. Zboyan and Kimberly B. Turnbow of Pryor, Carney and Johnson, P.C., Englewood, CO, with her on the brief), for Plaintiff-Appellant.

Gregory A. Eurich (David D. Powell and Fiona W. Ong with him, on the brief), of Holland CO, for Defendant-Appellee.

Before TACHA, HOLLOWAY, and BRISCOE, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-Appellant Robert D. Greene appeals from a judgment of the district court granting Defendant-Appellee Safeway Stores, Inc. judgment as a matter of law under Fed.R.Civ.P. 50(a) at the close of Greene's case at trial on his claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. We have jurisdiction under 28 U.S.C. § 1291 and reverse and remand for a new trial.

I

Considering the evidence in the light most favorable to plaintiff Greene, as we must due to the posture of this appeal, there is evidence tending to show the following facts:

Greene went to work at Safeway as a courtesy clerk in 1957 in McCook, Nebraska while still in high school. He moved to Denver in 1960 and in 1961 became a produce manager at a Safeway store. I Aplt.App. at 264-65. In 1967, at the age of 26 he became a store manager, the youngest manager in Safeway's Denver Division. In 1975 he became a retail operations manager in Little Rock, Arkansas. Two years later he came back to Denver as retail operations manager. Less than five years later, Greene became a marketing operations manager in Houston. Id. at 267-68. In 1986 Greene became division manager for the Denver Division of Safeway, a position he held for a little over seven years. Aple.App. at 208.

Around this time, Safeway began encountering some financial difficulties. The profit levels in 1986 were discouraging and there was concern then about a hostile takeover attempt. I Aplt.App. at 364. A leveraged buyout, which was worked on with Kohlberg, Kravis & Roberts, was completed in November 1986. Id. at 366-68. After a long family association with Safeway, Mr. Peter Magowan resigned as Chief Executive Officer in March 1993 at 51 years of age, having already stepped down as President in October 1992. I Aplt.App. at 341. In October 1992, Mr. Steve Burd became President of Safeway at 42 years of age. I Aplt.App. at 151.

In an inter-office communication to Greene dated April 6, 1993, Bob Kinnie, Greene's immediate supervisor and Safeway's Chief Operating Officer, congratulated Greene and the " 'Denver team' for the fine results reported for the third period and for the first quarter of 1993!" II Aplt.App. at 459 (emphasis in original). The Denver Division met and exceeded numerous performance measures of its 1993 business plan in January-June 1993, although "same store sales"--sales in stores at least one-year old--declined in the first quarter of 1993 compared to the first quarter of 1992. I Aplt.App. at 390-95; id. at 253-55. Mr. Burd was questioned at trial about Safeway "town meetings" on cost-cuttings. At these meetings he said he was "enthusiastic" about the Denver experience, and he admitted he did "tout" the Denver experience in the town meetings on November 16 and 17, 1992. I Aplt.App. at 156-57. ¹

On June 10, 1993, Greene was called to an evening meeting at Mr. Burd's hotel room in Denver. Also present at that meeting was Mr. Ken Oder, an attorney who had recently joined Safeway as an executive vice president. I Aplt.App. at 225-27. At the meeting, Burd fired Greene.

Burd said to Greene: "Bob, you've done a good job turning the division around, you've done a good job and people respect you and like you in the stores, but I--I want to move forward with my new team and I just don't have a place for you on the new team." Id. at 228. At that time Greene was 52 years of age (his birth date being November 7, 1940, I Aplt.App. at 224) and 28 months away from vesting in a supplemental executive pension plan (SESBP) in which vesting was based on reaching age 55. II Aplt.App. at 815F. Mr. Burd gave the following reasons for Greene's discharge: (1) Greene was a "poor merchandiser"; (2) his division had "plateaued out or had declining same store sales"; (3) Greene was "pessimistic" about Safeway's dealings with its big competitor, King Soopers; and (4) Greene intimidated his staff. I Aplt.App. at 228-29. Greene was replaced by Mr. John King, a 57-year-old marketing operations manager from Safeway's Seattle Division. Mr. Burd testified that he told King at the time King was taking over the Denver Division that the SESBP plan would not be in place for him. II Aplt.App. at 706. King acknowledged that Burd told him "right up front" that King would not be eligible for that plan. I Aplt.App. at 331. King told the first staff meeting he held after it was announced he would be the Denver division manager that he was as surprised as they were and that he was only going to be around "for a couple of years." King was going to retire in Seattle. Id. at 387-88.

Greene brought this suit in October 1994 alleging that Safeway fired him in violation of the ADEA, § 510 of the Employee Retirement Income Security Act (ERISA) (29 U.S.C. § 1140), and various state laws. His complaint alleged discriminatory treatment against him on the basis of his age contrary to the ADEA, inter alia. Aple.App. 0013-14. At the beginning of trial, Greene withdrew his state law claims and proceeded on the ADEA and ERISA claims only. At the close of Greene's case-in-chief, Safeway moved for judgment as a matter of law on both federal claims. The district court granted Safeway's motion as to Greene's ADEA claim, but denied it as to Greene's ERISA claim. Aple.App. 78-103.

The essence of the judge's oral ruling granting Safeway judgment as a matter of law on the ADEA claim was that, while under St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), the McDonnell Douglas burden shifting approach in a sense had dropped from the case, it remained helpful in determining whether there was enough evidence to go to the jury, I Aplt.App. at 81; and that disbelief of a defendant's proffered reasons for a discharge would not, standing alone, support a finding of discrimination. Id. at 87. The judge stressed that the fourth element of a prima facie age discrimination case, "replacement by a younger worker, ... remains problematic in this case." Id. at 98. This element was not shown here. While the burden shifting approach was not inflexible, there was not comparable evidence to fulfill that purpose here and the case foundered on this element. Id. at 98. After the trial was completed, the district judge entered judgment in favor of Safeway on the ERISA claim. Greene appeals only from the judgment in favor of Safeway on his ADEA claim.

On March 19, 1996, after this appeal had been argued and submitted, we abated this proceeding on our own motion pending the decision of the Supreme Court in O'Connor v. Consolidated Coin Caterers Corp., --- U.S. ----, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), which was decided on April 1, 1996. After the Court issued its opinion in O'Connor, we ordered the parties to file supplemental briefs addressing the applicability of O'Connor to the instant case. We have considered those briefs as well as the parties' arguments and previously submitted briefs. We conclude that the judgment of the district court, which denied submission of Greene's ADEA claim to the jury, must be reversed and that the case should be remanded for a new trial.

II

A

We review de novo the grant or denial of a judgment as a matter of law, Corneveaux v. Cuna Mutual Ins. Group, 76 F.3d 1498, 1502 (10th Cir.1996), and apply the same legal standard as the district court and construe the evidence and inferences in the light most favorable to the nonmoving party without weighing the evidence, passing on the credibility of witnesses, or substituting our judgment for that of the jury. Brown v. Wal-Mart Stores, 11 F.3d 1559, 1563 (10th Cir.1993). Judgment as a matter of law is appropriate "only where the evidence and all inferences to be drawn therefrom are so clear that reasonable minds could not differ on the conclusion." Motive Parts Warehouse v. Facet Enterprises, 774 F.2d 380, 385 (10th Cir.1985). Unless the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion, id. at 386, judgment as a matter of law is improper.

B

The ADEA provides in pertinent part that "[i]t shall be unlawful for an employer ... to discharge any individual or otherwise discriminate 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). The protective provisions of the ADEA, however, are "limited to individuals who are at least 40 years of age." 29 U.S.C. § 631(a). The ADEA thus "bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older." O'Connor v. Consolidated Coin Caterers Corp., --- U.S. at ----, 116 S.Ct. at 1310. The promulgation of the ADEA was prompted by Congress' "concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993). The Act commands that "employers are to evaluate [older] employees ... on their merits and not their age." Id. at 611, 113 S.Ct. at 1706 (quoting Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 422, 105 S.Ct. 2743, 2756, 86 L.Ed.2d 321 (1985)). "The employer cannot rely on age as a...